Filed 1/3/20 Cindy M. v. Johnson CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

CINDY M.,

Plaintiff and Respondent,

v.

WAYNE JOHNSON,

Defendant and Appellant.

A156075

(Contra Costa County

Super. Ct. No. D18-03875)

Following a hearing, the trial court issued plaintiff Cindy M. a five-year restraining order against defendant Wayne Johnson under the Domestic Violence Prevention Act (DVPA) (Fam. Code, § 6200 et seq.). Johnson did not appear at the hearing. He unsuccessfully moved to quash the order because he had not been served with a temporary restraining order or the notice of hearing on the petition. Because there is no evidence in the record that Cindy satisfied the service requirements specified in the restraining order, we reverse. We vacate the five-year restraining order. We further direct the trial court to reinstate the temporary restraining order and set a new hearing on the petition to allow Cindy an opportunity to serve Johnson.

BACKGROUND

Cindy and Johnson dated on and off for several months beginning in January 2018. On September 10, 2018, Cindy, in propia persona, petitioned for a five-year domestic violence restraining order to protect her and her two teenage daughters from Johnson.

Cindy described several incidents of abuse in her declaration supporting the petition. One day in her car, Cindy told Johnson she was going to drive him home. He told her if she did their relationship was over, and then hit her. In August 2018, when they were no longer seeing each other, Johnson appeared behind Cindy as she exited her car in her garage. Cindy, unaware Johnson was there, screamed and Johnson left. In September 2018, when Cindy got out of her car in her garage after returning home late, Johnson again appeared but this time attacked her, placed her in a headlock, forced her to the ground, and told her, “ ‘[It’s] over for you.’ ” But he released her and left. This assault caused multiple contusions and fractured her nose. Cindy also generally described incidents where Johnson pinned her to the ground and held a knife over her face, dragged her down the stairs of his home, pointed a rifle at her, and threatened to kill her and harm her children.

On September 10, 2018, the court issued a temporary restraining order (TRO) against Johnson and scheduled a hearing for October 2, 2018, for the five-year restraining order. The TRO remained in effect until the scheduled hearing. The TRO directed that prior to the hearing, “someone age 18 or older—not you or anyone else to be protected—must personally give (serve) a court’s file-stamped copy of this form (DV 109, Notice of Court Hearing)” to defendant with other papers, including the TRO. (Emphasis omitted.)

On September 28, 2018, Cindy filed her process server’s “(Amended) Affidavit of Reasonable Diligence.” According to the affidavit, on September 12, 13, and 14, her process server made four attempts to personally serve Johnson notice of the hearing and related documents at what appears to be a residence. On all four occasions Johnson was either “Not in” or the server received “No Answer.” On September 14, he also attempted unsuccessfully to personally serve Johnson at two places of work and at a night club. There is no indication in the affidavit that the process server ever personally served Johnson or that a copy of the order and notice were either left or mailed to his residence or work address.

At the October 2, 2018 hearing on the petition, Cindy appeared in propia persona and Johnson did not appear. The court stated that Cindy’s process server “did an excellent job even though it looks like he was not successful. Nonetheless, there were incredible efforts made to get Mr. Johnson served. So, based on that affidavit of due diligence, I am prepared to go forward with the restraining order.” After Cindy discussed the events set forth in her declaration, the court issued a five-year restraining order precluding Johnson from contacting or harassing Cindy and her children.

On October 9, 2018, Johnson moved to quash service of the TRO and the five-year restraining order. The court denied the motion. The court’s minutes state that “the prior judge after review of the amended affidavit of reasonable diligence found cause to hear the matter and granted the DV [restraining order] accordingly.” Johnson now appeals.

DISCUSSION

Johnson contends the restraining order was void due to a lack of personal jurisdiction over him because he was never served prior to the hearing. He contends his motion to quash should have been granted and the five-year restraining order set aside.

The DVPA “permits the trial court to issue a protective order ‘to restrain any person for the purpose’ of preventing a recurrence of domestic violence and ensuring a period of separation of the persons involved; the petitioner must present ‘reasonable proof of a past act or acts of abuse.’ ” (Rodriguez v. Menjivar (2015) 243 Cal.App.4th 816, 820.)

“The procedure for obtaining an ex parte temporary restraining order is set forth in section 240 et seq.” (In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1494.) Such a temporary restraining order under the DVPA may be granted without notice to the respondent if “it appears from facts shown by the declaration in support of the petition for the order . . . that great or irreparable injury would result to the petitioner before the matter can be heard on notice.” (§ 241.)

