Filed 2/19/20 Banda v. Wash CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

MARIA BANDA,

Plaintiff and Respondent,

v.

JOHN WASH,

Defendant and Appellant.

F076666

(Super. Ct. No. 13CECG03846)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. Mark E. Cullers, Judge.

John Wash, in pro. per., for Defendant and Appellant.

Law Office of Daniel L. Harralson and Daniel L. Harralson for Plaintiff and Respondent.

-ooOoo-

Defendant John Wash appeals from an order renewing a civil harassment restraining order entered to protect plaintiff Maria Banda, the wife of John’s deceased brother. (Code Civ. Proc., § 527.6, subd. (j)(1).) John contends the renewal order must be vacated because it was entered by a judge who was disqualified after the renewal order had been entered. We agree that retroactively vacating the renewal order is the appropriate remedy. When implementing this remedy, the parties should be returned, as close as possible, to the positions they would have occupied if the disqualification had been implemented before the renewal order was entered. To achieve this goal, we will vacate the renewal order and direct the trial court to enter, nunc pro tunc as of September 25, 2017, an order (1) stating the disqualification is deemed conceded; (2) continuing the hearing on Maria’s request to renew restraining order until that request was reheard on December 13, 2017; and (3) extending the original restraining order until the December 13, 2017 rehearing.

We therefore reverse the renewal order and remand for entry of a nunc pro tunc order.

FACTS AND PROCEEDINGS

Maria was the wife of John’s deceased brother Thomas. John and Maria live in separate residences on a 100-acre parcel of agricultural land. They have been engaged in litigation relating to the property and their behavior towards one another for over a decade.

This appeal arises out of Maria’s December 2013 lawsuit requesting a civil harassment injunction against John pursuant to section 527.6. The trial court issued a temporary restraining order. In March 2014, the court conducted an evidentiary hearing, granted Maria’s request, and issued a restraining order using Judicial Council form CH-130. John appealed, and we affirmed the restraining order. (Banda v. Wash (Feb. 3, 2016, F069417) [nonpub. opn. affirming an order entered under § 527.6 enjoining John from harassing Maria and her sons].)

The original restraining order against John was scheduled to expire on March 20, 2017. In February 2017, Maria filed a Judicial Council form CH-700, “Request to Renew Restraining Order.” Maria asserted that since the issuance of the restraining order, John continued to harass her through third parties and stated she feared future harassment if the order was not extended. Based on entries in the register of actions, it appears the parties stipulated to a continuance.

On May 19, 2017, John filed a Judicial Council form CH-720, “Response to Request to Renew Restraining Order,” stating he did not agree to extend the order. John filed objections to the declaration Maria attached to her request to renew. In addition, John filed a notice and motion to terminate or modify the civil harassment restraining order and a supporting 13-page declaration.

Later in May, John filed an ex parte motion to continue the hearing. The trial court granted John’s request and set the hearing on Maria’s request and his motion for September 25, 2017. In July 2017, John had back surgery.

On September 11, 2017, John filed a statement of disqualification of Judge Mark E. Cullers (Judge) along with a supporting declaration. John’s allegations are not material to the outcome of this appeal. Notwithstanding the procedures specified in subdivision (c)(3) of section 170.3, no written consent to disqualification or written answer to the allegations was filed.

On September 25, 2017, the trial court held a hearing on the pending matters. The minute order from the hearing stated (1) Maria’s motion for renewal of the restraining order was granted for a period of five years; (2) John’s motion to terminate or modify restraining order was denied; and (3) John’s motion to disqualify Judge was denied “for the reasons stated on the record at the hearing.” The hearing was not recorded on tape or by a court reporter.

John’s Writ Petition

On October 5, 2017, John filed a petition for writ of mandate with this court challenging the denial of his statement of disqualification of Judge. John asserted Judge failed to comply with the procedural requirements of section 170.3, subdivision (c)(3), which directs challenged judges, within 10 days after the filing or service of the statement, to file a consent to the disqualification or file a verified answer responding to the allegations contained in the statement.

