Malatka v. Helm

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Rules of appealing request to modify and reconsideration.



Filed 9/29/10 











Plaintiff and Respondent, 






Defendant and Appellant. 



     (Santa Cruz County 

      Super. Ct. No. CV156768) 




 Plaintiff Aviva Malatka has obtained an order restraining one of her neighbors, 

defendant Christine Helm, from verbally harassing her and her husband.  (Code Civ. 

Proc., § 527.6.)1  The initial order was filed on May 18, 2007, after hearings on April 20 

and May 18, 2007.  An amended order adding plaintiff‘s husband was filed on 

June 12, 2007. 

 Rather than appealing from the restraining order, defendant filed a motion to 

dissolve or modify it.  After a hearing on September 25, 2007, the court modified the 

restraining order, implicitly denying the request to dissolve it.  A modified order was 

filed on October 17, 2007. 

 On appeal from the latter order, defendant asserts that the trial court erred at the 

May 18 hearing by refusing to consider declarations she had submitted and by denying 



  Unspecified section references are to the Code of Civil Procedure. 



her motion to strike one witness‘s testimony.  Plaintiff contends that these issues should 

have been raised in an appeal from the initial order and are not reviewable in an appeal 

from a modification of that order.  On the eve of oral argument, defendant filed a motion 

to dismiss this appeal as moot and to reverse the judgment.  We will affirm the 

challenged order after explaining why defendant‘s contentions are neither reviewable nor 



 A.  The Written Request for a Restraining Order and Opposition 

 On April 6, 2007, plaintiff obtained an ex parte court order temporarily restraining 

defendant from harassing plaintiff and her husband.  Defendant lived across the street 

from them.  Plaintiff‘s application for the order included a declaration that defendant had 

cursed and threatened her since they became neighbors in 2002, most recently on 

April 2, 2007.  One of their earliest confrontations in 2003 involved defendant expressing 

displeasure about plaintiff and her husband cutting down a tree on their property, as the 

tree had been part of defendant‘s view for years.  Defendant knocked on plaintiff‘s door 

later that day and offered an apology, but plaintiff was dismissive.  There were other 

confrontations over time.  On April 2, 2007, while plaintiff was unloading her groceries 

from her car, among other things defendant yelled that plaintiff was a ―fucking bitch,‖ 

―the Capitola whore,‖ and a ―fucking cunt,‖ and said, ―I will fuck you up, bitch.‖  

 Plaintiff‘s declaration also recited that another neighbor, Al Sehorn,2 had obtained 

a temporary restraining order against defendant in August 2001.  Defendant had been 

cutting his flowers and harassing his family.  Plaintiff also said that she once saw 

defendant and her son struggling over a shotgun in the middle of the street.  



  The clerk‘s and reporter‘s transcripts are replete with references to ―Seahorn,‖ 

but his written declaration identifies him as ―Sehorn,‖ so we have adopted that spelling 



 A hearing was scheduled for April 20, 2007.  Defendant filed written opposition 

on April 18, 2007.  Her declaration admitted that she said something inappropriate in 

connection with the tree, but said it was plaintiff who cursed her when she offered an 

apology.  She denied some other alleged confrontations had occurred.  She admitted that, 

on the final occasion, she told plaintiff off after plaintiff again dismissed her.   

 Defendant‘s opposition included declarations from Al Sehorn and Kathleen Keil.  

Sehorn stated that defendant is a ―great neighbor[].‖  Sehorn denied saying to plaintiff 

what her declaration reported.  Keil stated she is a ―good neighbor.‖  She did remember 

defendant and her son having words over a gun that he inherited.  

 Defendant submitted a request by Sehorn for dismissal without prejudice on 

September 5, 2001, of an action seeking a harassment injunction against defendant.   

 B.  The April 20, 2007 Hearing 

 On April 20, 2007, plaintiff appeared with counsel.  At the outset of the hearing, 

the court identified the problem of not having enough time in the morning and plaintiff‘s 

attorney being unavailable in the afternoon.  Plaintiff testified consistently with her 


 Jorge Michael, called by plaintiff, testified that he used to be a neighbor of 

plaintiff and defendant.  Once defendant came to complain about them removing a tree 

on plaintiff‘s property that was damaging Michael‘s car.  She said she enjoyed looking at 

the tree, and they had no right to remove it.  He overheard defendant direct profanity at 


 Defendant said she had no cross-examination for Michael, but asked, ―Am I 

allowed to call him back if I need to talk to them after we discover more?‖  The court 

answered affirmatively.  

