STEPHEN KATZ v. RICHARD KATZ (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Appellant Richard Katz was a disruptive and disturbing force in the lives of his brother, respondent Stephen Katz, and Stephen's ¹ family.   Stephen, weary of Richard's threatening behavior, sought and received “personal conduct, stay-away, and residence exclusion” orders restraining Richard's contact and dealings with Stephen and his family as well as others.   After the issuance of the orders, Richard was convicted of various criminal offenses for which he was sentenced to state prison.   The restraining orders expired while he was incarcerated.   After the orders expired, Stephen sought and obtained a “renewal” of the restraining orders.  (Fam.Code, § 6345, subd. (a).) ²

Richard, who represents himself on appeal, asserts the following errors:  (1) the trial court had no power to renew the restraining order because the original order had expired, (2) the order was renewed without affording Richard a hearing, (3) the statement of decision is ambiguous, (4) the order is not supported by substantial evidence, and (5) his motion for change of venue should have been granted because the Santa Barbara judiciary is biased.   We reverse and remand for further proceedings consistent with the requirements for obtaining a new order.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

Richard began exhibiting bizarre behavior at the Bat Mitzvah of Stephen's daughter in September 2001.³  His behavior, consisting of verbal and written threats and other forms of harassment, continued and Stephen obtained a temporary restraining order against Richard.   Richard did not comply with the restraining order and continued to harass Stephen and his family.

In addition to harassing his family, Richard committed a variety of criminal acts.   He fled the country, was ultimately tracked down in Australia, extradited to the United States, and charged in numerous counties with making terrorist threats, contempt of court, violation of restraining order, theft by use of an access card, stalking, grand theft, and forgery.   Richard pleaded guilty to, and was convicted of, theft of access card and account information.  (Pen.Code, § 484e, subd. (d).)  On February 24, 2004, imposition of sentence was suspended and Richard was granted probation for a term of three years.   Among the conditions of his probation, Richard was required to spend 240 days in custody and was restrained from annoying, threatening, harassing, or having any contact with Stephen and other members of his family.   The order also prohibited Richard from entering Santa Barbara County without prior authorization from his probation officer.   The term of the restraining order ran from February 24, 2004, through February 24, 2007.⁴

In December 2006, Richard was convicted and sentenced to five years in prison for, among other things, grand theft, forgery and stalking, crimes he committed after being released on parole.   From July 2007 through June 2009, Richard bombarded Stephen, Stephen's employer and the family lawyer with dozens of letters which, alternatively, blamed Stephen and his family for ostracizing him, apologized for his bad behavior, and begged for money.

Richard's initial release date was July 15, 2009.⁵  On July 13, 2009, in anticipation of Richard's release, Stephen filed a request for a domestic violence restraining order substantially similar to that which was issued in 2006.   Judge Sterne issued a temporary restraining order as requested on July 14, 2009, and scheduled a hearing for August 3, 2009.   According to the August 3 minute order, only Stephen's attorney appeared.   Judge Sterne extended the temporary restraining order and continued the hearing until December 7, 2009.

On December 7, 2009, attorneys for both Stephen and Richard appeared for the hearing.   Neither Stephen nor Richard was present.   At that time, Richard's attorney accepted personal service of the temporary restraining order and notice of hearing on Richard's behalf.⁶  The attorneys agreed to extend the restraining order and continue the hearing until March 29, 2010.   Judge Sterne stated:  “I'm hoping that again there's a lot of history here and there may be quite a bit of it to which the parties may be able to stipulate so that the Court can—and we'll start the new discussion from the new baseline of time.”

On March 11, 2010, Richard filed an ex parte application for a continuance because his attorney had withdrawn.   Stephen opposed the request.   On that date, Judge Sterne denied the continuance and, after oral argument, issued a 5–year restraining order pursuant to section 6345 without affording Richard a hearing or other opportunity to present evidence.⁷

Subsequently, Richard filed motions for reconsideration, statement of decision, disqualification of Judge Sterne and a peremptory challenge to Judge Canter.   On April 22, 2010, Judge Anderle issued an order denying Richard's motion to disqualify Judge Sterne.   The order states that Judge Sterne was on medical leave and the matter was being reassigned to Commissioner Motter.   On April 26, 2010, Commissioner Motter denied Richard's motion for reconsideration.   At that time, Richard again requested a statement of decision.   On May 3, 2010, Commissioner Motter issued a restraining order after a hearing extending the restraining order Judge Sterne had issued on March 22, 2010.   She also issued a document entitled “Statement of Decision” stating her reasons for denying Richard's various motions.

DISCUSSION

Standard of Review

We review the trial court's renewal of a domestic violence restraining order under the abuse of discretion standard.  (In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1495;  Gonzalez v. Munoz (2007) 156 Cal.App.4th 413, 420.)  “To the extent that we are called upon to review the trial court's factual findings, we apply a substantial evidence standard of review.”   (Loeffler v. Medina (2009) 174 Cal.App.4th 1495, 1505.)