On October 6, 2017, this court filed an order summarizing the allegations in John’s petition and directing the superior court “to file, within 10 days of the date of this order, a letter brief addressing petitioner’s contention that Judge [ ] was disqualified from ruling on the request to renew the restraining order.” Judge’s letter brief asserted he had not been personally served and, therefore, he was not required to file a written consent or answer.

John filed objections to the letter brief, asserting he had delivered Judge’s copy of the statement of disqualification to the clerk’s office of the superior court as instructed in Judge’s chambers by his personal clerk. This court issued an order granting Judge 10 days’ leave to respond to John’s objections. On October 26, 2017, Judge filed a response stating (1) he had verified the events set forth in John’s objections, (2) it appeared John made a good faith effort to personally serve him with the statement of disqualification, and (3) Judge had not responded within 10 days of the good faith effort at service. Based on these points, Judge conceded disqualification.

Ruling on Writ Petition

On November 2, 2017, this court entered in the following order in the writ proceeding:

“In light of Judge[’s] concession that petitioner made a good faith effort to personally serve him with the Statement of Disqualification, that he did not respond within 10 days and, consequently, that he was deemed disqualified, the petition in the above entitled action is denied as moot.

“In accordance with Code of Civil Procedure section 170.3, Judge [ ] is deemed disqualified and shall not further participate in the above entitled proceedings. The presiding judge of the Fresno County Superior Court shall promptly appoint a replacement for Judge [ ] who shall rehear the motion for renewal of temporary restraining order.”

On November 20, 2017, the superior court entered a minute order stating it had reviewed our order of November 2, 2017. The minute order found good cause to assign the matter to another judge for all purposes and directed her to “set the matter on calendar and notice all parties to rehear the motion for renewal of temporary restraining order.”

The Current Appeal

On November 27, 2017, John filed a notice of appeal that referred to the minute order dated September 25, 2017, which had granted Maria’s request to renew the restraining order. The notice of appeal asserted this court’s order on John’s writ petition had reassigned the matter for rehearing and, therefore, the minute order was void.

Subsequent Hearings and Orders

On December 13, 2017, in accordance with the earlier scheduling order, the superior court reheard Maria’s request to renew the restraining order. John was present and represented himself. Maria was present and was represented by an attorney. The parties and the attorney were sworn and testified. After hearing the evidence, the superior court granted Maria’s request to renew the restraining order and signed a Judicial Council form CH-730, “Order Renewing Civil Harassment Restraining Order,” that stated the renewed order would expire on December 13, 2022.

John filed a motion to reconsider. Among other things, John asserted the court had failed to rule on his motion to modify or terminate the restraining order. On January 29, 2018, the superior court heard arguments on John’s motion to reconsider. At the close of the hearing, the court asked the parties to have a seat and wait for the minute order, which would “reflect that I denied [John’s] motion to terminate or modify, and that there were no new facts, circumstances, or law presented.” The minute order stated John’s motion to reconsider was denied. It also stated (1) the court believed John’s motion to modify or terminate the restraining order had been denied on the record at the December 13, 2017, hearing; (2) neither party had provided a transcript of that proceeding and, therefore, the court’s recollection could not be confirmed; and (3) it was the court’s intention to deny John’s motion to modify or terminate the restraining order on December 13, 2017.

In February 2018, John filed a notice of appeal from the December 13, 2017, order renewing the restraining order and the denial of his motion to reconsider. That appeal was assigned case No. F076986.