 Cindy Clanton, called by plaintiff, testified that she had heard defendant using the 

kind of language described by plaintiff over a dozen times since 2003.  Defendant yelled 

at and cursed her one day and told her she could not park her car on the street.  Clanton 


told her she would call the police if she would not leave the property.  Clanton heard 

defendant using profanity at plaintiff.  On cross-examination, defendant elicited that 

defendant once called the police on Clanton claiming that Clanton had damaged rocks 

placed by defendant on a neighborhood easement.  Defendant said that she was finished 

with her cross-examination, and plaintiff proceeded with redirect examination.  

 Before plaintiff‘s husband was able to testify, the court interrupted the 

proceedings, explaining there was no more time that day.  There was consideration of 

another date.  Defendant said that May 7 would not work, because ―due to the testimony 

that I‘ve heard, I‘m going to call in some other witnesses.‖  The hearing was set for May 

18.  When asked if she wanted Mr. Michael to come back, defendant said, ―Well, I have 

to—I have to think about what was said and come up with some good questions[.]  I‘m 

not an attorney.‖  Mr. Michael said he would be in Australia. 

 Mr. Michael was recalled to the stand.  Defendant established that he had not had 

a problem parking in the neighborhood.   

 C.  The Continued Hearing on May 18, 2007 

 The hearing resumed on May 18, 2007, with both sides being represented by 

attorneys, defendant by Delman Smith.  Defendant brought a motion to strike Cindy 

Clanton‘s testimony because she was unavailable for cross-examination.  The trial court 

denied the motion.3 

 Ms. Sandberg, offered as a character witness by defendant, testified that she had 

heard plaintiff yell and swear on three occasions over six years earlier, none involving 




  This motion and ruling do not appear in the reporter‘s transcript of the hearing.  

However, pursuant to an order by this court on July 16, 2008, at a hearing on 

August 26, 2008, the Santa Cruz County Superior Court prepared a settled statement 

acknowledging the occurrence of these events on that date.   


 Plaintiff‘s husband, called by defendant, testified about defendant confronting 

them about cutting down a tree.  She called plaintiff ―a fuckin‘ bitch,‖ and said they had 

no right to cut down the tree.  On a later occasion, she complained again about them 

trimming another tree that was scratching Mr. Michael‘s car.  Apart from these occasions, 

they have been cordial to each other.  His wife has told him over the telephone about 

other confrontations when he is at work.  

 Defendant testified that when she offered an apology about the tree on the first 

occasion, plaintiff said, ―I don‘t have to take an apology from you, you f-ing bitch,‖ and 

slammed the door in her face.  Defendant retorted, ―Don‘t call me a f-ing B.  I know 

things about you.  You are the f-ing B.‖  Earlier that day, plaintiff had called her a 

―fucking bitch,‖ and told her to go back to her property.  

 On a later occasion, plaintiff muttered something under her breath about a dog 

barking at defendant.   

 On April 2, 2007, defendant called out to plaintiff from her yard and said she 

should have accepted her apology.  ―Let‘s end this thing; get it over with.‖  Plaintiff gave 

her a look.  Defendant said, ―You know it‘s never going to be peaceful here with you.‖  

Defendant admitted calling plaintiff a fucking bitch that day.  She denied using the other 

curses attributed to her, since she did not use that kind of language.  

 On redirect examination, plaintiff objected to defendant characterizing the 

declaration provided by Mr. Sehorn.  Mr. Smith responded, ―I‘m not calling for 

hearsay. . . . [¶] . . . [¶] . . . I‘m asking her whether the declaration is true.  Just whether he 


 The court stated, ―I‘m not going to consider – so all sides are – are aware, I‘m not 

going to consider Mr. [Sehorn‘s] declaration; he‘s not here—  [¶] . . . [¶] . . . He‘s not 

subject to cross-examination.‖  Defendant interrupted the court to say that the court could 

call him.  The court said that the hearing was scheduled four weeks earlier.  Defendant 

began to respond to the court, and Smith admonished her, ―please, since you have gone to 


the trouble to bring me here, would you please just respond to questions—  [¶] . . . [¶] and 

not give speeches?‖  

 When Smith asked her again about Sehorn‘s declaration, the court reiterated, ―I‘m 

not considering what Mr. [Sehorn] has said.  He‘s not here.  I‘m going to base it on the 

evidence that was presented.‖  Mr. Smith said, ―Thank you.  Nothing further of this 

witness, Your Honor.‖  On recross examination, defendant admitted that Mr. Sehorn‘s 

wife filed a restraining order against defendant.  

