My question involves restraining orders in the State of: California
This Question is perhaps more for the Senior Level Contributors, as this question has perplexed even Judges who sit on the Judicial Council (with an I Dont know). This is a real case and to be quite honest, I have searched the entire internet, westlaw, CEB, Leagle, Justia etc. This is a very complex situation, looking for a little help on. Maybe even a social experiment if several people can help. For the Record, this is a Non Profit, there is no money being earned on this. Weve contacted the eff, aclu, and every other free speech acronyms We can think of, every one is perplexed. But this board has always been a quick forum for my read, and I am thinking that just maybe someone has come across a similar situation, case authority or something I am not seeing.. This has been fought originally by a pro per going up against an attorney who is borderline despicable but whole other story. Not your typical DVTRO case here....
Applicable Codes, Fam Code Sect 240-246, Family Code 3020, 3040-3046, Fam Code section 6200, Penal code Section 166(a)(4) and Evidence Code 710, 980
Background
Wife Files DV TRO in Ex Parte
1. Wife files on August 5, 2013 and ex parte DV TRO alleges a very benign reason for the restraining order states "Husband called wife a liar, and threatened to take child away" (which was then held 5 hearings later to be entirely based on constitutionally protected activities sorry to skip ahead, order is ultimately vacated however, not nunc pro tunc on May 20, 2014, I am mentioning this, so it will make sense later on).
2. On Wifes, ex parte DV TRO, she states there was no custody order in place, even though there was already a Pendente Lite order on the original Dissolution Action, which allowed for husband to see child that husband and wife share. Wife fails to check box though on the RFO DV 100. She also states in her Affidavit description of abuse, that the Husband has car and refuses to give it back, Wife States Car was gained prior to Marriage.
3. On the JC form DV 109 Notice of Court Hearing, states Wife is to personally serve the husband at least 5 days before hearing all documents. (Fam Code 243(b))
Wife's Attorney attempts to Serve by Email the DVTRO, husband says he can't open the documents, and states "I do not waive personal service" which is required for Ex Parte TRO's for DV.
4. Husband is ultimately personally served on August 16, 2013 for a hearing of August 20, 2013 some 300 miles away. Husband files a Motion to Quash for Lack of Proper Service (Specifically under section 243 (b)) and files it one Day earlier on August 19, 2013. He read on the Internet Aubrey v. Fields, but such is unpublished decision, doesn't know he can't cite it (he is a pro per). Even though it was the exact circumstances of his case. For the record, Fam Code 240-246 was amended in Sept 2012, no cases other than Aubrey V Fields address this issue, except Ross V Figuroa, but that has to do with continuances, not the five day rule s found in Fam Code 243(b).
5. Husband is not served a copy of DV 105 Request for Child Custody and Visitation or DV140 Child Visitation and Custody Order as well, which were noticed on the DV 110 as attachments, but such attachments were not delivered to Husband on August 16, 2013. In fact, Husband, wasn't even informed of the TCO until August 20, 2013, the same day of hearing.
6. The Wifes Proof of Personal Service was not to be filed until May 8, 2014. The P.O.S does not indicate that DV-105 or DV140 were ever served either, it also lists that the DVTRO was indeed served on 8-16-2013 only 4 days prior to hearing.
Husband Appears at the DVTRO Hearing
7. On August 20, 2013, Husband appears 300 miles away for the hearing. The Court on its own motion continues the TRO till October 22, 2013 because and this is a hard one to swallow "The parents have not gone to Mediation" regarding their child. Husband is asked by the Court if he agrees to continue the TRO he states I am ready to proceed today. Court muscles him to continue it, he states he agrees to 25 days referencing Fam Code 242. Court nevertheless continues it to October 22, 2013. Husband never states anything on record in agreement to this. Petitioner never filed for more time on declaration to serve the papers, the court does not make motion for more time to serve the papers. Wifes attorney states "We have had a problem getting him served but he is here, solves the problem", Court states "right". It was later argued on May 8, 2014 at an evidentiary hearing that the fact that Attorney had sent email to Husband in conjunction with the fact he was in court, waived personal service of the DVTRO. Oh Really? Attorney provides declaration of her sending the DVTRO by email. (I think Im about to gag on due process but wait it gets better...)
