Supplemental Brief requested on the issue of non noticed expartes in the State of California

MOTION

TO THE HONORABLE ADMINISTRATIVE PRESIDING JUSTICE, PRESIDING JUSTICE AND TO THE HONORABLE ASSOCIATE JUSTICES OF THE COURT OF APPEAL FOR THE STATE OF CALIFORNIA, FOURTH DISTRICT DIVISION TWO.

Pursuant to California Rules of Court, rules 8.200(a)(4) appellant is requesting leave of the court to file the supplemental brief, submitted with this application in case xxxxxx, due to the unusual circumstances surrounding this appeal. Appellant has an obligation to raise meritorious claims of error on appeal, (In re Sade C., (1996) 13 Cal. 4Th 952, Anders v. California (1967) 386 U.S. 738, 743-744 [87 S.Ct. 1396, 18 L.Ed.2d 493]; People v. Johnson (1981) 123 Cal.App.3d 106, 111.) Meritorious claims include those of sufficient substance to have a reasonably strong potential for obtaining reversal or other relief or for making new law. (People v. Johnson, supra, 123 Cal.App.3d 106, 111; People v. Von Staich (1980) 101 Cal.App.3d 172, 175.)

In case xxxxxJustice Ramirez did not allow appellant to proceed with the appeal of the order dated 9/9/2011 citing that appellant had not displayed prejudicial error, (order dated 01/25/2012xxxxxx7). In case xxxx the court did not allow appellant to proceed with case the appeal of the order of 9/28/2011 citing the appeal of the order dated 8/5/2011 (Order dated 2/17/2012 xxxxxx4). The court declined to allow appellant to proceed with her writ in case xxxxxxx which specifically addressed the interlocutory order of 8/5/2011, citing the appeal in case xxxxxx7, although the writ addressed the issues of undisputed law. It is well settled appellate law practice to combine both writ and appeal proceedings, recognized by this district in cases E054422 and E059401. Appellate review in an ordinary mandamus proceeding “`is ordinarily confined to an inquiry as to whether the findings and judgment of the trial court are supported by substantial evidence.'” (Agosto v. Board of Trustees of Grossmont-Cuyamaca Community College Dist. (2010) 189 Cal.App.4th 330, 336 [118 Cal.Rptr.3d 300],quoting Saathoff v. City of San Diego (1995) 35 Cal.App.4th 697, 700 [41 Cal.Rptr.2d 352].)

The appeal in case xxxxx7 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. This 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.

Appellant is requesting leave to file a supplemental brief addressing the specific issues of undisputed facts that are purely a question of law. 1. The issue of a non noticed exparte without notice or the mandatory written application before a hearing violates all substantive and procedural due process requirements and is a question of law based on undisputed facts; 2. The issue of using children as sanctions instead of CCP § 177.5 sanctions violates all procedural and substantive due process requirements and is a question of law based on undisputed facts.

The appeals currently being considered by this court in case xxxxx are the orders of 8/5/2011 consisting of an order overruling appellant’s objections and leaving the statement of decision dated 6/13/2011 ordering joint legal and joint physical custody standing; an order denying the motion to set aside the statement of decision and motion for new trial on 8/5/2011 (Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 663); and the interlocutory non-noticed exparte orders created on 8/5/2011 which 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. Other appeals include the appeal from the denied family law restraining order in case xxxx1 which addresses the orders of 8/5/2011, 9/9/2011 and 9/28/2011 and the appeal from the denied family law restraining orders in case xxxxxx6. xxxxxx1 and xxxxx6 have been consolidated with xxxxxx, which has been designated as the master filed for decision.

This motion is based on the briefs already filed in this case, this application and supplemental brief and the attached memorandum of points and authorities.

Respectfully submitted

xxxxxxx

MEMORANDUM OF POINTS AND AUTHORITIES

This case is once again a case of first impression in the State of California, as there have been no published cases dealing with the non noticed exparte orders at issue in this case, nor is there a published case specifying that children can be utilized as sanctions instead of monetary sanctions, nor is there a published case citing that a parent’s immigrant status can be used as the determining factor to not award custody.

