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Defendant Can’t Be Penalized for Tardy Lawyer

By LawCommentary | Posted on May 19, 2023



The author Fatima Nacana once wrote, “Tardiness is a disrespectful, selfish and unprofessional act.” But a California Court of Appeal ruled it is not a reason to punish a defendant because his lawyer was late to court. The appellate court found that the trial judge abused her discretion when she punished the defendant for his lawyer’s tardiness and ordered a new hearing.

When Diana Passadori, the lawyer for defendant Henry David Chicas, showed up in court 32 minutes late, San Mateo Superior Court Judge Susan L. Greenberg told Passadori that her client “will not be permitted to be part of the proceedings this morning as not having timely appeared.” Despite the fact that Passadori was in another courtroom waiting for the disposition of five pretrial hearings while her client was sitting outside Greenberg’s courtroom, the judge would not allow Chicas to testify. The lawyer explained she was late because she allowed one of her colleagues to participate in a pretrial hearing ahead of her, as the colleague had a trial scheduled in another court at 9 am.

In addition, Chicas was on time but waiting outside Greenberg’s courtroom because he was not sure if he would be allowed in due to concerns about COVID protocols.

Chicas was in court to enjoin the civil harassment order that had been filed against him by plaintiff Andrea Vanessa Villalta Lopez. Lopez claimed that Chicas sexually abused her after they attended a concert and drank “more than usual.” She also claimed that she was still subjected to other forms of harassment, such as defendant driving by her home nearly daily and threatening to show pictures of her naked. As a result, she requested a court order to stop all forms of harassment and contact.

At a hearing on the restraining order in June 2022, Greenberg refused to let Chicas testify because his lawyer was late to court. She asked Lopez whether all the facts in her petition for a civil harassment restraining order were true. When she said they were, the judge then said she intended to issue a permanent restraining order against Chicas.

When Passadori again tried to explain the reason for her tardiness and argued that Chicas should have an opportunity to “completely contradict and undermine Lopez’s credibility,” Greenberg was not convinced. She said that Passadori had failed to call her courtroom to notify her that she was not going to be on time. “That’s absolutely unacceptable,” she stated and then proceeded to deny Chicas’ request for a continuance. She then issued the requested permanent restraining order.

Chicas appealed to Division Three of California’s First Appellate District. On May 11, a unanimous three-justice panel issued an unpublished opinion written by Justice Ioana Petrou that reversed Greenberg’s permanent restraining order and ordered a new hearing.

Petrou’s opinion began by citing California’s Code of Civil Procedure (CCP Section 527.6) which grants injunctive relief to victims of harassment, defined as “a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose. The course of conduct must be that which would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the petitioner.”

A successful appeal, the opinion explained, must be supported by a review of substantial evidence of the “factual findings necessary to support the protective order.” Chicas argued, successfully, that the trial court’s refusal to allow him to testify denied him due process and the opportunity to present the relevant testimony required by law. He reminded the court that CCP requires that a hearing on the petition be held and that the judge shall receive all relevant testimony. He also quoted several precedents that provide a set of safeguards to “assure(s) that a person charged with harassment is given an opportunity to present his or her case.”

Petrou wrote, “These cases show that where a defendant to a request for a restraining order in a civil harassment proceeding offers relevant testimony on his or her behalf, the trial court must allow such testimony to be heard. Here, this did not happen.”

Another judge interviewed for this article called Greenberg’s behavior “outrageous.” He said the case is “about the litigants, not the lawyers” and added that Chicas’ attorney was not late because she went out for a cup of coffee.

Passadori was not disrespectful, selfish, or unprofessional. As a result, the permanent restraining order is reversed, the temporary one reinstated, and the trial court directed to conduct a new hearing. The court did not “endorse or excuse counsel’s failure to communicate with the judge” and did not discuss whether this oversight was acceptable or not.

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