Richard James v. Michael Acker, 18CV-0168
Hearing: Motion to Set Aside Dismissal and Re-Calendar Hearing
Date: May 23, 2018
On March 26, 2018, Richard Duncan James (“Petitioner”) filed a request for civil harassment
restraining order (the “Request”) seeking protection from Michael Acker (“Respondent”), on
behalf of himself and his family. In his Request, made under penalty of perjury, Petitioner
claimed Respondent “threatened to contact everyone and anyone in my family to get the truth
about his ex-wife.” (Request, ¶ 3.b.) Petitioner claimed Respondent was “determined” that
Petitioner was dating Respondent’s ex-wife, and Petitioner feared Respondent “may cause harm
or harassment to my family if I do not respond to what he wants.” (Ibid.) Petitioner also claimed
that Respondent stated he would “come see [Petitioner] personally at home or at my workplace”
if Petitioner refused to talk to him. (Id. at ¶ 7.a.3.) Petitioner claimed Respondent’s wife had a
separate restraining order against Respondent. (Ibid.) On March 26, 2018, Petitioner’s Request
was granted, with the temporary restraining order (“TRO”) set to expire on April 12, 2018, the
same date as the order to show cause (“OSC”) hearing on Petitioner’s Request.
Prior to the April 12, 2018 hearing, on April 5, 2018, Petitioner filed a request for dismissal
without prejudice. Also on April 5, 2018, Respondent filed a response to Petitioner’s Request.
Respondent noted that he did not agree to any of the orders requested in Petitioner’s Request,
and requested Petitioner be responsible for Respondent’s incurred attorney’s fees and costs.
Respondent submitted a lengthy attachment (“the Response”) in which he averred:
• Respondent did not receive notice of the ex parte hearing upon which Petitioner’s Request
was granted, in violation of San Luis Obispo Local Rule 15.00(a).1

(Response, ¶ 1.)

• Petitioner perjured himself in his Request. (Response, ¶ 2.)
• Petitioner was Respondent’s wife’s “lover,” and had been having an affair with Respondent’s
wife since January. (Response, ¶ 4.)
• Respondent’s wife is “severely emotionally disturbed,” on a “scorned lover warpath,” has
been “diagnosed with PTSD,” and “suffers from narcissistic tendencies….” (Response, ¶ 5.)

1
The Rule provides: “Except as provided by California Rules of Court section 3.1204(b) and/or Code of Civil
Procedure section 527.6, a party seeking an ex parte order must notify the opposing party or parties of the
request. Such notification shall take place no later than 10:00 a.m. the court day before the ex parte appearance,
absent a showing of exceptional circumstances.” (Super. Ct. S.L.O. County, Local Rules, Rule 15.00(a),
emphasis added.) Because Petitioner sought relief under Code of Civil Procedure section 527.6, the notice
requirement outlined in the Local Rule is inapplicable. The notice requirement outlined in section 527.6 applies,
as discussed below.

2

Respondent contended that his wife, Marissa Acker2

, “manipulated” Petitioner into filing the
Request to “intimidate and manipulate” Respondent. (Response, ¶ 5.) Respondent claimed he did
not know that Petitioner was married and had children, and that the inclusion of them in the
Request was “a slanderous affront to [Respondent’s] good name and reputation in the
community, because it implies [Respondent] would meddle in the affairs of someone else’s
marriage.” (Id. at ¶ 13.) Respondent further argued that one email and one phone call to
Petitioner (which Respondent conceded sending and making, respectively) do not constitute
harassment, “because no reasonable person would suffer substantial emotional distress from a
politely worded email and a phone call where the caller only introduced himself and hung up.”
(Id. at ¶ 23.)
Attached as exhibits to Respondent’s Response include: screenshots of text message exchanges,
purportedly between Respondent and Marissa3

(Response4

, Ex. A); an unsigned settlement
agreement between Petitioner, Marissa, and another individual (Ex. B); a screenshot of an
undated email from Respondent to Petitioner (Ex. C); screenshots of text messages purportedly
exchanged between Marissa and Petitioner (Ex. D); a request for dismissal filed March 8, 2018
in Michael Acker v. Marissa Acker, Santa Barbara County Superior Court Case No. 18FL-00545
(Ex. E); a request for dismissal filed March 8, 2018 in Marissa Acker v. Michael Acker, Santa
Barbara Superior Court Case No. 18FL-00556 (Ex. E); photographs of Respondent’s injuries,
purportedly caused by Marissa (Exs. F, G); and a lengthy email exchange between Respondent
and Marissa, dated April 2-5, 2018, concerning Petitioner’s dismissal of this action (Ex. H).
Petitioner did not appear at the April 12, 2018 hearing. Respondent appeared and requested that
Petitioner’s dismissal be set aside. The Court reset this hearing on Respondent’s noticed Motion
to set aside the dismissal. With his Motion, Respondent also requests the Court re-calendar the
hearing on Petitioner’s Request.
Alternatively, Respondent requests that the Court: (1) enter Petitioner’s dismissal with prejudice;
(2) find that Petitioner filed his Request in bad faith, with no legitimate concern for his safety;
(3) sanction Petitioner for filing the frivolous Request and award Respondent fees and costs; and
(4) issue an order expunging the Request and resulting TRO from the California Law
Enforcement Telecommunications System (“CLETS”) and the California Restraining and
Protective Order System5