  1. Appellant has been prejudiced by the Court of Appeal’s actions.

There is no question that appellant has been prejudiced by the Court of Appeal’s actions against her, which cannot be construed as a mere harmless error. The decision to not allow appellant to proceed with the appeal of the orders dated 9/9/2011 and 9/28/2011 was prejudicial to appellant as the trial court at both hearings opined that it was using both children as sanctions against appellant, instead of monetary sanctions pursuant to CCP § 177.5. Appellant had the statutory right to proceed with the trial court errors based on the notice of appeal of both orders, based on In F.T. vs. L.J. (2011) 194 Cal.App.4th 1 which specified that the trial court has to apply the correct legal standard for its actions which includes temporary orders. The court consolidated xxxxx with xxxxx where the orders of 8/5/2011, 9/9/2011 and 9/28/2011 are raised in appellant’s opening brief (AOB xxxxxx1).

The basis of the court of appeal’s prejudicial errors is that Presiding Justice Ramirez has decided to implement a capricious policy of staying appeals when a notice of appeal has been filed citing CCP § 391.7 insisting that an appellant has to file an application without allowing a litigant the right to proceed with an appeal in statutory manner prescribed by the California Supreme Court as defined in In re Sade C., (1996) 13 Cal. 4Th 952. The statutory construction of the CCP § 391.7 statute does not specify that an application demonstrating the merit of an appeal or filing has to be filed, nor that there is any specific format to an “application”. It merely specifies that an allegedly vexatious litigant has to obtain “leave” from the presiding judge but does not specify whether that leave is oral or written.

The word application is missing from the statute and is not incorporated by reference in any capacity as an application that an allegedly “vexatious” litigant has to submit to the court. The only filing that is referenced in the vexatious statute is whether the action to be filed has merit and the resulting order from the presiding justice pursuant to CCP § 391.7. Similarly, there is no terminology contained in the vexatious statute that allows a court to decide the merit of an application, (which is not referenced in any capacity in the VLS statute), as the basis for allowing an appeal or a writ proceeding as the notice of appeal or writ proceeding is not referenced as new litigation in the VLS statute. The current informal policy by the Fourth District violates any prevailing title eight rule and applicable law.

Once the court issues a decision on an application for an appeal the court routinely dismisses applications for appeals citing alleged circumstances that are not based on the actual prejudicial error that is the basis of the appeal, precisely the scenario that occurred with both the orders of 9/9/2011 and 9/28/2011. The general rule and understanding is that “an appeal reviews the correctness of a judgment as of the time of its rendition, upon a record of matters which were before the trial court for its consideration.” (In re James V. (1979) 90 Cal.App.3d 300, 304, 153 Cal. Rptr. 334.) This rule reflects an “essential distinction between the trial and the appellate court … that it is the province of the trial court to decide questions of fact and of the appellate court to decide questions of law….” (Tupman V. Haberkern (1929) 208 Cal. 256, 262-263, 280 P. 970.).

The court may not base the denial of applications on circumstances outside of the trial court prejudicial error, the circumstances cited in case xxxxxx and xxxxx; (Order dated 01/25/2012 xxxxx ; Order dated 2/17/2012 Exxxxxx4).

An appealed-from judgment or order is presumed correct, (e.g., Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [86 Cal. Rptr. 65, 468 P.2d 193].) Hence, the appellant must make a challenge. In so authority on each point made” (County of Sacramento v.Lackner (1979) 97 Cal. App.3d 576, 591 [159 Cal. Rptr. 1]; accord, In re Marriage of Ananeh-Firempong (1990) 219 Cal. App.3d 272, 278 [268 Cal. Rptr. 83]). The appellant cannot make a challenge without the record on appeal to reference in the statutory manner accepted by the appellate court through an opening brief or petition. The court consolidated xxxx with case xxxx1 in which the orders of 8/5/2011, 9/9/2011 and 9/28/2011 are raised in Appellant’s opening brief (AOB filed xxxxxx1) including the issue of the best interest of the child standard according to CA family code § 6023. As such supplemental briefing is required to brief the court on the non noticed exparte issue and the sanctions issue raised in the supplemental brief.

