192 Cal. App. 4th 523
Cal. Ct. App.2011Background
- Freeman sought a civil harassment TRO against Sullivant; a TRO issued ex parte; at the hearing, appearance counsel sought a continuance but the court denied it for lack of good cause.
- Sullivant’s counsel, who had not reviewed the file, was allowed to review the file and meet with Sullivant before the evidentiary hearing.
- The evidentiary hearing occurred; the court found clear and convincing evidence that Sullivant burglarized Freeman’s home and made threats against Freeman and her family, issuing a permanent order.
- Sullivant moved to vacate the judgment ex parte and then by noticed motion arguing a mandatory continuance was required; both motions were denied.
- Sullivant appealed, challenging the denial of the continuance; the appellate court affirmed, holding no mandatory right to a continuance under CCP 527.6 and no prejudice shown.
- Freeman sought and was denied sanctions for frivolous appeal; the court upheld the judgment and awarded Freeman costs on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is there a mandatory continuance right under CCP 527.6? | Sullivant asserts a mandatory continuance exists. | Freeman argues continuance is discretionary. | No mandatory right; denial not reversible absent prejudice. |
| Was the denial of the continuance prejudicial to Sullivant? | Denial deprived Sullivant of a fair hearing. | No prejudice shown; hearing conducted with counsel; no prejudice. | No prejudice demonstrated; appeal not reversible on this basis. |
| Does CCP 527.6 create a right to a continuance as a matter of right? | Contends 527.6 contemplates a right to continuance. | Law provides no such right; continuance is discretionary. | No right to a mandatory continuance under 527.6. |
| Is the appeal frivolous and sanctionable under CCP 907? | Freeman seeks sanctions for frivolous appeal. | Appeal challenges trial court discretion; not per se frivolous. | Not frivolous; sanctions denied. |
Key Cases Cited
- Oliveros v. County of Los Angeles, 120 Cal.App.4th 1389 (Cal. App. 4th 2004) (broad discretion in continuance decisions)
- In re Marriage of Johnson, 134 Cal.App.3d 148 (Cal. App. 3d 1982) (denial of continuance reversible only if prejudice shown)
- Cohen v. Herbert, 186 Cal.App.2d 488 (Cal. App. 2d 1960) (denial of continuance reviewed for prejudice)
- Ross v. Figueroa, 139 Cal.App.4th 856 (Cal. App. 4th 2006) (prejudice standard in continuance rulings)
- Adler v. Vaicius, 21 Cal.App.4th 1770 (Cal. App. 4th 1993) (attorney fees under 527; context of TRO)
- S.B. Beach Properties v. Berti, 39 Cal.4th 374 (Cal. 4th 2006) (plain-meaning rule for statutes; no addition by court)