(“CARPOS”). (Mtn., p. 4, ll. 14-19.)

2
In the documents submitted by Respondent, Marissa D. Acker is also at times referred to as Marissa Wilson, her
maiden name. (Response, Attachment 10, ¶ 4; Response, Ex. A.)
3
The Court uses first names not out of disrespect, but for easier reading.
4
All exhibit references are to the exhibits in Respondent’s responsive pleading.
5
Maintained by the Department of Justice, CLETS collects criminal history and domestic violence information,
including information obtained through CARPOS. (Fam. Code, § 6380, subd. (a); Gov. Code, § 15151 et seq.;
People v. Martinez (2000) 22 Cal.4th 106, 113, 126-127.) The system is used exclusively for official business of
government agencies, primarily law enforcement agencies. (Gov. Code, §§ 15151, 15153, 15163.)

3

Respondent’s Motion is unopposed.
Analysis.
Section 527.6 of the Code of Civil Procedure6

, which governs requests for and issuances of
TROs, was enacted “to protect the individual’s right to pursue safety, happiness and privacy as
guaranteed by the California Constitution.” (Schraer v. Berkeley Property Owners’ Assn. (1989)
207 Cal.App.3d 719, 729-730 (“Schraer”), citing Stats.1978, ch. 1307, § 1; Cal. Const., art. I, §
1.) The statute’s purpose is to provide expedited injunctive relief to victims of harassment.
(Schraer, supra, at p. 730, citing Smith v. Silvey (1983) 149 Cal.App.3d 400, 405.) Section 527.6
provides a “special procedure” where a petitioner may first obtain a TRO. (Schraer, supra, at pp.
729-730, citing section 527.6, subd. (a).) The TRO “may remain in effect for no more than 15
days, and may be granted ‘with or without notice7

upon an affidavit which, to the satisfaction of
the court, shows reasonable proof of harassment of the plaintiff by the defendant, and that great
or irreparable harm would result to the plaintiff.’” (Schraer, supra, citing Section 527.6, subds.
(c), (d), emphasis added.) Following issuance of a TRO, the court must hold a hearing on the
restraining order request within 21 days, or, for good cause, 25 days. (Section 527.6, subd. (g).)
While there is no full trial on the merits following a TRO, at the hearing, the court must “receive
any testimony that is relevant.” (Section 527.6, subd. (i).) The prevailing party may be awarded
court costs and attorney’s fees. (Id. at subd. (s); Krug v. Maschmeier (2009) 172 Cal.App.4th
796, 802-803 [prevailing defendant entitled to costs and fees even if plaintiff brought action in
good faith].) The court is not deprived of the power to award attorney’s fees to respondent as the
“prevailing party” where a petitioner voluntarily dismisses the action prior to the hearing. The
dismissal is treated as a final determination on the merits in the respondent’s favor. (Jay v.
Mahaffey (2013) 218 Cal.App.4th 1522, 1540 [voluntary dismissal, even a dismissal without
prejudice, presumed to be a favorable termination] see Adler v. Vaicius (1993) 21 Cal.App.4th
1770, 1776 [where petitioner voluntarily dismisses petition under Section 527.6 with prejudice, it
“is a final determination on the merits.”].)
Here, as noted, Petitioner dismissed his Request without prejudice prior to the hearing.
Respondent asks that this dismissal be set aside, and that the Court re-calendar the hearing on
Petitioner’s Request. Where an action is dismissed as the result of “mistake, inadvertence,
surprise or excusable neglect,” the plaintiff can move to set aside the dismissal under Section
473(b). Here, Petitioner has not moved to set aside the dismissal. Respondent contends that the
Court has authority to set aside a dismissal at Respondent’s request – not Petitioner’s – where a
petition was “filed in bad faith as a frivolous act to harass and defame.” (Mtn., p. 2, ll. 23-24.)

6
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
7
Here, Petitioner indicated he did not advise Respondent of his Request, noting that he “refuse[d] to talk to
[Respondent] in any way or form” because he feared “telling him will make him hostile.” (Request, ¶ 11.) Thus,
Respondent received notice after the TRO was issued.