DVRO Reversed; Inmate's Right to Court Access Violated

Filed 2/25/26 CERTIFIED FOR P UBLICATION COURT OF APPEA L, FOURTH APPEL LATE DISTRI CT DIVISION ONE STATE OF CALIFO RNIA J.S., Plaintiff and R espondent, v. D.A., Defendant and Appellant. D086356 (Super. Ct. No. 25F DV00839C) APPEAL from a jud gment of the S uperior Court of San Die go County, Brigid Campo, Judg e. Reversed an d remanded. D.A., in pro. per., for Defendant an d Appellant. No appearance for Plaintiff and Re spondent. INTRODUCTION This is the seco nd time we re verse a do mestic violence rest raining order (DVRO) issue d for J.S. ’s prot ection. In a p rior appeal, we reversed a three -year DVRO th at J.S. obtain ed aga inst her former fian cé, D.A. (appellant), because the trial court faile d to address appella nt ’s request to be transported fro m the San Diego Co unty Jail to c ourt for the evidenti ary

2 hearing before proce eding without him. (J. S. v. D.A. [non pub. opn.].) In this appeal, J.S. petitioned for anoth er DVRO again st appellant because the abuse h ad not stopped. Appellant, now an inm ate at a correctional facility, requested tha t the trial court order the California Department of Corr ections and Reh abilitation (CDCR) to prepare hi m to appear telephonicall y at the evidentiary hearing. As before, but with a different bench offic er, the court fail ed to addres s his request and issued a five -year DVRO at a hearing withou t him. We must a gain reverse and remand to the court for proceedings c onsistent with appella nt ’s right to meaningful access t o the courts. Indigent inmates in bona fide civil actio ns that threaten the ir interests have a right to mea ningful access to the courts to be heard i n their defense. The deprivatio n of that right is a violation of bot h the due p rocess an d equal protection clauses of both the state and f ed eral co nstitutions. And b ecause the remedy for the d enial of that fu ndamental r ight is a ne w hearing, i t is critically important for both the pet itioner and re spondent i n DVRO proceedings that co urts promptly i dentify and a ddress thes e requests by indigent inmates for access. Duplicative proceedi ngs necessi tated by such preventable errors a re burdensome f or victims of domes tic violence and ma y discourag e them fro m pursuing prot ective relief. BACKGROUND On February 26, 20 25, J.S. filed a request for a DVRO against appellant. In a sup porting statem ent, J.S. expla ined appell ant has been abusive towar ds her since the y started t heir relationshi p in 2021. He broke her nose in 2022 an d gave her “many black eyes over t he years.” Sh e filed for

3 a restraining order i n 2022, but s he believed ap pellant whe n he promised “to be better” only for him to become abusive again. J.S. stated appella nt was “v ery controlli ng ” of her. She could not go to her mother’s house, and he caused her to lose h er job w hen he “beat up” her manager. Appellan t was “always very suspicious” and believed she was having affairs with others. J.S. stated, appella nt “is currently i n prison for t he prior d omestic violence against [he r].” Over the w eekend of February 22 and 23, 2 025, appellant repeatedl y contacted her f rom prison. She asked him to stop contacting her, telli ng him she was “done” with him a nd “to please move on with his life.” But h e kept contacti ng her and tol d her, “that is why guys rape you,” “I hope you ge t raped again,” and “I’m not done with you. ” (Bol dface omitted.) When she asked him to leave her alone, appellant started “cussing” at her in Spanish. J.S. blocked appella nt ’s phone num ber, but he ca lled from a different number. She picke d up the call becaus e she did not rec ognize the number and it was hi m, telling her, “If I cannot be with you, then yo u cannot be wit h anyone else.” (Boldface omitted.) He tol d her that when he gets out of prison, he will look f or her and her n ew partner. J.S. is fearful appell ant will harm her when he is releas ed. She explained, “He has t old me that he only has three years left and that I sho uld look out. I am afrai d for my life an d scared of wh at he can d o. I am worrie d that he will attack me or try to do something else.” (B o ldfa ce omitted.) On February 26, 20 25, t he trial co urt issued a t emporary restraining order (TRO) requiri ng appellant t o stay away fr om J.S. and to not abuse or contact her. The co urt set an evid entiary hearin g on Marc h 17, 2025 to determine whether to issue a perm anent order. Notably, th e TRO specified