 In rebuttal, plaintiff denied using any obscenities in responding to defendant‘s 

apology.  She denied using obscene language as Ms. Sandberg had described.   

 At the close of the hearing, the trial court stated that it was ―most impressed by the 

testimony of Mr. Michael and Ms. Clanton . . . .  And these are people who really had no 

axe to grind.‖  Ms. Sandberg‘s testimony, on the other hand, had limited relevance.  The 

court found clear and convincing evidence creating a credible threat of violence.  The 

court found that plaintiff ―is more credible.‖  

 A restraining order was issued May 18, 2007, with an expiration date of 

May 18, 2009.  A first amended restraining order was issued on June 12, 2007, including 

plaintiff‘s husband as a protected person.  It required defendant to stay 25 yards away 

from plaintiff, her husband, and their vehicles for a period of two years.  The amended 

order was sent to Attorney Delman Smith on June 18, 2007.  

 D.  The Motion to Dissolve or Modify the Restraining Order 

 On July 19, 2007, defendant, represented by new counsel, George Kovacevich, 

filed a motion to dissolve or modify the injunction.  The motion included declarations by 

defendant, her husband, and three friends who claimed that defendant did not use the kind 

of language that plaintiff had attributed to her.  Defendant and her husband stated, in part, 

that her husband had contacted the Santa Cruz County Code Enforcement Department 

and caused Ms. Clanton to obtain a permit for an addition to her residence and to 


redesign the addition.  After that, Clanton swerved her car at defendant‘s husband and she 

has driven over their plants and run over a ―Children Playing‖ sign on a daily basis.   

 Defendant argued, among other things, that she was denied due process because 

the court refused to consider the declarations defendant had submitted and that she was 

denied the right to impeach Ms. Clanton.  While Ms. Clanton was at the first hearing, she 

did not show up at the second hearing, and the trial refused to permit defendant ―to re- 

examine Ms. Clanton.‖   

 Plaintiff filed opposition to the motion and defendant filed a reply.  

 The motion to dissolve came on for hearing on September 25, 2007.  Regarding 

the declarations originally submitted by defendant, the court stated that it had reviewed 

the declarations, ―And my tentative is that they would not change my mind on what I 

heard and what I saw.‖  After a further hearing at which no testimony was taken, the 

court adopted its tentative rulings.  It stated:  ―With respect to the additional declarations 

that were submitted, the Court did consider those and has considered those and has read 

them.  [¶]  The Court finds that while they do cast some doubt on the credibility of 

Ms. Clanton, and they are definitely placing Ms. Helm in a positive light, the Court does 

find that it would not have affected and changed the Court‘s ruling.‖  Between the first 

and second hearings, the court read all the documentation.  ―So anything that had been 

attached to Ms. Helm‘s response to the restraining order was read and considered by the 

Court,‖ including Mr. Sehorn‘s declaration.    

 The court denied the motion to dissolve the restraining order, but modified it to 

provide that defendant will stay 10 yards away from plaintiff, her husband, and their 

vehicles.  Mr. Kovacevich offered to prepare the order.  A modified restraining order 

form was filed on October 17, 2007, retaining an expiration date of May 18, 2009.  The 

order did not expressly reflect the court‘s denial of the motion to dissolve the restraining 

order.  Notice of entry of this order was filed on October 29, 2007.  


 On December 18, 2007, Kovacevich filed a notice of appeal on behalf of 

defendant from a judgment or order which was entered on ―October 29, 2007.‖   


 Malatka filed a motion to dismiss this appeal on the basis that Helm is attempting 

to appeal from a nonappealable order.  On April 29, 2009, this court ordered this motion 

to be considered in connection with the appeal.   

 Section 904.1, subdivision (a)(6) states that ―an order granting or dissolving an 

injunction, or refusing to grant or dissolve an injunction‖ is appealable. 