8. Court also states on August 20, 2013 transcripts "Ive read the Pleadings" only to later state "Ive read part of the Pleadings" only to later state "Is this in the Pleadings?", only to Later state "I admit Im side tracked in my mind with respect to the pleadings", only to later state "Im not making any findings on what the facts of the pleadings are, I just don't know"
9. Court Does not rule on Motion to Quash for 5 hearings later on May 20, 2014, court states on record on May 20, 2014 in regards to the Motion to Quash, "we must of missed that in the shuffle, but such is moot now since we have vacated the order". Yeah Moot, does that mean everything goes away? Nope, as you will soon learn. We are however, going to keep that Child Support Order in place though.... (Yeah Child Support will survive an overthrow of the constitution...Probable State bar Bulletin :)~ )
10. A lot of factual statements Between Husband and Wife at the August 20, 2013 hearing were made, and Evidence Code section 710 was raised. On Record, it was stated that no oath was being taken and as such was objected. Instead of court saying "Ok lets take an oath as required of C.C.P 2094" the court just says "Thats fine" and does not administer oath ever during the hearing, but makes orders regarding property, child support etc.
11. Part of Court order, is Husband to return a car in possession of Husband and return it to San Diego. The Court verbally orders on the transcript, "To coordinate with the Petitioner and her family" all of which are protected on Wife's TRO, wife agrees to such "coordination". Now, I am not sure what the court meant by coordinate, but when I look it up in Dictionary it means "to negotiate and bring into harmony". Problem is all of the harmony is people protected by a DVTRO. Car is also protected, even though Husband has the car in question. After all, it was technically quasi Community property, he paid for registration, up keep, etc. for car. Plus, Car was 300 miles away. But this car will prove to be an important peace of this epic puzzle. Court also stated "The court is not making any findings as to ownership, at this point just right to possession".
Now this is where the case gets very interesting and complex
12. Husband receives death threats from wife by text, saying "I will kill you etc". So, waiting till August 30, 2013, end of 25 day enforceable provision under 242(he files a Restraining order in the county he currently resides in. Does state on record that there is a DVTRO is technically in effect in another county. But states to court, I agreed to 25 days. The Judge in Husbands county states, well its been 25 days, they can hear Wifes order, but its unenforceable. So yeah you can file a DVTRO here. On Husband TRO court orders and check marks "Brief Peaceful contact Wife for Purposes of the child" on Husbands TRO against wife.
13. Husband gets TRO which is valid until September 25, 2013. Wife is personally served with DVTRO on September 18, 2013.
14. Wife, on September 25, 2013, decides to use Court Call, and is "entirely too sick to come" to Husbands County, so she is seeking a continuance till October 23, 2013. Court Grants the request. Apparently, wife got better, for exactly one hour later. Wife files in her County, a police Report for violations of a TRO. Apparently, wife found as was described by Police "a peaceful non threatening Birthday card in Wifes glovebox of car". Wife says she got the car back a week ago (September 18, 2013) and found the card in the glove box. The problem with this statement was that Wife's Attorney had also filed a declaration that the car in question had been returned on September 2nd, 2013. While not a big deal, things are starting to heat up in the perjury department, (but not sure if this is something to get excited about)
15. Wife also provided an email entitled "Within the Peaceful Scope of (Childs Name)" and such email which was determined to be entirely peaceful and only for purposes of child by the police, wife still wanted to report the contact. She provided a print out of her TRO, never of course stating to the Police that she was also restrained by a TRO herself.
16. Husband is a songwriter and wrote a song specifically named "Girls name" where the Girls name is the Wifes Name, for purposes of anonymity the song name would release the Artists name, as this song is published internationally. The song itself is not obscene, nor is it threatening, rather its just a benign song. Wife provides this song, an all links to it as well as postings about the song to Police. Wife would later state this song is why she filed the TRO to begin with as it "disturbed her emotional calm" her lawyer citing Abuse under DVPA.
17. On October 18, 2013, District Attorney Files Charges against Husband for 2 Counts of PC 166(a)(4) "willful disobedience of a court order". Not violation of a Domestic Violence TRO which is entirely different Penal Code, (I suspect even the DA had a hard time swallowing a Peaceful Birthday card, a Song, and a Peaceful inquiry about a child was Domestic Violence) but thats besides the point.
