Tammy L. Williams, Court of Appeal # B 207343 Plaintiff/Respondent v. Superior Court Case # SD 023 958 Damon A. Duval, Defendant/Appellant
An Appeal From an Order After Judgment Of The Superior Court Of California, County Of Los Angeles Hon. David J. Cowan
STATEMENT OF THE CASE
As a father and citizen of this great country, when I take an oath in court, I not only uphold a standard for legitimacy, I am setting an example for my two children. As a father, when I repeat this oath in my opening brief, my statements and facts that are therein presented, I am, under God, setting the same example for my two children. These verified accusations brought to the attention of the higher court are my only recourse to rectify the severe harm bestowed upon my two children over an excruciatingly extended period of time. My children, completely defenseless against adults who don’t have their safety and best interest in mind, are, even after 2 1/2 years of digesting their broken home, still children of tender years.
If children of tender years are to be brought up with character and dignity, such impedance as irrelevant babbling, gross misstatements, false premise, glaring omissions, deliberate misdirection of argument, and assumptions of conclusions have no place anywhere near them, let alone invented on their behalf, and are not acceptable nor permitted in any document, statement, or verified accusation I have heretofore brought before any court. My opening brief contains none of this written vituperation. What I have presented is as far from libel as I am under this court restraining order from my two children: nowhere near them…… all day everyday. Children need to be shown by example. These fertile grounds of character and dignity are protected by the instruments of continuity and stability and thus require them. This is where the lower court has made its mistake, through deceit, clouded judgment, by constant disruption, and by keeping a more than capable, loving, caring father away from his children.
My opening brief is directed at Commissioner David J. Cowan and his denial to recuse himself and change minor’s counsel Amy L. Nieman as their bias and prejudicial error have irreparably harmed not only the honor and integrity of a United States courtroom but the ontological security of two children of tender years.
ARGUMENT
I did not know why Judge Tillmon was replaced nor did I question it at the time. I don?t take issue with this. As a father, concerned primarily with what was occurring to my two young children at the mother’s residence, I put my complete trust in the court system to do the right thing. Being quiet in the court process was natural for me. I had no knowledge of any options that were available to me at the time nor did I have the luxury of legal counsel. In the midst of a hearing, any hearing, driving downtown to Levitt & Quinn for a sixty-dollar legal consultation and return to the Santa Monica Courthouse with a decision was not one of these options.
In the true spirit of section170.6, I made a request for judicial change as soon as I found out I could. It was in good faith, timely, and with good reason.
My disagreement with Commissioner David J. Cowan lies not in what I want personally for myself, but in what is paramount for any child of tender years: continuity, stability, safety, and well-being. These parameters have always been in the forefront of my life’s decisions since before Jazz and Maya came to be. My desires have always come second. It is more than apparent that the officers of the court in case SD 023 958 have allowed a “legal game” to come before the best interest of two defenseless children.
Upon taking on the task of researching, compiling, writing, typing, editing, and printing an appellant’s opening brief, all performed on limited public library time over six months, I didn’t even know if I would be able to complete the document in time for its due date with the higher court. Only in late November 2008 did I have this achievement satisfied. I also became aware through my research at the time of the existence of Code of Civil Procedure section 916. It seems that under this code, proceedings should have been stayed upon the higher court’s acceptance and perfection of appeal B207343. I invoked C.C.P sect. 916 for the first time on Dec. 4Th, 2008, for Commissioner David J. Cowan to implement as none of the exceptions in C.C.P. sect. 916 were even in the neighborhood of allowing the day’s proceedings to take place. Commissioner Cowan went ahead with proceedings that day. He felt that appeal B207343 should have been a writ and not an appeal. He was offered a copy of B207343 that was ready for filing. He refused to even look at the copy of the appeal that I had brought for him in case of such a crossroad. Should not the good faith efforts and/or crucial evidence of a party be visible before a court of law? Should not the Code of Civil Procedure be adhered to? Should not the Rules of Professional Conduct be adhered to? Should not the Canons of Judicial Ethics be adhered to? The safety and well being of my two children, or ANY child for that matter, is at stake.
CONCLUSION
The malfeasant suggestions made by Amy L. Nieman and the subsequent decisions of the same nature made by Commissioner David J. Cowan have caused irreparable harm to my two children of tender years. Their disrupting of continuity and stability is the very act that brought forth this harm. Prejudicial error followed by an already unfit mother’s neglect and endangerment of the same children. If I had done what this mother had done, I would be in jail, incarcerated for parental neglect and contempt. If my children are harmed, I am harmed. As any sane parent would, I object to these decisions that have done just this: disrupted that continuity and stability and induced an emotional harm that children of tender years should and deserve to be protected from. There is no higher court to appeal a person from filing for divorce, but there does for a poor decision made by a lower court. Only God may assist the former, and I pray that God assists the latter.
Commencing with the February 21st, 2007 [see Aug.I pg. 1] decision by the mother, Tammy L. Williams, and her counsel, Roy L. Kight, which kept for several months, both of my children out of direly needed counseling. Counseling, offered free through my son’s elementary school, that would have been invaluable to their emotional digestion of this unfit mother and her unsavory surroundings………… unsavory surroundings that they were, by no choice of their own, forced to live in. Four months of hearings to have me convicted of contempt (charges later dropped with the mother consenting to counseling) enabled by Commissioner David J. Cowan. I was acting on an emergency, as any sentient parent would. The court’s disregard denotes a level of dysfunction that would continue to snowball. From that court decision forward, my children’s best interest has never been at the forefront, and these “court games” have taken priority. I stand ashamed of this that has taken place in and of my hometown courtroom. I am a fourth generation Santa Monican and pray that the higher court, in my requested de novo standard of review, on behalf of my children, will get a hold of this runaway train.
Commissioner Cowan’s inability to regard a five year-old’s uncontrollable defecation as an emergency, confidently sending both parents to programs, Parents and Children Together, Parents Without Conflict, programs that he then rules in opposition to, is testimony to bias and partiality. This malfeasance has snowballed until this appeal. This appeal, when perfected, has the authority to arrest the prejudicial error that has served no legitimate purpose other than harm to two children, my children, and, in turn, their sentient father.