 Malatka acknowledges that some orders refusing to dissolve injunctions are 

appealable.  Her contention is that such an appeal must be limited to issues newly arising 

from the motion to dissolve the injunction and that a motion to dissolve cannot serve as a 

vehicle for reviving issues that could and should have been raised in an earlier appeal 

from the initial grant of injunctive relief.4 

 It is established that an order denying a motion to vacate a judgment is deemed 

appealable only to the extent it raises new issues unavailable on appeal from the 

judgment.  This restriction is imposed to prevent both circumvention of time limits for 

appealing and duplicative appeals from essentially the same ruling.  (Anderson v. 

Sherman (1981) 125 Cal.App.3d 228, 238-239; see Spellens v. Spellens (1957) 49 Cal.2d 

210, 228-229; Rooney v. Vermont Investment Corp. (1973) 10 Cal.3d 351, 358-359; 

Carlson v. Eassa (1997) 54 Cal.App.4th 684, 690-691.)  To further implement this 

policy, on an appeal from an appealable ruling, an appellate court will not review earlier 

appealable rulings.  (Berge v. International Harvester Co. (1983) 142 Cal.App.3d 152, 

158; Morrissey v. City and County of San Francisco (1977) 75 Cal.App.3d 903, 906; 

McLellan v. McLellan (1972) 23 Cal.App.3d 343, 357; cf. Oliver v. Sperry (1934) 220 



  Plaintiff points out that there actually is no written order refusing to dissolve the 

injunction, but she concedes that the existing order of October 17, 2007, could be deemed 

modified to include such a provision.  


Cal. 327, 329-330; Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1018 


 Similar reasoning has been applied to rulings on motions to reconsider orders, 

which are not expressly appealable by statute.  The California Supreme Court has noted 

that there is a split in authority about whether such orders are appealable (Ketchum v. 

Moses (2001) 24 Cal.4th 1122, 1140, fn. 5), although the court had earlier held that an 

order denying a motion for reconsideration was appealable when the motion was based in 

part on new grounds.  (Freeman v. State Farm Mut. Auto. Ins. Co. (1975) 14 Cal.3d 473, 

477, fn. 2.)   

 More recently, this court stated in Morton v. Wagner (2007) 156 Cal.App.4th 963 

(Morton) at pages 968 and 969:  ―There is a split of authority as to whether an order 

denying a motion for reconsideration is separately appealable.  (In re the Marriage of 

Burgard (1999) 72 Cal.App.4th 74, 80-81 . . . .)  [¶] . . . [¶]  . . . The majority of recent 

cases have concluded that orders denying motions for reconsideration are not appealable, 

even where based on new facts or law.  (Annette F. v. Sharon S. (2005) 130 Cal.App.4th 

1448, 1458-1459 . . . ; see also In re Marriage of Burgard, supra, 72 Cal.App.4th at 

pp. 80-81 . . . .)  These courts have concluded that orders denying reconsideration are not 

appealable because ‗Section 904.1 of the Code of Civil Procedure does not authorize 

appeals from such orders, and to hold otherwise would permit, in effect, two appeals for 

every appealable decision and promote the manipulation of the time allowed for an 

appeal.‘  (Reese v. Wal-Mart Stores, Inc. (1999) 73 Cal.App.4th 1225, 1242 . . . ; see also 

Crotty v. Trader (1996) 50 Cal.App.4th 765, 769 . . . ; Hughey v. City of Hayward (1994) 

24 Cal.App.4th 206, 210 . . . ; LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 333, 

fn. 1 . . . ; Estate of Simoncini (1991) 229 Cal.App.3d 881, 891; In re Jeffrey P. (1990) 

218 Cal.App.3d 1548, 1550, fn. 2 . . . .)‖   

 Noting that the motion for reconsideration in Morton was not based on new facts 

or law, this court concluded that the order denying that motion was not appealable.  



(Morton, supra, 156 Cal.App.4th at p. 969.)  The order for which reconsideration was 

sought in Morton was a restraining order issued under section 527.6.  (Id. at p. 966.) 

