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C.A. Says Judge Abused Discretion in Barring Testimony BecauseLawyer Was Tardy
Bya MetNews Staff Writer
Div. Three of the First District Court ofAppeal decided yesterday that a judge abused her discretion in refusing to heartestimony by a defendant in an action to impose a civil harassment restrainingorder on him because his lawyer, who was handling matters in another courtroom,showed up 32 minutes late.
The unpublished opinion by Justice IoanaPetrou reverses an order by San Mateo Superior Court Judge Susan L. Greenberg,pursuant to Code of Civil Procedure §527.6, granting a permanent restrainingorder in favor of Andrea Vanessa Villata Lopez and against Henry David Chicas.
Greenberg commenced the hearing inDepartment 3 at 9:30 a.m. on June 14, 2022. Greenberg told Chicas’s lawyer,Diana Passadori of Redwood City, that because she was not present when the casewas called at 9 a.m. by the presiding judge, Leland Davis III, and “did notarrive until 9:32 this morning” in Department 3, “your client will not bepermitted to be part of the proceedings this morning as not having timelyappeared.”
LawyersExplanation
Passadori, a certified family lawspecialist, protested:
“Your Honor, Mr. Chicas was sittingoutside...of Judge Davis’ courtroom. He was not sure if he was permitted to goin due to the COVID rules.
“I was in court on the fourth floor...forfive pretrials that started at 8:30. I permitted a colleague of mine...to doher pretrials ahead of mine because she was concerned about being sent out totrial in front of Judge Davis at 9 a.m.
“So I let her go ahead of me which thencaused me to be late, your Honor.”
(According to her brief on appeal,Passadori “asked a colleague to inform the court that she would be delayed.”)
Unpersuaded, Greenberg heard from Lopez butnot Chicas.
Petrou’sOpinion
“Chicas contends the trial court’s refusalto allow him to participate in the hearing denied him due process as well ashis statutory right to present relevant evidence,” Petrou wrote. “Withoutaddressing the due process contentions, we conclude the trial court erred bydenying Chicas the ability to present relevant testimony as required by section527.6.”
She pointed out that §527.6(g) providesthat “a hearing shall be heard on the petition” and that, under §527.6(i), “thejudge shall receive any testimony that is relevant” at that hearing.
Petrou added that case law shows “thatwhere a defendant to a request for a restraining order in a civil harassmentproceeding offers relevant testimony on his or her behalf, the trial court mustallow such testimony to be heard.”
StatutoryProvisions Disregarded
The justice commented:
“Here, this did not happen. Contrary to theexpress requirements of section 527.6, the trial court expressly refused toallow Chicas to participate in the hearing as he was not allowed to profferrelevant testimony and not allowed to cross-examine Lopez. Chicas and hisattorney were both present in the courtroom at the time of the hearing, andcounsel implored the court that there was significant and salient testimony thecourt needed to consider that she averred contradicted and undermined Lopez’scredibility. In allowing Lopez to testify as to the veracity of her petitionwhile depriving Chicas of his right to defend, the court neglected thestatutory safeguards the Legislature built into the statute.”
She continued:
“Chicas and his counsel’s apparent tardinessto the hearing when it was initially called at 9:00 a.m. does not compel adifferent result. While we acknowledge that courts generally retainjurisdiction to control proceedings, this is not a situation, for example,where a litigant and his counsel showed up after a hearing had alreadyconcluded. At the hearing during which Lopez’s petition was actually adjudicated, Chicas and his counsel were present in the courtroom andprepared to participate.”
Petrou said in as footnote:
“We do not endorse or excuse counsel’sfailure to timely appear and agree with Judge Greenberg that counsel’s failureto communicate directly with the court regarding the unanticipated tardinesswas not acceptable.”
The dispositional paragraph reads:
“The permanent restraining order isreversed. The temporary restraining order is reinstated to remain in effectuntil 21 days after issuance of the remittitur, unless earlier terminated orextended by order of the trial court. The trial court is directed to conduct ahearing on the petition within 21 days of issuance of the remittitur unlesscontinued for good cause as permitted by section 527.6 or unless Lopez notifiesthe court she no longer intends to pursue the order.”
The case is Lopez v. Chicas, A165476.
Greenberg was elected to her post in 2014.She was, at the time, a court commissioner.
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