2. No defined manner to issue Court of Appeal opinions requires that appellant be accorded procedural and substantive due process and equal protection under the law.

The procedures for issuing and filing an opinion in the Court of Appeal has yet to be determined as California title eight rules of court 8.260 governing said opinions is “reserved” and no manner, format or notice of any opinion has been defined for any appellate proceedings.

It has long been held that due process requires that certain basic procedural protections be afforded before the state deprives an individual of property. (See Wolff v. McDonnell (1974) 418 U.S. 539, 557-558 [41 L.Ed.2d 935, 952, 94 S.Ct. 2963] [“The Court has consistently held that some kind of hearing is required before a person is finally deprived of his property interests”]; Fuentes v. Shevin (1972) 407 U.S. 67, 80-81 [32 L.Ed.2d 556, 569-570, 92 S.Ct. 1983]; Mullane v. Central Hanover Tr. Co. (1950) 339 U.S. 306, 313 [94 L.Ed. 865, 872-873, 70 S.Ct. 652]; Blumenthal v. Superior Court (1980) 103 Cal. App.3d 317, 320 [163 Cal. Rptr. 39];  Hughes v.  Neth (1978) 80 Cal. App.3d 952, 954 [146 Cal. 652*652 Rptr. 37].)

Due process is a flexible concept, and must be tailored to the requirements of each particular situation. “`The very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation, Endler v. Schutzbank (1968) 68 Cal. 2D 162, 169-170 quoting Cafeteria Workers  v.  McElroy (1961) 367 U.S. 886, 895 [6 L.Ed.2d 1230, 1236, 81 S.Ct. 1743], which includes Court of Appeal decisions and the ability to fully brief the court on all relevant orders.

The CA Supreme Court in Hollister Convalescent Hosp., Inc. v. Rico, (1975) 542 P. 2d 1349 provided that “[t]he reviewing court for good cause may relieve a party from a default occasioned by any failure to comply with these rules, except the failure to give timely notice of appeal.” (Italics added.) The reason for this provison was clearly stated in Estate of Hanley (1943) 23 Cal.2d 120 [142 P.2d 423, 149 A.L.R. 1250], in language which has since been reiterated by this court on many occasions. “In strictly adhering to the statutory time for filing a notice of appeal, the courts are not arbitrarily penalizing procedural missteps. Relief may be given for excusable delay in complying with many provisions in the statutes and rules on appeal, such as those governing the time within which the record and briefs must be prepared and filed. These procedural time provisions, however, become effective after the appeal is taken. The first step, taking of the appeal, is not a procedural one; it vests jurisdiction in the appellate court and terminates the jurisdiction of the lower court.

This holding also suggests that appellant may petition the court of appeal for relief from a prejudicial error that the court of appeal has made, not based on any title eight rule or the statutory construction of the law, perpetuating the miscarriage of justice of the prejudicial trial court rulings.

3. Parties have been permitted to raised new on appeal where the issue purely a question of law on undisputed facts.

Parties have been permitted to raise new issues on appeal where the issue is purely a question of law on undisputed facts. (Frink v. Prod (1982) 31 Cal.3d 166, 170, 181 Cal.Rptr. 893, 643 P.2d 476.)  Sheller v. Superior Court, 2008 158 Cal.App.4th 1697 71 Cal. Rptr. 3D 207. Appellant requests the opportunity to do so in addressing the non noticed exparte orders of 8/5/2011 which are a part of appellant’s appeal in case Exxxxx. The orders of 8/5/2011, 9/9/2011 and 9/28/2011 are referenced in Appellant’s opening brief in case Exxxxx1 (AOB filed Exxxxxxx).

There are two issues that are purely a question of law as discussed in appellant’s supplemental brief. 1. The issue of a non noticed exparte without notice or the mandatory written application before a hearing violates all substantive and procedural due process requirements and is a question of law based on undisputed facts; 2. The issue of using children as sanctions instead of CCP § 177.5 sanctions violates all procedural and substantive due process requirements and is a question of law based on undisputed facts.

CONCLUSION

Appellant declares under the penalty of perjury in the State of California that the foregoing is true and correct.

