Case Name: James D. Farwell v. Kimberly Suzanne Hastings

Case No.: 17CH007831

Demurrer

Factual and Procedural Background

On November 13, 2017, petitioner James D. Farwell (“Farwell”) filed a Request for Civil Harassment Restraining Orders seeking protection from respondent Kimberly Suzanne Hastings (AKA Kimberly S. Espinoza) (hereafter, “Hastings”). At the same time, the court issued a temporary restraining order (“TRO”) against respondent Hastings until a court hearing scheduled for December 5, 2017.

On December 5, 2017, the court (Hon. Overton) issued a Civil Harassment Restraining Order against respondent Hastings with an expiration date of 11:59 p.m., December 5, 2022.

On December 8, 2017, respondent Hastings filed a motion entitled, “Emergency Motion to Modify Restraining Order and Remove 100 Yds 12-8-17 which is a Detriment Daily as this is Small Town and to Give Access to Post Office and Food as Required by Law.” The motion was scheduled to be heard on January 2, 2018.

On December 15, 2017, respondent Hastings filed a document entitled, “Emergency Request to Dissolve Restraining Order Due to Violation of their own Order, Tortious Interference, Intentional Harm and Emergency Motion to Remove Due to Job Constraints Which Relates to Underlying Civil Case 1-13-CV-256494.”

On December 18, 2017, respondent Hasting filed a document entitled, “Emergency Confidential Notice to the Judge 12-18-17 Emergency Request to Dissolve Based on Notification – SBC.”

On December 26, 2017, respondent Hastings filed a document entitled, “Emergency Request to Rule to Dissolve Restraining Order Due to Fraud from Plaintiff and to Pay for Delay Due Process for Underlying Case 1-13-CV-256494 and Intentional Tortious Interference with All Parties Within this Order.”

On January 2, 2018, the court (Hon. Overton) issued a minute order which states, in relevant part, “Defendant does not appear. There is no proof of service on the Plaintiff. The Court orders the matter off calendar.”

On the same date, respondent Hastings had filed a Code of Civil Procedure section 170.6 peremptory challenge seeking to disqualify Hon. Overton. The court deemed respondent Hasting’s peremptory challenge untimely.

On January 22, 2018, respondent Hastings again filed a peremptory challenge seeking to disqualify Hon. Overton. Again, the court deemed the peremptory challenge to be untimely.

Between January 26, 2018 and January 17, 2019, respondent Hastings filed numerous documents with the court including requests, notices, affidavits, and proofs of service.

On April 25, 2019, respondent Hastings filed a document entitled, “Addendum, Demurrer, Illegal Case Entered by Attorney Mr. Horner & Plaintiff Mr. Farwell Under False Pretense Interference PC 134 Due to the Illegal Sale of My Life Estate.”

On April 26, 2019, respondent Hastings filed a document entitled, “Demurrer, Illegal Case Entered by Attorney Mr. Horner & Plaintiff Mr. Farwell Under False Pretense Interference PC 134 Due to the Illegal Sale of My Life Estate.”

I. Respondent Hastings’ demurrer is OVERRULED.

In reviewing respondent Hastings’ “demurrer,” respondent Hastings appears to take issue with the court’s issuance of the Civil Harassment Restraining Order on December 5, 2017 and also takes issue with events in a separate action, 13CV256494.

As petitioner Farwell points out in opposition, the present action involves civil harassment which is governed by Code of Civil Procedure section 527.6. Subdivision (a)(1) of that section states, “A person who has suffered harassment as defined in subdivision (b) may seek a temporary restraining order and an order after hearing prohibiting harassment as provided in this section.”

In this case, petitioner Farwell sought and obtained such an order on December 5, 2017. The case began with a petition and the court’s issuance of a TRO followed by a hearing. (See Code Civ. Proc., §527.6, subd. (d) – (g).) Prior to the hearing, “The respondent may file a response that explains, excuses, justifies, or denies the alleged harassment, or may file a cross-petition under this section.” (Code Civ. Proc., §527.6, subd. (h).) Petitioner Farwell contends a demurrer is not a valid response to a petition for a civil harassment restraining order and, in any case, is untimely since the court has already issued a ruling on the petition.

Furthermore, Code of Civil Procedure section 430.10 states, in relevant part, “The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading….” (See also Code Civ. Proc., §430.30, subd. (a)—“ When any ground for objection to a complaint, cross-complaint, or answer appears on the face thereof, or from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading.”) In this case, petitioner Farwell did not file a complaint or cross-complaint against respondent Hastings. Thus, a demurrer is not an appropriate procedural challenge to the Civil Harassment Restraining Order issued on December 5, 2017.

Although a judge should ensure that self-represented litigants are not being misled or unfairly treated (see Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1284), self-represented litigants are not entitled to special treatment with regard to the Rules of Court or Code of Civil Procedure. “[W]e cannot disregard the applicable principles of law and accord defendant any special treatment because he instead elected to proceed in propria persona. [Citations.]” (Stein v. Hassen (1973) 34 Cal. App. 3d 294, 303.) “A litigant has a right to act as his own attorney [citation] ‘but, in so doing, should be restricted to the same rules of evidence and procedure as is required of those qualified to practice law before our courts.’” (Lombardi v. Citizens Nat’l Trust & Sav. Bank (1955) 137 Cal.App.2d 206, 208-209.)

Respondent Hastings’ demurrer is OVERRULED.