Any competent officer of the court would never have allowed this behavior to have gotten so far out of hand, at the expense of children’s safety and well being, even if unintentional. Acting as I did, in good faith, when, through the paid legal counseling of Levitt and Quinn, I found out that I could file a 170.6 peremptory challenge, it was expeditiously done so both with reason and timeliness in the true spirit and letter of the code.
Article VI 4b, of the United States Constitution grants to Appellate Courts not only the power to issue prerogative writs but also “the power to issue…. all other writs necessary or proper to the complete exercise of their appellate jurisdiction.”
This verified accusation is against above named officers of the court pursuant to California Rules of Court, rule 9.13 subsections (d) through (f).
I swear, under oath this verified accusation, a written and compiled statement, to be the Truth, the whole Truth, and nothing but the Truth, so help me God.
Date: ___________________________
Signed: ____________________________
Damon Duval in propria persona Certificate of Compliance
Pursuant to rule 8.204(c) of the California Rules of Court, I hereby certify that this brief contains_____________ words , including footnotes. In making this certification, I have relied on the word count of my “Microsoft Excel”
By______________________________
Damon Duval
Petition for Writ of Supersedeas, Prohibition, and/or Other Appropriate Relief
Petition for Writ of Supersedeas B207343 REQUEST FOR IMMEDIATE STAY AND RETROACTIVE RELIEF
In The Court Of Appeal Of The State Of California Second Appellate District
Tammy L. Williams plaintiff and respondent vs. Damon A. Duval defendant and appellant Appeal from the Superior Court of Angeles
County Case # SD 023 958
Petition for Writ of Supersedeas, Prohibition, and/or Other Appropriate Relief; Memorandum in Support Thereof
Damon A. Duval 115 Sheldon St. P.O. Box 3313 El Segundo, CA 90245 Santa Monica, CA 90408 310-535-0000 310-463-2374 Attorney for plaintiff/respondent In Pro Per
Introduction
This petition seeks not only a stay of future proceedings, but asks for higher court relief from proceedings that should have been stayed pursuant to Code of Civil Procedure section 916. This petition will seek relief from further irreparable harm done to myself, the father, and my two children of tender years, Jazz Duval, age 7, and Maya Duval, age 4. Relief is also sought from the harm already done by the December 4th hearing that should have by law been stayed.
On April 14th, 2008, an appeal was filed contesting the Superior Court Judge Pro Tem, David J. Cowan’s decision to deny my peremptory challenge as untimely and without reason. Not one of the exceptions to the enforcement of Code Civ. Proc. 916(C.C.P. 917.1- 917.9; 117ha) was in play on December 4th, 2008. The entire day’s proceedings, and in the higher court’s discretion, prior proceedings back to the date of the appeal should be rendered moot until the appeal is perfected.
Why a Writ Should Issue
There is an absolute right to supersedeas – i.e., the writ must issue – when a trial court overrides a higher court’s decision to hear an appeal. This circumvents the very spirit of Code Civ. Proc. 916 and eliminates the protection intended and provided to the appealing party, especially children of tender years who suffer the most from the indirect consequences of such a matter. In contrast, no injury to either party is sustained if relief is granted.
This writ is extraordinary both in the narrow sense of relief sought and in the broadest constitutional sense. How a judicial officer of the Superior Court can completely disregard a basic fundamental of civil procedure and carry on with proceedings without confirmation of a higher court’s decision is in direct conflict with the ethical standards set forth by the Judicial Canons.
CODE OF JUDICIAL ETHICS CANON 6
COMPLIANCE WITH THE CODE OF JUDICIAL ETHICS “D. Temporary Judge*, Referee, or Court-appointed Arbitrator
A temporary judge, a person serving as a referee pursuant to Code of Civil Procedure section 638 or 639, or a court-appointed arbitrator shall comply only with the following Code provisions: (3) A temporary judge shall, from the time of notice and acceptance of appointment until termination of the appointment, disqualify himself or herself in any proceeding as follows: (a)(vii) for any reason: (A) the temporary judge believes his or her recusal would further the interests of justice; (B) the temporary judge believes there is a substantial doubt as to his or her capacity to be impartial; or (C) a person aware of the facts might reasonably entertain a doubt that the temporary judge would be able to be impartial. Bias or prejudice toward an attorney in the proceeding may be grounds for disqualification;
Petition For Writ Of Supersedeas, Prohibition And/Or Other Appropriate Relief
A. The Related Appeal On April 14th, 2008, I, Damon Anthony Duval, father of Jazz and Maya Duval, and defendant in Superior Court case # SD 023 958, filed an appeal [B207343] on an order after judgment [from a 4/11/08 hearing] made by Commissioner David J. Cowan, Judge Pro tem. The order made by Judge Cowan was a denial in response to a peremptory challenge filed by myself. Judge Cowan deemed the peremptory challenge untimely and without reason [see court minutes 4/11/08]. This was the order I appealed. The appeal now is in the Court of Appeal Second Appellate District, Division 2. This petition seeks supersedeas, prohibition and/or other appropriate relief in connection with the pending appeal.
B. Authenticity of Documentation
All documents of this petition are true copies of the original documents on file.
C. Procedural History
On December 4th, 2008, I filed in the court’s chambers, prior to the day’s proceedings, a motion pursuant to Code Civ. Proc. 916 that effectively stays further proceedings in lieu for the pending appeal filed the past April of the same year. Judge David J. Cowan made a reference to the exceptions that limit the enforcement of a stay pursuant to section 916. I said that I was aware of these exceptions and that none of these were applicable. Only Code of Civ Proc. 917.7 was in the “neighborhood” of an exception as it dealt with child custody. I told Judge David J. Cowan that Ms. Williams had primary custody and that we shared joint legal custody and that there was nothing to be heard that day regarding custody. I reminded Judge David J. Cowan that my appeal was directed at his denial of a peremptory challenge, that I felt him to be both bias and prejudice against me and my children. An argument by the opposing side, Roy Kight representing Ms. Williams, cited the fact that since April, 2008, I never invoked Code Civ. Proc. 916, effectively “allowing” the case to proceed. The truth be it, I worked on the forty-two page appellant’s brief B207343 for the better part of those eight months in conjunction with paying my bills and didn’t complete the document until late November, 2008. I wasn’t aware of Code Civ. Proc. 916 until that time as well while studying at the Downtown Law Library as the brief neared its completion.