Appellant requests the court to grant supplemental briefing on the issue of the non-noticed exparte order of 8/5/2011, 9/9/2011 and 9/28/2011. Neither justice nor judicial economy is served by refusing supplemental briefing and consequently failing to consider the issue properly on appeal.

SUPPLEMENTAL BRIEFING

I. INTRODUCTION AND STATEMENT OF THE CASE

Appellant presents a supplemental brief related to two crucial issued relevant toxxxxxx7.1. The issue of a non noticed exparte without notice or the mandatory written application before a hearing violates all substantive and procedural due process requirements and is a question of law based on undisputed facts; 2. The issue of using children as sanctions instead of CCP § 177.5 sanctions violates all procedural and substantive due process requirements and is a question of law based on undisputed facts.

This case is a case of first impression in the State of California, as there have been no published cases dealing with the non noticed exparte orders at issue in this case, nor is there a published case specifying that children can be utilized as sanctions instead of monetary sanctions, nor is there a published case citing that a parent’s immigrant status can be used as the determining factor to not award custody.

The court has consolidated casexxxxx1 and xxxxxx with xxxxxxxx designating the latter as the master case for decision.

The appeals currently being considered by this court in case xxxxxxx are the orders of 8/5/2011 consisting of an order overruling appellant’s objections and leaving the statement of decision dated 6/13/2011 ordering joint legal and joint physical custody standing; an order denying the motion to set aside the statement of decision and motion for new trial on 8/5/2011 (Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 663); and the interlocutory non-noticed exparte orders created on 8/5/2011 which 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.

Other appeals include the appeal from the denied family law restraining order with children in case xxxxxx and the appeal from the denied family law restraining orders in case xxxxxx.xxxxx1 and xxxxxxhave been consolidated with xxxxxxx which has been designated as the master filed for decision.

Appellant hereby presents supplemental briefing related to the non noticed exparte orders of 8/5/2011 which are a part of appellant’s appeal in casexxxxxx7. In addition the orders of 8/5/2011, 9/9/2011 and 9/28/2011 are referenced in Appellant’s opening brief in case xxxxxx1 (AOB filed xxxx1).

II. SUPPLEMENTAL BRIEFING ARGUMENT

ISSUE 1

NON-NOTICED EXPARTE VIOLATES STATUTORY SUBSTANTIVE AND PROCEDURAL DUE PROCESS.

The due process clauses of the United States and California Constitutions require that a party be given reasonable notice of a judicial proceeding, (Scott v. McNeal (1894) 154 U.S. 34, 46 [38 L. Ed. 896, 14 S. Ct. 1108];  Harrington v. Superior Court (1924) 194 Cal. 185, 188 [228 P. 15].)

The non noticed exparte initiated by Judge Wells on 8/5/2011 (page 418-419; 420, Clerk’s transcript on appeal case xxxxxxx) failed to adhere to any legal standard required under the action as defined in In F.T. vs. L.J. (2011) 194 Cal.App.4th and was an arbitrary, capricious act, beyond the bounds of reason,” County of Los Angeles Dept. of Regional Planning v. Superior Court (2012)  208 Cal.App.4th 1264, 1271, requiring reversal.

The fourteenth amendment due process and equal protection, (U.S. Const. amend. XIV), evidence standard required to terminate parental rights was decided in one precedent case, Santosky vKramer – 455 U.S. 745 (1982), which cited that a clear and convincing evidence standard of parental unfitness was required to removed children from a parent.

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.

