Cupid v. Lyons-White CA2/7

Opinion

Filed 8/19/26 Cupid v. Lyons-White CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

SABRINA CUPID, B345226, B349907

Appellant, (Los Angeles County Super. Ct. No. 25LBRO00065)

v.

TRACEY MICHELLE LYONS- WHITE,

Respondent.

APPEALS from orders of the Superior Court of Los Angeles County, Alfred A. Coletta, Judge. Reversed.

Sabrina Cupid, in pro. per., for Appellant. Tracey Michelle Lyons-White, in pro. per., for Respondent.

__________________________

Sabrina Cupid appeals from the trial court’s order dismissing without prejudice her petition for a civil harassment restraining order and the subsequent order awarding attorney fees to Tracey Michelle Lyons-White.1 Cupid contends the court erred by continuing the hearing on her petition for lack of personal service despite Lyons-White’s general appearance, then dismissing the case when Cupid failed to appear at the continued hearing. Because Lyons-White did not request dismissal of the case when Cupid did not appear, the court abused its discretion under Code of Civil Procedure section 5812, subdivision (b)(5), by dismissing the petition. We reverse the dismissal order and the subsequent award of attorney fees.

FACTUAL AND PROCEDURAL BACKGROUND

A. Cupid’s Request for a Restraining Order and the Initial Hearing In January 2025 Cupid filed a petition for a civil harassment restraining order against Lyons-White.3

1 Although Cupid addressed the attorney fee appeal in her original case (case No. B345226), she also separately appealed the order (case No. B349907). 2 Statutory references are to the Code of Civil Procedure. 3 On our own motion, we augment the record to include Cupid’s petition and amended petition for a restraining order, the orders denying a temporary restraining order, and related filings. (Cal. Rules of Court, rule 8.155(a)(1)(A).) We grant Cupid’s motions to augment the record with Lyons-White’s filings. We deny as unnecessary her motion to augment the record with reporter’s transcripts that are already part of the record.

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In a 17-page attachment to the petition, Cupid stated she was seeking protection “against the ongoing and harmful dissemination of personal information, including threats of harm, defamatory statements, harassment, cyberbullying, [and] online stalking via social media and other public platforms” by Lyons- White. Cupid alleged Lyons-White had posted personal information from a prior court proceeding between the parties— including Cupid’s driver’s license number and home address—to Lyons-White’s 47,000 social media followers. Cupid further alleged Lyons-White had threatened violence by saying she “still owes [Cupid] an ass whoopin’ ” and referring to keeping a loaded pistol in her home.

The next day, Cupid filed an amended petition that repeated the same substantive allegations and added about 70 pages of exhibits, including court records from the prior litigation and copies of the social media posts. The court denied Cupid’s request for a temporary restraining order and set the hearing on the petition for February 3, 2025.

Between January 21 and January 31, Lyons-White, representing herself, filed several documents. These included requests to continue hearings, notices of related cases, and a substantive opposition to Cupid’s petition. In her opposition, Lyons-White asserted that Cupid’s petition arose from litigation in which Lyons-White had obtained a $100,000 judgment against Cupid and attached a final judgment from a Florida defamation action. She denied Cupid’s allegations of harassment, addressing Cupid’s claims that she had improperly disseminated Cupid’s personal information, harassed her through social media and blog posts, and stalked her. In a declaration, Lyons-White made legal arguments, including that Cupid’s allegations lacked evidentiary

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support and that the private documents Cupid claimed Lyons- White had disseminated were already publicly available.

On February 3, counsel substituted in to represent Lyons-

White.

On February 5, the trial court commenced a hearing on the petition. During the hearing, Lyons-White’s counsel indicated that Lyons-White wished to move for attorney fees. The court noted there was no proof of service for Lyons-White and asked if she was waiving the right to be properly served. Lyons-White responded she was not waiving service and was uncertain whether she had been correctly served. The court concluded the record did not establish proper service because it contained no proof of personal service. Although the court acknowledged Lyons-White had filed a substantive response before the hearing, it nevertheless found service was defective and, because Lyons- White would not waive service, continued the hearing to February 26 to allow Cupid another opportunity to serve Lyons- White.