Back in April, unaware that I would be able to complete such an undertaking as a layman of legalese and due process, I was facing a process of which I had absolutely no prior instruction. I cannot stress enough the isolated feeling of walking into the law library and out of sheer concern for the well-being and safeties of my two children attempt to construct an Appellant’s Opening Brief on my own. Starting an ascent on Mount Everest would have seemed more achievable. Code Civ. Proc. 916 was applicable as early as April, 14th, 2008, the day the appeal was filed. As I have said I was unaware such a procedure even existed. Yet, in good faith, and in the true spirit of the code, Code Civ. Proc. 916 couldn’t be realistically invoked until I had completed the Appellant’s Opening Brief (A.O.B.). Therefore the fruition of Code Civ. Proc. 916 and its applicability was achieved in the timeliest of manners, which was just after the brief’s completion, and its consequent proper service to the opposing council, the Superior Court, and the Supreme Court. The fact that I learned of Code Civ. Proc. 916 as a civil procedure as late as it was, in November of 2008, only supports the good faith approach in which and when it would and should apply. I told Judge David J. Cowan that I had in my possession a copy the brief, that he had a copy that had been sent to him there at the courthouse, and Roy Kight stated that he had received a copy as well. I stated that the A.O.B. was to be filed in the Court of Appeals the following week. Judge David J. Cowan opted to not even take a look at my copy of the A.O.B. and merely cited that the process by which I had achieved the appeal to be heard was improper, that he was going ahead with the day’s proceedings.
D. Basis For Relief
No portion of the December 4th, 2008 hearing was prohibitory. Supersedeas should issue in this court’s discretion to retroactively stay that day’s proceedings and honor enforcement of Code of Civ. Proc. 916.
E. Inadequacy Of Remedy By Appeal
Absent writ relief, the appellant’s rights to an impartial trial and subsequent effects on his rights as a father of two children of tender years would be irreparably harmed.
Prayer
Petitioner prays that this court:
1) Grants a temporary stay related to scheduled proceedings.
2) Renders moot the hearing and decisions made on December 4th, 2008.
3) Renders moot the hearings and decisions made after 4/14/2008 the date the appeal to the order after judgment was filed.
4) Award costs to appellants pursuant to rule 8.490(m) of the California Rules of Court.
5) Grant other such relief as the court deems just and proper. Respectfully submitted by Damon A. Duval In Pro Per
Verification
I, Damon A. Duval, declare as follows:
I am the petitioner herein. I have prepared the following petition for Writ of Supersedeas, Prohibition and/or Other Appropriate Relief and know its contents. The facts alleged in the petition are within my own knowledge and I know those facts to be true. I declare under the penalty of perjury that the foregoing is true and correct and that this verification was executed on December 16th, 2008, at Santa Monica, California. Damon A. Duval
Memorandum
I. Writ Relief Lies To Stay Proceedings On An Appealed Order After Judgment. The trial court has overridden a higher court’s acceptance of an appeal to be heard and deemed it as wrongly presented.
Code of Civil Procedure Section 916 prescribes a general rule of automatic stay by appeal. “[T]he perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from…. ” (Code Civ. Proc. Section 916subd.(a)). Once a notice of appeal is filed, “[f]urther trial court proceedings in contravention of the section 916 stay are in excess of the court’s jurisdiction…. “(Elsea v. Saberi (1992) 4 Cal. App. 4th 625, 629).
Would due process have been better served to have the December 4th hearing continued to a later date so as to acquire the proper facts (like confirming the existence of an appeal to be heard by a higher court) and not merely proceed just for the sake of doing so? Is not the integrity of the court first and foremost? Perpetual bias, prejudice, and malfeasance ;are exactly what Code Civ. Proc. 916 is designed to protect against, and is the basis for the original peremptory challenge and appeal B207343.
“Supersedeas is the appropriate remedy when it appears that a party is refusing to acknowledge the applicability of statutory provisions automatically staying a judgment while an appeal is being pursued.”(Nielson v. Stumbos (1990) 226 Cal. App. 3rd301, 303; accord Darling v. Zimmerman (2001) 85 Cal. App. 4th 1400, 1405 fn. 6; Gallardo v. Specialty Restaurants Corp. (2000) 84 Cal. App. 4th 463, 467).
“[Where] an appeal effects a statutory stay, the writ of supersedeas will issue in ‘a corrective capacity’ in case of a violation or threatened violation of such stay.” (Estate of Dabney (1951) 37 Cal. 2d 402, 408). “Supersedeas must issue in such situations.” [9 Witkin, Cal. Procedure (4th ed.1997) Appeal Section 292 p. 332].
The writ is not discretionary, but mandatory, and it is necessary for the Appellate Court to balance or weigh the arguments with regard to possible irreparable injury. (Ibid.) “[S]ince the appeal operates to set up an automatic statutory stay, [the Appellate Court] will not ‘balance or weigh the arguments with reference to the possible irreparable injury to appellants or respondents as would be necessary if the question of the issuance of the writ was solely a matter of [the court’s] discretion.'” (Estate v. Dabney, supra, 37 Cal. 2d at p. 408, quoting Feinberg v. One Doe Co. (1939) 14 Cal. 2d 24, 29). II. The Court Should Grant Relief Because Appellant And His Children Are Threatened With And Have Been Caused Irreparable Injury.
