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Tina Freeman v. Shari Sullivant

February 3, 2011

TINA FREEMAN, PLAINTIFF AND RESPONDENT,
v.
SHARI SULLIVANT, DEFENDANT AND APPELLANT.



(Los Angeles County Super. Ct. No. KS013998) APPEAL from the judgment of the Superior Court of Los Angeles County. Charles E. Horan, Judge. Affirmed.

SYLLABUS BY THE COURT

SUMMARY Tina Freeman sought a civil harassment restraining order against Shari Sullivant, claiming that her life-long friend had burglarized her home and made threats against Freeman, her mother, and her daughter. A temporary restraining order (TRO) was issued, and at the hearing on the petition, Sullivant's appearance attorney sought a continuance, arguing that Sullivant's retained counsel was otherwise engaged. The trial court denied the continuance, finding no "good cause" and, after giving the appearance attorney a short time to prepare, held the hearing. Finding clear and convincing evidence in support of the requested order, the court issued a permanent restraining order. Some weeks later, first by ex parte application and then by noticed motion, Sullivant's counsel sought to set aside the judgment, arguing that the requested continuance was statutorily guaranteed and not subject to the "good cause" standard used by the trial court. Those motions were denied. This timely appeal followed.

The opinion of the court was delivered by: Grimes, J.

CERTIFIED FOR PUBLICATION

FACTS

Freeman and Sullivant were life-long friends and neighbors, and their young daughters were also friends. When Freeman noticed that her money was missing, she purchased a hidden camera from a spy shop and set it up in her bedroom to catch the thief. When she reviewed the recording, Freeman discovered that Sullivant had taken $100 from her purse. Freeman confronted Sullivant, but did not immediately involve the authorities. Sullivant became upset, and her husband secretly recorded her threatening to burn Freeman's house down and plotting to accuse Freeman's six-year-old daughter of sexually abusing Sullivant's four-year-old daughter. Sullivant's husband shared these tapes with Freeman, and she called the sheriff's department to make a report. Sullivant was arrested for burglary on October 31, 2009. This petition for a restraining order was filed several days later, and a TRO was obtained on an ex parte basis while Sullivant was still in custody.

The hearing on the petition was held on November 20, 2009, and both Freeman and Sullivant were present and represented by counsel. Sullivant retained counsel, who sent an appearance attorney to request a continuance of the hearing. The appearance attorney was not in possession of the file and not familiar with the facts of the case. The appearance lawyer did not argue the continuance was mandatory or statutorily guaranteed. The trial court denied the request for a continuance, finding no good cause. Counsel was permitted to review the court's file, to meet with Sullivant to discuss the case, and to call counsel of record. At the ensuing hearing, both Freeman and Sullivant testified and were cross-examined. The court found clear and convincing evidence that Sullivant "entered the home of her neighbor and friend and stole money from her. And further, . . . after that, she apparently became irate that she had been caught, and for whatever reason began to make threats to harm the petitioner, her home, and her family. The court feels that those are credible threats." A permanent restraining order was issued.

On December 30, 2009, Sullivant made an ex parte application to vacate the judgment, seeking to have the order set aside because of the court's failure to permit a "mandatory" continuance. The application was denied by the trial court, with leave granted to seek the same relief by noticed motion. That motion was also denied, after the trial court concluded that the authority relied upon by Sullivant was inapposite, and that no right to a mandatory continuance existed under the law pertaining to civil harassment restraining orders. Sullivant filed a timely notice of appeal from the judgment.

On appeal, Sullivant contends the trial court lacked discretion to deny her request for a continuance of the petition hearing. Therefore, Sullivant "asks that this court order the trial [j]udge to grant a continuance and set a new date for a new evidentiary restraining order hearing."

DISCUSSION

Trial courts generally have broad discretion in deciding whether to grant a request for a continuance. (Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th 1389, 1395.) However, some statutes make continuances mandatory and, therefore, divest the trial court of its usually broad discretion. (See, e.g., Fam. Code, § 243, subd. (e).)*fn1 Nevertheless, an abuse of discretion results in reversible error only when the denial of a continuance results in the denial of a fair hearing, or otherwise prejudices a party. (In re Marriage of Johnson (1982) 134 Cal.App.3d 148, 155 [denial of request for continuance, even if in error, is only reversible if it resulted in a miscarriage of justice].) Sullivant's appeal erroneously assumes that: (1) she had a right to a mandatory continuance under Code of Civil Procedure section 527.6; and (2) the claimed mandatory right to a continuance, alone, is sufficient to warrant reversal of the judgment. We find that, absent a showing of any prejudice, this appeal is deficient. Moreover, there is no mandatory right to a continuance under section 527.6. We therefore affirm.

1.Sufficiency of the Appeal.

Sullivant's notice of appeal is directed to the "[j]udgment after court trial." Although the notice appeals the judgment entered by the trial court, the relief sought by Sullivant's brief is an order directing the trial court to grant her request for a continuance. A ruling on a motion for a continuance is not an appealable order. (See Code of Civ. Proc., § 904.1; Cooper v. Deon (1943) 58 Cal.App.2d 789.) However, the failure to grant the requested continuance is reviewable on appeal from the judgment. (Cooper, at p. 789.)

A judgment is reversible only if any error or irregularity in the underlying proceeding was prejudicial. (Cal. Const., art. VI, § 13;*fn2 Code Civ. Proc., § 475.*fn3 Therefore, any error in failing to grant a request for a continuance -- whether mandatory or discretionary -- is reversible only if it is tantamount to the denial of a fair hearing. (See Cohen v. Herbert (1960)186 Cal.App.2d 488, 493-494 [discretionary continuance]; Ross v. Figueroa (2006) 139 Cal.App.4th 856, 865 [mandatory continuance].) There is no presumption of prejudice. (Cal. Const., art. VI, ...


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