In many cases of domestic violence our client face, the client faces not only a criminal complaint in criminal court, but a hearing on a domestic violence restraining order (DVRO) as well in a civil court room with a different judge.
Brief Synopsis: When one faces a civil restraining order and a criminal domestic violence case, it is best to ask to continue the hearing on the civil restraining order to a later date after the criminal matter is resolved or at least to a point where resolution is imminent. To read about how to accomplish this and what the judge will consider in evaluating such a request, read this article.
The hearing in civil court is set, pursuant to California Family Code § 242(a), just 21 days after the party seeking the order files a request for a DVRO.
On one hand, our client may be eager to tell his or her side of the story and hopes to testify at the DVRO hearing, which is usually first in time. The client may tell us, “I will win there and then you can tell the DA to dismiss the case against me.” This often is a foolish approach, but depending upon the facts, it may be appropriate.
On the other hand, the client may fret having to testify to what happened in the DVRO hearing because his or her testimony is recorded by a court reporter and put into a printed transcript that the prosecutor in the criminal case can use to strengthen the case against our client.
When there is a realistic chance that the DVRO hearing will require our client to testify to matters at issue in the criminal case, we suggest that the client delay (or continue) the DVRO hearing.
How is this done? What is the statutory and / or case law authority for this? Can the judge say no? How long can the delay be?
The answers to each of these questions are relatively clear. A request for a continuance of the hearing can be done orally or in writing. Some judges may require such a request in writing, especially if it is not the first such request in a single case. Some courts may have forms that one can complete and submit to make such a request.
It is worth noting that Family Code § 245(a) provides that “(a) [t]he respondent shall be entitled, as a matter of course, to one continuance for a reasonable period, to respond to the petition.” Family Code § 245(b) goes further, stating, “[e]ither party may request a continuance of the hearing, which the court shall grant on a showing of good cause. The request may be made in writing before the hearing or orally at the hearing. The court may also grant a continuance on its own motion.”
California Rules of Court, Rule 3.1332(d), states, “[i]n ruling on a motion or application for continuance, the court must consider all the facts and circumstances that are relevant to the determination.” Valid grounds for consideration in such a request for a continuance under Rule 3.1332(c) include: “(2) whether there was any previous continuance, extension of time . . . (3) the length of the continuance requested; (4) the availability of alternative means to address the problem that gave rise to the motion or application for a continuance; (5) the prejudice that parties or witnesses will suffer as a result of the continuance; (6) if the case is entitled to a preferential trial setting [i.e., based on the age of the parties], the reasons for that status and whether the need for a continuance outweighs the need to avoid delay; . . . (10) whether the interests of justice are best served by a continuance, by trial of the matter, or by imposing conditions on the continuance; and (11) any other fact or circumstance relevant to the fair determination of the motion or application.
The decision of whether to grant or deny a continuance is committed to the trial court’s sound discretion and is reviewed for abuse of discretion. Lazarus v. Titmus (1998) 64 Cal. App. 4th 1242, 1249.
A continuance of such a DVRO hearing may be due to medical appointments of a party, work issues or, most commonly, a pending or active criminal case. The fact that there is a pending or active criminal case often means that for one party to defend himself in the DVRO hearing, he or she may need to testify to matters that could incriminate him or her in the criminal case, i.e., support a conviction.
Does this mean that the DVRO matter must always wait for the criminal case to end first? The answer is not necessarily. People v. Coleman (1975) 13 Cal. 3d 867, 884-85 (“the fact that a man is indicted cannot give him a blank check to block all civil litigation on the same or related underlying subject matter . . . The court , in its sound discretion, must assess and balance the nature and substantiality of the injustices claimed on either side); see also Avant! Corp. v. Superior Court (2000) 79 Cal. App. 4th 876, 882 and Pacers, Inc. v. Superior Court (1984) 162 Cal. App. 3d 686, 690 (“when both civil and criminal proceedings arise out of the same or related transactions, an objecting party is generally entitled to a stay of discovery in the civil action until disposition of the criminal matter.”).
For more information about common domestic violence issues, please click on the following articles: