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Court of Appeal:
Right to One Continuance in DVRO Case Is Inapplicable Where Response Was Filed
By a MetNews Staff Writer
Div. Three of the First District Court of Appeal has rejected the contention of a husband that he had a statutory right to one continuance in a proceeding his wife brought seeking an order compelling him to stay away from her and their daughter, and that the denial of that continuance invalidates the granting of the order.
The statute does not apply, Presiding Justice Alison M. Tucher said in an opinion filed Wednesday, where the respondent has already filed a response to a petition for a domestic violence restraining order (“DVRO”).
At issue was the meaning of Family Code §245(a), which says:
“The respondent shall be entitled, as a matter of course, to one continuance for a reasonable period, to respond to the petition.”
Appellant Waqas Khalid argued that Alameda Superior Court Commissioner Nikki Clark ran afoul of that provision by denying a continuance sought at an April 4, 2023 hearing by his newly retained lawyer who wanted time to gather full text messages rather than the bench officer being restricted to considering snippets supplied by the wife.
The matter had been continued to that date after the attorney for the wife, Noor Mohammad, had requested a continuance at an initial hearing on March 15, 2023. Between the date of the initial hearing and the second hearing, Khalid on March 29 filed a responsive pleading and Mohammad filed a supplemental declaration the following day, attaching portions of additional text messages.
Statute Interpreted
In a published portion of Wednesday’s opinion, Tucher construed the right to one continuance “to respond to the petition” as connoting a response in the form of a responsive pleading and not including a response by way of presenting defense evidence in court. She wrote
“By the time he requested a continuance, he had already responded to the petition.…[H]aving already responded to Wife’s petition, Husband was not entitled ‘as a matter of course’ to a restraining order to allow him ‘to respond to the petition.’ ”
She pointed to a June 24, 2021 opinion by the First District’s Div. Five in Goals for Autism v. Rosas where the court dealt with a provision similar to §245(a) relating to workplace violence restraining orders. The opinion alludes to what is now §245(a), saying that it “underscores that the purpose in enacting the mandatory continuance provision was to give respondents an opportunity to respond to the allegations in the petition for the restraining order.”
Discretionary Continuance
Sec. 245(b) authorizes a continuance “on a showing of good cause.” Tucher declared that Clark did not abuse her discretion in denying a delay, saying:
“The trial court’s denial of a continuance did not deprive Husband of a fair hearing. Husband had already declared himself prepared to proceed at the March 15, 2023 hearing, when the matter was continued over his objection. He was aware at least four days before the April 4 hearing that the text message exchanges between himself and Wife would be at issue, and he makes no showing that the lack of a continuance deprived him of adequate time to make a showing of their full context….Indeed…in his own testimony Husband provided context for the text messages.”
Khalid also contended that under §243, he was entitled to five days’ notice, and was deprived of that right by virtue of new allegations being leveled at him in the March 30 supplemental declaration. Tucher wrote:
“Husband had notice of the hearing much more than five days before it took place. He cites no authority suggesting Wife’s supplemental declaration would restart section 243’s five-day clock.”
The case is N.M. v. W.K., 2024 S.O.S. 1080.
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