On the 26th of July the Federal Court in case C 13-01295 JSW took a motion under submission to issue a preliminary injunction ordering the Defendants (Chief Justice of the Judicial Council and Administrative Director of the AOC) from upholding the vexatious litigant statute as it relates to family law proceedings of the plaintiffs in this case. A copy of the proposed order is viewable below.
Defendants, trial court and appellate courts would be prohibited from requiring filings under the VLS statute and declaring parents vexatious.
The attorney, Arch Cunningham, representing the plaintiffs in this case is directly affected by the vexatious litigant statute himself as a parent, and needless to say this would be an enormous victory for ANY parent facing similar circumstances in the State of California.
Trial courts in California are particularly fond of declaring parents vexatious in family law cases, notably those parents who uncover court corruption and refuse to accept heinous trial court rulings, which violate the legislative intent of the best interest of the child standard.
The minor problem with that little scenario is that it was never the intent of the statute to allow a trial court to put an indefinite stay on trial court proceedings, creating a legal stasis, where the trial court refuses to file the litigation and prevents the litigant from seeking redress through the responsible Court of appeal as no “order is filed”.
A brief analysis of the application in family law demonstrates just how unconstitutional the application really is.
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 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”. NOT one year later when the court feels like it or deliberately violates a parents fourteenth amendment right to due process and equal protection under the law.