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March 18, 2026 Get Citation Alerts Download PDF Add Note

Marriage of J.M. and S.M. CA2/6

California Court of Appeal

• Citations: None known
• Docket Number: B344793

• Precedential Status: Non-Precedential

• Opinion

• Authorities (7)

• Cited By (0)

• Summaries (0)

• Similar Cases (6K)

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Combined Opinion

Filed 3/18/26 Marriage of J.M. and S.M. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

In re Marriage of J.M. and 2d Civ. No. B344793
S.M. (Super. Ct. No. D410362)
(Ventura County)

J.M.,

Respondent,

v.

S.M.,

Appellant.

S.M. appeals from the trial court’s denial of his motion to
dismiss a pending request for a domestic violence restraining
order against him. We affirm.
FACTS AND PROCEDURAL HISTORY
In June 2023, J.M. filed a request for a protective order
against S.M. The trial court issued a temporary restraining
order (TRO) until the July 2023 hearing on J.M.’s request for a
protective order. At the July 2023 hearing, S.M.’s attorney
requested a trial continuance, which the trial court granted. The
parties agreed to continue the trial again in September 2023,
December 2023, June 2024, and September 2024. In October
2024, the parties appeared, requested the matter be set for trial,
and the trial court set the matter for March 2025.
In January 2025, S.M. filed a “request to dismiss pursuant
to termination of temporary restraining order,” contending that,
at the October 2024 hearing, the trial court failed to obtain S.M.’s
time waiver when setting the matter for trial. S.M. contended
the TRO had expired, and the court could not conduct the
upcoming trial. At the March 2025 hearing, the trial court
denied S.M.’s motion to dismiss, noting that S.M.’s counsel “was
present and agreed to setting today’s trial date and he
represented that today’s date would be after the conclusion of his
client’s related criminal matter.” The trial court proceeded with
the trial, granted J.M.’s request, and issued a five-year protective
order.
DISCUSSION
S.M. contends the trial court erred when it denied his
motion to dismiss. We disagree.
Under the Domestic Violence Protection Act, a court is
authorized to issue a protective order enjoining a party from
engaging in specific acts of harassment or abuse against a spouse
or cohabitant. (Fam. Code1, §§ 6211, subds. (a) & (b), 6218.) A
protective order must be set for hearing within 21 to 25 days of

1 Undesignated statutory references are to the Family
Code.

2
issuance of the TRO, but may be reissued and the hearing
continued upon request of either party. (§§ 242, subd. (a), 245.)
S.M. does not argue the merits of J.M.’s petition. Instead,
S.M. contends the trial court erred when it denied his motion to
dismiss J.M.’s petition and dissolve the TRO because a hearing
on the request was not heard within 21 to 25 days of the TRO
without obtaining S.M.’s time waiver.
There are “three fundamental principles of appellate
review: (1) a judgment [or order] is presumed correct; (2) all
intendments and presumptions are indulged in favor of
correctness; and (3) the appellant bears the burden of providing
an adequate record affirmatively proving error.” (Fladeboe v.
American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 58.) Even
where error is demonstrated, an appellant has a burden to also
show the error was prejudicial, resulting in a miscarriage of
justice. (Cal. Const., art. VI, § 13; Denham v. Superior Court
(1970) 2 Cal.3d 557, 566; F.P. v. Monier (2017) 3 Cal.5th 1099,
1107.)
S.M. fails to identify any prejudice he suffered resulting
from the trial court’s denial of his motion to dismiss. S.M.,
represented by counsel, participated in the trial on J.M.’s request
for a protective order. S.M.’s attorney argued his client’s case,
cross-examined J.M. (the only witness), and made objections.
Based on this record, there is no evidence S.M. was prejudiced by
the denial of his motion to dismiss because he was able to
participate in the hearing on J.M.’s petition.
Moreover, the statute permits the court to continue the
hearing beyond the 25-day period on request of either party.
(§ 245, subd. (b); see Adler v. Vaicius (1993) 21 Cal.App.4th 1770,
1775–1776 [preliminary injunctions under Code Civ. Proc., § 527

3
“may be lawfully continued beyond the statutory time at the
request of the defendant . . .”].) That is what the trial court did
here.
In the settled statement, the trial court notes the initial
hearing on J.M.’s request for a protective order was timely set for
July 5, 2023, 22 days after the June 13, 2023, filing date. On that
date, and on three occasions thereafter, counsel for both parties
requested a trial continuance so that S.M.’s related criminal
proceedings would conclude. (Fuller v. Superior Court (2001) 87
Cal.App.4th 299, 307 [trial court may stay civil proceedings until
disposition of related criminal proceedings].) And when counsel
appeared in October 2024 to request the matter be set for trial,
S.M.’s counsel agreed to a March 2025 trial date, stating S.M.’s
criminal matter would conclude prior to the trial date. In
denying S.M.’s subsequent motion to dismiss, the trial court
found that S.M. had agreed to the March 2025 trial date. We
presume the trial court’s finding is correct. (Cross v. Tustin
(1951) 37 Cal.2d 821, 826.)
Finally, S.M. contends the failure to hold a trial on J.M.’s
request for a protective order within the deadline specified in
section 242 violated his due process rights. Whether a
restraining order infringes on procedural due process rights is a
question of law subject to de novo review. (In re Marriage of D.S.
& A.S. (2023) 87 Cal.App.5th 926, 933.)
The record does not support that S.M.’s due process rights
were violated. S.M. requested multiple continuances of the trial,
agreed to a trial date, and participated in that trial. And the
reason the trial was continued beyond the deadline set forth in
section 242 is because S.M. requested it be continued. S.M.
cannot now claim those continuances were unlawful. (Mesecher

4
v. County of San Diego (1992) 9 Cal.App.4th 1677, 1685
[appellant waives the right to attack error by agreeing to the
ruling or procedure objected to on appeal].) Even if the hearing
was untimely, which it was not, this did not divest the trial court
of jurisdiction over J.M.’s request for a permanent protective
order. (Adler v. Vaicius, supra, 21 Cal.App.4th at p. 1775
[continued validity of a TRO immaterial to the court’s jurisdiction
to hold a hearing on underlying petition requesting injunctive
relief].)
DISPOSITION
The judgment is affirmed. Because J.M. did not appear on
appeal, neither party shall recover costs. (Cal. Rules of Court,
rule 8.278(a)(5).)
NOT TO BE PUBLISHED.

BALTODANO, J.

We concur:

YEGAN, Acting P. J.

CODY, J.

5
Dana K. Caudill, Judge

Superior Court County of Ventura

David D. Diamond for Appellant.
No appearance for Respondent.