The term alleged exparte was the basis for denying a perfectly valid writ proceeding and the fact that an appeal is pending concerning the “alleged” exparte orders of August 5th 2011.
The dictionary defines alleged as defined “(of an incident or a person) said, without proof, to have taken place or to have a specified illegal or undesirable quality”.
Now since the actual exparte took place and is referenced in the transcript as an EXPARTE by Judge Wells who initiated the exparte without notice and without a written application 12 hours prior to the “alleged” exparte, one can only assume that Justice Richli is referring to the illegal or undesirable quality of the alleged exparte, which is the basis to GRANT the writ proceeding.
She also refers to the fact that there is a pending tentative opinion pending on the “alleged exparte”, which should issue soon. Soon does assume that someone is going to act in a TIMELY manner as soon is defined as ” in the near future, before long, in a little while, in a minute, in a moment, in an instant, in a bit, in the twinkling of an eye, in no time, before you know it, any minute (now), any day (now)”.
Justice Richli cites that the appellant only presents one alleged exparte specifying the alleged illegal exparte practices of the Riverside Superior Court. Only ONE case is required for a published opinion that halts all exparte practices that violate substantive and procedural due process concerns in the Riverside Superior Court.
Perhaps Justice Richli can explain how a case that been briefed since 9/23/2012 meets the definition of SOON.
It is common procedure to combine both writs and appeal proceedings which the Fourth District Division 2 appeal court also does routinely but this appeal court has a reputation of being one of the most difficult courts to deal with, for good reason, especially in family court cases as they have to cover up the absolutely heinous orders issued by the trial court that violate any semblance of constitutional and substantive due process.
The alleged exparte was initiated by Judge Wells who has a history of initating expartes without notification or a written application before 12 hours. A scenario that was deemed unlawful by the Fourth District San Diego division.
Another division in the Fourth District appellate court issued an opinion based on a writ proceeding specifying that in that instance the court had not adhered to the proper exparte procedures and reversed it. In GAS v. Superior Court of San Diego County, D051243 (Cal. Ct. App. July 24, 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.”
A similar argument was presented in this writ and it concerns a case of first impression as there has never been a published opinion issued citing that a court can issue a custody order based on the immigration status of a parent. The CA legislature is very specific and prohibits that the immigration status of a parent shall be used as the basis for a custody decision, (CA family code 3040 subdivision states that the immigration status of a parent, legal guardian, or relative shall not disqualify the parent, legal guardian, or relative from receiving custody under subdivision (a)).
TO THE HONORABLE PRESIDING JUSTICE AND ASSOCIATE JUSTICES OF THE COURT OF APPEAL OF THE STATE OF CALIFORNIA, FOURTH APPELLATE DISTRICT.
Appellant hereby presents a petition for a writ of prohibition requesting immediate reversal of the Riverside Superior court’s policy to implement non noticed expartes without a written application pursuant to California family code § 3064 which requires that the court shall refrain from executing an exparte unless a risk of immediate abduction out of the State of California is presented to the court.The court through Judge Wells has instituted a policy of initiating vexatious exparte’s at hearings without the mandatory notification pursuant to California rules of court 3.1203-3.1204, and without the mandatory written exparte application required according to California rules of court 3.1201, pursuant to CA family code § 3064 to substantiate an immediate flight risk based solely on a parent’s immigrant status. Order to show causes are set for hearing based on a judicial officer’s accusation and discrimination of a litigant, prohibited by the State of California, prior precedent cases and the public policy in the State of California to preserve a constitutionally protected parent child relationship. Once an order is issued the court refuses the parent the fourteenth amendment procedural and substantive due process right to address the litigation and the irreparable harm caused to the parent child bond and allows the children in this case to be exposed to escalating detrimental actions that would normally require immediate reversal of custody pursuant to CA family code § 3020, § 3011, § 3044, § 3048b, § 3046, § 6200.
The Riverside Superior Court since 8/5/2011 has refused to address the non noticed exparte order and order to show cause issued by Judge Wells on 8/5/2011 instituting a public policy of discrimination by a Superior Court against a parent’s immigrant and socio-economic status, when no risk of abduction by Petitioner has ever been demonstrated to the court.