Generally, a trial court abuses its discretion if there is no reasonable basis on which the court could conclude its decision advanced the best interests of the child. ( In re Marriage of Melville (2004) 122 Cal.App.4th 601, 610 [ 18 Cal.Rptr.3d 685]; In re Marriage of Burgess (1996) 13 Cal.4th 25, p.32) However, “all exercises of legal discretion must be grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue.” ( People v. Russel (1968) 69 Cal.2d 187, 195 [ 70 Cal.Rptr. 210, 443 P.2d 794], superseded by statute on another ground as noted in People v. Anderson (2001) 25 Cal.4th 543, 575 [ 106 Cal. Rptr.2d 575, 22 P.3d 347]; see also People v. Superior Court (Alvarez) (1997)14 Cal.4th 968, 977 [ 60 Cal. Rptr.2d 93, 928 P.2d 117]].) Therefore, a discretionary decision may be reversed if improper criteria were applied or incorrect legal assumptions were made. ( Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435-436  [ 97 Cal.Rptr.2d 179, 2 P.3d 27].) Alternatively stated, if a trial court’s decision is influenced by an erroneous understanding of applicable law or reflects an unawareness of the full scope of its discretion, it cannot be said the court has properly exercised its discretion under the law. ( People v. Belmontes(1983) 34 Cal.3d 335, 348, fn. 8 [ 193 Cal.Rptr. 882, 667 P.2d 686]; In re Carmaleta B. (1978) 21 Cal.3d 482, 496 [ 146 Cal.Rptr. 623, 579 P.2d 514] [“discretion can only be truly exercised if there is no misconception by the trial court as to the legal basis for its action”]; People v. Aubrey (1998) 65 Cal.App.4th 279, 282 [ 76 Cal.Rptr.2d 378]; People v. Marquez  (1983)  143 Cal.App.3d 797, 803 [192 Cal.Rptr. 193] [“an erroneous understanding by the trial court of its discretionary power is not a true exercise of discretion”].) Therefore, a discretionary order based on the application of improper criteria or incorrect legal assumptions is not an exercise of informed discretion and is subject to reversal even though there may be substantial evidence to support that order. ( Under, at p. 436; Caro v. Procter Gamble Co. (1993) 18 Cal.App.4th 644, 655 [ 22 Cal.Rptr.2d 419]. In F.T. vs. L.J. (2011) 194 Cal.App.4th.

With the initiation of a non noticed exparte on 8/5/2011 Judge Wells failed to adhere to the statutory requirements of CA family code $ 3064 which specifies that the Court SHALL refrain from issuing an exparte 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, the following:
   (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.

In this case Judge Dale Wells issued a non noticed exparte order on 8/5/2011 and issued an Order to Show cause (page 418-419, 420, Clerk’s transcript on the appealxxxxx7) 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.”]; CA 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, 3.1201, 5.165, 5.151 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, (pg 418-419, 420 Clerk’s transcript on the appeal xxxxxx). 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.

The notice requirements are also delineated in CA family code § 3048 (a)(2) which specifies under subsection (a) “Notwithstanding any other provision of law, in any proceeding to determine child custody or visitation with a child, every custody or visitation order shall contain all of the following:

   (1) The basis for the court's exercise of jurisdiction.
   (2) The manner in which notice and opportunity to be heard were given.”

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, (pg 420 Clerk’s transcript on appeal xxxxxxx7) as the basis for the non noticed exparte of 8/5/2011, ( pg 418-419, 420 Clerk’s transcript on appeal xxxxxxx) 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.

The United Supreme Court recognized that the fourteenth amendment equal protection standard applies to custody cases and that a court may not base custody determinations on racial prejudice, Palmore v. J Sidoti 466 U.S. 429. The same situation holds for custody determinations based on the discrimination and prejudice displayed against national status. The Constitution cannot control such prejudices but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect. “Public officials sworn to uphold the Constitution may not avoid a constitutional duty by bowing to the hypothetical effects of private racial prejudice that they assume to be both widely and deeply held.” Palmer v. Thompson, 403 U.S. 217, 260-261, 91 S.Ct. 1940, 1962-1963, 29 L.Ed.2d 438 (1971) (WHITE, J., dissenting). The court referenced the mother’s German and South African National status as the basis of its orders on 8/5/2011 (page 420, Clerk’s transcript on the appeal xxxxxx ), and the court also specified that it was using the mother’s immigrant status as the basis for its decisions. “ You are a legal resident, but you are not a citizen of the United States” (Request for judicial notice granted, exhibit 5, lines 12-16 page 10 Reporter’s transcript 9/28/2011), in violation of CA family code § 3040 (b).

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 (pg 418-419, pg 362 Clerk’s transcript on appeal xxxxxx).

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 and reveals discrimination prohibited by the Fourteenth Amendment of the United States Constitution. 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 (pg 420 Clerk’s transcript on appeal xxxxxx).