4 appellant ’s current address as the Richard J. Donova n Correctional Facility (Donovan Correctio nal Facility) a t 480 Alta Road, San Dieg o, California 92179. On March 12, 2025, appellant filed a response to the DVRO request using a DV-120 for m. Appellant stated in his response that he could receive court papers at 480 Alta Ro ad, San Diego, California 92179, confirming he was at the Donovan Correctional Fa cility. 1 Appellant disagreed with the reque sted order, cla iming he w as denied due process because he did not recei ve “ advance notice ” or “ due process” for the issuance of the TRO on Febru ary 26, 2025. He stated he need ed an “extension else [he] cannot meet [the] petitioner’ s unexpect ed allegations and will not be afforded a fair hearing.” As additional reasons h e disagreed wit h the requested order, appellant dire cted the court t o review his “attac hed notice and motion to continue and to con duct discovery with leave of court and for good cause.” The attached document was six pages long and handwritten. On pa ge 3, appellan t stated: “I see k to have t he litigati ons coordinator at CDCR prepar e for me to appear by tele phone by order of this court.” At the hearing on M arch 17, 2025, J.S. a ppeared as a self -represented litigant. Appellant was not presen t. Ac cording to the tr ial court’s minutes, J.S. had not receive d appellant ’s r esponse, so the court prov ided her with a copy. The court also noted “there is a re quest to contin ue in the response” by appellant and thus t he court found g ood cause to c ontinue th e hearing to 1 We take judicial not ice on our own motion that the ad dress of the Donovan Correction al Facility is 480 Alta Road, San Diego, Californi a 921 79. (Evid. Code, §§ 452, subd. (h), 459.)

5 April 7, 2025. The minutes do not reflect that the court con sidered appellant ’s other re quests, includin g his request for an ord er to appear by telephone. On April 7, 2025, the trial court hel d an evidenti ary hearing. T he hearing was not rep orted. According to the minu tes, appell ant, again, was not present. The mi nutes do not show t he court conducte d a custod y check for appellant at the time of the hearing. J.S. ap peared witho ut counsel and testified. Based on her testimony and the declarations and pleading s on file, the court found J.S. met her burden of proof to sh ow appella nt had engage d in ab use, as defined by Family Co de section 620 3. The court gr anted J.S. a five -year DVRO aga inst appellant. The next day, on April 8, 20 25, appellant filed three handwr itten motions that were d ated March 21, 2025. In them, he requested: (1) J.S. be compelled to answer requests for interro gatories and a dmissions; (2) appointment of a n expert physici an; and (3) assistance fa cilitating a telephonic appearan ce. Our re cord on appeal do es not show the court took any action in respon se to these filings. On May 6, 2025, ap pellant filed a timely notice of appe al, asserting h e was deprived of his constitutional r ight of access to the c ourt becaus e “ the court proceeded without [hi m].” The no tice of appeal and n otice designati ng the record on appeal represent they were filed fro m the Don ovan Correctional Facility. On July 2 2, 2025, we a pproved appellant ’s applic ation to waive court fees and costs because he did not h ave enough inco me to pay for his household’s basic ne eds and the court fe es.

6 DISCUSSION Appellant raises several contentions in his openi ng brief. 2 We be gin with what we consid er to be the key and dispositive issu e in this appeal: whether appellant was improperly denied his right to meaningful acc ess to the courts. Our r eview is for abuse of discretion. (Payne v. Superior Court (1976) 17 Cal.3d 9 08, 926 (Payne).) Indigent inmates who are de fendants in bona fide civi l actions that threaten their inter ests have a rig ht to meaningful acc ess to the cour ts “to be heard in [their] defe nse.” (Yarbroug h v. Superior Court (198 5) 39 Cal.3d 197, 200 (Yarbrough).) The deprivation of that right is a vi olation of both the due process and equal p rotection clauses of both the Califo rnia and United St ates Constitutions. (Pay ne, supra, 17 C al.3d at p p. 9 22 – 923; Apo llo v. Gyaami (2008) 167 Cal.Ap p.4th 1468, 1485 – 1487 (Apollo).) Courts have wide di scretion and a variety of me asures at their dispos al to ensure an indige nt inmate is provided with meaningful a ccess to the courts. (Apollo, sup ra, 167 Cal.A pp.4th at p. 1483.) “ Those measures include deferra l of the action u ntil the prisoner is r eleased; (2) appointment of c ounsel for the pr isoner; (3) tr ansfer of t he prisoner to court to attend hearings or the trial; (4) utilization of deposi tions in lieu of personal appearanc es; (5) holding of tri al in prison; (6) cond ucting s tatus and settlement conferen ces, hearings on motions and other pretrial procee dings by telephone; (7) propounding of written discovery; and (8) use of close d circuit television or other mo dern electronic media.” (Smith v. Ogbuehi 2 J.S. did not file a re spondent’s brie f in this appeal. We ther efore decide this case based on t he record on app eal and appellant ’s ope ning brief. (Cal. Rules of Court, rule 8.220(a).)