 The same reasoning has been applied in the context of a ruling modifying a 

preliminary injunction.  (Chico Feminist Women’s Health Center v. Scully (1989) 208 

Cal.App.3d 230, 252-253 (Scully).)  In Scully, on which plaintiff relies, a preliminary 

injunction was issued on February 27, 1986 and modified in part on April 25, 1976.  In an 

appeal from the latter order, the appellants sought to challenge not only the modifications 

of the injunction, but also unmodified parts of the original injunction issued on 

February 27.  After discussing the restrictions on appeals from motions to vacate 

judgments and noting that the original preliminary injunction was appealable, the court 

concluded:  ―The general rule controls here.  To allow defendants to challenge the subject 

paragraphs of the earlier preliminary injunction would allow them two appeals on 

identical grounds.  Moreover, if defendants‘ theory were allowed, it would theoretically 

allow wholesale challenges to a preliminary injunction many years after its entry, merely 

because a court modified the injunction in some insignificant manner and even though 

the trial court was never given a chance to cure the asserted illegality.‖  (Id. at p. 252.)  

―We perceive no reason why defendants should be able to use the order of April 25, 

amending the injunction, as an artificial springboard from which to launch an appeal that 

could have been taken earlier.‖  (Id. at p.251.) 

 The Sculley court explained:  ―Our conclusion is buttressed by cases allowing 

appeals from orders modifying injunctions.  So far as we can tell, the courts of this state 

have entertained such appeals where (1) the later orders have modified an injunction ‗in 

important particulars‘ (Cherry Hill Gold Min. Co. v. Baker (1905) 147 Cal. 724 . . .) and 

the appeal challenges the modifications (see, e.g., Barrett v. Lipscomb (1987) 194 

Cal.App.3d 1524, 1528 . . . ; Palo Alto-Menlo Park Yellow Cab Co. v. Santa Clara 

County Transit Dist. (1976) 65 Cal.App.3d 121, 129 . . . ; West Coast Constr. Co. v. 

Oceano Sanitary Dist. (1971) 17 Cal.App.3d 693, 698 . . .); or (2) the appeal may have 



been timely even if taken from the original injunction (e.g., People v. Associated Oil Co.

(1931)] 212 Cal. [76 ]at p. 77 . . .); or (3) the appellant contested the procedures by which 

the injunction was modified (e.g., Christopher v. Condogeorge (1900) 128 Cal. 581, 584- 

585 . . . ; Hobbs v. Amador and Sac. C. Co. (1884) 66 Cal. 161, 163 . . .).  We have been 

cited no case, nor are we aware of one in California, in which an appeal such as that 

pressed by defendants has been allowed.‖  (Scully, supra, 208 Cal.App.3d at pp. 252- 


 In response to plaintiff‘s motion to dismiss, defendant simply asserts that an order 

refusing to dissolve an injunction is appealable by statute.  The same may be said of an 

order denying a motion to set aside a judgment (see Rooney v. Vermont Investment Corp.

supra, 10 Cal.3d 351, 358), but that does not preclude application of judicial restrictions 

on reviewability.  (E.g, Payne v. Rader (2008) 167 Cal.App.4th 1569, 1576 [motion to 

vacate a dismissal after a demurrer was sustained]).  Without conflating restrictions on 

appeability and reviewability, we conclude that, to the extent the current appeal from an 

order implicitly refusing to dissolve a restraining order presents issues that could have 

been raised in an appeal from the original restraining order, those issues are not 

reviewable in this appeal.  On the other hand, to the extent the motion to dissolve was 

dependent on new facts and law, such issues are reviewable.  We proceed to consider 

whether defendant‘s appeal has raised any such new issues. 


 Defendant complains that the trial court erred in refusing to consider declarations 

she offered as evidence at the hearings on April 20 and May 18, 2007.   

 As stated above, defendant‘s opposition to the application for a restraining order 

offered written declarations by self-described neighbors Al Sehorn and Kathleen Keil.  

There was no mention of either declaration at the initial hearing on April 20, at which 

plaintiff, Jorge Michael, and Cindy Clanton testified before the court ran out of time.  In 

selecting a date for the continued hearing, defendant said that May 7 would not work out 



for her, because ―due to the testimony that I‘ve heard, I‘m going to call in some other 

witnesses.‖  Ultimately the date of May 18 was selected.  As explained above, at the 

continued hearing, defendant appeared with an attorney and called a character witness 

and plaintiff‘s husband, in addition to testifying herself.  During redirect examination of 

defendant, her counsel began to ask her twice about the declaration that Mr. Sehorn had 

given her.  In response to plaintiff‘s hearsay objection, the court announced that it was 

not going to consider Mr. Sehorn‘s declaration as evidence because he was not present. 

