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how quickly will this process go? will the judge just schedule a trial date?
A: You can expect a demurrer based upon the claim that the defendant is being subjected to double jeoparday. As we've already discussed, until the judge actually starts taking evidence, double jeopardy doesn't attach, but that won't your opponent from offering a demurrer without researching the applicable standards.
will i have her previously rulings on my side, as i have not added any new counts? what should i expect?
A: The husband will argue that he is not subject to the transfer orders -- which is true. Conversely, since the mother knows that husband's history is one of interference, she is actually encouraging the contempts by brining husband along. It's probably better to not add any of these new actions, because they could be demurred on immediately, and cause you an additional round of BS.
Hope this helps.
This is the response I received from you on July 11th regarding double jeopordy:
"The question is whether or not the trial judge took any evidence concerning the contempt matter. Stating that the attorney is assisting is not introducing evidence at trial.
If no testimony or evidence was taken, then the trial did not commence and no double jeopardy attached, which means that you can refile the contempt. Otherwise, the defendant is protected by the double jeopardy clause of the U.S. Constitution."
No evidence was taken. The only that is on the record is the judge stating that I have requested a dismiss without prejudice. Also, on the record the judge ask the 2 lawyers and the mother to thank me for doing what was in the best interest of the child. The judge began with stating that we both filed a motion in limine and then that is when I interupted the judge and ask for a settlement conference. But no testimony was given by eirhter party.
I have not added any new counts, not even the 2 violations that occured 2 days after I dismissed the contempt action. but what is funny is that during the following exchange, the lawyer husband stayed in the car. i just don't understand why it happend 2 days after i dismiss without prejudice and then he follows the orders the following week. i am leaving the counts just the way the judge ruled and allowed 31 of the counts to proceed. with that said, i should still expect a demurrer with the double jepordy. but after that will it go by pretty smoothly, in your opinion and by knowning the judge. finallly, i was serious about you representing me. i would love to have your assistance at trial for the contempt. we are not hurried on time because i have to file the contempt tomorrow, but i would love to find out your fees to represent me at trial.
I know you are serious, but for health reasons, I don't believe that it's in your interest to have my services in a courtroom.
Re the double jeopardy issue, I stand by my previous answer. I'm just mentioning that based upon past history, your opponent is certain to raise this issue, because he will believe that the mother has the right to do so, and he will not bother researching the law to discover otherwise, before he demurrers.
Just because someone has a license to practice law, doesn't mean they know their a** from a hole in the ground. If you have any doubt of this, all you have to do is ask the same questions you've asked me, to someone else in this venue!
So, be prepared for that double-jeopardy demurrer.
I appreciate your interest, but let's not discuss this online. One of these days, someone may "out" me here, and then everyone would know about my health.
Thanks for the good thoughts.
A writ is an order from a higher court to a lower court, an agency, or a persondirecting it to do something or prohibiting it from doing something. See Code Civ. Pro. §§1068, 1085, 1102. Writ relief is sometimes referred to as "extraordinary" relief. See, e.g., Cal Const art VI, §10.
For your purposes, if memory serves, the defendant in the contempt intended to file a for a writ with the appellate court to stop any imposition of the contempt, on constitutional grounds.
hi there. i have a question about the personal service. i have court tomorrow and i was planning to have my fiance serve the mother with the contempt papers. can i do that? the reason i ask is because my fiance does not live or is not employed in orange county, where the personal service will be conducted. i just didn't know if the same rules apply like the service my mail rules. thanks.
CCP 414.10, "A summons may be served by any person who is at least 18 years of age and not a party to the action."
That is the sum total of the requirements. Your fiance' must use form FL-330, as proof of service and you must file it with the court after service is complete.
the mother was not at court yesterday, just her husband/attorney. therefore, my fiance could not serve her with the contempt papers. so she only served the attorney with the child support modification papers. the attorney got all mad and began to scream to my fiance stating you can't serve me you must serve the mother. he assumed it was the contempt papers because the judge stated in court again that my contempt is back on calendar and ask why and i told her nothing has changed with the mother.
so i told him to stop screaming and act professional and he just jumps in my face screaming saying i don't even know, but with my name. he was all made because he was confused in court and didn't knwo what the judge was talking about when she stating i had 2 osc mods on calendar: 1) my osc mod that never got heard that i requested the clerk to put back on calendar for the 730 investigation to transfer custody (thanks to your answers) and 2) the ex parte i filed regarding my son's birthday that the judge denied and scheduled a future hearing.
Prior during court he got all upset and argumentative and the judge said she wasn't going to listen to him and she made her orders. basically, i will have my son durng odd years for his birthday all day and can designate it has by texas vacation and the mother has our son all during on his birthday during the even years.
but anyway, the purpose of this reply is, my fiance served him the child support modification papers, as he is the mother's lawyer on file. did she have to serve the mother specifically the child support papers or was the lawyer sufficient? i understand that i have to serve the mother specifically the contempt papers. please advise.
Service of a notice or other paper on a party who has been served with a summons or has appeared in the action (see CCP §1014), and who is represented by an attorney, may be made under CCP §1011 by personally serving the attorney.
An OSC that (1) does not contain a TRO, (2) if served on a party who has already made a general appearance in the case, may be served on a party's attorney, because the OSC operates identically to a notice of motion.
So, if your OSC has no TRO, then you're okay, because the mother has appeared many times.
As long as the process server identifies himself or herself and tells the defendant that he or she is being served with process, and leaves the papers as close as possible to the defendant, service is valid notwithstanding the defendant's refusal to accept. Trujillo v. Trujillo (1945) 71 Cal.App.2d 257, 260.
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