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C.A. Reverses Retraining Order That Expired Last Year
Opinion Says It Could Otherwise Be Used for Issue Preclusion in New Suit
By a MetNews Staff Writer
Div. Five of the First District Court of Appeal has declined to dismiss as moot an appeal from an order granting a one-year civil harassment restraining order even though that order expired in September 2023, reasoning that the order, if not reversed, could be used for the sake of issue preclusion in a pending lawsuit.
Justice Mark B. Simons authored the unpublished opinion, filed Monday. It wipes out a restraining order imposed by Alameda Superior Court Judge Bentrish Satarzadeh on Michael Hill, then president of a homeowners association for a complex in which the plaintiff, Amy Gair, leased an apartment.
Rejecting Gair’s call for a dismissal of the appeal in light of mootness, Simon said:
“…Ms. Gair fails to address the potential applicability of the doctrine of collateral estoppel. Given the criteria that must be satisfied before the restraining order may be given collateral estoppel effect, it is unclear whether the doctrine would apply….But Ms. Gair has presented no analysis or citations to authorities on that issue, and she has not disclaimed an intent to seek to give collateral estoppel effect to the restraining order in her pending lawsuit.”
On March 14, Gair brought suit against Las Positas Garden Home Association, Inc and Hill.
Addressing the merits, the jurist noted that a restraining order may be based, under Code of Civil Procedure §527,6(b((3) on a “credible threat of violence.” The only act on Hill’s part that met that requisite, Simon remarked, was accelerating his vehicle in Gair’s direction, then suddenly stopping, in a effort to scare her into thinking he was about to run her down.
He declared that “there was insufficient evidence of a likelihood of future harm to support issuance of the restraining order,” saying that Hill abided by a temporary restraining order (requiring that he stay at least 25 yards away from Gair, her apartment and her family members) and that “his deteriorated physical condition decreased the likelihood of future credible threats of violence.”
The case is Gair v. Hill, A166436.
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