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. The Court on 5/12/2011 (page 445-466 Clerk’s transcript on Appeal Exxxxxxx) specifically pointed out that appellant could not provide the passports to plaintiff :

The Court: I did the minimal things, I said give him the passports. You don’t have the passports.

Respondent: No.

Court: You obviously can’t give them to him. “(lines 21-24, page 451 clerk’s transcript Exxxxx)

At the same hearing Judge Wells acknowledged that the mother could not be a flight risk if she has expired passports:

She can’t take them out of the country if she can’t leave the country. That what it has to do with it.: (lines 15-17, page 459, clerk’s transcript on appeal xxxxxx ).

And I don’t believe you have shown that she has an intention to take the kids”, lines 13-15, page 460 clerk’s transcript on appeal xxxxx).

The court at that hearing removed the wording in its prior tentative statement of decision which was not binding upon the court (page 119-131 clerk’s transcript on appeal xxxxxx ) and specified that it was taking out the works “ that are in her possession” or “under her control” (page 125, clerk’s transcript on appeal xxxxx7) and incorporated in its modified statement of decision (page 236, clerk’s transcript on appealxxxxx7) and Statement of decision dated 6/13/2011 (page 362 -376 clerk’s transcript on appeal xxxxx).

One unpublished decision has dealt with the issue of procedural defects in ex parte proceedings which require reversal. In a writ proceeding  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 § 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, the following:
(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 § 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.”[4] 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.”

This case represents a similar scenario as it is the father in this case who is an abduction risk within the meaning of abduction pursuant to CA family code § 6240 (c) as he has repeatedly withheld and concealed the children from the mother, raised at the hearing to vacate the statement of decision and motion for new trial on 8/5/2011 (RPT 8/5/2011 xxxxx), custody trial (pg 82-83 RPT 5/2-5/5/2011, xxxxx); concealed the original children’s passports from the mother and admitted at the trial that he took them (pg 182, RPT 5/2-5/5/2011 Exxxxx7). Facially the statute and rule do not apply to appellant in this case.

An abduction risk does apply to respondent as raised in appellant’s opening brief in case xxxxx1 (p23, AOB filed xxxxx consolidated with xxxxx) and in her request for domestic violence restraining order with children which is the subject of that appeal. The plain language of the statute pursuant to CA family code § 6323 specifies that the best interest of the child standard prevails and that there does not need to be a finding of domestic violence to change custody. Specifically subsection a of CA family code § 6323 specifies as follows “(a) Subject to Section 3064:

   (1) The court may issue an ex parte order determining the temporary custody and visitation of a minor child on the conditions the court determines to a party who has established a parent and child relationship pursuant to paragraph (2). The parties shall inform the court if any custody or visitation orders have already
been issued in any other proceeding.
  (2) (A) In making a determination of the best interests of the child and in order to limit the child's exposure to potential domestic violence and to ensure the safety of all family members, if the party who has obtained the restraining order has established a parent and child relationship and the other party has not established that relationship, the court may award temporary sole legal and physical custody to the party to whom the restraining order was issued and may make an order of no visitation to the other party pending the establishment of a parent and child relationship between the child and the other party”.

ISSUE 2

USING CHILDREN AS SANCTIONS INSTEAD OF CCP § 177.5 MONETARY SANCTIONS VIOLATES ALL PROCEDURAL AND SUBSTANTIVE DUE PROCESS CONCERNS AND IS A QUESTION OF LAW BASED ON UNDISPUTED FACTS.

The court at two hearings (9/9/2011 and 9/28/2011) (RPT 9/9/2011; 9/28/2011) essentially opined that it was using the children in this case as sanctions against their mother instead of monetary sanction “ What I said is that I’m opposing monetary sanctions because I believe that the fact that mom is not getting to see the kids is a sufficient sanction”, (Request for judicial notice granted case xxxxxx, exhibit 5, lines 14-18 page 9, xxxxxxx, Reporter’s transcript 9/28/2011). Judge Wells denied his own OSC for monetary sanctions at the hearing on 9/9/2011 (Request for Judicial notice granted xxxx exhibit 4, Reporter’s Transcript of hearing 9/9/2011) but left his Order to show cause issued on 8/5/2011 in place indefinitely although appellant’s responsive declaration conclusively demonstrated that there is absolutely no flight risk, justifying any of the Court’s orders (page 430-595 vol 3 clerk’s transcript on appeal xxxxxx7.)