An extraordinary writ relief is necessary as Petitioner has no other means of immediate relief available to her as the court is preventing the filing of any litigation to address the status quo of the irreparable harm to the parent child bond caused by the court’s actions against a parent and at hearings separates the custody and visitation issue from ANY relevant proceeding in order to prevent that petitioner or her children have any redress available to her. The current Presiding Judge of the Riverside Superior Court refuses to allow appellant to file any litigation that addresses the order of 8/5/2011 (Petitioner requests the court to take judicial notice of the writ proceeding in case xxxxx).
1. Petitioner is the petitioner in the action entitled “In Re the Marriage of xxxxxxxand xxxxxxx, IND xxxx, pending before the Respondent Court and this Court of Appeal and this Petition for a writ of mandate/writ of prohibition or other alternative relief is filed in connection with the related pending appeals in case xxxxx,xxxxx,xxxxx, xxxxxx.
2. Respondent is the Superior Court of the State of California, County of Riverside, in which the above entitled action is pending.
3. The Real Party in interest is xxxxxxx, who has an interest directly affected by these proceedings as he is the Plaintiff in the above-entitled trial court action and the Respondent in the related appeals.
4. The minute order of 8/5/2011 (exhibit 1, supplemental exhibits to writ petition) specified that the court left the statement of decision dated 6/13/2011 standing specifying joint legal and joint physical custody to appellant and the real party of interest (exhibit 2, supplemental exhibits to writ petition); initiated a non noticed exparte without a written application (exhibit 1, supplemental exhibits to writ petition) and issued an order to show cause (exhibit 3, supplemental exhibits to writ petition) granting temporary physical custody to the real party of interest specifying an immediate abduction risk by Petitioner, citing her national status, her alleged lack of job and an alleged eviction (exhibit 4, supplemental exhibits to writ petition).
5. The court failed to demonstrate a risk of abduction in its entirety pursuant to CA family code § 6240 c where abduction is defined as “take, entice away, keep, withhold, or conceal” (exhibit 4).
6. The court initiated an exparte on 8/5/2011 without the required mandatory due process notification required by California rules of court 3.1203-3.1204 and the application requirements specified in CA rules of court Rule 3.1201 which specifies that the exparte application MUST be in writing as retaliation for filing a motion to set aside the statement of decision of 6/13/2011, which was the basis of the hearing on 8/5/2011.
7. The trial court refuses to address Judge Wells’ non noticed exparte and perpetual Order to show cause at every hearing and currently even separates valid requests to change custody and visitation where there is a demonstrated pattern of abusive conduct by the real party of interest that harms mother and children. The trial court refuses to address that the public policy of this state to preserve the parent child bond is continually violated by the trial court’s actions and by the refusal of the court to address the real party of interests’ domestic violence against mother and children and the escalating abduction risk by the real party of interest (Case xxxx, xxxxx, xxxx ). The Court fails to address the mandatory best interest of the child standard in its entirety, preferring to perpetuate discrimination against the immigration status of a parent as the basis for its custody decisions.
8. Respondent Court has abused its discretion, by instituting non noticed frivolous and malicious expartes based upon a complete lack of evidence and subjecting Petitioner and the minor children in this case to irreparable harm of the parent child bond. Respondent court has a history of issuing non noticed expartes without the mandatory due process concerns or the mandatory legislative requirements of the application and Judge Wells has a ten history of maliciously harming parents and their children in this manner.
9. Petitioner has no plain, speedy and adequate remedy in the ordinary course of law, other than the relief sought in this petition, as the Respondent Court completely exceeded its jurisdiction, allocated by statute under CA family code § 3064 and refuses to address the orders in ANY capacity.
I, xxxxxxx, am the petitioner in the related appeals. I have read the foregoing petition and know the contents thereof. The matters set forth in the petition are true of my knowledge, except as to matters alleged on information and belief, and as to those matters, I believe them to be true.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that the exhibits enclosed in the supplemental exhibits are true and correct copies of the exhibits filed with the trial court and true and correct copies of reporter’s transcripts of proceedings.
I. THIS COURT CAN TREAT AN APPEAL AS A WRIT PROCEEDING
The Fifth District Court of Appeal has previously noted the court’s power to treat an appeal as a petition for writ of mandate, such as where the appeal was from a nonappealable order (In re Albert B. (1989) 215 Cal.App.3d 361), or where the appeal is from both appealable and nonappealable orders. (In re Kristin W. (1990) 222 Cal.App.3d 234). The court looks to whether the appellant has a plain, speedy, and adequate remedy at law to review the trial court’s orders, and whether there will be an undue burden to file a petition for extraordinary writ. Further, the court looks to whether a delay in resolving the issues may have a detrimental impact on the minors. In this case it is undisputed that a further delay in resolving the issues with another notice of appeal may have a detrimental impact on the minor children in this case, in light of the current pending appeals and the continuing abusive behavior and the immediate abduction risk of the real party of interest and the refusal by the trial court to address its policy of initiating expartes without the mandatory legislative due process requirements.
