Filed 3/25/20 Holden v. Patterson CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

MELISSA HOLDEN,

Plaintiff and Respondent,

v.

RYAN PATTERSON,

Defendant and Appellant.

A156703

(San Francisco County

Super. Ct. No. FDV-18-814347)

Appellant Ryan Patterson appeals from a restraining order issued under the Domestic Violence Protection Act (DVPA; Fam. Code, § 6200 et. seq). We dismiss Patterson’s appeal as untimely.

I. FACTUAL AND PROCEDURAL BACKGROUND

On December 4, 2018, respondent Melissa Holden filed a request for a domestic violence restraining order against Patterson, her former romantic partner. Holden stated that several weeks earlier, Patterson used her personal information to place advertisements inviting people to send nude photos to Holden, subscribe her to online newsletters containing lewd content, apply for quotes for personal loans, home restoration services, and construction, and contact sellers on Craigslist for advertised items and services, including television sets, rescued dogs, and tours around San Francisco. Holden claims she suffered from mental turmoil after receiving numerous calls, emails, text messages, and other content as a result of Patterson’s “internet harassment.”

Holden also recounted several instances in 2013 through 2015 in which Patterson physically abused her, resulting in physical and emotional injuries. Holden requested that the court order Patterson to stay at least 100 yards away from her and cease further contact and harassment. A day later, the family court granted Holden a temporary restraining order and filed and served a notice of hearing on Holden’s restraining order request for December 21, 2018.

Patterson filed a written response denying he committed physical violence or internet harassment against Holden. He further argued that Holden’s claims amounted to no more than badgering, which Patterson contended was not “abuse” as defined in the DVPA (§§ 6320, subd. (a); 6203) to warrant a restraining order.

On December 21, 2018, the family court held a hearing on Holden’s petition. Both parties were present. At the conclusion of the hearing, the court filed a “Restraining Order After Hearing,” which granted Holden a two year restraining order against Patterson. The order reflected that both parties were present at the hearing and had been personally served and that “[n]o other proof of service is needed.” The court’s minute order on that date specified that the “Court prepared, signed and filed the Restraining Order After Hearing and presented parties with file endorsed copies in open Court.”

On February 21, 2019, Patterson filed a notice of appeal.

II. DISCUSSION

We have a duty to consider sua sponte whether this court has jurisdiction to hear an appeal. (See Jennings v. Marralle (1994) 8 Cal.4th 121, 126–127; Cal. Rules of Court, rule 8.104(b).) The record raises a question as to whether Patterson timely filed his notice of appeal. We conclude he did not.

“There are no unique jurisdictional time limits for appeals from domestic violence restraining orders. As with other appeals, there is a 60-day time limit for restraining orders which are properly served, either through a notice of entry of judgment, or through service by the clerk or party of a file stamped copy of the order. (Cal. Rules of Court, rule 8.104(a).) Otherwise, the outside 180-day filing limit applies.” (In re Marriage of Lin (2014) 225 Cal.App.4th 471, 473.) A proper method of service includes personal delivery of the notice or order upon a party or attorney. (See rule 8.104(a)(2); Code Civ. Proc., § 1011.)

The record reflects that at the December 21, 2018 hearing, both parties were personally served in court with a file-endorsed copy of the restraining order. The order noted that both parties were present at the hearing and therefore “[n]o other proof of service is needed.” The court’s minute order on that date specified that the “Court prepared, signed and filed the Restraining Order After Hearing and presented parties with file endorsed copies in open Court.” Because the court served a file-stamped copy of the restraining order in the manner required by rule 8.104(a)(1)(A), the 60-day deadline under that rule, as opposed to the 180-day deadline in rule 8.104(a)(1)(C), applies in this case.

Patterson had 60 days from December 21, 2018 to file a notice of appeal. (Rule 8.104(a)(1)(A).) Patterson filed his notice of appeal on February 21, 2019, more than 60 days after the court filed and served both the restraining order and minute order. Accordingly, we conclude his appeal from the restraining order is untimely and must be dismissed. (Rule 8.104(b).)

III. DISPOSITION

The appeal from the December 21, 2018 order is dismissed as untimely.

_________________________

Sanchez, J.

WE CONCUR:

_________________________

Margulies, Acting P.J.

_________________________

Banke, J.

A156703 Holden v. Patterson