DISCUSSION

I. EFFECT OF THE CONCEDED DISQUALIFICATION

A. Principles Governing Renewal of Restraining Orders

A civil harassment restraining order issued under section 527.6 may have a duration of not more than five years. (§ 527.6, subd. (j)(1).) “The order may be renewed, upon the request of a party, for a duration of no more than five additional years, without a showing of any further harassment since the issuance of the original order.” (§ 527.6, subd. (j)(1).) An original restraining order and a renewed order are “subject to termination or modification by further order of the court either on written stipulation filed with the court or on the motion of a party.” (§ 527.6, subd. (j)(1).)

Renewal is not automatic. (Cooper v. Bettinger (2015) 242 Cal.App.4th 77, 89.) Instead, a court may renew a restraining order under section 527.6 where there is “a reasonable probability that the defendant’s wrongful acts would be repeated in the future.” (Id. at p. 90.)

B. Timing and Effect of Disqualification

The main issue in this appeal is the legal effect of Judge’s disqualification on his September 25, 2017 order granting Maria’s request to renew the restraining order. The disqualification was conceded after the order was issued and, therefore, the question is whether the concession of disqualification retroactively made the order voidable. We conclude it did.

1. Urias

Both parties cite this court’s decision in Urias v. Harris Farms, Inc. (1991) 234 Cal.App.3d 415 (Urias) to support their arguments. We conclude the principles set forth in Urias support the determination that the September 25, 2017 order is voidable.

In Urias, a judge granted a defendant’s summary judgment motion in a wrongful termination case. (Urias, supra, 234 Cal.App.3d at p. 419.) After judgment was entered, the plaintiff filed a statement of disqualification seeking to recuse the judge because the judge’s former law firm had represented the defendant in litigation for the past 10 years. When the challenged judge did not respond to the statement, the plaintiff requested that another judge hear the matter. Ultimately, another superior court judge granted the request for disqualification. (Id. at p. 420.) Thereafter, the plaintiff appealed the summary judgment and the defendant filed a petition for writ of mandate seeking to vacate the disqualification order. (Ibid.) This court denied the defendant’s writ petition and, thus, allowed the disqualification order to stand. (Id. at p. 419.)

The circumstances presented in Urias are similar to the present case in some respects because, pursuant to section 170.3 subdivision (c)(4), the challenged judge consented to disqualification by failing to take any action in response to the statement of disqualification. (Urias, supra, 234 Cal.App.3d at p. 420.) The procedural posture in Urias was slightly more complicated because the statement of disqualification was filed after the summary judgment was filed. Here, John’s statement of disqualification was filed and the 10-day response period expired before Maria’s renewal request was heard and decided on September 25, 2017.

In Urias, our analysis of the consequences of disqualification began by quoting section 170.4, subdivision (d). (Urias, supra, 234 Cal.App.3d at p. 422–423.) That provision states in full: “Except as provided in this section, a disqualified judge shall have no power to act in any proceeding after his or her disqualification or after the filing of a statement of disqualification until the question of his or her disqualification has been determined.” Next, we quoted section 170.3, subdivision (b)(4), which now provides:

“If grounds for disqualification are first learned of or arise after the judge has made one or more rulings in a proceeding, but before the judge has completed judicial action in a proceeding, the judge shall, unless the disqualification be waived, disqualify himself or herself, but in the absence of good cause the rulings he or she has made up to that time shall not be set aside by the judge who replaces the disqualified judge.”

In Urias, this court concluded that neither statutory provision was dispositive because that case did not concern the judge’s power to act after he was disqualified. (Urias, supra, 234 Cal.App.3d at p. 423.) Instead, the judge in question had granted the motion for summary judgment before he was deemed disqualified. (Ibid.) We noted that “a number of California cases have addressed the validity of a judgment entered by a judge who is later found to be disqualified” and, under the former disqualification statutes, “the courts have generally held that a judgment or order rendered by a disqualified judge is void whenever brought into question.” (Ibid.; see Giometti v. Etienne (1934) 219 Cal. 687, 689 [“a judgment rendered by a disqualified judge is void”]; cf. In re Christian J. (1984) 155 Cal.App.3d 276, 280 [“actions of a disqualified judge are not void in any fundamental sense but at most voidable if properly raised by an interested party”].)

