You've heard the saying: "Justice delayed is justice denied." That principle probably applies multiple different ways in this case.
It's not a complicated issue. Which is why the opinion only requires a half-dozen pages.
Plaintiff seeks a temporary restraining order against his former dating partner. The request is filed on January 8, 2019, and he gets his TRO (which is unopposed because you don't even have to serve the other side with these things). The ultimate hearing then gets scheduled for January 29, 2019. So far, so good.
Come hearing time, two things happen. First, the judge isn't psyched. She notices that the papers say that the last domestic violence (it was a dating situation) was back in March 2018. (The violence at issue included calling the plaintiff a "f**king c**t" over the phone, biting him during sex, punching him and the steering wheel of a car, and screaming at the plaintiff.) And here it was January 2019, with (presumably) nothing since then, and probably the dating long over. So she says: "This one is
dismissed with prejudice. The most recent incident happened ten
months ago, so it is dismissed with prejudice.”
Second, right before the hearing, on January 24, 2019, plaintiff filed a request to
continue the DVPA hearing using Judicial Council Form DV-115, checking the boxes that said he needed additional time to serve the papers (apparently he still hadn't served the defendant) and also due to his medical issues. The judge wasn't particularly psyched about that either, saying: "The requesting party
did not appear at the January 29, 2019[,] hearing. This request
was received by the [c]ourt on January 24, 2019. Request to
continue a hearing prior to the scheduled hearing date must be
submitted to Department 2C by way of an Ex-Parte Application.”
Plaintiff then files an appeal, and represents himself (as, apparently, he did below). He says that the court should have granted a continuance. And the Court of Appeal agrees, for reasons that are clear in the (concise) opinion. The statute at issue says: “Either party may
request a continuance of the hearing [under the DVPA], which
the court shall grant on a showing of good cause. The request
may be made in writing before or at the hearing or orally at the
hearing." Since you're allowed to make those requires "before or at the hearing," the Court of Appeal says you can't deny them just because they're made (1) five days before the hearing, and (2) don't serve the other side. Not required. So the Court of Appeal reverses and orders the trial court to schedule a new hearing.
Fair enough.
But notice that it's now 2020. Big gaps in time aren't necessarily dispositive of whether you get a protective order. (The statute says: "The length of time since the most recent act of abuse is not, by itself, determinative.") But they're definitely relevant. The trial judge here thought that the gap of 10 months (from March 2018 to January 2019) was too long in this particular context. You've got to think that, at this point, a gap that's two or three times as long -- from March 2018 to March 2020, and that's even ignoring the time for the remittitur, a new hearing on remand, etc. -- is going to look even worse.
I understand that the Court of Appeal tells the trial court to schedule a new hearing "if plaintiff still desires a protective order." But given that he took the appeal, he probably does, right?
So, yes, the trial court probably should have granted a continuance, and so the Court of Appeal reverses. And does so -- rightly, I think -- in a published opinion, so future courts don't make similar mistakes.
But on the merits, at this point, I suspect it may be procedural ado about nothing. Because barring anything new, if a trial judge was unwilling to grant a protective order in 2019 given the passage of time, the additional passage of time since then makes the granting of a protective order now even less likely.
Hence the start of this post about justice delayed. In addition to the delay in seeking justice in the first place. As I said: On all sides.
