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A judgment has been made against Husband in Superior Court of San Francisco. Understand (from Ray) can get extension of time for Appeal if submit motion to reconsider/modify judgment. We have ALREADY FILED APPEAL as well. Can one stop this process - and re-start it if motion fails? ie Money has been paid for Appeal. As well as for motion.

There has been serious fraud committed in this matter. False income and expenditure declarations, attorney hid documents and denied their existence - then filed them after order had been made. What legal redress is there for this?

Submitted: 146 days and 23 hours ago.
Category: Family Law
Value: $15
Status: AWAITING CUSTOMER ACTION
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State/Country: California

Already Tried:
Have tried to research cases on Find Law and asked for help at San Francisco Self Help Room (utterly hopeless)

Accepted Answer

If you have already filed the appeal, let the appeal go through since the usual process is that you would file the motion to reconsider/modify at the same time as the appeal and you ask for the appeal in the alternative. At this point, since the appeal was filed, you need to let it go through. If the attorney hid documents, you can file a complaint with the state bar office of disciplinary counsel as well for the improper conduct.

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Expert: PaulMJD
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Answered: 6/28/2009

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JA Mentor - Experienced attorney

146 days and 22 hours ago.

Reply

Thank you Paul. In desperation we filed the Appeal and paid the money to start the Appeal process; but also filed the Motion of Reconsideration and to Modify Judgment (with Points of Authorities etc). Wife's attorney rang and said they would oppose Motion on grounds we have already filed for an Appeal which negates the matter being heard in the jurisdiction of the Superior Court. Is this true? Or is this a bluff? Attorney knows we know they witheld the documents which caused the judge to award 75% of Husband's United Kingdom pensions, earned before marriage, to Wife as a penalty sanction for not providing discovery. Papers had been faxed (proved by fax stamp) but were denied at hearing, hence order by judge. Should we withdraw the Motion and just rely on the Appeallate Court. Or let the Motion stand? I believe it has to be heard by the judge who granted the order, and as we submitted a Challenge for Cause for bias, Judge Massullo is unlikely to be friendly.

Posted by PaulMJD 146 days and 22 hours ago.

Answer

The courts usually will not reconsider a case anyhow, so the appeal was likely the best move. The reconsideration motion is just a formality because courts don't usually reverse themselves. Let the motions stand and let the court deny it.

146 days and 22 hours ago.

Reply

Yes, my research would indicate courts rarely reconsider a case.
But, I would really appreciate your confirming if this is how the process is likely to go:
Husband filed a Motion to modify; Wife's attorney will respond.
Motion to Modify will be opposed by Wife's attorney saying no jurisdiction to grant it because already with Appellate Court (so we've been told) and they will apply for costs - as Judgment awarded against Husband. (Irrelevant I guess as Husband has no means to pay the vast sums ordered by the Judgment)
Husband can Reply (following the usual law and motion procedure) so is there any useful defence we can make? Or anywhere useful we can look for the appropriate citations/case law/ codes?
Your suggestion as I read it is to let the Appeal stand and simply wait for them to deny the Motion. Will there be any penalty for doing this?

Posted by PaulMJD 146 days and 22 hours ago.

Answer

You are correct, the motion to reconsider is generally and most often denied. You let your appeal stand and let the process proceed. The appeal will just be on hold until the motion to reconsider is denied and then the appeal proceeds. There is no penalty for doing this. There is no real defense on the objection, don't waste the legal funds on it, you made your motion, let them object and let it proceed to judgment, especially if you believe there was bias with the judge, no need to waste your money. Let them deny it and push on the appeal.

146 days and 21 hours ago.

Reply

var Begin = new Date (); var Start = Begin.getTime();
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Thanks so much Paul - it is very reassuring to know we are doing something right despite being in pro per, with no funds to afford representation. It's a David v Goliath battle with Wife represented by top SF legal team, paid for by a wealthy 'friend' – a so-called loan, which Judgment orders Husband to pay in full re: Family code § 271, despite Husband’s inability to pay, for ‘procrastination’ as Husband struggles to get Judge to see Wife’s Declarations were lies, not supported by any evidence, in fact her evidence included bad math - which was even exposed in trial.

I am happy to pay more for another question, though I'm not sure how this website works. I see I have to press the reply key.

We need to submit a motion for fraud, but would appreciate being directed to somewhere for help. Some background info follows:

Husband is a UK citizen and US tax resident. He is CEO of small start up tech business (owned by shareholders, 5 employees, not a community business) with offices in UK and SF. He is only paid in US (W-2s, tax returns etc). Has letter from UK tax authorities saying earns no money in UK. His constant travelling has been used however, to great effect, to imply hidden wealth. No proof whatsoever, just clever argument.

Judgment requires a cash payment of ‘arrearages’ for spousal support that was determined on imputed income, at $10,201, three times Husband’s actual earnings (he earns $58,500 per annum). Husband’s W-2s and tax returns were ignored. Wife provided a false Income & Expenditure Declaration, which was never questioned. An In Limine Motion was granted by judge pre-trial so Husband was denied the opportunity to present evidence that his income was less than the amount imputed to him, until he had paid the backdated spousal support, which he was unable to pay through lack of income. A classic Catch 22 situation, providing a ‘windfall’ to Wife.

The final judgment however says that spousal support should be $500 a month (no end date, so I assume for life) and states that Wife is a professional who earned $66,000 per annum, 14 years Husband’s junior & Husband is of retirement age on a ‘modest income’. There are so many inconsistencies in the judgment, it's ridiculous.

