Federal Court is considering a Preliminary Injunction in the State of California to prohibit State judges and the relevant appellate courts from upholding unconstitutional vexatious litigant statute.

On the 26th of July the Federal Court in case C 13-01295 JSW took a motion under submission to  issue a preliminary injunction ordering the Defendants (Chief Justice of the Judicial Council and Administrative Director of the AOC) from upholding the vexatious litigant statute as it relates to family law proceedings of the plaintiffs in this case. A copy of the proposed order is viewable below.

Defendants, trial court and appellate courts would be prohibited from requiring filings under the VLS statute and declaring parents vexatious.

The attorney, Arch Cunningham, representing the plaintiffs in this case is directly affected by the vexatious litigant statute himself as a parent, and needless to say this would be an enormous victory for ANY parent facing similar circumstances in the State of California.

Trial courts in California are particularly fond of declaring parents vexatious in family law cases, notably those parents who uncover court corruption and refuse to accept heinous trial court rulings, which violate the legislative intent of the best interest of the child standard.

The minor problem with that little scenario is that it was never the intent of the statute to allow a trial court to put an indefinite stay on trial court proceedings, creating a legal stasis, where the trial court refuses to file the litigation and prevents the litigant from seeking redress through the responsible Court of appeal as no “order is filed”.

A brief analysis of the application in family law demonstrates just how unconstitutional the application really is.

Litigation defined under the vexatious litigant statute is defined under CCP  § 391.a which specifies that “Litigation” means any civil action or proceeding, commenced, maintained or pending in any state or federal court“. The vexatious litigant statute was never intended to be applied to family court proceedings which are dynamic where the best interest of the child standard is the standard that governs proceedings. A trial court may not place an involuntary stay on proceedings, refusing to file litigation and prohibiting that the best interest of the child standard is addressed. The VLS statute itself does not define the merit standard under which litigation in family law proceedings is to be granted nor does it define the time frame, a crucial component in the evolving, fluid and dynamic field of family law.

The merit standard is based on the underlying action upon which the litigation is based. In the case of domestic violence restraining order the merit standard is the domestic violence act under CA family code  § 6200. In the case of contempt of court cases the merit standard is whether the charging affidavit of an order to show cause contained facts setting forth the type of order violated, the date the order was issued, how the order was violated, and when the violation occurred. Jurisdiction to adjudicate a contempt ordinarily exists only if the charging affidavit alleges evidentiary facts showing a prima facie case of contempt, Code of Civil Procedure § 1211(a). Order to show causes that request a modification of custody and visitation need to be addressed according to the legislative standard that defines the best interest of the child standard namely family code § 3020, 3011, 3010, 3004, 3044, 3080 and 3040.

The scope of discretion always resides in the particular law being applied by the court, i.e., in the `”legal principles governing the subject of [the] action ….”‘” (Nakamura v. Parker (2007) 156 Cal.App.4th 327, 337 [67 Cal.Rptr.3d 286], citing City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297 [255 Cal.Rptr. 704] and County of Yolo v. Garcia (1993) 20 Cal.App.4th 1771, 1778 [25 Cal.Rptr.2d 681] [“range of judicial discretion is determined by analogy to the rules contained in the general law and in the specific body or system of law in which the discretionary authority is granted”].) In the case of the VLS statute the underlying merit standard is the action upon which the litigation is based.

The legislature by omission did not intend to apply the VLS statute to family law cases, where the VLS litigation was not defined as a motion that is based upon any of the defining factors that govern the best interest of the child standard, or the domestic violence standard, where time is of the essence and the time frame for filing the litigation is governed by the statute for presenting the applicable filing, pursuant to California rules of court 1.20a. Unless otherwise provided, a document is deemed filed on the date it is received by the court clerk”. NOT one year later when the court feels like it or deliberately violates a parents fourteenth amendment right to due process and equal protection under the law.
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5 comments on “Federal Court is considering a Preliminary Injunction in the State of California to prohibit State judges and the relevant appellate courts from upholding unconstitutional vexatious litigant statute.