A.Continuity And Stability Are Paramount In Children Of Tender Years. A writ of supersedeas must issue regardless of whether there is a threat of irreparable injury from the proceedings. This writ should issue because there had been and still was a threat of irreparable injury…… parental alienation of the father from his children. Further disruption (major point in appeal B207343) of continuity and stability set forth for any child [done here back in September of 2007 (non court ordered) by the father], would be reprehensible and incomprehensible. It is the single greatest emotional harm that can be done to children of tender years by a court. This had already been done to my children prior to December 4th and was the basis for both the peremptory challenge and appeal B207343. This is also why this writ seeks retroactive relief in the form of a retroactive stay, rendering moot all court proceedings after 4/14/08. Monetary compensation for time and legal fees has been requested in appeal B207343 but I reserve the right to ask for the same in the preparation for this writ.
B.Respondents To Appeal Will Not Be Injured By Writ Relief. Declaring the December 4th, 2008 hearing moot and restoring the already disrupted parent child relationship would only benefit these two children of tender years. The respondents to appeal B207343 would sustain no injury at all if writ relief is granted.
C. Irreparable Injury Caused By Prejudicial Error The entire day’s proceedings and subsequent orders must be rendered moot because the December 4th, 2008 hearing was wrongly held.
Judge Cowan’s decision go forth without solidifying the facts surrounding appeal B207343 is a self-centered, partial, and bias decision and defies the spirit and constitutionality of section 916 of the Code of Civil Procedure. In the Code of Judicial Ethics, Canon 6 D 3 vii C it states that “a temporary judge shall disqualify himself for any reason…….”……”A person aware of the facts might reasonably entertain a doubt that the temporary judge would be able to be impartial. Bias or prejudice toward an attorney [in pro per] in the proceeding may be grounds for disqualification.” This again only supports the basis for the peremptory challenge and appeal B207343.
Conclusion For the foregoing reasons, the appellant/defendant requests this court to grant an immediate stay of discovery related to Superior Court case # SD 023 958 and issue a writ of supersedeas, prohibition and/or other appropriate relief directing the Superior Court to retroactively cease, rendering moot their decisions, all proceedings during the pendency of appeal B207343, as the court, under the discretion of David J. Cowan, judge pro tem, was completely aware of the appeal’s existence.
Respectfully submitted by Damon A. Duval In Pro Per
The pending appeal will also raise other issues- e.g., insufficiency of the evidence of appropriation of name “to defendant’s[respondent’s] advantage”(Eastwood v. Superior Court (1983) 149 Cal.App.3d 409, 417) and insufficiency of the evidence that cannot be argued yet for want of a reporter’s transcript. Certificate Of Word Count (California Rules of Court, rule 8.204(c)(1))
The text in this petition consists of __________ words as counted by the ************** word processing program used to generate the document.
Dated: Respectfully submitted by Damon A. Duval In Pro Per
Response/Declaration to Petitioner’s 12/10/09 Request for Restraining Order Extension
Damon A. Duval – attorney in pro per
1320 Franklin Street #B
Santa Monica, California 90404 Ph. 310-463-2371
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES – WEST DISTRICT
Department E Room 111
The Honorable Commissioner David J. Cowan Presiding
__________________________________________________________________
Tammy L. Williams Case # SD 023 958
(plaintiff )
Response/Declaration to Petitioner’s 12/10/09
Request for Restraining Order Extension
v. ) Attached: El Segundo Police Report
Damon A. Duval ) Email from Dr. Richard Warshak PhD defendant ) _________________________________________________________________
Date of Hearing: 12/18/09 10:30 AM
To Each Party and Its Attorney of Record:
I, Damon Anthony Duval, have fully complied for 18 months as a restrained natural parent. With no hard evidence of any violence provided to this court, no prior history of violence, and no criminal record, there is no reason to renew a restraining order that goes against California Family Law, stating frequent and continual contact by both natural parents. This non-existence of danger posed by myself and this is corroborated by two separate psychiatric evaluations provided to the court by Dr. William C. Wirshing. One provided in mid 2008, the other in mid 2009. The court was also blessed with Dr. Wirshing’s personal testimony sworn in on July 20TH, 2009. Dr. Wirshing personally stated for the court the same facts that he provided in his written statement. This provision also complies with Amy L. Neiman’s 2/7/08 request for an evaluation for Mr. Duval. With two positive evaluations and a personal testimony from an expert of the highest credentials, there is no need for Mr. Duval to be restrained further.
The recording of every one of my phone calls is illegal and is subject to tort action. The restraining order specifically states [allows for] “illegal” calls to be recorded. As I provided the El Segundo Police Department seventeen months of past phone records, not one call was made outside the legal time provided: 7 to 7:10 PM and therefore all calls were “legal” phone calls. It should be understood that frequent and continuing calls outside the court ordered time, 7 – 7:10PM, would be cause for concern, had they been made as such.
Parental Alienation is the subject of the highest concern here. The comments I make to the children have even been under the consultation of such experts as Dr. Richard Warshak [see attached email] and Amy J.L. Baker, leading contemporaries of the destruction that Parental Alienation does to defenseless and unassuming children.
The groundwork for all the children’s study habits are a result of my, their natural father, stressing discipline in their study habits. These, along with their God- given abilities, during their years spent with me, are still apparent and will continue as long as California Family Law is adhered to.
As to the “evaluation” or “review of conduct” made by Ms. Williams, I ask the court to see the attached email concerning the words being said to my two children. This email is a correspondence between Dr. Richard Warshak, a leading American psychologist practicing in Texas in the field of Parental Alienation, and myself. I as a father was concerned as to the character of discourse between my children and myself and consulted him in early August 2009. He stated in his first paragraph what appropriate discourse was in a situation like mine. It is almost exactly what I had been doing the entire time in my ten minute calling window for the past 18 months. Ms. Neiman’s account of badgering my children, stated before the court on 7/20/09, is false and requires evidence.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct: Dated: Signed: Damon A. Duval
Motion for Reconsideration of Order re:
7/20/09 Order: Deny Defendant Visitation;
Damon A. Duval – attorney in pro per
1320 Franklin Street #B
Santa Monica, California 90404 Ph. 310-463-2371
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES – WEST DISTRICT
Department E Room 111
The Honorable Commissioner David J. Cowan Presiding
Tammy L. Williams ) Case # SD 023 958
plaintiff )
) Defendant in Pro Per Notice of Motion and
) Motion for Reconsideration of Order re:
v. ) 7/20/09 Order: Deny Defendant Visitation;
) Memorandum of Points and Authorities
Damon A. Duval ) defendant ) – Addendum ) Code of Civ. Proc. Section 1008
To Each Party and Its Attorney of Record: PLEASE TAKE NOTICE THAT defendant Damon A. Duval shall and hereby does, in the best interest of his children, move the court to reconsider its order from July 20, 2009. This motion is based upon California Code of Civil Procedure Section 1008, the court’s order, and new and different facts and circumstances, and is supported by the accompanying Memorandum of Points and Authorities, the Declaration of Damon Duval, Declarations of Philip L. Nadler in support the Motion to Reconsider, the Request for Judicial Notice, the other pleadings and matters on file or to be filed with this Court in this action, matters of which the Court can take judicial notice, and such other evidence and oral argument as is presented to the Court at the hearing hereon to be announced.
