Opinion
F079458
07-28-2021
KAWEAH DELTA HEALTH CARE DISTRICT, Plaintiff and Respondent, v. CHRISTOPHER RENFRO, Defendant and Appellant.
Christopher Renfro, in pro. per., for Defendant and Appellant. Herr Pedersen & Berglund and Rachele Berglund for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Tulare County No. VCU277314 David C. Mathias, Judge.
Christopher Renfro, in pro. per., for Defendant and Appellant.
Herr Pedersen & Berglund and Rachele Berglund for Plaintiff and Respondent.
OPINION
THE COURT [*]
Appellant Christopher Renfro appeals from the imposition of a one-year workplace violence restraining order (order), contending the permanent injunction is invalid because he was never served in the proceedings. Respondent Kaweah Delta Health Care District concedes service did not occur, but contends the order was properly imposed because appellant was actively evading service. The order issued on May 31, 2019, and expired one year later. This court thus asked the parties for briefing on whether this case had become moot. Appellant contends it is not moot because he will continue to suffer collateral consequences from the order, particularly with respect to job prospects due to the order being entered in CLETS and available to be found publicly. He requests this court exercise its discretion to hear the matter even though the order expired and was not renewed. Respondent opposes this request and contends this court was correct in its concern that this case became moot when the order expired.
CLETS is the California Law Enforcement Telecommunications System.
For the reasons set forth below, we exercise our discretion to reach the merits of appellant's claim and reverse the order.
FACTUAL AND PROCEDURAL BACKGROUND
In January 2019, while possibly upset about issues in a workers' compensation case, appellant allegedly made several phone calls to one of respondent's employees. In these calls he threatened legal action against the employee and made several references to the employee's spouse and residence. On claims these comments threatened the employee, respondent sought a Workplace Violence Restraining Order pursuant to Code of Civil Procedure section 527.8.
All future statutory references are to the Code of Civil Procedure.
The initial petition was granted, and a temporary restraining order was entered until the required hearing, initially set for February 2019. Respondent attempted to serve appellant with the temporary restraining order and notice of the hearing but was unsuccessful in nearly 25 attempts over four months. The hearing was postponed multiple times, until May 31, 2019, to allow for service. At the May hearing, the court found appellant “is evading service” and granted a one year restraining order under the statutory scheme. The record does not show appellant was ever served with notice of the temporary restraining order, the hearing, or the final order. However, in June 2019, appellant filed a timely notice of appeal.
Briefing in this case did not conclude until March 2020. When the order expired in May 2020, this court requested letter briefs on whether the case was now moot. These briefs revealed that the order had not been renewed, although the parties disputed whether the case was now moot.
DISCUSSION
We first consider whether this case is moot given the expiration and nonrenewal of the order. “ ‘If relief granted by the trial court is temporal, and if the relief granted expires before an appeal can be heard, then an appeal by the adverse party is moot. [Citation.] However, “there are three discretionary exceptions to the rules regarding mootness: (1) when the case presents an issue of broad public interest that is likely to recur [citation]; (2) when there may be a recurrence of the controversy between the parties [citation]; and (3) when a material question remains for the court's determination [citation].”' ” (Malatka v. Helm (2010) 188 Cal.App.4th 1074, 1088.)
The expiration of the order and failure to seek renewal means that this case is technically moot. Appellant appears to recognize this fact, but requests we exercise our discretion to reach the merits regardless because the order was registered with CLETS, appellant “has been asked about the issue and denied work ‘already' because of it, ” and because the underlying issue is one of due process raising a structural error in the proceedings. Respondent contends the failure to renew shows there is no likelihood of future issues and that this is not the type of case where the court should exercise its discretion to hear the matter.
While we agree with respondent that there is little chance of this being a recurring issue, we do find a basis to exercise our discretion to hear this matter. Specifically, respondent argues that, despite the failure to serve appellant in any capacity, the order in this matter is permissible under the terms of the Workplace Violence Restraining Order laws. We consider this interpretation of the statute to be a material question that remains for this court's determination, and one of public interest that may recur, which warrants our discretionary review. We therefore proceed to the merits.
On the merits, appellant argues that the order was not proper because the court lacked personal jurisdiction over him unless and until he was properly served. He relies on Severson & Werson, P.C. v. Sepehry-Fard (2019) 37 Cal.App.5th 938 (Severson)for this argument. Respondent disputes that a failure to serve is improper here because appellant received actual notice of the temporary order at least 80 days before the hearing-through alleged phone communications with the deputies attempting service-and because the statute permits the extension of temporary restraining orders pending a proper hearing. We agree with appellant.
Appellant's citation to Severson is well founded. In Severson, the court issued a temporary restraining order against the responding party based on allegations he was severely harassing Severson & Werson attorneys. Service was later effectuated on the responding party, but only four days before the scheduled hearing on the restraining order, which was ultimately granted. The responding party did not attend the hearing and, when later served with the final order, appealed claiming the failure to serve five days prior to the hearing voided the court's actions. (Severson, supra, 37 Cal.App.5th at p. 943-944.)