The responsive declaration specified once again that the mother had expired passports (exhibit 3, exhibit 3a page 430-595 vol 3 clerk’s transcript on appeal xxxxx), is a permanent resident (page 430-595 vol 3 clerk’s transcript on appeal exxxxxxx) all demonstrating that the mother cannot be an immediate flight risk and that there was no competent evidence of any immediate risk presented justifying Judge Well’s order to show cause and non noticed exparte orders in light of the fact that Judge Wells issued an order knowing that Appellant could not comply with it

Ms. xxxxx: Your Honor, I don’t have them.

The Court: “That’s fine. I’m just saying IF you have them, they need to be handed to him”

(RPT 5/2-5/5/2011 pg 283, lines 6-7, Exxxxx; page 451 lines 21-24 clerk’s transcriptxxxxxx7).

Children were quite categorically used by the trial court as a SANCTION against their mother, an arbitrary, capricious act, beyond the bounds of reason. ” County of Los Angeles Dept. of Regional Planning v. Superior Court (2012)  208 Cal.App.4th 1264, 1271 and violated the clear and convincing evidence standard of parental unfitness defined in Santosky vKramer – 455 U.S. 745 (1982) which states that fourteenth amendment due process and equal protection standard applies to removing children from their parents and that parental unfitness is required. Sanctions may not be summarily imposed. Due process demands more.” In re Marriage of Duris and Urbany (2011) 193 Cal.App.4th 510, Caldwell v. Samuals Jewelers (1990) 222 Cal. App. 3D 970, 272 Cal. Rptr.126. The court in F.T. vs. L.J. (2011) 194 Cal.App.4th opined that the correct legal standard needed to be applied to the scope of the action, which quite clearly did not occur in this case as the court in its original order of 8/5/2011 initiated an exparte without notification or a written application prior to the non noticed hearing.

As specified in issue 1 above the fourteenth amendment due process and equal protection, (U.S. Const. amend. XIV), evidence standard required to terminate parental rights was decided in one precedent case, Santosky vKramer – 455 U.S. 745 (1982), which cited that a clear and convincing evidence standard of parental unfitness was required to removed children from a parent.

CAL. CCP. CODE § 177.5 specifies that a judicial officer shall have the power to impose reasonable money sanctions, not to exceed fifteen hundred dollars ($1,500), notwithstanding any other provision of law, payable to the court, for any violation of a lawful court order by a person, done without good cause or substantial justification. This power shall not apply to advocacy of counsel before the court. For the purposes of this section, the term “person” includes a witness, a party, a party’s attorney, or both.

Sanctions pursuant to this section shall not be imposed except on notice contained in a party’s moving or responding papers; or on the court’s own motion, after notice and opportunity to be heard. An order imposing sanctions shall be in writing and shall recite in detail the conduct or circumstances justifying the order.

Nowhere in any statute under the civil code or in a family law code can children be allocated as sanctions instead of monetary sanctions.

If a court does indeed believe that a litigant violated any orders the statute provides for contempt of court proceedings pursuant to CAL. CCP. CODE § 1211 et seq., or monetary sanctions pursuant to CCP 177.5. Both require the mandatory procedural due process notice under the statute.

Conclusion

Appellant declares under the penalty of perjury in the State of California that the foregoing is true and correct.

Appellant requests the court to consider the supplemental briefing on the issue of the non-noticed exparte order of 8/5/2011, order of 9/9/2011 and 9/28/2011.

Appellant requests the court to consider the due process violations of the non noticed exparte orders as it relates to the appeal in case xxxxxx, reverse and vacate the order, and appellant requests the court to consider the best interest of the child standard and reverse and grant the denied restraining orders in case xxxxx1 and xxxxxx.

Advertisements

One comment on “Supplemental Brief requested on the issue of non noticed expartes in the State of California

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s