It is common practice in the Riverside Superior Court to hold illegal expartes. These expartes are held when there is no custody matter on calender and initiated by the judiciary themselves without notice, or they are held when one party files an exparte and the other party ends up with custody; again without notice to the other party, or any application being filed 12 hours prior to any vexatious hearing.
Judge Dale Wells has a reputation of initiating sanctioning expartes on his own motion without any evidence of irreparable harm to the child or without any evidence that there is an IMMEDIATE risk that the child will be taken out of the state of California. Children in Judge Wells’ court room are used as a punishing tools for the mere “belief” that their parents have to be put in place on a capricious whim, in a vicious witch hunt against certain parents who have been selected for that privilege. In one case he initiated an exparte without the mandatory written notification or written application prior to the hearing which was for a motion to set aside his concocted statement of decision and specifically cited the mother’s immigrant status in his vexatious “exparte”. In another case he granted an exparte where there was no immediate harm to a child, as the child was promised a puppy. At the puppy exparte he sanctioned the father with a temporary order of sole legal and sole physical custody to the mother, prohibiting all contact with the father as a puppy of course represents an immense threat of IMMEDIATE DANGER to the child.
There are examples of older cases in this court where a father filed an exparte move away request as he had sole custody and wanted to move to a different state due to a job offer. The court awarded custody to the alcoholic mother who was still not allowed overnight visits until she had completed more extensive rehabilitation. She herself had not filed an exparte but was represented by one of the more “favored” attorneys in the court. Said father was immediately declared vexatious prohibiting that he file ANY litigation in an illegal order.
There have been several cases where the court without notice or a written application before said capricious “Exparte” removed a child from a parent, without following the mandatory due process codified in our legislature and CA Family code section 3064.
In a writ proceeding in GAS v. Superior Court of San Diego County, Cal: Court of Appeal, 4th Appellate Dist., 1st Div. 2007 the 4th district appellate court specifically commented on the fact that the court used an illegal exparte procedure which violated all due process and reversed the trial court order on an expedited basis.
The court commented on the due process requirements of the application of CA rules of court for any exparte process and the requirement of CA family code section 3064 which prohibits the court from making any order granting or modifying a custody order on an ex parte basis unless there has been a showing of immediate harm to the child or immediate risk that the child will be removed from the State of California as defined in the legislature:
(a) The court shall refrain from making an order granting or
modifying a custody order on an ex parte basis unless there has been
a showing of immediate harm to the child or immediate risk that the
child will be removed from the State of California.
(b) “Immediate harm to the child” includes, but is not limited to,
(1) Having a parent who has committed acts of domestic violence,
where the court determines that the acts of domestic violence are of
recent origin or are a part of a demonstrated and continuing pattern
of acts of domestic violence.
(2) Sexual abuse of the child, where the court determines that the
acts of sexual abuse are of recent origin or are a part of a
demonstrated and continuing pattern of acts of sexual abuse.
According to the GAS opinion: “The trial court did not follow proper ex parte procedure. Rule 5.3.14 applies to ex parte requests to change a minor’s vacation, or change the holiday visitation schedule or the school the minor attends. Strictly speaking, the rule does not apply to this case because, on the record before us, there is no “change” of the vacation, holiday visitation schedule or school. Even if we assume it arguably applies, rule 5.3.14 “disfavor[s]” ex parte requests in such situations and directs that these matters be heard on the regular motion calendar on shortened time.
The application of rule 5.3.13 is even more perplexing. The rule provides in part: “Pursuant to Family Code section 3064, other than stipulated orders, ex parte orders regarding child custody and visitation will be granted only upon a clear showing of immediate harm to the child or immediate risk that the child will be removed from the State of California.” Family Code section 3064 prohibits the court from making any order “granting or modifying a custody order on an ex parte basis unless there has been a showing of immediate harm to the child or immediate risk that the child will be removed from the State of California.” Facially, the statute and rule do not apply because it was mother who had sole legal and physical custody of S. under the court’s June 18 order, and it was father who was seeking a modification of custody and attempting to remove S. from the state.”
The mandatory procedures for any civil exparte proceeding are defined in CA rules of court 3.1.201 (http://www.courts.ca.gov/cms/rules/index.cfm?title=three&linkid=rule3_1201), which specifies that all expartes need to have a written filed application and a notice at least 12 hours prior to said exparte.
CA rules of court 5.151 again specifies that there needs to be a mandatory written application and notice of said expartes at least 12 hours BEFORE the exparte hearing.http://www.courts.ca.gov/cms/rules/index.cfm?title=five&linkid=rule5_151