II. COURT MAY NOT INSTITUTE NON NOTICED EXPARTES WITHOUT EVIDENCE OR NOTIFICATION AND A WRITTEN APPLICATION RELATING TO THE SCOPE OF THE ACTION.
The scope of discretion always resides in the particular law being applied by the court, i.e., in the 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 [255mCal.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”].
Judge Dale Wells issued a non noticed exparte order on 8/5/2011 and issued an Order to Show cause (exhibit 1, exhibit 3 supplemental exhibits to writ petition) in which he on a non noticed basis issued a temporary exparte under CA family code § 3064, which requires a showing of IMMEDIATE risk that children will be removed from the State of California before the court can implement an exparte and where abduct is defined as “take, entice away, keep, withhold, or conceal”, CA family code § 6240 c. As a general rule, the `party desiring relief’ bears the burden of proof by a preponderance of the evidence.”]; Evid. Code, §§ 115, 500.
There was no exparte notification of a party to the case or a written application that complied with the mandatory rules of court pursuant to CA rules of court 3.1204 and 3.1201 to justify the non noticed exparte of 8/5/2011 or a showing of IMMEDIATE risk to justify the temporary exparte injunction orders which the court has refused to dissolve or modify and which it instituted on the same day that it left the statement of decision with joint legal and joint physical custody standing, (exhibit 1, exhibit 2 supplemental exhibits to writ petition). It is a fundamental concept of due process that a judgment against a defendant cannot be entered unless he was given proper notice and an opportunity to defend. (U.S. Const., art. XIV; Mullane v. Central Hanover Bank (1950) 339 U.S. 306, 313-315 [94 L.Ed. 865, 872-874, 70 S.Ct. 652].) The same concept applies to the notice requirements of court instituting expartes on its own motion without any supporting evidence or a written application that the cause of action requires.
To determine the plain meaning of statutory language, we may resort to the dictionary. “When attempting to ascertain the ordinary, usual meaning of a word [in a statute], courts appropriately refer to the dictionary definition of that word.” (Wasatch Property Management v. Degrate (2005) 35 Cal.4th 1111, 1121-1122.). The term immediate refers to “sudden, prompt, without delay”. There has never been any evidence presented that the mother in this case WILL take the children out of the State of California and the legislative intent of the Statute specifies that the court SHALL REFRAIN from instituting an exparte unless certain factors have been met, which have to be demonstrated with the relevant proof, based upon the preponderance of the evidence that the event will actually take place
The belief factor that the court relied upon in this case was that the mother has South African and German nationality, which is specifically referenced in the Court’s Order to show cause, (exhibit 3, supplemental exhibit to writ petition) as the basis for the non noticed exparte of 8/5/2011, (exhibit 1, supplemental exhibits to writ petition) that the mother has allegedly failed to hand over children’s passports’ which the court itself recognized that she did not have, an alleged eviction and that she allegedly does not have a job.
A parent’s IMMIGRANT status has no bearing on custody pursuant to CA family code § 3040 b which states that “the immigration status of a parent, legal guardian, or relative shall not disqualify the parent, legal guardian, or relative from receiving custody under subdivision (a).” The term “shall” refers to a mandatory application of the legislative intent of the statute which prohibits discrimination. A parent’s socio-economic status similarly has no bearing on custody, in particular since Judge Wells recognized that the father allegedly received welfare with the statement of decision of 6/13/2013 ordering joint legal and joint legal custody which he left standing on 8/5/2011 where he specified that he left the children with the father for the purposes of welfare and school enrollment (exhibit 2, supplemental exhibit to writ petition).
The court once again may not discriminate against a parents economic background a holding confirmed in Burchard v Garay (1986) 42 C3d 531, 539–540, 229 CR 800, comparative income or economic advantage is not a permissible basis for awarding custody. If the custodial parent’s income is insufficient to provide proper care for the child, the court should award child support rather than remove custody from the parent. Burchard v Garay (1986) 42 C3d 531, 539–540, 229 CR 800.