Judgment also includes award of 75% of Husband’s pensions earned in employment in the United Kingdom before marriage, as a penalty sanction for non-discovery of documents, despite proof that Wife’s attorney hid these documents to manipulate ‘windfall’ to Wife.

Although both parties were asked to prepare a Statement of Decision, the Judge has ignored Husband’s comments re: omissions and ambiguities and signed the version prepared by Wife’s attorney.

We have previously submitted a Challenge for Cause against the judge for bias (a newspaper article included an interview with Wife’s attorney who praised the judge and said they ‘work together’). The Challenge failed - both on merits and the fact we omitted a crucial procedural sentence in the document. As not lawyers, and pro per and English, I guess this was not unexpected.

But the fraud is horrendous. The papers showing Husband's pensions were started and funded 17 years before marriage were deliberately witheld from the pre-trial hearing, despite showing fax receipt date of law firm. After the penalty sanctions order was made by the judge (which should be Void as it was not served 16 days before hearing), Wife's attorney filed a selection of the in court admitting they had been received, thereby contradicting Declarations 'signed under penalty of perjury' that nothing had been received.

The question: do we just file a motion for Fraud or is there a special form? Do we have to include Points of Authority - as well as exhibits I assume? Any help would be gratefully received.


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Posted by PaulMJD 146 days and 20 hours ago.

Answer

You would have to allege the fraud and the bad math, as you put it, in your memorandum on your appeal. The issue is you are arguing that the judge ignored the evidence that was properly submitted, so you need to point out the errors in your appeal that were made by the judge. These are factual errors, so points of authority are needed, but not as significant as pointing out the facts and the errors made.

Remember, the appeals court will only consider what you presented at the trial, no new evidence is permitted, so you have to just make your arguments with the original evidence presented at the trial.

146 days and 20 hours ago.

Reply

I feel bad asking you so many questions - maybe I can pay you a bonus at the end!

In this Appeal, can one present evidence from pre-trial hearings too, not just the trial? The transcripts show massive bullying and a complete acceptance of one side's point of view over the other. Deliberate misinformation over hearing dates (so Husband not present) allowed Attorney to present inaccuracies to the Judge as 'facts' (ie therefore on the record) and for Judge to tell attorney which code to use to penalize Husband, who was not there to defend himself. Appalling manipulation and miscarriage of justice.

The problem with the trial was that the judge granted all the In Limine motions presented by Wife's attorney so that Husband was unable to present evidence on most issues. (Ah - so clever - the downside of being pro per). The trial went on for 6 days during 3 months. It was a mockery of justice. Husband was also denied witnesses appearing by telephone from the UK and couldn't afford to fly them over from the UK.

During trial the Judge refused to discuss the Void issue about the pensions sanction motion (which was NOT served correctly). Husband's pension adviser was there as a witness (stating again all Husband's pensions were generated before marriage). In the Judgment's Amended Statement of Decision, the judge states that "Court gave great weight" to the pension adviser's testimony and then completely ignores it. And says the pre-trial order stands. There were lots of 'objections' during trial - transcript is very confused on what was allowed and what wasn't.

But there is probably sufficient to make an argument. I have become quite good at researching Californian Case Law!

Once again, your help in this matter is gratefully received. Thank you.

Posted by PaulMJD 146 days and 20 hours ago.

Answer

Anything that was argued in the trial courts can be presented, including what was presented in the hearings before the trial.

The problem is that you need to really get a book on presentation of evidence and drafting appeals, since there are specific ways the evidence needs to be presented and many times pro se parties do not present evidence properly and then think the judge is against them when the judge does not hear or admit the evidence and this may be the case here.

146 days and 20 hours ago.

Reply

I'm sure you're right. Wish Husband had a 'friend' to pay his legal bills for proper presentation. Although I'm quite good at sleuthing, I'm not a lawyer.

Am more than happy to buy whatever book is necessary - did get some Nolo info, but it seemed too simplistic for the matters concerned. Have browsed the Rutter Guides but they're OK but not very clear. Do you have any suggestions?

We have already submitted one appeal (on the pre-trial spousal support order) - provided a 5 volume Appendix and went to oral hearing last week (unnecessary but intimidation as usual by the other side). Apparently the order itself wasn't appealable (although the money asked for was more than $5000 so seemed as though it fitted the CCP 904.1 (a) 11 but the Appellate judge didn't throw the case out (we had prepared the document as well as one could from information available), has taken it under submission and will publish an Opinion. So that might help, when it comes through.

But if there is a specific book that would be useful, please tell.

Posted by PaulMJD 146 days and 20 hours ago.

Answer

Good place to go is the local law school and ask around. Also, he needs to call the state bar and ask if there are any pro bono attorneys who can assist him.

146 days and 19 hours ago.

Reply

Unfortunately, he's tried the pro bono route - no joy. Unlike the Superior Court in San Francisco (which simply cannot cope) the Appeal Court has been very helpful - but they said no one is doing pro bono work now...
Have lots of contacts in the UK - not much use in California
Have spent weeks in the SF law library - and FindLaw is an amazing site - and one case leads to another...
Well, we're see what happens.
Anyhow, your help on the initial question, as to whether there will be a penalty for the fact we submitted a Motion for Reconsideration and an Appeal (you said no, and just let it run) was extremely helpful. I cannot thank you enough.
It's 2.15am in the UK - so time for sleep!
Thank you again, wherever you are.

Posted by PaulMJD 146 days and 9 hours ago.

Answer

Thank you so much.

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