Domestic Violence Prevention Act

The restraining order before us was issued pursuant to the Domestic Violence Prevention Act (§ 6200 et seq.)  (DVPA).  The DVPA authorizes the trial court to issue a restraining order “for the purpose of preventing a recurrence of domestic violence and ensuring a period of separation of the persons involved, if an affidavit ․ shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse.” (§§ 6300, 6220 [purpose of DVPA stated].)   A restraining order may issue under the DVPA either “enjoining specific acts of abuse,” “excluding a person from a dwelling,” or “enjoining other specified behavior” and may issue ex parte, after notice and a hearing, or in a judgment.

(§ 6218.)

The Court Did Not Have Authority to Renew the Restraining Order

Without a Hearing After It Had Expired

Richard asserts that the trial court erred in renewing the restraining order because the previous order, issued for three years as a condition of his 2004 probation, expired while he was in prison.   He argues that the language of section 6345 requires that a restraining order may only be renewed prior to the expiration of the prior order.   We agree.

Although no case has interpreted the term “renewal” in section 6345, we are

guided by the revision to section 6345, which will be effective January 1, 2012.   That revision adds a concluding sentence to section 6345, subdivision (a), as follows:  “The request for renewal may be brought at any time within the three months before the expiration of the orders.”   As the requested order was not a renewal of the prior order, the procedures required for issuance of an initial order apply, and the trial court erred in issuing the order without affording Richard an opportunity to present evidence.

Richard has not provided us with a transcript of the March 11, 2010, proceedings at which Judge Sterne renewed the restraining order.   Consequently, we do not know what occurred at that hearing.   On this incomplete record, we could presume that the trial court proceeded appropriately.  (See Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, 448 [the absence of a record of what actually occurred at trial precludes a determination that the court abused its discretion];  see also Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502 [“Failure to provide an adequate record on an issue requires that the issue be resolved against [appellant]”].)   Nonetheless, other portions of the record, including declarations by Richard and Stephen's attorney indicate that Richard was not given an opportunity to present evidence before the court issued the order on March 11.  (See In re Jesusa V. (2004) 32 Cal.4th 588, 601 [Due process requires notice and hearing appropriate to the nature of the case].)   The initial restraining order had expired three years prior to the second order being issued.   In these circumstances, Richard is entitled to an opportunity to present evidence in response to the petition.

Remaining Contention

Richard's motion for change of venue was properly denied.   He presented no evidence that the Santa Barbara judiciary was biased.  (See People v. Guerra (2006) 37 Cal.4th 1067, 1112, overruled on another ground in People v. Rundle (2008) 43 Cal.4th 76, 151[“[A] trial court's numerous rulings against a party—even when erroneous—do not establish a charge of judicial bias, especially when they are subject to review”].)

Conclusion

The orders directing issuance of the restraining order are reversed.   The matter is remanded to the trial court with directions to conduct a new hearing in conformity with section 6320 et seq., should Stephen so request.   The parties shall bear their own costs on appeal.

NOT TO BE PUBLISHED.

We concur:

Richard S. Katz, in pro. per., for Appellant.

Hollister & Brace, Marcus S. Bird, Kevin Robert Nimmons;  The Law Office of Paul Capritto and Paul A. Capritto, for Respondent.

FOOTNOTES

FN1. We refer to the parties by their first names for clarity.   No disrespect is intended..  FN1. We refer to the parties by their first names for clarity.   No disrespect is intended.

FN2. All statutory references are to the Family Code unless otherwise indicated..  FN2. All statutory references are to the Family Code unless otherwise indicated.

FN3. The record provided by appellant is incomplete and in disarray.   Of necessity, the statement of facts herein is from Stephen's declaration filed in support of his request for renewal of the restraining order..  FN3. The record provided by appellant is incomplete and in disarray.   Of necessity, the statement of facts herein is from Stephen's declaration filed in support of his request for renewal of the restraining order.

FN4. According to the declaration of Stephen's attorney, Richard was subject to a separate domestic violence restraining order with respect to his ex-wife and child.   The order does not appear in the record and we have no information as to the duration of that order..  FN4. According to the declaration of Stephen's attorney, Richard was subject to a separate domestic violence restraining order with respect to his ex-wife and child.   The order does not appear in the record and we have no information as to the duration of that order.

FN5. His incarceration was extended until late October 2009 due to a conduct violation committed prior to his scheduled release date..  FN5. His incarceration was extended until late October 2009 due to a conduct violation committed prior to his scheduled release date.

FN6. The proof of service was omitted from appellant's appendix.   The Court of Appeal takes judicial notice of the proof of service in the superior court file..  FN6. The proof of service was omitted from appellant's appendix.   The Court of Appeal takes judicial notice of the proof of service in the superior court file.

FN7. Appellant has not provided a reporter's transcript of the March 11, 2010, proceeding nor a signed copy of the order issued by Judge Sterne.   The information in this opinion is taken from a subsequent order issued by Judge Anderle on April 22, 2010..  FN7. Appellant has not provided a reporter's transcript of the March 11, 2010, proceeding nor a signed copy of the order issued by Judge Sterne.   The information in this opinion is taken from a subsequent order issued by Judge Anderle on April 22, 2010.

YEGAN, Acting P.J. COFFEE, J. Colleen K. Sterne, Judge Denise Motter, Commissioner Superior Court County of Santa Barbara