To Each Party and Its Attorney of Record: PLEASE TAKE NOTICE THAT defendant Damon A. Duval shall and hereby does move the Court, in the best interest of his children, to reconsider its order from July 20, 2009. This motion is based upon California Code of Civil Procedure Section 1008, the Court’s order, and new and different facts and circumstances, and is supported by the accompanying Memorandum of Points and Authorities, the Declaration of Damon Duval and Declarations of Philip L. Nadler in support the Motion to Reconsider, the Request for Judicial Notice, the other pleadings and matters on file or to be filed with this Court in this action, matters of which the Court can take judicial notice, and such other evidence and oral argument as is presented to the Court at the hearing hereon to be announced.
Code of Civil Procedure Section 20 – For every wrong there is a remedy.
MEMORANDUM OF POINTS AND AUTHORITIES; INTRODUCTION
On July 20th, 2009, Commissioner David J. Cowan in Department E, Room 111 of the Superior Court of California, County of Los Angeles West District issued an order maintaining the continued restraint of natural father Damon A. Duval, denying him further of any visitation rights of any kind between himself and his two children, Jazz, then age 7, and Maya, age 5. This restraining order that was commenced on June 10th of 2008, limited then to the plaintiff and plaintiff’s live-in boyfriend, Marcus Boesch, and was extended for an additional year as of December 10th, 2008. The extension that was ordered on December 4th, 2008 added to the restraining order both children as well, stating that the children had been “slapped” and/or “hit” by their father, Mr. Duval. There was never any proof provided by Amy Neiman, with her mere reliance on a third party. No bruises or marks of any kind had ever been presented as evidence. The only visible marks on either child to this date have come under the care of the mother and her live in boyfriend.
“The parent has the authority to control the child, and to administer restraint and punishment, in order to compel obedience to reasonable and necessary directions.”[Turner v. Turner 167 Cal App 2d 636, 334 P.2d 1011(2d Dist. 1959)]
“A parent may spank a child who has misbehaved without being liable for battery.”[Gibson v. Gibson 3 Cal 3rd 914, 92 Cal Rptr 288, 479 P. 2d 648 (1971)].
“Parent’s Rights to care, custody, and management of child is a fundamental liberty interest protected by the federal constitution that will not be disturbed except in extreme cases where parent acts in manner incompatible with parenthood.” [U.S.C.A. Const. Amend 14].
“Parental Rights to conceive and raise children are deemed essential, basic civil rights of man, rights far more precious than property, which should be accorded a high degree of protection.”[Stanley v. Illinois (1972) 405 U.S. 645, 651; 31 L.Ed.2d 551, 558-9; 92 S.Ct. 1208].
On this same day, and of particular concern, Commissioner Cowan also, after hearing the testimony of Dr. William C. Wirshing, a clinical psychiatrist, ordered Mr. Duval to a six month family counseling, at his expense, against the expertise of Dr. Wirshing. Dr. Wirshing had stated that he was in court this day on his own accord. He had seen Mr. Duval no less than four times in the past fifteen months. When asked if Mr. Duval needed ANY counseling, Dr. Wirshing’s answer was “NO.” In addition, Dr. Wirshing’s declaration was allowed to be stricken from the record this day by Commissioner Cowan. This was at the request of Amy Neiman, court-appointed minors counsel, and Roy Kight, counsel for Ms.Williams. The court did not move to discover if Mr. Duval would be able to pay for the ordered family counseling.
“The Court must consider the financial burden on the parties that would be created by a section 3190 counseling order, and that order cannot otherwise jeopardize a party’s other financial obligations.”[Fam. Code Section 3190(c)].
The court was fully aware in June of 2009 that Mr. Duval was severely injured after a bus had hit him in March of 2009.
These points and authorities were not brought forth during the trial, primarily a cause de Commissioner Cowan’s decision to override Dr. Wirshing’s expert testimony.
In asking the doctor if “anyone” would benefit from family counseling the
doctor answered this base interrogative in the irrefutable affirmative. Then after getting the answer necessary to maintain this level of partiality, Commissioner Cowan excused the doctor from the courtroom, substituted “Mr. Duval” for “anyone,” and stated. “As we have just heard, Dr. Wirshing said that Mr. Duval would benefit from counseling,” and closed the day’s proceedings. Commissioner Cowan then ordered Ms. Neiman prepare the day’s order. Whether out of convenience or sheer negligence, Ms. Neiman, after preparing and serving said order to the parties, had omitted the fact that Dr. Wirshing’s testimony had been stricken from the record. This error in Ms. Neiman’s preparation created an additional several week delay in the court process having to re-prepare and resend this order. May the court take note that as these weeks go by, so does the irreplaceable parenting time that Mr. Duval not only seeks but has the right to obtain. Delays are not in the best interest of the children.
“It is not the function of the court in a child custody case to punish the parent by taking away child.”[Stack v. Stack 11 Cal. Rptr. 177; 189 Cal. App. 2d 357].
“The State’s right to protect the child does not give it the power to interfere with the natural liberty of parents to direct the upbringing of their children.”[O’Dell v. Lutz Cal. App. 2d 104; 177 P.2d 688 (2d Dist. 1947)].