We concluded the general rule that the actions of a disqualified judge are voidable applied, provided that the disqualification issue had been properly raised by an interested party. (Urias, supra, 234 Cal.App.3d at p. 424.) We determined the plaintiff in Urias properly raised the disqualification issue and, based on the facts presented, had done so in a timely manner. (Id. at pp. 424–425.) Consequently, we determined the summary judgment had been rendered by a disqualified judge and “the judgment was voidable upon plaintiff’s objection.” (Id. at p. 426.) Thus, we reversed the judgment and did “not reach the merits of the summary judgment motion and ruling.” (Id. at p. 427.)

2. Application of Principles

As in Urias, we conclude the consequences of Judge’s disqualification are determined by the general rule that the actions of a disqualified judge are voidable if the disqualification issue was properly raised by an interested party. (Urias, supra, 234 Cal.App.3d at p. 424.) First, John’s statement of disqualification was filed more than 10 days before the hearing on the request to renew the restraining order. Thus, the issue was timely presented in the superior court. Second, John followed the correct procedure for challenging Judge’s failure to disqualify himself. “The determination of the question of the disqualification of a judge is not an appealable order” and can only be reviewed by writ of mandate filed and served within 10 days of the determination. (§ 170.3, subd. (d).) Here, John filed a petition for writ of mandate with this court within the statutory period.

In summary, John’s challenge was properly raised and the September 25, 2017 order granting Maria’s request to renew the restraining order was rendered by a disqualified judge. Consequently, the order must be vacated.

C. Framing Appellate Relief

In Urias, the appellate relief given was the reversal of the judgment and a denial of the defendant’s petition for writ of mandate. (Urias, supra, 234 Cal.App.3d at p. 427.) We did not reach the merits of the summary judgment motion and, thus, did not instruct the superior court to enter an order either granting or denying the motion. The effect of that disposition was to place the motion for summary judgment “at large” (See Regents of University of California v. Public Employment Relations Bd. (1990) 220 Cal.App.3d 346, 356–357 [“ ‘The effect of an unqualified reversal (“The judgment is reversed”) is to vacate the judgment, and to leave the case “at large” for further proceedings as if it had never been tried, and as if no judgment had ever been rendered’ [citation]”].)

Here, the goal we seek to achieve in providing appellate relief is to return the parties, as close as possible to the position they would have occupied if Judge had disqualified himself on or before September 25, 2017, and, as a result, had not ruled on Maria’s renewal request and John’s motion to modify or terminate. (See generally, §§ 43 [power of appellate courts], 906 [power of reviewing court].) We conclude that goal will be achieved by reversing and vacating the September 25, 2017 order and remanding to the superior court with directions to enter, nunc pro tunc as of September 25, 2017, an order (1) stating the disqualification is deemed conceded; (2) continuing the hearing on Maria’s request to renew restraining order and John’s motion to terminate or modify civil harassment restraining order to December 13, 2017; and (3) stating Maria’s original restraining order against John remains in effect until the December 13, 2017, hearing.

The practical effect of this relief is that the parties’ dispute about the renewal of the restraining order will be decided in case No. F076986, which is John’s appeal from the December 13, 2017 order renewing the restraining order for five years. The outcome of this appeal is not intended to work to the advantage or disadvantage of either party in that appeal.

DISPOSITION

The September 25, 2017, order is reversed and vacated, and the matter is remanded to the trial court with directions to enter, nunc pro tunc as of September 25, 2017, an order (1) stating the disqualification is deemed conceded; (2) continuing to December 13, 2017, the hearing on Maria’s form CH-700 request to renew restraining order and John’s motion to terminate or modify civil harassment restraining order; and (3) stating Maria’s original restraining order against John remains in effect until the December 13, 2017, hearing.

The parties shall bear their own costs on appeal.