Justice Richli of the Fourth District Court of Appeal unjustly denied the application for a writ petition seeking to address the unlawful nature of Judge Wells’ non noticed exparte proceeding and his discrimination against an immigrant parent.
A motion was filed to reinstate the writ proceeding which the Court of Appeal refused to file citing that the denied application for a writ proceeding was final on the date that it was denied and that a cause cannot be initiated pursuant to CCP section 391.7.
A Petition for Review was provided to the CA Supreme Court who in contrast to the Fourth District Court of Appeal adhere strictly to CA Rules of Court. The review petition is a last recourse as the Court of Appeal refuses to file a motion to reinstate the writ proceeding. The CA Supreme Court, pursuant to CA Rules of court 8.500 (e) (3), will file the petition when the order from the 2nd of July becomes final which will be in 30 days from the 2nd of July. The California Rules of Court relating to Petitions for Review can be accessed here: http://www.courts.ca.gov/cms/rules/index.cfm?title=eight&linkid=rule8_500
The review petition not only seeks review of the non noticed temporary exparte practices that violate ANY statutory holding and applicable law, and discriminate against an immigrant parent, but also seeks a holding addressing the finality period of writ proceedings where the application only is denied. The non noticed temporary exparte order was issued at the same date and hearing as the order leaving a statement of decision with joint legal and joint physical custody standing.
It is a well settled appeal practice that appellants can combine both writ and appeal proceedings. The Fourth District Court of Appeal referenced the appeal in case xxxxx as one basis for denying the writ proceeding. That appeal deals with an interlocutory order (the non noticed exparte issued on 8/5/2011) and the denied motion to vacate and amend a statement of decision and motion for new trial while leaving the statement of decision ordering joint legal and joint custody standing. The order denying the motion to set aside the statement of decision and motion for new trial on 8/5/2011 is an appealable order as it contained an order denying the motion to set aside the statement of decision based upon CCP section 663 (Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 663).
The interlocutory non noticed exparte orders created on 8/5/2011 are appealable as they consist of an injunction pursuant to CCP § 904.1 (a) (6) that the court refuses to dissolve and the court erred substantially by committing error by not applying the best interest of the standard to the case in an alleged “temporary order”. In F.T. vs. L.J. (2011) 194 Cal.App.4th 1 in a published decision the appellate court reversed as the best interest of the child standard in temporary orders was not applied by the trial court.
The appeal has been pending for decision since 9/13/2012 and hardly qualifies as being decided in a timely manner in accord with CA government code § 68210 and California Constitution Article VI Judicial Section 19 which specifies that a judge of a court of record may not receive the salary for the judicial office held by the judge while any cause before the judge remains pending and undetermined for 90 days after it has been submitted for decision. The Supreme Court in BROWN V. SUPERIOR COURT 655 P.2D 1260 (CAL. 1982), held that justices of the appellate court are covered under CA government code section 6200 et seq as such the time frame for decisions applies to appellate justices as well. The court’s actions constitute harm and prejudice toward appellant which cannot be corrected on appeal Valley Bank of Nevada v. Superior Court (1975) 15 Cal. 3d 652 [125 Cal.Rptr. 553, 542 P.2d 977]; Roberts v. Superior Court (1973) 9 Cal. 3d 330 [107 Cal.Rptr. 309, 508 P.2d 309]). This Supreme court in Morehart v. County of Santa Barbara, 872 P. 2d 143 (1994) defined the standard under which writ proceedings may issue to address interlocutory orders citing as follows:
“The California judicial system provides another, more efficient avenue for obtaining a preliminary determination whether unusual circumstances make appellate review of an interlocutory judgment appropriate and, if the determination is affirmative, obtaining the review itself. The Schonfeld v. City of Vallejo (1976) 50 Cal. App.3d 401, 416-419 [123 Cal. Rptr. 669] (Schonfeld) court’s reference to “circumstances … so unusual that postponement of the appeal… would cause … serious … hardship and inconvenience” (50 Cal. App.3d at p. 418) seemingly describes circumstances that would make an appeal from the final judgment an inadequate remedy and thereby call upon the appellate court to issue an alternative writ of mandate as a means of reviewing the correctness of the trial court’s interlocutory judgment. (Code Civ. Proc., § 1086; see 8 Witkin, Cal. Procedure, supra, Extraordinary Writs, § 113, p. 748.) “ This is the scenario that was presented in this case and the years of delay have caused serious hardship and inconvenience to petitioner AND her children.
The Fourth District of Appeal has adopted a procedure not defined in any title eight rule or any law to force certain select litigants to file applications for appeals and writ proceedings, and denies them capriciously based on circumstances and a subjective merit standard that does not have a thing to do with the actual writ proceeding that was presented. The ordinary meaning of the statute defined in CCP § 391.7 (a) specifies that a litigant does not have to file a written application demonstrating the merit of a writ petition.
The order of 7/2/2014 described appellant’s alleged application as a vexatious litigant and denied the application not the writ proceeding. Pursuant to CA rule of Court 8.490(b)(2)All other decisions in a writ proceeding are final 30 days after the decision is filed, except as follows:
(A)If necessary to prevent mootness or frustration of the relief granted or to otherwise promote the interests of justice, the court may order early finality in that court of a decision granting a petition for a writ within its original jurisdiction or denying such a petition after issuing an alternative writ, order to show cause, or writ of review. The decision may provide for finality in that court on filing or within a stated period of less than 30 days.
(B)If a Court of Appeal certifies its opinion for publication or partial publication after filing its decision and before the decision becomes final in that court, the 30 days or other finality period ordered under (A) runs from the filing date of the order for publication.
(C)If an order modifying a decision changes the appellate judgment, the 30 days or other finality period ordered under (A) runs from the filing date of the modification order.
The California rules of Court refers to all other decisions in a writ proceeding when defining the 30 day limit which applies to the application that the Fourth District Court of Appeal denied.