B. The Subsequent Hearing, Dismissal, and Lyons-White’s Motion for Attorney Fees Cupid did not appear for the continued hearing on February 26. Lyons-White’s counsel was present. The court stated, “Ms. Cupid not only has failed to appear, but she has not electronically filed anything suggesting she’s seeking a continuance for any reason. Her last appearance was February 5. The court granted her a continuance due to the fact she had no proof of service on the respondent. She’s failed to appear, call or write, so at this time, the case is dismissed without prejudice.” The court set a March 27 hearing on Lyons- White’s anticipated motion for attorney fees.

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Lyons-White moved for $4,250 in attorney fees. Cupid opposed the motion, arguing in part that “the dismissal was rendered … on an improper service basis.”

Cupid again failed to appear at the hearing on Lyons-

White’s motion for attorney fees. The court ordered Cupid to pay $4,250 in attorney fees.

Cupid timely appealed from both the order dismissing her petition and the order awarding attorney fees.

Two months later, Cupid filed a new petition for a civil harassment restraining order against Lyons-White in Los Angeles Superior Court case No. 25LBRO00982.4 The court granted Cupid a one-year civil harassment restraining order.

DISCUSSION

A. The Appeal from the Dismissal Is Not Moot “A case becomes moot when events ‘ “render[ ] it impossible for [a] court, if it should decide the case in favor of plaintiff, to grant [her] any effect[ive] relief.” ’ ” (In re D.P. (2023) 14 Cal.5th 266, 276 (D.P.).) “An appeal is not moot, however, where ‘a material question remains for the court’s consideration,’ so long as the appellate decision can grant a party to the appeal effectual

4 We grant Cupid’s request for judicial notice of the subsequent restraining order. (Evid. Code, §§ 452, subd. (d), 459.) We deny Cupid’s request for judicial notice of superior court documents relating to payment for court transcripts in this case because the documents are not relevant to any issue before us. (See Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1530, fn. 7 [“Judicial notice may be granted if the documents for which notice is sought are at least minimally relevant to the instant appeal.”].)

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relief.” (Panoche Energy Center, LLC v. Pacific Gas & Electric Co. (2016) 1 Cal.App.5th 68, 96.)

Although Cupid obtained a one-year civil harassment restraining order against Lyons-White in a subsequent proceeding, this appeal is not moot. Even if that order eliminates any live controversy over the dismissal of Cupid’s original petition, Cupid also challenges the attorney fee award. A decision in her favor on the original appeal could provide effective relief by requiring reversal of the attorney fee award. (See D.P., supra, 14 Cal.5th at p. 276; Center for Biological Diversity v. County of San Bernardino (2010) 185 Cal.App.4th 866, 880-881 [“if the appeal of the order on fees is not subject to dismissal, neither is the appeal of the judgment on which the fees award rests”]; Carson Citizens for Reform v. Kawagoe (2009) 178 Cal.App.4th 357, 361 [appeal not moot because “award of attorney fees depends on the propriety of the trial court’s ruling on the merits”].)

B. The Court Abused Its Discretion in Dismissing Cupid’s Petition Cupid contends the court erred by continuing the February 5 hearing based on purported service defects and later dismissing her case. According to Cupid, Lyons-White’s earlier general appearance gave the court personal jurisdiction over Lyons-White and made her a participating respondent. Cupid therefore argues the court improperly treated the case as though jurisdiction was lacking and then faulted her for failing to prosecute the action. Lyons-White responds that the court did not dismiss the case because Cupid failed to serve her, but rather because Cupid failed to appear at the continued hearing on her petition.

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We agree with Lyons-White that the trial court dismissed Cupid’s petition due to her failure to appear at the continued hearing on February 26, 2025. We review the trial court’s decision to dismiss the matter on that basis for abuse of discretion. (Park v. Guisti (2025) 116 Cal.App.5th 197, 202 (Park).) Under that standard, “[t]he trial court’s findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious.” (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711-712, fns. omitted.)

Section 581 “provides scenarios under which the trial court may, in its discretion, involuntarily dismiss a lawsuit.” (Park, supra, 116 Cal.App.5th at p. 202.) As relevant here, section 581, subdivision (b)(5), provides that an “action”5 may be dismissed “by the court, without prejudice, when either party fails to appear on the trial and the other party appears and asks for dismissal.” (See Park, at p. 204 [“Code of Civil Procedure section 581, subdivision (b)(5), unquestionably gives the trial court the authority to dismiss a civil case if one party fails to appear and the other party requests dismissal.”].)