Alienation occurs as a result of physical distance from and psychological effort made to keep a child away from his or her child. There is no evidence that can be provided to the Court to prove that alienation is NOT happening here with Mr. Duval and his two children.
Until this day, 7/20/09, daily phone calls that Mr. Duval had been permitted since February 7th, 2008. Ms. Neiman verbally petitioned and was granted by the Court the natural father’s daily contact with his children to be cut in half (to every other day). The same ten minute window, 7pm until 7:10pm stood as the time to call. Ms. Nieman’s “reason” this day for further limiting the contact time by phone was stated on record that “Mr. Duval is constantly badgering the children on the phone”, going as far as quoting specific conversations between Mr. Duval and his children that were well over a year old. This “nature of the phone calls to the children” was given to the court without any physical evidence.
“Erroneous denial of parent/child visitation compromises a parent’s due process rights to litigate and establish the beneficial parent/child relationship….”[U.S.C.A. Const. Amend 14; West’s Ann. Cal. Wel. & Inst. Code 366.26(c)(1)(a)].
“When a court makes a finding that a party has perpetrated domestic violence, the court may not base its findings solely on conclusions reached by a child custody evaluator or on the recommendation of the Family Court Services staff, but shall consider any relevant, admissible evidence submitted by the parties.” [Family Code Section 3044(d)(2)(e)]
After the day’s hearing this day, Roy Kight, Ms. Williams’ counsel, was walking alongside Philip Nadler, Mr. Duval’s counsel at the time, and Mr. Duval who was behind both men in the hallway outside the courtroom, and admitted to Mr. Nadler, “We record those phone calls.” Mr. Duval filed a criminal report with the El Segundo Police Department regarding the recording of the “legal phone calls.” The investigation is presently under review with the Los Angeles District Attorney. [See attached El Segundo Police Report along with declarations by both Mr. Nadler and Mr. Duval.]
Understandably, this was not the relief that Mr. Duval sought from the court this day and not in the best interest of the children. After court complying visits to an impartial, more than qualified expert, who, in providing this Court well over a year’s worth of test results, proved well beyond a reasonable doubt, that Mr. Duval is both mentally stable as an individual and is a capable father. The court this day, 7/20/09, still found reason to make virtually non-existent ANY father/children relationship. Dr. Wirshing’s testimony clearly disputed the validity and merit of the restraining order that keeps Mr. Duval not only out of his children’s lives but, who is arguably, as their natural father, their only real safety valve. Dr. Wirshing’s psychiatric evaluations comply with the original request of Ms. Neiman in her Feb. 7th, 2008 request for Mr. Duval to be evaluated [See R.T. 2/7/08; pg. 24, lines 18-22]
As a purely adaptive measure, Mr. Duval respectfully requests that the Court, in this time of reconsideration, order now for his children (differing from the 7/20/0-9 request), not visitation, but transitional counseling. Said counseling is available free of charge at UCLA’s Stuart House in Santa Monica (Contact person: Danielle Ramos 310-319-4248). Then, and only then, with said counseling’s consent, may Mr. Duval resume frequent and continuous contact with the children, so clearly synonymous with the State of California Family Law. Mr. Duval cannot stress enough the urgency in which this order is needed. Mr. Duval prays for this relief from the court, with expediency, before alienation, caused by the time and distance between himself and his two children, creates a void so great that even a generous amount of time, money, and counseling would have a monumental task in rectifying……. if in fact this void has not yet already been created.
“Erroneous denial of parent/child visitation compromises a parent’s due
process rights to litigate and establish the beneficial parent/child relationship….”[U.S.C.A. Const. Amend 14; West’s Ann. Cal. Wel. & Inst. Code 366.26(c)(1)(a)].
ARGUMENT
THE COURT MUST CONSIDER FACTS NOT PREVIOUSLY CONSIDERED THAT DIRECTLY AFFECTS THE COURT’S RULING
I. ALIENATION
California Code of Civil Procedure Section 1008(a) governs a party’s means to seek reconsideration of a court order, under the prerequisite of presenting new or different facts, circumstances, or law.” C.C.C.P. Section 1008(a). A client and her
attorney that are bent on keeping the children away from the other parent are [you would think?] looking to face an uphill battle.
“Unless the health, safety, and welfare of the child would be undermined, custody orders must be made to assure the children ‘frequent and continuing contact’ with both parents.”[Family Code Section 3020].
California Law and public policy place a premium on the child’s “frequent and continuing contact” with both parents.
“Evidence of a parent’s past conduct demonstrating “uncooperative parenting” that is likely to disrupt the child’s relationship with the other parent is highly relevant in a custody contest….. “.[See Marriage of La Musga (2004) 32 Cal.4th 1072; 12 CR3d 356, 372-373].
When the children moved in with the mother and her live-in boyfriend, their El Segundo address was kept secret from the natural father for six months before any restraining order was placed on the father, going against the conciliation agreement and divorce judgment signed by both parties and counsel thereof, this move away case applies. This placement of the children in the El Segundo address was a Court Order on 2/7/09, and was enabled by the minor’s counsel, Amy Neiman, even staring molestation charges by the live-in boyfriend right in the face.
Minor’s counsel’s responsibilities are to “gather facts that bear on the best interests of the child, and present those facts to the Court,” and to that end counsels authorized to interview the child, to review the court record, and make “any further investigations as the counsel considers necessary to ascertain facts relevant to the custody and/or visitation hearings.”
However, the Family Code also entitles child’s counsel to completely disregard these mandates when, “under the circumstances….. ” IN THE OPINION OF COUNSEL….. ” it is inappropriate to exercise the duty.” [Cal. Family Code
Section 3151(a)]. Moreover, although counsel’s role includes presenting “the child’s wishes” with regard to custody, the Code specifically qualifies this important responsibility: only “when counsel deems [the child’s wishes] appropriate for consideration by the court.” [Cal. Family Code Section 3151(a)].
These broad exemptions completely undermine, and under the authority of Amy Neiman, have done so throughout these proceedings, any concept that counsel might be representing “the child,” and, even with respect to representation of the child’s “best interests,” have created only an illusion of representation. These children are being alienated from their natural father.
