Filed 9/23/19 Prosser v. Cole 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

KENNETH A. PROSSER,

Plaintiff and Respondent,

v.

JEFF COLE,

Defendant and Appellant.

A154072

(Napa County

Super. Ct. No. 18CV000281)

Defendant Jeff Cole appeals from a civil harassment restraining order entered against him. Cole argues: (1) the court failed to provide him, an indigent party, with an official court reporter and therefore deprived him of equal access to justice; (2) the court violated his due process rights by not allowing him to present evidence in support of his claims and defenses and by not allowing him to confront and cross-examine his accuser; and (3) the court relied upon an inadmissible video recording. Cole requests that the order be vacated and the case remanded for a new hearing with a court reporter provided at no cost to him. Because the restraining order expired by its terms on March 22, 2019, we dismiss the appeal as moot.

BACKGROUND

On March 5, 2018, Kenneth Prosser filed a request for civil harassment restraining orders. Prosser declares under penalty of perjury that Cole, who lives next door to Prosser, has acted aggressively and irrationally for nearly a year. Prosser details disputes regarding Cole’s use of power tools after 7:00 p.m. and multiple incidents during which Cole yelled at and threatened him, including one occasion when Cole yelled “he could kill [Prosser] if he wanted” and another in which he “display[ed] [a] firearm . . . .” Prosser declares that the police were called on multiple occasions and that he has video recordings of some of Cole’s behavior. The request seeks personal conduct orders for Cole to stop harassing, threatening and disturbing the peace of Prosser, his son and his girlfriend; to stop using power tools after 7:00 p.m.; to stop littering Prosser’s property with cigarette butts; and to focus his camera system only on Cole’s property. On March 5, 2018, the court entered a temporary restraining order and set a hearing for March 22, 2018. Cole did not file a response to the request.

A hearing was held on March 22, and the court entered the requested civil harassment restraining order effective through March 22, 2019. On April 6, 2018, Cole filed a notice of appeal.

DISCUSSION

California Code of Civil Procedure section 527.6, subdivision (a)(1) provides that “[a] person who has suffered harassment as defined in subdivision (b) may seek a temporary restraining order and an order after hearing prohibiting harassment in this section.” The statute was enacted “ ‘to protect the individual’s right to pursue safety, happiness and privacy as guaranteed by the California Constitution,’ ” and “[i]t does so by providing expedited injunctive relief to victims of harassment.” (Brekke v. Wills (2005) 125 Cal.App.4th 1400, 1412.)

Cole argues the restraining order against him should be reversed and remanded to conduct a new hearing with a court reporter provided at no cost to him. According to Cole, reversal and remand are required because the Napa County local rules in effect at the time of the hearing below forced litigants, including those with fee waivers, to pay for court reporter services. Thus, he was deprived of equal access to justice. Cole relies upon Jameson v. Desta (2018) 5 Cal.5th 594 (Jameson), which holds, “[I]n order to satisfy the principles underlying California’s in forma pauperis doctrine and embodied in the legislative public policy set forth in [Government Code] section 68630, subdivision (a), when a superior court adopts a general policy under which official court reporters are not made available in civil cases but parties who can afford to pay for a private court reporter are permitted to do so, the superior court must include in its policy an exception for fee waiver recipients that assures such litigants the availability of a verbatim record of the trial court proceedings, which under current statutes would require the presence of an official court reporter.” (Id. at p. 623.)

It is undisputed that the restraining order expired by its own terms on March 22, 2019. As a general rule, “a case becomes moot when a court ruling can have no practical effect or cannot provide the parties with effective relief.” (Lincoln Place Tenants Assn. v. City of Los Angeles (2007) 155 Cal.App.4th 425, 454.) “ ‘It is well settled that an appellate court will decide only actual controversies and that a live appeal may be rendered moot by events occurring after the notice of appeal was filed. We will not render opinions on moot questions . . . .’ ” (Building a Better Redondo, Inc. v. City of Redondo Beach (2012) 203 Cal.App.4th 852, 866.)

A reviewing court may exercise its discretion to hear a case that is otherwise moot if (1) the case raises an issue of broad public interest that is likely to recur, (2) there may be a recurrence of the controversy between the parties, or (3) a material question remains for the court’s determination. (Cucamongans United for Reasonable Expansion v. City of Rancho Cucamonga (2000) 82 Cal.App.4th 473, 479–480.) We asked Cole to submit a supplemental brief addressing the issue of whether the appeal should be dismissed as moot because the restraining order expired by its own terms on March 22, 2019. Cole’s counsel submitted a letter stating he is unaware of any law favorable to Cole on this issue.

We find there is no basis for the court to exercise its discretion to hear Cole’s appeal. The restraining order is now expired, and there is no material question for this court to decide. We note that following our high court’s decision in Jameson, Napa County Local Rules, rule 2.14, was amended effective January 1, 2019, to state: “For case types where an official court reporter is generally not provided by the court and electronic recording is not available, parties with a current fee waiver on file with the court may still request the services of an official court reporter. The court will waive the official court reporter fees for this service . . . .” (Super. Ct. Napa County, Local Rules, rule 2.14(B), amend. eff. Jan. 1, 2019.)

DISPOSITION

We dismiss the appeal as moot.

 

_________________________

Wick, J.*

WE CONCUR:

_________________________

Siggins, P. J.

_________________________

Fujisaki, J.

A154072/Prosser v. Cole