Abolish the vexatious litigant statute in family law cases in California.
Abolish the vexatious litigant statute in family law cases in California.
The vexatious litigant statute is the favorite tool used by a court in family law cases to cover up prior judicial malfeasance rulings. The point is to prevent a litigant especially in family law cases to seek redress of the heinous situation that did not occur in the best interest of the child standard. The trial court system in California abuses its application in family law proceedings, where they prevent that emergency request for orders are filed, they prevent that domestic violence restraining orders are filed or prevent that domestic violence restraining orders are dismissed, (there is a case in California where a parent had a 50 year restraining order granted against him). This parent has yet to obtain any relief. Other parents have been unable to restore their parental rights in any capacity.
The trial court abuses its application to let litigation disappear especially the litigation that details the Hiroshima effects of its rulings against the best interest of the child standard and often waits a year or more to "file" any litigation, maliciously and malevolently prolonging the torture and agony a child and a parent are enduring. The vexatious label is often used to stigmatize parents to an unbelievable degree violating the fourteenth amendment right to procedural and substantive due process and equal protection under the law as the trial court discriminates against these parents.
A proposal has been developed to present to the judicial council in order to abolish the vexatious litigation statute in family law cases. The proposal is available for 30 days for comment by the public and interested parties http://viewsandnewsriversidesuperiourcourt.wordpress.com/2013/08/31/proposed-proposal-to-judicial-council-to-abolish-vexatious-litigant-statute-in-family-law-cases-input-from-public-requested/ and will be presented formally to the judicial council in October for its bi-annual review of proposals from the public. A copy has been presented below.
"Re: Proposal to Abolish Vexatious Litigation Designation in Family Law Proceedings in California URGENT
Pursuant to California Rules of court 10.21, the members of the public hereby present a proposal to abolish the vexatious litigation designation in all family law cases in California.
The vexatious litigation statute pursuant to CCP § 391 serves to declare a litigant vexatious upon a noticed motion so that the litigant has to obtain approval from the presiding judge in order to file litigation. However, the application of the vexatious litigation statute cannot be applied in family law cases for the following reasons:
The use of the Vexatious litigant law in Family Court Child Custody Cases is contrary to civil cause of action standards and contrary to the California family law practice guide which instructs that the a sanctions order is the exclusive remedy for excessive meritless or baseless attempts to change a custody or visitation order. “A party’s baseless attempts to change a custody or visitation order through excessive litigation is remediable exclusively by a sanctions order in the underlying proceeding against the attending party,” reads the Practice Guide.
Litigation defined under the vexatious litigant statute is defined under CCP § 391.a which specifies that “Litigation” means any civil action or proceeding, commenced, maintained or pending in any state or federal court“. The vexatious litigant statute (VLS) was never intended to be applied to family court proceedings which are dynamic where the best interest of the child standard is the standard that governs proceedings. A trial court may not place an involuntary stay on proceedings, refusing to file litigation and prohibiting that the best interest of the child standard is addressed. The VLS statute itself does not define the merit standard under which litigation in family law proceedings is to be granted nor does it define the time frame, a crucial component in the evolving, fluid and dynamic field of family law.
The merit standard is based on the underlying action upon which the litigation is based. In the case of domestic violence restraining order the merit standard is the domestic violence act under CA family code § 6200. In the case of contempt of court cases the merit standard is whether the charging affidavit of an order to show cause contained facts setting forth the type of order violated, the date the order was issued, how the order was violated, and when the violation occurred. Jurisdiction to adjudicate a contempt ordinarily exists only if the charging affidavit alleges evidentiary facts showing a prima facie case of contempt, Code of Civil Procedure § 1211(a). Order to show causes that request a modification of custody and visitation need to be addressed according to the legislative standard that defines the best interest of the child standard namely family code § 3020, 3011, 3010, 3004, 3044, 3080 and 3040.
The scope of discretion always resides in the particular law being applied by the court, i.e., in the `”legal 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 [255 Cal.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"].) In the case of the VLS statute the underlying merit standard is the action upon which the litigation is based.
The legislature by omission did not intend to apply the VLS statute to family law cases, where the VLS litigation was not defined as a motion that is based upon any of the defining factors that govern the best interest of the child standard, or the domestic violence standard, where time is of the essence and the time frame for filing the litigation is governed by the statute for presenting the applicable filing, pursuant to California rules of court 1.20a. Unless otherwise provided, a document is deemed filed on the date it is received by the court clerk”.
The Superior Courts in California have applied the vexatious litigant statute predominantly in family law cases where incorrect judicial orders that are not based on the legislative intent upon which the order is based are made. In some courts litigants are frozen out of the court system against the defined legislative best interest of the child standard as the Presiding Judge refuses to address any litigation in some cases until a year has passed, creating an involuntary stay on proceedings and deliberately sabotaging any possibility of an appeal.