Alienation was not addressed on the July 20th, 2009 hearing, rather the meaning “children’s best interest” was maintained in a vague and indefinite scope because
this “best interest standard” rests on an impoverished account of children’s rights that does not provide a principled rule for the resolution of inter-parental custody disputes. In the best interest of his children, and a change of circumstance from the 7/20/09 hearing, the request for Jazz and Maya is not that of visitation, but is that of specific counseling before visitation.
Code of Civil Procedure Section 20 – For every wrong there is a remedy.
II. ILLEGALLY RECORDED “LEGAL” PHONE CALLS
After court this day Roy Kight, Ms. Williams’ counsel, was walking alongside Philip Nadler, Mr. Duval’s counsel at the time. Mr. Duval was walking behind both men in the hallway outside the courtroom. Roy Kight clearly and concisely admitted to Mr. Nadler, “We record those phone calls”, referring to the phone calls that were discussed in the courtroom between Mr. Duval and his two children. [See attached El Segundo Police Report along with declarations by both Mr. Nadler and Mr. Duval]. This is a crime that is punishable by both fines ($5,000 per phone call) and jail time. The investigation is underway with Detective Armando Rodriguez of the El Segundo Police Department and the Los Angeles District Attorney.
For the reasons set forth, and in the best interest of his children, Defendant respectfully requests that the Court reconsider the order of the July 20th, 2009, order the children to attend transitional counseling, available at the free-of-charge facility (Stuart House in Santa Monica; Contact: Danielle Ramos 310-319-4248). After said counseling’s consent, the children may only then, in their best interest, resume frequent and continuous contact with their natural father. Before visitation is allowed by consent of the counselor, phone contact is to be allowed daily between 6pm and 8pm. This is also in the best interest of his children.
In addition, subpoena all [Ms. Williams’, Marcus Boesch’s, Amy Neiman’s, and Roy Kight’s] computers for a full forensic review. Subpoena the 2007 interview tape of Maya Duval from the El Segundo Police Department.
Also in the best interest of his children, the order would provide Mr. Duval with a complete copy of Amy Neiman’s reports on Jazz and Maya [per Famliy Code Section 3025.5]; As per Family Code Section 3151(b); CRC 5.24(j)(5) – Issues and Contentions – At the courts request, appointed counsel must prepare a “written statement of issues and contentions” setting forth the facts bearing on the child’s best interests.
This statement must summarize: the information received by counsel, list the sources of the information, set forth the results of the counsel’s investigation, and provide “such other matters as the court may direct.” These two elements, alienation (visitation interference) and illegally recording conversations open the door for Tort action.
Tort action predicated on visitation interference. [Minot v. Eckardt-Minot. 13 F.3d 590; Ankenbrandt v. Richards (91-367), 504 U.S. 689 (1992); Friedlander v. Friedlander 149 f 3rd 739].
“Parents relative economic positions are not permissible considerations in custody determinations…. emotional factors pre-dominate…. “[Burchard v. Garay Supra 42 C3d 540; 229 CR 806].
JUDICIAL EFFICIENCY FAVORS RECONSIDERATION
If the Court were to adopt a clear principle for the rights of a child and a principle for the resolution of inter-parental disputes, and minors counsel adopted the same, by simply putting the children first, virtually all of the abuses of discretion that lead to prejudicial errors would be prevented. These are simple principles borne of common sense, and thus the general principle of efficiency itself favors reconsideration by proxy.
POINTS AND AUTHORITIES
I. Standing for Motion for Reconsideration as per Code of Civil Procedure Section 1008 (a)(c).
II. Grounds – based on new or different facts, circumstances, or law.
III. Parental Alienation will be defined and proven in a court of law by the existence of these five contributing factors:
1) An existing family relationship.
2) Malicious interference by a third person(s).
3) Intent that results in loss by said third person(s).
4) At least casual connection between said third person(s) and loss.
5) Result of loss being damages.
IV. As per Family Code Section 3151(b); CRC 5.24(j)(5) – Issues and Contentions – At the courts request, appointed counsel must prepare a “written statement of issues and contentions” setting for the the facts bearing on the child’s best interests.
This statement must summarize the information received by counsel, list the sources of the information, set forth the results of the counsel’s investigation, and provide “such other matters as the court may direct.”
V. “The State’s right to protect the child does not give it the power to interfere with the natural liberty of parents to direct the upbringing of their children.”[O’Dell v. Lutz Cal. App. 2d 104; 177 P.2d 688 (2d Dist. 1947)].
VI. “Erroneous denial of parent/child visitation compromises a parent’s due process rights to litigate and establish the beneficial parent/child relationship….”[U.S.C.A. Const. Amend 14; West’s Ann. Cal. Wel. & Inst. Code 366.26(c)(1)(a)].
VII. “When a court makes a finding that a party has perpetrated domestic violence, the court may not base its findings solely on conclusions reached by a child custody evaluator or on the recommendation of the Family Court Services staff, but shall consider any relevant, admissible evidence submitted by the parties.” [FAM C 3044(d)(2)(e)].
VIII. “Parents’ rights in the care, custody, and management of their children are a fundamental liberty interest under the due process clause.” [U.S.C.A. Const. Amend 14; In re: Charlotte D. 39 Cal Rptr 3d 378 (Cal App 2d Dist 2006) opn. modified on denial of rehearing; In re: adoption of Charlotte D. 2006 WL 540926 (Cal App 2d Dist 2006).
IX. Family Code Section 7507 – The abuse of parental authority is the subject of judicial cognizance in a civil action brought by the child, or by the child’s relative within the third degree, or by the supervisors of the county where the child resides; and when the abuse is established, the child may be freed from the dominion of the parent, and the duty of support and education enforced.
X. Tort action predicated on visitation interference. [Minot v. Eckardt-Minot. 13 F.3d 590; Ankenbrandt v. Richards (91-367), 504 U.S. 689 (1992); Friedlander v. Friedlander 149 f 3rd 739].
XI. “Parents relative economic positions are not permissible considerations in custody determinations…. emotional factors pre-dominate…. “[Burchard v. Garay Supra 42 C3d 540; 229 CR 806].