  1. The judge in this case should be charged with felony trespass and treason, as well as a cadre of violations of Canons…

  2. Reblogged this on News and Views Riverside Superior Court and National Family Law Abuse and commented:

    UPDATE: The attorney who filed the class action is considering filing an appeal as the Federal District court dismissed the case. The judge who is presiding over the case has a considerable history with Mr. Cunningham as he presided over another case involving the same litigant. The reasons for the dismissal really appear to be based on confusion. The defendants who include the Chief Justice of the Judicial council and the AOC Administrative Director filed a motion to dismiss the class action complaint and to dismiss Mr. Cunningham as the class representative although he is the attorney who filed the case and who represents the class representatives. The reasons cited for his removal from the case is that he had brought up similar arguments regarding the VLS in another case in which he was involved in where he represented himself in his personal capacity, not as the class action representative representing members of a class. Favoritism appears to have played a role as a class representative according to Federal rules of procedure merely has to demonstrate standing to sue, which was done in abundance with members of a class who all have commonalities including the fact that they cannot file litigation in family law courts in California as they have been declared vexatious and have been deprived of the constitutional right to their children. The court viewed Mr. Cunningham’s status as res judicata although he was not litigating in his personal capacity merely acting as a representative member of a class of representatives with standing to sue. A small gander into Federal case law illustrates a problem with the Federal court dismissing Arch Cunningham as a representative member of the class as the question of class certification is a procedural one distinct from the merits of the action. Pickett v. IBP, Inc., 182 F.R.D. 647-49 (MD Ala. 1998) citing Garcia v. Gloor, 618 F.2d 264 (5th Cir 1980). Plaintiffs need not establish their own case on the merits before a determination of class certification is made by the court. Eisen v Carlisle & Jacquelin, 417 U.S. 156, 94, S.Ct 2140, 40 L.Ed 732 (1974). The court is not to consider the merits of the underlying claims in determining whether the case should be certified. See Barnes v. The American Tobacco Company, 161 F.3d 127 (3d Cir. 1998). A fundamental prerequisite to the maintenance of any class action is that there is an identifiable class and the named plaintiff be a member of that class. Bailey v. Patterson, 369 U.S. 31, 33, 7 L. Ed. 2d 512, 82 S. Ct. 549 (1962); Roman v ESB, Inc., 550 F.2d 1343, 1348 (4th Cir. 1976); McGlothin v Connors, 142 F.R.D. 626, 632 (WD Va 1992). As an initial matter, the court should also consider whether the proposed definition of the class is proper. See Alliance to End Repression v. Rochford, 565 F.2d 975, 977 (7th Cir. 1977).
    In re A.H. Robbins Co., Inc., 880 F.2d 709, 727-28 (4th Cir), cert denied, 493 U.S. 959, 110 S.Ct 377, 107 L.Ed 2d 362 (1989) clearly delineated that certification of a class action requires the action meet the requirements of a two-step test. Initially, as a first step, the action must satisfy all four of the prerequisites mandated by subsection (a) of Rule 23, FRCP. These prerequisites are: (1) numerosity of the parties; (2) commonality of legal and factual issues; (3) typiClass Action Litigationty of the claims and defenses of the class representative; and (4) adequacy of representation. See also Eisen v Carlisle & Jacquelin, 417 U.S. 156, 162, 94 S.Ct 2140, 40 L.Ed 2d 732 (1974). Accord, Reed v. Bowen, 849 F.2d 1307, 1309 (10th Cir. 1988).

  3. I have a similar case that I need a attorney help with to sue los Angeles county cps for total violation of my children’s civil rights my parental rights educational rights and for violation the 4th and 14th amendment which prohibits them form infringing on civil liberties with out due process of the law, my kids was detained out of my custody due to a false allegations that the criminal court throw the charges out of the window but they charged me with the same offense which is unconstitutional remained my children form my custody without my knowledge and consent forced to me to undergo humiliating drug tests causing me to not being able ot pursuit happiness due to not being allowed to care for my kids like most parents do, the judge placed orders on myself and my wife in a dependency court hearing with out burden of proof that there was any harm done to them even though the initially cps reports of no abuse or neglect present but still charged me with general neglect although my kids had adequate housing food and clothing they was safe and unharmed please some one who ever is an attorney and sees something wrong with this picture please email me asap… I have all the original court documents cps reports etc. that shows the lack of law that was followed and laws that was broken by this rouge agency that has too much power over the people……I moved to las Vegas to escape them and to find employment and they are still harassing me and my family forcing us to take unnecessary classes which is causing me difficulty to find work and stable housing due to lack of income I fear going to jail and my 3 kids lost in a system that is broken

  4. As a vexatious litigant in San Mateo County, pre-filing orders have been denied in right to have contact with family members, custody, housing, eviction, employment, teacher license, elder care license issues. Social workers’ defamation, restitution, right to collect debts in Small Claims are also issues that I cannot bring to court.

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