 There was no objection at the continued hearing to the court‘s statements about 

Mr. Sehorn‘s declaration on the basis that opposition to a restraining order under section 

527.6 can be based on a written declaration.5  As plaintiff points out, ―nowhere in the 


 5  The general rule is that a written declaration, though it has the evidentiary force 

of a sworn affidavit (§ 2015.5) is archetypical hearsay, inadmissible at trial over 

objection unless allowed by special statute or stipulation of the parties.  (Elkins v. 

Superior Court (2007) 41 Cal.4th 1337, 1354; Evid. Code, § 1200.)  Section 2009 

recognizes several exceptions to this general rule:  ―An affidavit may be used . . . to 

obtain a provisional remedy, . . . or upon a motion, and in any other case expressly 

permitted by statute.‖ 


 Sections 527.6 and 527 appear to be statutory exceptions to the general rule.  

Section 527.6, subdivision (c) expressly allows for an application for a temporary 

restraining order to be issued based on ―an affidavit, that, to the satisfaction of the court, 

shows reasonable proof of harassment of the plaintiff by the defendant, and that great or 

irreparable harm would result to the plaintiff.‖  The same is true of an application for a 

preliminary injunction.  ―A preliminary injunction may be granted at any time before 

judgment upon a verified complaint, or upon affidavits if the complaint in the one case, 

or the affidavits in the other, show satisfactorily that sufficient grounds exist therefor.‖  

(§ 527, subd. (a).) 


 Likewise, the general statute applying to preliminary injunctions specifies that 

―The opposing party may, in response to an order to show cause, present affidavits 

relating to the granting of the preliminary injunction, and if the affidavits are served on 

the applicant at least two days prior to the hearing, the applicant shall not be entitled to 

any continuance on account thereof.‖  (§ 527, subd. (e).)   


 In what appears to be a departure from the otherwise parallel structure of these 

statutes, section 527.6 does not prescribe or proscribe any particular form of opposition.  



record on appeal does it appear that defendant or her trial counsel ever requested the trial 

court to consider [Kathleen Keil‘s] declaration at trial.‖  ―Neither defendant, nor her trial 

counsel, ever asked the trial court to consider the whole declaration of Mr. Sehorn.‖   

 Not until defendant‘s motion to dissolve the injunction was filed on July 19, 2007, 

did defendant, through new counsel, complain that the trial court had ―summarily and 

improperly refused to consider any of the sworn declarations Mrs. Helm submitted in her 


 Based on our review of the record, it is clear that any error by the trial court in 

refusing to consider the declarations of Sehorn and Keil as defense evidence at the 

hearing on May 18, 2007, could have been raised in an appeal from the written 

restraining order that was issued at the conclusion of that hearing.  The notice of appeal 

in this case does not purport to appeal from the May 18, 2007 restraining order or the first 

amended restraining order of June 12, 2007.  We note that the December 18, 2007 appeal 

was filed over 180 days from the filing of the June 12 amended order, the outside time 

limit for filing an appeal from that order.  (Cal. Rules of Court, rule 8.104(a)(3).)  

Because this alleged evidentiary error could have been raised in an appeal from an earlier 


―The defendant may file a response that explains, excuses, justifies, or denies the alleged 

harassment or may file a cross-complaint under this section.  At the hearing, the judge 

shall receive any testimony that is relevant, and may make an independent inquiry.‖  

(§ 527.6, subd. (d).)  This last provision has been construed as precluding a trial court 

from relying entirely on declarations when the parties have offered oral testimony.  

(Schraer v. Berkeley Property Owners’ Assn. (1989) 207 Cal.App.3d 719, 732-733 

(Schraer).)  We consider it to be an open question whether the statute implicitly 

authorizes a declaration in opposition to be considered as testimony.  In a footnote, 

Schraer did state, ―Both sides may offer evidence by deposition, affidavit, or oral 

testimony, and the court shall receive such evidence, subject only to such reasonable 

limitations as are necessary to conserve the expeditious nature of the harassment 

procedure set forth by Code of Civil Procedure section 527.6.‖  (Id. at p. 733, fn. 6.)  As 

noted by plaintiff, this statement was mere dictum.  We observe that the issue on appeal 

in Schraer was whether the court could preclude defendants from offering oral testimony, 

not whether the court was required to accept their written declarations.  



order, we conclude that it is not reviewable on appeal from the October 17, 2007 order 

implicitly denying the request to dissolve the restraining order. 

