Kobey v. Morton

[1057]

Opinion

BENKE, J.

Plaintiff Charlotte Kobey appeals an order granting mutual restraining orders against her and defendant Elaine Morton (Code Civ. Proc.,

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§ 527.6), contending Morton failed to comply with the procedural requirements for obtaining a harassment injunction. Reversed in part; affirmed in part.

Factual and Procedural Background

On December 21, 1989, Kobey filed a petition for an injunction prohibiting harassment and application for a temporary restraining order against Morton. According to the petition, Kobey’s husband had recently died of AIDS, contracted from a blood transfusion, and Morton’s husband had recently filed for divorce. On December 16, Morton had a private detective follow her estranged husband and Kobey. On December 19, Morton told her husband she could hardly wait until Kobey moved back into her home, which was being remodeled, so she could “tear [her] head off.” Morton told people she had hired Attorney Marvin Mitchelson to file a lawsuit against Kobey, and she and a former wife of Kobey’s late husband were going to attempt to claim Kobey was responsible for the Mortons’ divorce. Morton falsely said Kobey was an AIDS carrier and accused her of having affairs while her late husband was alive. Morton claimed she had accepted a $2,500 fee from the National Enquirer for a story concerning Kobey, her late husband, and her family. She threatened Kobey’s daughter and son and her late husband’s two brothers. Kobey was in such fear for her own safety and that of her family that she employed security personnel to escort her to and from her home.

On December 21, 1989, the trial court issued an order to show cause and temporary restraining order against Morton, requiring her to stay at least 100 yards away from Kobey’s 2859 Ocean Front Walk home. On December 22, it issued an amended order, providing Morton was allowed to enter and exit her 2869 Ocean Front Walk residence. On December 22, the amended order to show cause and temporary restraining order were personally served on Morton’s attorney of record. The hearing was set for January 5, 1990.

On December 28, 1989, Morton’s attorney filed a memorandum of points and authorities arguing Kobey’s declaration was “riddled with hearsay” and that the true declarant was Morton’s husband. Morton’s declaration, filed the same date, stated she had “no objections to the Court on its own motion granting restraining orders on a mutual basis.”