Judge Wells referenced that the mother “may” be evicted as an immediate abduction risk factor for the children to be taken out of state yet failed to demonstrate an actual eviction and how this relates to the legal definition of abduction pursuant to CA family code § 6240 c (exhibit 3, supplemental exhibit to writ petition).
Judge Wells referenced that the mother allegedly failed to hand over children’s passports yet failed to show how this relates to the legal definition of abduction pursuant to CA family code § 6240 (c), in particular as Judge Wells recognized that the mother cannot hand over something that she does not have and that she cannot take them out of the country with her expired passports.
Indeed at the exparte hearing on 5/12/2011 filed by the real party of interest, the father admitted to withholding the children in violation of the current orders in place and the court specified that the real party of interest had not shown that respondent intended to take the children in any capacity, “AND I DON’T BELIEVE YOU HAVE SHOWN THAT SHE HAS AN INTENTION TO TAKE THE KIDS” (exhibit 4 supplemental exhibits to writ petition, pg 15, lines 13-14, transcript of proceedings 5/12/2011) nor that respondent can hand over something (children’s passports) that she does not have in her possession, “you obviously cannot give them to him,” (exhibit 4, supplemental exhibits to writ petition, pg 6 lines 24-26, transcript of proceedings 5/12/2011) and that respondent has expired passports “ she can’t take them out of the country if she can’t leave the country”.(exhibit 4, supplemental exhibits to writ petition, pg 14. lines 15-17, “transcript of proceedings 5/12/2011).
The court has failed to adhere the best interest of the child standard in temporary orders in any capacity, In F.T. vs. L.J. (2011) 194 Cal.App.4th 1.
III. PUBLIC POLICY OF PRESERVING A PARENT CHILD RELATIONSHIP VIOLATED WITH THE COURT’S ACTIONS.
The willingness of a parent to facilitate a good relationship with the other parent is an important consideration when determining which parent is the best choice as primary caretaker (In Re. Marriage of Steiner & Hosseini 2004, 117 Cal. App. 4Th 519, 529). The public policy of this state which the court has to adhere to is to assure that children have frequent and continuing contact with both parents (section 3020, subd. (b)). Appellate decisions have repeatedly emphasized the trial courts must bear in mind that “preservation [173 Cal. App. 3D 219] of parental relationships is in the best interest of the child as well as that of the parent [citations] “ In re Marriage of Ciganovich (1976) 61 Cal.App.3d 289, 293; In Re Brandie W. (1984) 157 Cal. App. 3d. 110, 114 [203 Cal. Rptr. 537]. This is in keeping with the avowed intent of the Legislature to insure that minor children have frequent and continuing contact with the both parents after the parent have separated or dissolved their marriage (Civ.Code § 4600). California’s legislative policy of preserving petitioner’s parental relationship with her children has absolutely not been met in this case where a situation has been allowed to develop where her constitutionally protected bond with her children is irreparably damaged by the court implementing a policy of non noticed expartes, without a written mandatory application citing an abduction risk based on a parent’s national status without ANY evidence out of sheer retaliation for filing a motion to set aside the statement of decision. Petitioner has a constitutionally protected relationship with her children under the 14th amendment. The fourteenth amendment substantive due process right to a protected familial parent child relationship was already recognized in IDK, Inc. v. County of Clark, 836 F.2d 1185, 1192 (9th Cir. Nev. 1988) and Carey v. Population Services International, 431 U.S. 678, 684-685 (1977), where the United States Supreme Court repeatedly teaches that there is “a right of personal privacy” which includes “family relationships,” and child rearing and education.
Wherefore, Petitioner prays:
1. That the Court of appeal grant the writ of prohibition and direct the trial court to refrain from instituting non noticed expartes, without providing a written application and an opportunity or notice for the party accused to respond.
2. That this court direct the trial court to refrain from basing custody decisions on a parents national or immigrant status.
3. That this court direct the trial court to refrain from instituting expartes unless a showing of immediate risk has been presented that the children will be taken out of the State of California.
4. That the trial court be directed to vacate the orders of 8/5/2011 in case IND xxx with immediate effect.
5. That the Court, alternatively, issues any appropriate relief to petitioner and the minor children.
CERTIFICATE OF WORD COUNT
Petitioner certifies that the word count for this brief is approximately 2940 words.