 Plaintiff also identifies a second reason for not reaching the merits of defendant‘s 

contention.  In order to obtain appellate review of a ruling excluding evidence, its 

proponent must have made know to the court ―[t]he substance, purpose, and relevance of 

the excluded evidence . . . by the questions asked, an offer of proof, or by any other 

means.‖  (Evid. Code, § 354, subd. (a).)  In this case, defendant neither objected at the 

hearing on May 18, 2007 to the court‘s exclusion of this evidence or offered to prove the 

contents of the declarations at that hearing.6  Instead, on appeal defendant claims to have 

raised the issue in a timely way by written argument filed on July 19, 2007, two months 

after the restraining order was issued.  We conclude that defendant, by failing to make a 

timely objection or offer of proof, has forfeited her claim that the trial court erred by 

failing to consider declarations attached to her opposition.  (Cf. West Coast Constr. Co. v. 

Oceano Sanitary Dist. (1971) 17 Cal.App.3d 693, 702-703; Pacific Hills Homeowners 

Ass’n v. Prun (2008) 160 Cal.App.4th 1557, 1567.)  But even we were to conclude that 

the substance and relevance of the declarations were adequately proffered by defendant at 

the May 18 hearing or that a proffer would have been futile, their exclusion should have 

been challenged by an appeal from the May 18 restraining order and not by a motion to 

dissolve the order filed over two months later.  





  While defendant‘s attorney did ask defendant whether Mr. Sehorn gave her a 

declaration that contradicted plaintiff‘s declaration, in response to a hearsay objection, 

counsel explained, ―I‘m not calling for hearsay.  [¶] . . . [¶]  I‘m asking her whether the 

declaration is true.  Just whether he did.‖  It is unclear from this colloquy whether the 

essential question was simply whether Mr. Sehorn gave defendant a declaration, which 

would not call for hearsay, or whether he gave her a declaration that contradicted 

plaintiff‘s.  We do not regard this equivocal statement as an offer of proof of the 

substance, purpose, and relevance of the excluded evidence. 




 On appeal defendant also contends that the trial court erred in denying a motion to 

strike the testimony of Cindy Clanton because she did not appear for further cross- 

examination on May 18, 2007, the date of the continued hearing.  She asserts, ―The 

Court, after previously telling Appellant she could recall witnesses, changed course and 

allowed Ms. Clanton‘s prior testimony to stand even though Appellant did not have the 

opportunity to impeach her . . . in view of her failure to return to court for the continued 


 While the original reporter‘s transcript did not reflect that defendant made such a 

motion to strike, its occurrence has subsequently been established by way of a settled 

statement.  Again, it appears that any error by the trial court in refusing to strike 

testimony on May 18, 2007, could and should have been challenged by appeal from the 

restraining order issued on May 18.  We conclude that this error is not reviewable on 

appeal from the order of October 17, 2007, implicitly refusing to dissolve the restraining 


 Moreover, there is no apparent merit to defendant‘s claim that the trial court erred 

in denying her motion to strike Clanton‘s testimony.  In a declaration in support of her 

motion to dissolve the restraining order, defendant asserted:  ―During the April 20, 2007 

hearing, I asked the Court for permission to re-examine Ms. Clanton.  The Court granted 

my request.‖    

 This assertion is not supported by the reporter‘s transcript of that hearing.  After 

direct examination of Mr. Michael, and before Ms. Clanton testified, defendant said she 

had no cross-examination for Michael, but wondered if she could call him back after she 

discovered more.  The court assured her that she could.  Defendant did cross-examine 

Clanton at the hearing until she had no more questions.  In discussing the date of the 

continued hearing, defendant said she might want Michael back if she could come up 



with some good questions.  When it appeared that Michael would be out of the country, 

defendant was allowed to cross-examine him on the 20th.  