The trial courts also do not follow the procedures for filing any litigation by the so-called vexatious parent. The statute does not specify any format of an application and the
optional MC 701 form with attached litigation is not filed on the date it is received and the MC 701 form if and once a decision is made is filed separately and the attached litigation that was submitted is not made part of the court record, sabotaging the record on appeal.
The MC 702 order form is not filed separately as the order of the court but is instead attached to the MC 701 form, when the Presiding Judge feels like addressing the litigation.
The time frame for addressing the litigation is defined pursuant to California rules of court 1.20a however, the trial court often lets the litigation disappear or waits a year or two before rendering an order denying the litigation.
The trial courts use the vexatious litigation statute to cover up cases of domestic abuse and allow irreparable harm to continue although every law enforcement agency points the abused person to the court system as the only recourse available for long-term protection. In real life that is a not a possibility if the trial court persistently refuses to file litigation or address domestic violence restraining orders claiming they have no merit even though a threat of bodily harm and domestic abuse was presented to the court.
The blanket denial of a restraining order if and once it is decided violates prevailing statute and family law as a blanket denial of a restraining order without explaining the reasons for denial is prohibited under Family Code §6320.5 and is explained in Nakamura v Parker (2007) 156 CA4th 327, 67 CR3d 286. The trial court denied Nakamura’s application for a temporary restraining order without any explanation other than a general rubber-stamped denial. The appellate court found that Nakamura’s factual allegations did show she was “abused” within the meaning of the DVPA, and the trial court’s summary denial, without a hearing, of a facially adequate application for a TRO was an abuse of discretion.
The VLS legislature by omission to all the non-existent applications in family law cases was never meant to be applied to family law as the legislature has not defined any course of action to decide family law litigation and the underlying merit implications of the dynamic family law statute being litigated.
The same scenario exists for the alleged application of the VLS in appeal cases, where the appellate courts in the State of California impose the VLS statute upon the appellant and implement a stay until the litigant demonstrates the merit upon appeal.
California Title eight rules specifically Rule 8.404 address the stay provisions pending as follows. “The court must not stay an order or judgment pending an appeal unless suitable provision is made for the maintenance, care, and custody of the child. “
There are no stay provisions defined in the CCP § 391 statute where the term stay is not referenced in any capacity. Instead California rules of court 1.20a specifically states: “Unless otherwise provided, a document is deemed filed on the date it is received by the court clerk”. By definition it does not matter if the court files it; the filing date is DEEMED when the court clerk receives it and needs to be addressed by the judicial officer involved in the time manner prescribed by statute. The Supreme Court has already struck down the invidious discrimination displayed by a court of appeal and a district court who engages in discrimination in the case of In Rodriquez v. United States, 395 U.S. 327, 89 S.Ct. 1715, 23 L.Ed.2d 340 (1969), where the Supreme Court struck down a procedure where the petitioners seeking to reinstate an appeal were required to state what issues would be raised on appeal and to show that the previous denial of the appeal had been prejudicial to them.
A similar concept regarding stay provisions was addressed in a published opinion of a writ of supersedeas, which specified the following: “Special proceedings are subject to the stay provisions of Part 2 ONLY if the statute creating the special proceeding expressly incorporates them.”The court held that the order was not automatically stayed because the proceeding wasn’t really an “action” for purposes of the rules governing stays and undertakings on appeal in a civil “action.” (Code Civ. Proc. secs. 22-23.) In fact, the parties agreed that the involuntary dissolution suit was a “special proceeding” under Code of Civil Procedure section 23. Since the stay provisions (Code of Civil Procedure sections 916 et seq.) of Part 2 of the Code apply only in civil actions, the decree was not automatically stayed; Veyna v. Orange County Nursery, Inc., case no. G041305 (4th Dist. Jan. 15, 2009). The same concept applies to the stay system that the appeal court has creatively implemented with anyone that has been declared vexatious. First of all by implementing a stay the court of appeal recognizes the automatic stay provision of CCP section 916. More importantly the vexatious litigant statute quite categorically does not provide for a stay mechanism of an appeal, suggesting a fundamental violation of due process and equal protection of the law under the fourteenth amendment.
The proposal to abolish the vexatious litigation statute in family law cases would not have any implementation problems nor would it open the flood gates of the court system to “vexatious” parents as the court has to address the litigation to begin with in any case; however, currently refuses to do so and often deliberately delays or sabotages an appeal and the record on appeal. The current system abuses by the trial courts ensure that parents are stigmatized, and are unable to obtain the equal protection and procedural and substantive due process guaranteed under the 14th amendment. The California family law civil practices guide already defines a remedy applicable to the abuse of family law motions in the form of sanctions. Not denying a parent the ability to apply the legislative interest of the best interest of the child standard."