18. On October 22, 2013, Husband comes again to Wifes county, he is ready to clear his name, in fact husband had told me he watched a whole season of "Suits", in preparation for his hearing... I thought it was funny. Problem is Husband doesn't know he is walking into a mine field. Husband thinks he is gonna get the TRO dismissed, because he knows he didn't do anything. However, this time a different Judge hears the matter. Think Mr Rogers in the 1960's. Judge says "come on guys lets stop fighting, lets work together for the sake of the kid" Husband joins the peace parade and says yeah man I digg. Wife is more like a fake Tina Turner and goes no way Ike. Anyway, court tells wife I dont find any cause for a three year here" Wifes attorney pushes and pushes and uses every tactic in the book to strike fear in the courts heart. In fact, its amazing she didnt say "Your Honor, you dont want to be the Judge that let off OJ". Anyway, long story short, after the court asked Husband, well can you leave her alone till april 22, 2014 which is your next court hearing" Husband agrees. Mr Hippie Rogers Judge also states "You really should drop your restraining order in (Your County) we have taken control of the case, if I was your lawyer Id tell you to drop it". Husband agrees to drop his TRO. Wife repeatedly protests "He's already violated the order, he wrote a song, He sent emails, Judge Mr Hippie Free Love Rogers, "cmon... that was then" denies the RO but leaves the TRO in place till April 22, 2014. Court also orders immediate visitation with minor childand Brief Peaceful contact with other parent for purposes of child. The wife nor her attorney never stated on record that just 4 days prior the Husband had been charged with 2 Counts of PC 166(a)(4) relating to Wife's TRO. So of course, Husband was never notified during the hearing of any 5th Amendment Rights.
19. On October 22, 2013, Husband asks the court "can I visit my child at least today since I am up here, I have not seen him in 65 days!" The court asks wife "Can we make that happen?" Wife says yes, then court asks "where?", wifes attorney states "Moms at noon", The court restates the attorney's statement "Mom's House at Noon?" Both Wifes Attorney and Wife states "yes thats fine".
20. The Following Day wife goes Rambo and decides to file another charge with the District Attorney's office, this time after Husband sends another email entitled "thank you for letting me see our little guy" the entire email is entirely peaceful, the Police report once again states "Email was entirely peaceful" etc. On December 1, 2013, DA of Wifes county, decides to add another charge, I mean what the heck right, lets keep adding charges for peaceful communications that were allowed by three judges at this point.
21. On or About February 19, 2014, Husband is cruising feeling good about life in his County, when of course he gets pulled over for a routine traffic stop for traveling close to that darn fog lane, late at night (which is police code for you weren't doing anything wrong, we just have to make up something to see if you've been drinking), anyway bingo, Three counts of PC 166(a)(4), we are arresting you, car impounded, etc. Husband gets taken into custody only to be released with a CIte and release a few hours later, and an Impound Fee later and a hey appear in court 300 miles away in a month. Husband appears on March 19, 2014, says Yo Court yo crazy... Not guilty. Matter is set for a pretrial conference on April 21, 2014. Are you starting to see a chicken before the egg here?
22. Husband hires a criminal lawyer, pays his 3g's for essentially a continuance. He appears on April 21, 2014 and such matter is continued to June 2, 2014.
23. The very Next day Husband has gone all Clarence Darrow by this point, and decides he is gonna start fighting back. Appearing on April 22, 2014, before the Judge who first denied him every Due Process right under the son, he made an interesting motion, which I can't decide if it is the stupidest thing Ive ever heard or perhaps the most clever. Five days prior to the Hearing on April 17, he files a Peremptory Challenge 170.6 motion in the Family Action. He also files a Motion to Vacate and Declare Void the Ex Parte TRO based on a myriad of reasons, time of service, wasn't served all documents, blah blah blah. Court says 170.6 is untimely since he already ruled on some of the merits on August 20, 2013 (remember that time when neither party was sworn in, back when Hoover was in office) Husband also states oh yeah and by the way, before you issue that Permanent Restraining Order, I mean there hasn't even been an Evidentiary hearing! Cites Elkins to the Court. Court goes yeah your right, I guess we need to make this look like its a fair hearing. Court orders an evidentiary hearing for May 8, 2014 and states yeah about your motion to void, we'll rule on that later after the evidentiary hearing...
