73 Cal.App.5th 396
Cal. Ct. App.2021Background
- Wife filed for dissolution of a 39-year marriage; parties stipulated to appoint retired Judge Melinda Johnson as a temporary judge to "hear and determine the above-entitled matter until its final determination," including pretrial motions and trial.
- While the dissolution was pending, Husband sought a domestic violence restraining order (DVRO) alleging harassing emails, surveillance, false police reports, and an incident where Wife allegedly chased Husband’s girlfriend, Jenna Jobst, on the freeway.
- After an eight-day evidentiary hearing, Judge Johnson found Wife committed acts of abuse and granted a restraining order but labeled it a "non-CLETS" order (not to be entered in the California Law Enforcement Telecommunications System).
- The order granted Husband exclusive use of the former marital residence, prohibited Wife from contacting or coming within 50 yards of Husband and Jobst, and barred Wife from entering the property except by invitation.
- Wife appealed, arguing (1) the temporary judge lacked jurisdiction because the DVRO was ancillary to the dissolution, (2) the non-CLETS designation violated Family Code §6380, (3) the order improperly extended to nonparty Jobst, and (4) the DVRO was initially filed with the temporary judge rather than the clerk contrary to rule 2.400.
Issues
| Issue | Wife's Argument | Husband's Argument | Held |
|---|---|---|---|
| Scope/jurisdiction of temporary judge | DVRO was an ancillary, independent proceeding outside the stipulation appointing the temporary judge | Stipulation covered pretrial motions and the DVRO was a motion in the pending dissolution (direct progeny) | Temporary judge had jurisdiction; DVRO fell within the stipulation as a pretrial motion/direct progeny of the dissolution (affirmed) |
| Non-CLETS designation / §6380 compliance | Judge erred by issuing a non-CLETS order and not reporting it to DOJ/CLETS | The court found abuse justifying a DVRO and should register it in CLETS | Calling the order "non-CLETS" was legal error; order must be reported and entered in CLETS—remanded for compliance |
| Inclusion of third party (Jobst) | Jobst is not a party; including her was improper | Jobst is a household member; court has discretion to protect named family/household members | Inclusion of Jobst was within the court’s discretion and permissible (affirmed) |
| Filing with clerk / Rule 2.400 | Initial filing with temporary judge (not clerk) deprived judge of jurisdiction | Document was filed with clerk before hearing concluded; failure was harmless here | Failure to file initially with clerk was harmless because clerk filing occurred before hearing ended; no jurisdictional defect (affirmed) |
Key Cases Cited
- Gridley v. Gridley, 166 Cal.App.4th 1562 (explaining that a temporary judge’s authority covers "direct progeny" of the stipulated cause but not ancillary proceedings)
- In re Steven A., 15 Cal.App.4th 754 (temporary judge appointment carries power to act until final determination)
- S.A. v. Maiden, 229 Cal.App.4th 27 (a DVRO requested in a pending dissolution is treated as a motion in that case)
- Nakamura v. Parker, 156 Cal.App.4th 327 (DVROs may be pursued in separate proceedings, but need not be)
- In re Marriage of Nadkarni, 173 Cal.App.4th 1483 ("abuse" includes acts that destroy the mental or emotional calm of the other party)
- In re Conservatorship of Townsend, 231 Cal.App.4th 691 (rule 2.400 filing requirement is intended to ensure public access; failure to file can have non-waivable consequences in some contexts)
- Tanguilig v. Valdez, 36 Cal.App.5th 514 (third-party witness testimony about abusive acts is admissible and relevant)