Filed 4/15/16 Johnson v. Bass CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

DEZARAE LEANN JOHNSON,
                                                                                           F071450
         Plaintiff and Appellant,
                                                                           (Super. Ct. No. 15CECG00329)
                   v.

NICOLE YVETTE BASS,                                                                      OPINION
         Defendant and Respondent.



                                                   THE COURT*
         APPEAL from an order of the Superior Court of Fresno County. Lisa M.
Gamoian, Judge.
         Dezarae Leann Johnson, in pro. per. for Plaintiff and Appellant.
         Nicole Yvette Bass, in pro. per. for Defendant and Respondent.
                                                        -ooOoo-
         On plaintiff’s request for an order against defendant prohibiting civil harassment,
the trial court entered a mutual order restraining both parties. Plaintiff challenges the
portion of the order restraining her. Because defendant did not request such an order by
filing a cross-petition, we reverse the portion of the order entered against plaintiff.


*        Before Hill, P.J., Levy, J. and Gomes, J.
                    FACTUAL AND PROCEDURAL BACKGROUND
       Plaintiff, Dezarae Johnson, filed an application for a civil harassment restraining
order against defendant, Nicole Bass. The trial court issued a temporary restraining order
pending a hearing. At the hearing of the order to show cause why an order prohibiting
harassment should not be granted, both parties testified. After the hearing, the trial court
issued a mutual three-year order, enjoining each party from harassing or contacting the
other; it ordered each to stay at least 100 yards away from the other person and the other
person’s home, school, workplace, and vehicle. Plaintiff appeals, contending, among
other things, that the trial court erred by entering mutual restraints when defendant did
not formally petition for a civil harassment restraining order against her.
                                         DISCUSSION
       “A person who has suffered harassment as defined [by statute] may seek a
temporary restraining order and an order after hearing prohibiting the harassment.”
(Code Civ. Proc., § 527.6, subd. (a)(1).)1 “‘Harassment’ is [defined as] unlawful
violence, a credible threat of violence, or a knowing and willful course of conduct
directed at a specific person that seriously alarms, annoys, or harasses the person, and
that serves no legitimate purpose. The course of conduct must be such as would cause a
reasonable person to suffer substantial emotional distress, and must actually cause
substantial emotional distress to the petitioner.” (§ 527.6, subd. (b)(3).) “At the hearing,
the judge shall receive any testimony that is relevant, and may make an independent
inquiry. If the judge finds by clear and convincing evidence that unlawful harassment
exists, an order shall issue prohibiting the harassment.” (§ 527.6, subd. (i).) The order
“may have a duration of not more than five years.” (§ 527.6, subd. (j)(1).)




1       All further statutory references are to the Code of Civil Procedure unless otherwise
indicated.


                                                2.
       A party may seek a temporary order and an order after hearing by filing a petition
requesting that relief. (See § 527.6, subds. (d), (g).) In response to the petition for an
order prohibiting civil harassment, “[t]he respondent may file a response that explains,
excuses, justifies, or denies the alleged harassment or may file a cross-petition under this
section.” (§ 527.6, subd. (h), italics added.)
       Plaintiff petitioned for an order prohibiting civil harassment pursuant to
section 527.6. Defendant filed an answer, but did not file a cross-petition. After the
hearing, the trial court entered an order restraining both parties. Defendant has not
appealed the order entered against her. Plaintiff contends the trial court violated section
527.6 and her due process rights by entering an injunction against her when defendant did
not give her notice of any request for such an injunction by filing a formal cross-petition.
       In Kobey v. Morton (1991) 228 Cal.App.3d 1055 (Kobey), plaintiff petitioned for a
civil harassment restraining order against defendant. (Id. at p. 1057.) After a hearing, the
trial court imposed mutual restraining orders against plaintiff and defendant. (Id. at
p. 1058.) The court noted that Schraer v. Berkeley Property Owners’ Assn. (1989) 207
Cal.App.3d 719 (Schraer) had held the trial court was required to follow formal
procedures at the hearing, including allowing oral testimony to be presented; the Schraer
court explained:

              “‘Although an initial temporary restraining order may be obtained ex
       parte on affidavit, the statute requires a more formal procedure for
       obtaining what approximates a permanent injunction.

               “‘This more formal procedure is required by due process. The
       injunction issued under the statute at issue is quite different from the kind
       of injunction issued under ... section 527, subdivision (a). Although the
       latter preliminary injunction may be issued on the basis of affidavit alone,
       the enjoined party still has the safeguard of a full trial on the merits to
       follow ....

               “‘In contrast, the procedure for issuance of an injunction prohibiting
       harassment is self-contained. There is no full trial on the merits to follow
       the issuance of the injunction after the hearing provided by ... section 527.6,

                                                 3.
       subdivision (d).’” (Kobey, supra, 228 Cal.App.3d at pp. 1059–1060,
       quoting Schraer, supra, 207 Cal.App.3d at p. 732.)
       The Kobey court concluded:

       “Similarly, we believe section 527.6 calls for the formality of a cross-
       complaint before the court imposes on the plaintiff ‘what approximates a
       permanent injunction.’ The court’s inherent power does not extend so far
       as to encompass an order without a petition to serve as a vehicle for that
       order. [Citation.] While we applaud the trial court’s efforts to keep the
       peace in the highly emotional situation here, we cannot elevate this goal
       over the basic requirement of due process.” (Kobey, supra, 228 Cal.App.3d
       at p. 1060, fn. omitted.)
       The court reversed the portion of the order imposing an injunction against the
plaintiff, finding the trial court abused its discretion by imposing mutual restraining
orders. (Kobey, supra, 228 Cal.App.3d at p. 1060; accord, Nora v. Kaddo (2004) 116
Cal.App.4th 1026, 1029.)
       Defendant did not file a cross-petition for an order against plaintiff as permitted by
section 527.6, subdivision (h). Plaintiff was given no advance notice of, or effective
opportunity to respond to, any charge that she engaged in harassment of defendant.
Consequently, the trial court abused its discretion by imposing against plaintiff an order
prohibiting civil harassment.
                                      DISPOSITION
       The portion of the order imposing restraints against plaintiff is reversed. The
remainder of the order is affirmed. Plaintiff is entitled to her costs on appeal.




                                              4.