24. On May 8, 2014, full evidence hearing. Wife tries to submit husbands clergy-penitential communications through her attorey, which don't show abuse but just show, hey Husband in the past had some emotional issues. Anyway, Attorney admits shes read them, husband, is like "Objection!!!!" Court Sustains. The court decides that before they can rule on the evidence the court must determine whether or not it is indeed clergy-penitential. Sure enough it was. Court now has Husband deepest darkest secrets and apparently the recipe for coca cola and Bushes Baked Beans, but that's a whole other story, point is Im trying to make this case half way laughable. Court Orders the communications sealed. Wife finally admits on stand, I filed my TRO because My husband wrote a song about me, and because he threatened me legally. I.E remember that threat to take away child, yeah, well it was actually the fact that in Husbands response to Dissolution he asked for Joint Physical and Joint Legal Custody after Wife had asked for full.... This "disturbed Wife's emotional calm and peace". Wifes attorney cited Burquette and Nadkarni.
20. On May 20, 2014, court said, It took a lot of time to come to the conclusion, but all of husbands activities were constitutionally protected, not Domestic Violence (Yeah Im sure it took 12 days searching libraries of congress to find any case, where the Judge could actually find a cause, but to no avail). But denied motion to vacate and declare void, because he said such is a moot argument, Ive already vacated this is not Domestic Violence, no big deal. Oh yeah and by the way, remember we screwed up on that whole Motion to Quash, that order is denied because its moot.
21. On May 25, 2014, excited, revived and full of life, Husband rejoiced, in the fact that the truth was finally revealed. He was not Ike Turner. However, the District Attorney, said umm sorry to take a massive crappola in your cereal, but we aren't dropping our charges, and we will still be asking for a Domestic Violence Restraining Order under the Criminal Counts..... But hey if you plead guilty to the three county will give you a DEJ and if you don't do anything in 12 months, then its like it never existed. But sorry Husband, you will still have to agree to a Domestic Violence CPO.
I realize this is probably the longest post in the history of this board but, we need help on this... Any advice would be awesome to fight the unjust criminal charges....
Violation of a Domestic Violence No Contact Order
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05-27-2014, 10:02 PMrfab01Violation of a Domestic Violence No Contact Order
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05-27-2014, 10:13 PMcdwjavaRe: Hey I Couldn't Make Up This Case Even if I Tried. Need
Okay ... if the TRO said NO CONTACT with the wife or child, and he contacted said wife or child, then he was in violation of the TRO - even if it was a song and a happy birthday message. If the TRO was a DV TRO then it was a violation of PC 372.6. If merely a custody and visitation order through Family Court, it is likely PC 166(a).
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05-27-2014, 10:24 PMrfab01Re: Hey I Couldn't Make Up This Case Even if I Tried. NeedDid you read that whole Husband had an order in his county that allowed for peaceful contact at the same time as wifes that did not allow contact. I.E Conflicting orders. For the boards info, we are aware of People V. Gonzales, and People V Gooch, in Re HEather, and People V. Lee, what we are trying to find is a case, where conflicting orders are in two different counties, which one prevails? BTW though songs are protected speech... and I should add the Birthday card was not dated, it was also in technically his car as well.Quote:
Quoting cdwjava
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05-27-2014, 10:29 PMjkRe: Hey I Couldn't Make Up This Case Even if I Tried. NeedI didn't read all of that but from your statement I take it that boils down to:Quote:
Quoting cdwjava
no contact means no contact and somebody didn't seem to understand that.
decent summary?
had an attorney tell me a story of a guy she had represented. He was under a NCO but being the nice guy he actually was and since he was the only income producing soul in the house, he purchased a bunch of groceries for his wife and child who remained in the family house. He placed them at the end of the drive for the wife to find.
the court didn't really have a problem with the groceries but dummy also bought some flowers and a card for the wife. Don't recall what was written in it but it was happy birthday or love you or some innocuous statement a loving husband would say to his wife he loved dearly.
BANG!!!! violation of the order and off to jail he goes.