The court of appeal agreed that the responding party was not provided with “adequate notice or an opportunity to be heard to contest the issuance of the restraining order, as he did not receive the notice required by section 527.8.” (Severson, supra, 37 Cal.App.5th at p. 944.) As part of its detailed recitation of the statutory scheme, the court explained that “The trial court may issue a temporary restraining order under section 527.8 without notice to the responding party. (See § 527.8, subd. (f).) Within 21 to 25 days, the court must then hold a hearing to ‘receive any testimony that is relevant' and ‘make an independent inquiry.' (§ 527.8, subd. (j).) ‘If the judge finds by clear and convincing evidence that the respondent engaged in unlawful violence or made a credible threat of violence, an order shall issue prohibiting further unlawful violence or threats of violence.' (Ibid.) ‘Upon filing of a petition under this section, the respondent shall be personally served with a copy of the petition, temporary restraining order, if any, and notice of hearing of the petition. Service shall be made at least five days before the hearing. The court may, for good cause, on motion of the petitioner or on its own motion, shorten the time for service on the respondent.' (§ 527.8, subd. (m); see Cal. Rules of Court, rule 3.1160(c).)” (Id. at p. 945.)
Then, looking at the language of subdivision (m) of section 527.8, the legislative history of the statute, and its similarity to section 527.6, the court concluded as a matter of statutory interpretation that, “section 527.8 [includes] a mandatory requirement that the person subject to a workplace violence restraining order must receive at least five days' notice of the hearing absent a motion seeking shortened time and a showing of good cause. Failure to comply with the statutory requirement violates the restrained party's due process rights.” (Severson, supra, 37 Cal.App.5th at p. 949.) Comparing the statutory scheme to other similar proceedings, the court noted that “[t]he requirement that five days' notice be given prior to holding a hearing on an injunction under section 527.8 is akin to the requirement that parties receive 15 days' notice prior to trial under section 594, subdivision (a). The hearing required by section 527.8, subdivision (j) is effectively the trial on the matter. Under section 594, subdivision (a), the 15 days' notice requirement if the party does not appear for trial is ‘mandatory and jurisdictional; a judgment entered following a trial conducted in violation of the requirement is void. [Citations.]' ” (Severson, supra, 37 Cal.App.5th at pp. 947-948.)
Upon review of the statute and the analysis in Severson, we agree that the requirement of service five days prior to the required hearing identified in subdivision (m) of section 527.8 is both mandatory and jurisdictional. (Severson, supra, 37 Cal.App.5th at pp. 948-949.) The court is granted broad statutory authority to act without notice when it comes to a temporary order. But this broad authority to act without notice does not extend to issuing an order after an evidentiary hearing. Protecting the respondent's rights mandates providing notice and an opportunity to be heard, which is effectuated through service of the temporary order and notice of the upcoming hearing. A complete failure to serve necessarily raises due process issues and divests the court of jurisdiction to act under the clear terms of the statutory scheme.
None of respondent's arguments overcome this conclusion. Respondent's claim that actual notice is sufficient is not persuasive. Factually, at best appellant had actual knowledge of the proceedings. There is no indication he was provided details of the order, allegations, or timing of hearings in the phone messages. Nor would such facts demonstrate proper service under any current California statute. Notably, actual knowledge of the proceedings is insufficient to demonstrate compliance with the rules governing service of process. (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 392-393.)
Nor do we see anything in the statute that excuses service prior to issuing a restraining order after an evidentiary hearing. Section 527.8, subdivision (p)(2), cited by respondent, only holds that a temporary restraining order can be extended until proper service is effectuated. It says nothing about excluding such service altogether. Indeed, as noted above in the discussion of Severson, the overall statute makes clear that service of process is required at least five days prior to the evidentiary hearing required to maintain the requested restraining order.
Finally, while courts may exercise jurisdiction over those living in California, that fact alone cannot permit the court to act unilaterally, as respondent suggests. It is a long settled rule that the lack of proper service results in a lack of personal jurisdiction, even if the party resides in California. (See Caldwell v. Coppola (1990) 219 Cal.App.3d 859, 865 [“Although attorneys are competent to serve process, the prohibition on service by the opposing party is strictly enforced. [Citation.] When a party has served notice on the opposing party, the court lacks personal jurisdiction over the defendant. [Citation.] Personal service by a party renders any judgment or order arising from the proceeding void, despite the defendant's actual notice.”].) We see no reason workplace violence restraining orders should be treated differently.
DISPOSITION
The May 31, 2019, order granting a workplace violence restraining order against appellant is reversed. Appellant is entitled to his costs on appeal.
[*] Before Hill, P.J., Franson, J. and Peña, J.