7 (2019) 38 Cal.App. 5th 453, 467, i talics omitted (Smith).) The Penal Code specifically authoriz es transportati on of the priso ner to cour t to attend a hearing. (Pen. Code, § 1567.) Here, it is undisputed that appellant w as in prison wh en J.S. filed h er DVRO request and t his fact was ap parent from the trial cou rt ’s fil e. J.S. stated i n her suppor ting statement filed with the DVRO request that appellant was perpe trating the abuse fr om prison. The TR O issued by the court specified appe llant ’s current address as the Dono van Correction al Facility. In his first filing with the cour t, appell ant represe nted he was still at Donovan where h e could receive c ourt papers and asked t he court to order CDCR to prepare hi m to appear telepho nically fo r the evide ntiary hearing on whether the TRO sh ould be made permanent. Upon receipt of this request, and in light of the inf ormation i n its record, the trial cou rt was required to (1) deter mine whether appellant w as indigent, (2) determ ine whether J.S. ’s applicatio n for a DVRO was a bona fide threat to appellant ’ s personal or property interest s, and (3) if the first two conditions were satisfied, con sider what measures were avai lable to protect appellant ’s right of meaningful acc ess to the courts. (Smith, supra, 38 Cal.App.5th at pp. 466 – 467.) Th e trial c ourt abused its disc retion wh en it failed to consider an d rule on appel lant ’s request before holding the evidentiary hearing without him. (Yarbrough, sup ra, 39 Cal.3d at p. 207.) “A court is not under a duty to e xercise its discretion in a particular manner .. . , but [it] may be com pelled to exerci se its discretion in th e first instance.” (Payne, supra, 17 C al.3d at p. 92 5, citation omit ted.) The remedy for the trial court’s erro r is a new hearing that comports with the princip les of due pro cess and equal pro tection. (Cf. In re Mar riage of D.S. and A.S (2023) 87 Cal.App.5th 92 6, 936 – 937 (Marriage of D.S. and

8 A.S.).) On remand, the trial court must determine whet her appellant is presently indigent a nd whether he is sti ll incarcerated or ot herwise subject to restrictions on his liberty that nece ssitate assistance with meaningful access to the courts. 3 (See Apollo, supra, 167 Cal.App.4 th at pp. 1 485 – 14 86.) If so, the court shall exerc ise its di scretion to select or f ashion an appropriate means of affording him meaningfu l access. “ [A] trial court does not have discretion to choose no remedy in cas es where [a]. . . civil a ction is bona fide and [an inmate’s] ac cess to the court s is being impeded. ” (Id. at p. 1484.) If not, appellant will h ave the opportunity to hire an attor ney or appear on hi s own behalf at any f urther proceedin gs. To place the parties as close as possible t o the status qu o ante, we do not immediately dis solve the current protective order. J.S. successfully obtained a TRO an d was entitled t o its protection pending the hearing on whether it should b e made perma nent. We there fore leave the protective order in force until at least 30 days aft er issuance of this court’s rem ittitur. (See Marriage of D. S. and A.S., supra, 87 Cal. App.5th at p p. 937 – 938; Fam. Code, §§ 242, 245, s ubds. (b) and (c) [if t he court grants a co n tinuanc e, upon request by either pa rty and a showing of good cause, “ any te mporary restraining order th at has been issued s hall remain in effect until the end of the continued heari ng, unless other wise ordered by the cour t ”].) Duri ng that time, assuming J.S. still seeks a pe rmanent protective o rder, we expec t the trial court to conduc t a new hearin g on whether i t should be made permanent. Althou gh the court has discretion for good c ause shown to 3 We leave these dete rminations to t he trial court’ s sound dis cretion. However, w e note t hat appellant successfully applied i n this court for a waiver of court f ees and costs.

9 continue the hearin g and extend the TR O (Fam. Code, § 245), “in no instanc e shall the court appr ove an extensio n beyond the date the [p ermanent DVR O] under review would expire” (Ross v. Figueroa (2006) 139 Ca l.App.4th 856, 868; see id. at pp. 8 68 – 869). Her e that would be April 7, 20 30. We do not address appellant ’s othe r claims of erro r because t hey are premature. Our re mand order allows b oth parties the oppo rtunity to prese nt further evidence in support o f their respective cl aims and defenses. DISPOSITION The judgment i s reversed an d the ca u se is remanded to the trial court for further proceedi ngs in accordanc e with our opinion. The TRO is sued on February 26, 2025 is reinsta ted and shall remain in force un til at least 30 days after issuance of this court ’ s re mittitur. Neither p arty shall reco ver costs on appeal. (Ca l. Rules of Court, ru le 8.278(a)(5).) DO, J. WE CONCUR: O’ROURKE, Acting P. J. RUBIN, J.