Within either 21 days or 25 days from the date that a TRO is granted, “a hearing shall be heard on the petition.” (§ 242, subd. (a).) The respondent “shall be personally served with a copy of the petition, the temporary restraining order, if any, and the notice of hearing on the petition. Service shall be made at least five days before the hearing.” (§ 243, subd. (a).) A DVPA restraining order “may issue . . . after notice and a hearing.” (§ 6340, subd. (a)(1).)

An order obtained in violation of a party’s due process rights to notice and an opportunity to be heard, or where the court lacked jurisdiction over the defendant is void. (Cf. Brown v. Williams (2000) 78 Cal.App.4th 182, 186, fn. 4.) “Proper service is a requirement for a court’s exercise of personal jurisdiction.” (Caldwell v. Coppola (1990) 219 Cal.App.3d 859, 863.)

To the extent Johnson argues the TRO was void for lack of service, we disagree. The trial court could grant such a temporary order without notice to Johnson if the facts in support of Cindy’s petition demonstrated “that great or irreparable injury would result to the petitioner before the matter can be heard on notice.” (§ 241; see also former § 6300, amended by Stats. 2014, ch. 635, § 4, No. 8A Deering’s Adv. Legis. Service, p. 598 [DVPA order can be issued “with or without notice”].) Cindy’s declaration made that showing. According to her declaration, Johnson stalked her at her home, attacked her causing injuries, and threatened her and her family. These assertions provided a sound basis for the court’s issuance of the TRO without notice to Johnson of her request for a temporary order.

The five-year restraining order is subject to a different analysis. At the time of Cindy’s petition, that order could only be issued after notice and a hearing. (Former § 6340, subd. (a), amended by Stats. 2014, ch. 635, § 7, No. 8A Deering’s Adv. Legis. Service, pp. 598–599.) Section 243 required that Johnson “be personally served with a copy of the petition, the temporary restraining order . . . and the notice of hearing on the petition” at least five days before the hearing. (§ 243, subd. (a).) As the petitioner, Cindy had the “ ‘burden of proving the facts that [gave] the court jurisdiction, that is the facts requisite to an effective service.’ ” (American Express, supra, 199 Cal.App.4th at p. 387.)

Assembly Bill 2694 also amended section 6340, which now includes the following subdivision (a)(2)(A): “If at the time of a hearing with respect to an order issued pursuant to this part based on an ex parte temporary restraining order, the court determines that, after diligent effort, the petitioner has been unable to accomplish personal service, and that there is reason to believe that the restrained party is evading service, the court may permit an alternative method of service designed to give reasonable notice of the action to the respondent.” (§ 6340, subd. (a)(2)(A), amended by Stats. 2018, ch. 219, § 3, No. 3 Deering’s Adv. Legis. Service, pp. 154–155.) The alternative methods of service include but are not limited to service by publication and service by first class mail to the respondent’s home or workplace. (§ 6340, subd. (a)(2)(A)(i)–(ii).) If the court permits an alternative method of service, it is required to grant a continuance to allow for alternative service pursuant to section 245. (§ 6340, subd. (a)(2)(B).) None of these options for substitute service were yet effective and thereby available to Cindy at the October 2018 hearing.

There is no proof of personal service of the TRO and notice of hearing on Johnson in the record as required under section 243 at the time of the hearing. Instead, the record contains only Cindy’s process server’s affidavit of due diligence showing every attempt at personal service was unsuccessful. There is also no showing of an attempt at substituted service in lieu of personal service as would be allowed under section 6340 effective January 1, 2019. So, there is no basis to conclude an alternative means of service substantially complied with section 243.

These ineffectual attempts did not satisfy the notice requirements under the DVPA, and the trial court’s election to proceed on the basis of the process server’s affidavit was without legal support. Had Cindy’s hearing occurred today, the trial court could make findings under section 6340 to allow a continuance of the hearing to permit an alternative method of service. (See § 6340, subd. (a)(2)(A).) Without this option, Cindy had to demonstrate personal service on Johnson. Accordingly, the court lacked jurisdiction over Johnson and the five-year restraining order issued in violation of his right to due process. The trial court erred in denying Johnson’s motion to quash the five-year restraining order.

DISPOSITION

The order denying Johnson’s motion to quash service of the five-year restraining order is reversed. The matter is remanded to the trial court with directions to enter a new order granting the motion to quash and vacating the five-year restraining order. The TRO is reinstated and the trial court is directed to conduct a hearing on a new multiyear restraining order within 25 days of issuance of the remittitur and to afford Cindy the opportunity to serve Johnson with the TRO and notice of hearing five days before the scheduled hearing. The parties are to bear their own costs on appeal.

 

_________________________

Siggins, P.J.

WE CONCUR:

_________________________

Fujisaki, J.

_________________________

Petrou, J.

Cindy M. v. Johnson, A156075