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there are no conflicting orders. One court can make rules and the other court can make rules. if one court said you could have peaceful contact, that court could not charge you with a violation for peaceful contact but that does not mean the other court with a no contact order cannot charge you with a violation of their order of you violate their order/Quote:
Quoting rfab01
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05-27-2014, 10:58 PMrfab01Re: Hey I Couldn't Make Up This Case Even if I Tried. Need
You know I would rightly agree with that, except when both courts are superior courts they are both inferior tribunals, see People V gonzales 1996, The fact is a written order said no contact but three judges said contact. Are you seeing the dellima? Also since it was later discovered that all was constitutionally protected, such is not collaterally barred in the first instance. While Contempt is General Intent, it can not stand if the underlying order is invalid.. Like I said, this a perplexing question...
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By the way, the fact that the card was on the end of the driveway in your story, is whats called proximity, and as such its a specific intent to contact. This case is entirely different. A song that is meant for the masses is not intended to contact just one, such is defined in Article 1 of the California Constitution. The TRO never said Hey Husband stop writing music. Which is why Judge ultimately said hey this is constitutionally protected. The BDay card, was left in vehicle that both shared in common. I.E they both have possession of car. Im sure they even found registration and proof of insurance in the glove box, heck maybe even song lyrics.. Come on... But I do thank you for the feedback... Once again, though California holds otherwise to the whole contempt charges, see http://law.justia.com/cases/californ...th/12/804.html Section B The law of contempt in California. What Im trying to find out is more about conflicting orders, I realize this is a void order, that's a no brainer, but the input is helping....
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Umm actually its called collateral estoppel or if the matter has been decided res judicata in those instances, depending on the circumstances, this would more likely be estoppel of issues since no issue is decided in an Ex Parte TRO. Rather they are preliminary and not final on their merits. Also SLAPPs have a way of being turned around regardless of what one court ordered, same as voids. Estoppel can't be claimed by the People (DA) in a Criminal Charge from an activity arising from a civil case, though at least not in California, it would have to have been raised by wife... Never was...Quote:
there are no conflicting orders. One court can make rules and the other court can make rules. if one court said you could have peaceful contact, that court could not charge you with a violation for peaceful contact but that does not mean the other court with a no contact order cannot charge you with a violation of their order of you violate their order/
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05-27-2014, 11:15 PMjkRe: Hey I Couldn't Make Up This Case Even if I Tried. NeedI don't see how that applies to your case. In yours, each court has entered an order. In the case cited, one court entered an order and the second court refused to alter the order when it was requested by the defendant. The supreme court said the second court did have the authority to do that.Quote:
rfab01;810290]You know I would rightly agree with that, except when both courts are superior courts they are both inferior tribunals, see People V gonzales 1996,
is one court in your situation addressing the other courts order? From what I read each court has issued an order and neither is addressing the other courts order in any subsequent actions on their own order.
not really. First, unless the permission was entered into the record and reduced to an amendment to the order, it is not a valid exception to the order. Then, which court is charging you with a violation and of which order? Basically, if you have two courts and each issue an NCO, one court cannot alter the other courts order as long as the other court maintains jurisdiction. So, if you were charged by the court (that didn't allow the contact) for violating the order issued by that court, I see nothing wrong with that.Quote:
The fact is a written order said no contact but three judges said contact.Are you seeing the dellima?
has the order been ruled invalid or was it simply terminated? Sorry if you had stated so but your post is more than I care to attempt to digest.Quote:
While Contempt is General Intent, it can not stand if the underlying order is invalid.. Like I said, this a perplexing question..
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I see why you cannot get anybody to assist you with an answer. I think the only thing the people you are contacting are perplexed about is you. -
05-27-2014, 11:15 PMrfab01Re: Hey I Couldn't Make Up This Case Even if I Tried. Need
You keep calling it a NCO, so either you dont live in California or you are old school. I mean this respectful. No Contact Orders, are generally differential from Domestic Violence Restraining Orders in California. But A motion to Quash as I mentioned was filed and never ruled on. A motion to quash, basically states hey Jurisdiction is being challenged. Once challeged a court can not just assume jurisdiction, the burden is on the court then to prove it. At least in California and if I can remember my Con Law classes in Law school, once challenged juridiction can not just be merely assumed. In california, we have whats called special appearances and general appearances. Ex Parte TRO's are special appearances. See CCP 418.10 (1) and 418.11 Also, California courts dont really care what the US supreme court states this is California, nice to use in Law school classes, but in real world, only state law authority will usually be binding in state courts. While the courts can certainly take US case law to heart, its not binding on individual cases.
