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socrateaser
socrateaser, Lawyer
Category: Family Law
Satisfied Customers: 33483
Experience:  Retired (mostly)
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To:Customer(Re-file OSC Contempt) I am planning to

Customer Question

To:Customer(Re-file OSC Contempt)

I am planning to file the osc contempt tomorrow. I basically left everything the same with a couple of minor tweets. On the OSC and affidavit for contempt, form fl410, number 6 ask if i have filed a contempt against the other parent before. I stated yes and check the box for "continued on attachment 6b." Basically I gave the original date I filed, the dated I dismissed it without predujice, and the reason I am refiling. Do you think that is a good idea? Also, I am glad you know the judge and I really don't know how she is going to feel about me refiling, but what am i suppose to do? I mean 2 days after I dismiss it, the mother breaks 2 exchange orders within 2 hours. the mother just don't care and her husband attorney lawyer thinks they can get away with anything. For instance, he got out of the car and walked inside safe exchange when the order states are adults must remain in the car. then he walks inside orange police department for the after hour exchange, to participate in the exchange, when the order stated only parents to be present and conduct the exchange.

so i left the counts the same and removed the 4 counts the judge ruled sustained without leave to ammend. how quickly will this process go? will the judge just schedule a trial date? will there be more demurrers? will i have her previously rulings on my side, as i have not added any new counts? what should i expect?
Submitted: 3 years ago.
Category: Family Law
Expert:  socrateaser replied 3 years ago.

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.

 

Customer: replied 3 years ago.

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.

Expert:  socrateaser replied 3 years ago.

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.

Customer: replied 3 years ago.
are you ok health wise?
Expert:  socrateaser replied 3 years ago.

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.

Customer: replied 3 years ago.
totally understand. i will pray that everything goes well for you. just by receiving your expert opinion regarding my drama filled life, you must be a good person with an astonishing spirit.
Expert:  socrateaser replied 3 years ago.

Thanks for the good thoughts. Innocent

 

 

socrateaser, Lawyer
Category: Family Law
Satisfied Customers: 33483
Experience: Retired (mostly)
socrateaser and 10 other Family Law Specialists are ready to help you
Customer: replied 3 years ago.
by the way, what is a writ? not sure if i am spelling it correctly? it is a legal term and i heard it in court.
Expert:  socrateaser replied 3 years ago.

A writ is an order from a higher court to a lower court, an agency, or a person
directing 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.

 

More idiocy.

Customer: replied 3 years ago.

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.

Expert:  socrateaser replied 3 years ago.

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.

Customer: replied 3 years ago.

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.

Expert:  socrateaser replied 3 years ago.

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.

Customer: replied 3 years ago.
yesterday my fiance served the mother the contempt moving papers. however, per my fiance, the mother wouldn't get out of her car and threw her hands in the air so she (fiance) laid the papers on the hood of her car and state, "you have been served" and walked away. so does that constitute a personal service since the mother refused to get out of her car?
Expert:  socrateaser replied 3 years ago.

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.

 

Hope this helps.

 

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