 The record reflects no such discussion of recalling Clanton at the continued 

hearing.  It does not appear from the record that the trial court either ordered Clanton to 

return for the continued hearing or excused her as a witness, that defendant asked the 

court to order Clanton to return, or that, prior to the continued hearing, defendant 

subpoenaed Clanton, asked her to be on telephone standby, or made any efforts to secure 

Clanton‘s appearance at the continued hearing.  Though defendant represented herself at 

the initial hearing, this did not excuse her from taking steps required of attorneys.  

(Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.)  Since defendant did not 

request Clanton‘s presence at the continued hearing, she cannot fault the trial court for 

either failing to obtain Clanton‘s presence or for denying defendant‘s motion to strike.  

(Ah Tong v. Earl Fruit Co. (1896) 112 Cal. 679, 681; Simmons v. Dryer (1963) 216 

Cal.App.2d 733, 745.) 


 On the eve of oral argument, defendant filed a motion requesting dismissal of this 

appeal and reversal of the judgment because her appeal is moot, as the challenged 

restraining order expired by its terms on May 18, 2009.  At oral argument, in response to 

the court‘s inquiry, defendant‘s counsel offered several reasons for not filing this motion 

until 516 days after the alleged mootness, including defendant‘s wishes, counsel‘s health, 

and his recent discovery of authority for obtaining reversal.7 



  There is authority for reversing a judgment after determining the appeal is moot 

rather than simply and routinely dismissing the appeal.  Paul v. Milk Depots, Inc. (1964) 

62 Cal.2d 129 did so in order to avoid implicitly affirming a judgment invalidating a 

regulation on constitutional grounds.  (Id. at pp. 134-135.)  Giles v. Horn (2002) 100 

Cal.App.4th 206 did so ―in order to avoid ambiguity.‖  (Id. at p. 229.)  Thus, reversal is 

an available alternative when an appellate court does not want to send a signal that it 

implicitly approves a questionable trial court judgment.  In view of our other conclusions 



 Environmental Charter High School v. Centinela Valley Union High School Dist. 

(2004) 122 Cal.App.4th 139 stated pertinent law on page 144.  ―If relief granted by the 

trial court is temporal, and if the relief granted expires before an appeal can be heard, 

then an appeal by the adverse party is moot.  (See American Civil Liberties Union v. 

Board of Education (1961) 55 Cal.2d 167, 181-182 . . . .)  However, ‗there are three 

discretionary exceptions to the rules regarding mootness:  (1) when the case presents an 

issue of broad public interest that is likely to recur [citation]; (2) when there may be a 

recurrence of the controversy between the parties [citation]; and (3) when a material 

question remains for the court‘s determination [citation].‘  (Cucamongans United for 

Reasonable Expansion v. City of Rancho Cucamonga (2000) 82 Cal.App.4th 473, 479- 

480 . . . .)‖ 

 As indicated in footnote 5, ante (beginning on p. 2), this appeal initially presented 

an issue of first impression, namely whether section 527.6 implicitly authorizes a 

declaration in opposition to be considered as testimony.  Due to the procedural posture of 

this question, we have not been required to resolve that issue, but we regard it as an issue 

of broad public interest that is likely to recur.  We have been required to reconcile the 

apparent inconsistency between section 904.1, subdivision (a)(6) and Scully, supra, 208 

Cal.App.3d 230 in part III. above.  We also regard that issue as of sufficient public 

interest to present a viable appellate issue.  Accordingly, we decline defendant‘s request 

to reverse the judgment because her appeal has become moot. 


in this opinion, we have no reservations about the trial court judgment meriting this 






 The order of October 17, 2007 is affirmed.  Motions by plaintiff and defendant to 

dismiss the appeal are denied.  Plaintiff shall recover costs on appeal and may be awarded 

attorney fees in the discretion of the trial court.  (§ 527.6, subd. (i).)   




        RUSHING, P.J. 

































Trial Court:      Santa Cruz County Superior Court 

Superior Court No.:  CV156768 



Trial Judge:      The Honorable  

       Paul M. Marigonda 


Attorneys for Defendants and Appellants Atchison, Barisone, Condotti &  

Christine Helm:     Kovacevich 


    George J. Kovacevich 






Attorneys for Plaintiff and Respondent   Page, Salisbury & Dudley 

Aviva Malatka:        

       Arthur Dudley 














Malatka v. Helm 



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