At the February 28 hearing at which Cupid’s request for a restraining order was set to be heard and Cupid did not appear, Lyons-White appeared but did not request dismissal. Instead, the court sua sponte dismissed the case at the outset of the hearing before Lyons-White’s counsel made any argument. The court abused its discretion by dismissing the case when Lyons- White did not make that request. (See Park, supra,

5 “ ‘Action’ means any civil action or special proceeding” (§ 581, subd. (a)(1)), and a petition for a civil harassment restraining order is a “special proceeding” (§§ 21 through 23).

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116 Cal.App.5th at p. 202 [trial court abused its discretion by dismissing case for plaintiff’s failure to appear, in part because the record did not reflect opposing party requested dismissal as required by § 581, subd. (b)(5)].)

In addition, Cupid is correct that the court mistakenly believed she still needed to personally serve Lyons-White with the petition.6 Although Cupid had not personally served Lyons- White as required by section 527.6, subdivision (m)(1), and California Rules of Court, rule 3.1160(c)(1), Lyons-White had already made a general appearance in the case. “A general appearance by a party is equivalent to personal service of summons on such party.” (§ 410.50, subd. (a).) “ ‘By generally appearing, a defendant relinquishes all objections based on lack of personal jurisdiction or defective process or service of process.’ ” (ViaView, Inc. v. Retzlaff (2016) 1 Cal.App.5th 198, 210; accord, In re Marriage of Obrecht (2016) 245 Cal.App.4th 1, 8.) A “ ‘general appearance need not be “ ‘a formal, technical step or act ...’ ” [citation]; rather the term may apply to various acts which, under all of the circumstances, are deemed to confer jurisdiction of the person.’ ” (Sunrise Financial, LLC v. Superior Court (2019) 32 Cal.App.5th 114, 125-126.) “A general appearance occurs when the defendant takes part in the action or in some manner recognizes the authority of the court to proceed…. [A] party who seeks relief on any basis other than a motion to quash for lack of personal jurisdiction will be deemed to have made a general appearance and waived all objections to

6 The court reiterated that Cupid had failed to serve Lyons- White when it dismissed her case.

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defects in service, process, or personal jurisdiction.” (Dial 800 v. Fesbinder (2004) 118 Cal.App.4th 32, 52.)

By the time of the initial hearing date, Lyons-White had made a general appearance, including by filing a response addressing the merits of Cupid’s harassment allegations and a declaration with legal arguments challenging Cupid’s claims. (See City of Riverside v. Horspool (2014) 223 Cal.App.4th 670, 679-680.) She also made a general appearance near the outset of the initial hearing by requesting attorney fees. (See Dial 800 v. Fesbinder, supra, 118 Cal.App.4th at p. 54.)

Lyons-White argues she appeared only to preserve her due process rights and respond to the petition, without waiving her right to personal service. However, her response did not raise a jurisdictional or service objection, but rather sought to litigate on the merits. By seeking relief from the court on grounds other than personal jurisdiction or service, Lyons-White made a general appearance, obviating the requirement that Cupid personally serve her.

Under these circumstances, the trial court abused its discretion by sua sponte dismissing Cupid’s petition.

C. The Attorney Fee Award Must Be Reversed Under section 527.6, subdivision (s), “[t]he prevailing party in an action brought pursuant to this section may be awarded court costs and attorney’s fees, if any.” The reversal of the court’s order dismissing Cupid’s petition requires reversal of the award of attorney fees to Lyons-White as the prevailing party in the case. (See Aljabban v. Fontana Indoor Swap Meet, Inc. (2020) 54 Cal.App.5th 482, 513 [“Because we are reversing the judgment ... we must necessarily reverse the trial court’s attorney fee and costs award.”]; Lafferty v. Wells Fargo Bank (2013)

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213 Cal.App.4th 545, 551 [“Since we reverse the judgment, we also reverse the award of attorney fees because [the defendant] is no longer necessarily the prevailing party in this action.”].)

DISPOSITION

The February 26, 2025 order dismissing Cupid’s petition and the March 27, 2025 order awarding Lyons-White attorney fees are reversed. Cupid is entitled to recover her costs on appeal.

STONE, J.

We concur:

MARTINEZ, P. J.

SEGAL, J.