Any attorney whose practice involves restraining orders in San Diego is familiar with one thing – the uncertainty of what will happen at the initial hearing date. That first date will see anywhere from fifteen to twenty-five cases all set for the same three-hour timeslot. Of course, one must do one’s due diligence and prepare the case as though it was going to be heard, but most of the time, the Court will eye your case, which has an attorney and thus testimony attached, and continue the hearing for lack of time or to set an evidentiary hearing. Or your case might be continued for no reason at all, as the Respondent exercises his right to a statutory continuance.
There are several statutory vehicles for restraining orders available in California, from the ubiquitous Domestic Violence Restraining Orders and Civil Harassment Restraining Orders to the more specialized vehicles like Elder Abuse and Workplace Harassment Restraining Orders. And for each form of restraining order (save for, to my knowledge, Gun Violence Restraining Orders), there is a statute which allows the Respondent one continuance, be it Fam. Code §245, CCP §527.6(o), WIC § 15657.03 or CCP §527.8(o). Each states, “The respondent shall be entitled, as a matter of course, to one continuance, for a reasonable period, to respond to the petition.”
It is a well-worn adage that statutes mean exactly what they say. Recently, in Goals for Autism v. Paul Rosas (2021) A158062, the First District’s Fifth Division found that CCP §527.8(o) was one of those statutes. Specifically, it ruled that a party who had already filed a Response to a Petition for a Workplace Violence Restraining Order could not then request their one “free” continuance, because the purpose of that statutory continuance was to submit a Response.
Certainly, each form of Restraining Order is its own statutory vehicle. However, the language on DVROs, CHROs and EAROs mirrors the language on WVROs when it comes to the “one continuance, for a reasonable period, to respond to the petition.” It remains to be seen whether the Courts will analogize this case to other forms of restraining orders, or whether the legislature might need to clarify its intent.
In the meantime, it might be wise to make sure not to file a Response to a Restraining Order, no matter what type, if you are planning on requesting a continuance at the first hearing date. Of course, you can still request a continuance for good cause, but do you really want to risk it?
Written by: Christopher McDonough, Esq.