TRIAL JUDGE WAS WRONG IN NOT GRANTING A CONTINUANCE OF HEARING IN A DOMESTIC VIOLENCE CASE

A California Court of Appeals has ruled that a Trial Court was wrong, in a Domestic Violence Protection Act (“DVPA”) case, by refusing to grant a continuance to a Plaintiff who needed one to permit him to serve the opposing party and to give him time to recover from an unforeseen back surgery. In the case of J.M. v. W.T., Plaintiff, on January 8, 2019, filed a request for a DVPA protective order against Defendant. In a supporting declaration, Plaintiff asserted that between December 23, 2017, and March 17, 2018, Defendant committed several acts of domestic violence against Plaintiff (throwing a book at him, calling him offensive names over the phone, punching him with closed fist, biting him during sex, threatening to hurt his dog after the dog preferred Plaintiff to Defendant, and demanding entry to Plaintiff’s condo and then becoming physically out of control). Trial Court issued a Temporary Restraining Order pending the hearing and scheduled a hearing for January 29, 2019.

On January 24, 2019, Plaintiff submitted a written request for a continuance on California Judicial Council Form DV-115, explaining that he had been unable to serve Defendant with the necessary papers and that he was scheduled for spinal surgery on January 28, 2019, after which he would be unable to care for himself, stand or sit for a long period, or think clearly because of the medications. Neither party appeared at the January 29, 2019 hearing, and Trial Court denied the request for a continuance and dismissed the case, commenting that the incidents complained of happened almost a year ago.

Plaintiff appealed Trial Court’s decisions, and now a California Court of Appeals has reversed Trial Court’s decisions and remanded the case back to Trial Court with instructions. The Appellate Court has ruled that (1) under California Family Code Section 245(b), Trial Court must grant a continuance if a party shows good cause for one in writing or orally on the record; (2) the failure to serve the opposing party is grounds for a continuance; (3) here Plaintiff demonstrated good cause for a continuance on these facts; and (4) Trial Court abused its discretion by failing to grant a continuance. Therefore, the Appellate Court reversed Trial Court’s order denying a request for DVPA protective order and remanded the case back to Trial Court with directions to grant a continuance within 30 days of the case coming back to Trial Court.

Read more