I think you are also not understanding, under Fam Code 240-246 in California an order is only enforceable for 25 days I.E only binding as to the enforceable provision til August 30, 2013. Such is consistent with Fed rules on Injunctions. My question is not intended for general legal knowledge individuals, and I mean that ultimately with politeness and respect. This has taken five hearings, writs and all kinds of hoopla to sort through the mess... Its not a simple NCO... -
05-27-2014, 11:38 PMjkRe: Hey I Couldn't Make Up This Case Even if I Tried. Need
nco stands for no contact order. It is a generic term referring to any order where one person is prohibited from contacting another.
but hey, since you have this under control, you go tear 'em up. You have a lot of misunderstandings in your beliefs but far be it from me to question a native Californian about California law.
btw; federal decisions are binding on the states within their district and SCOTUS rulings are applicable to the entire US.
that's actually laughableQuote:
Also, California courts dont really care what the US supreme court states this is California,
you have to realize that the federal appeals courts and above do make rulings on state laws and those rulings are binding on the states. Of course the state laws apply in state courts (duh) but that does not mean the federal courts do not have an over riding position if it is appealed to that level.Quote:
but in real world, only state law authority will usually be binding in state courts.
not completely accurate but hey, what do I know.Quote:
in California an order is only enforceable for 25 days
the rule is there must be a hearing on the matter within 21 days or with reason, 25 days. At that time, if there is a hearing, it is either terminated or moved to a permanent order.
but just to add more
Quote:
(b) If a hearing is not held within the time provided in
subdivision (a), the court may nonetheless hear the matter, but the
order is unenforceable unless reissued under Section 245.
so even if it is not heard within the 21 or 25 days, it can be continued if the requirements of 245 are met.Quote:
245. (a) The court may, upon the filing of a declaration by the
petitioner that the respondent could not be served within the time
required by statute, reissue an order previously issued and dissolved
by the court for failure to serve the respondent. The reissued order
shall remain in effect until the date set for hearing.
(b) The reissued order shall state on its face the date of
expiration of the order.
(c) No fee shall be charged for the reissuance of the order unless
the order had been dissolved three times previously.
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05-27-2014, 11:58 PMrfab01Re: Hey I Couldn't Make Up This Case Even if I Tried. Need
Umm I stated in my posting No Contact order, yes I know the Acronym, I graduated law school in 1975. Once again, thank you for the lesson on the Supremacy Clause, and the law of Supersedes, but once again, this is more of a Law School concept, not real world. SCOTUS rulings ummm, yeah absolutely on appeal, in state supreme courts, sure, you are 100 percent correct. I mean Supreme Court Of the United States once ruled on Prop 8 which was California based. California still hasn't exactly enacted anything. Actually, heck even unpublished decisions can be used as persuasive authority under say for example a Judicial Notice. But Supreme Court Cases when you are trying to prove a state issue is non binding for a myriad of reasons, I.E the Anti-Injunction act, the whole Diversity concept... While Federal case law can provide guidance, its not an end all... The state still has sovereignty on literally every issue that does not Conflict with the Federal Constitution or Bill of Rights. Hence why Marijuana is legal in states but is illegal under federal law. Anyway, I have no idea why I am explaining this at midnight in Los Angeles.
Also, as I mentioned in the post you never read, the Wife never filed declaration neither did the court under Fam code 245. Once again, thanks for restating what I already stated. It was quite the epiphany. Sorry to be a jerk now, but the fact is you never read anything. Hence the reason why crappy orders get issued in the first place and peoples rights get taken... But what do I know.... -
05-28-2014, 01:44 AMDogmatiqueRe: Hey I Couldn't Make Up This Case Even if I Tried. Need
You'd best tell everyone that Troxel doesn't matter at the state level.
I'm sure millions will be pleased.
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Also, California courts dont really care what the US supreme court states this is California, nice to use in Law school classes, but in real world, only state law authority will usually be binding in state courts.