XII. “Evidence of a parent’s past conduct demonstrating “uncooperative parenting” that is likely to disrupt the child’s relationship with the other parent is highly relevant in a custody contest….. “. [See Marriage of La Musga (2004) 32 Cal.4th 1072; 12 CR3d 356, 372-373].
XIII. Family Code Section 3021 – upon specified findings ….. the court may require outpatient counseling.
XIV. Family Code Section 3190(a)(1),(2) – Threshhold findings for court ordered counseling: (1) The present situation poses a substantial danger to the child’s best interests. 2) Counseling is in the children’s best interest.
XV. Family Code Section 3190(d)(2) – Court ordered counseling cannot “otherwise jeopardize a party’s other financial obligations.”
XVI. Code of Civil Procedure Section 20 – For every wrong there is a remedy.
Statement of Appealability
The order after judgment appealed from is appealable under Code of Civil Procedure Section 904.1(a)(2).
An order after judgment denying sanctions is appealable pursuant to Section 904.1(a)(2) because it is a final determination of the rights and liabilities of the parties arising from the judgment and is not preliminary to some future judgment from which the order may be appealed.[Day v. Collingwood (2006) 144 CA4th 1116, 1123, 50 CR3rd 903, 908(denial of CCP Section 128.7 sanctions after judgment of dismissal); Shelton v. Rancho Mortg. & Invest. Corp. (2002) 94 CA4th 1337, 1345, 115CR2d 82, 88 (denial of sanctions under former CCP Section 128.5); Marriage of Dupre (2005) 127 CA4th 1517,1524-1525, 26 CR3d 328, 333-334(denial of Family Code Section 3027.1 sanctions)]
Argument
What has transpired so far in case SD 023 958 in the Superior Court of California, County of Los Angeles, West District at 1725 Main Street, Santa Monica, CA, 90405, is nothing short of a blatant abuse of discretion and prejudicial error. This abuse is a direct result bias and judicial error. The Honorable Commissioner David J. Cowan, judge pro tem, the court-appointed Minors Council, Amy L. Nieman, respondent/plaintiff/mother, Tammy L. Williams, and her attorney, Roy L. Kight, Esq. have all displayed a complete and utter disregard for basic law, signed court agreements and judgments, the Judicial Code of Ethics, the Business and Professional Code, the California Code of Professional Conduct, and most destructive and perseverant of all these, the harm being done to the emotional and physical well-being of children of tender years. These being my, Damon A. Duval’s children, Jazz(born 09/28/2001) and Maya(born 12/21/2003. My peremptory challenge was both timely and with reason under both the spirit and letter of Code of Civil Procedure Section 170.6.
Code of Civil Procedure Section 170.3(c)(1) states “If a judge who should disqualify himself or herself refuses or fails to do so, any party may file with the clerk a written verified statement objecting to the hearing or trial before the judge and setting forth the facts constituting the grounds for disqualification of the judge. The statement should be presented at the earliest practicable opportunity after discovery of the facts constituting the grounds for disqualification.”
In Schorr v. Superior Court (1980) 105 Cal. App. 3d 568, 164 Cal. Rptr. 478 “….. the commissioner denied the motion as being without basis and untimely…… the court[of appeals] held that the husband’s challenge was timely made as it was made at the end of the[a] conference at which the husband could have learned the disqualifying facts and therefore was made at the earliest practicable opportunity after discovery of those facts.” in Mayr v. Superior Court (1964) 228 Cal. App. 2d 60, 64, 39 Cal. Rptr. 240 “….It[the court of appeal] concluded that the motion was timely, was properly made, and should have been granted and stated that if a party moves as expeditiously as possible….. the motion is timely under both the spirit and letter of Code of Civil Procedure Section 170.6.”
Judge Cowan should have recused himself at my request along with minor’s council, Amy L. Nieman, and let someone of legitimate standing take the bench and re-appoint a new minors council. Roy Kight should have had sanctions imposed as a result of his threats. In this lesser light, their conduct has turned the integrity of our great court system into what is commonly described as a “Kangaroo Court” or “Drumhead Trial”. With all due respect to resilient “adults”, the harm that may be bestowed upon children of tender years by such malfeasant orders is easily beyond an inept court’s scope of awareness.
This court has not been confronted with a situation with one immoral act, but with a continuous course of unmoral if not immoral conduct.
On November 26th, 2006 Ms. Williams personally issued me an order, through her attorney, telling me exactly when and how I should contact my children[see C.T. Augment II pg. 35] that was filed in an O.S.C. by me on 12/11/07[see C.T. Augment II page 44].
The incontrovertible evidence is unquestionably sufficient enough to show this abuse of discretion, prove the substantial emotional injury sustained by this father and two children, and allow the higher courts to apply the proper punishment, and restore and uphold the integrity of the United States Court.
Roy Kight’s physical threat, in court, asserting that he “hasn’t hit me yet”[see C.R. partial transcript pg.5, line 8- pg.6 line 27], just after admitting a prior similar threat eight months before just outside the courtroom door, and Comm. Cowan’s denial of sanctions, inability to uphold the court’s legitimacy, weren’t remote incidents.
I took the action of placing a restraining order on Mr. Kight, but without the witness, Comm. David J. Cowan, the case got dismissed by Judge Rosenberg . On 2/21/08, A subpoena had been issued for Judge Cowan’s written statement and/or personal appearance and I never heard back . He was a no-show at the hearing. Perhaps I failed to serve the subpoena, as I thought simply filing it with the clerk and it being placed in his file was sufficient enough to get it to the judge. It says “issued” on the front. It states on my filed subpoena that the issuing person was Julia Rojas. I am not an attorney, just a father in due diligence fighting for the safety of his two children. I have since been handed a $ 5,215.00 bill for Mr. Kight’s legal fees for the dismissed case # SS 016 418. I, and my two children, are the ones being punished and harassed. I an innocent victim of two physical threats, one right in the presence of Judge Cowan, the other admitted to, the subsequent prejudicial error, and I now have to pay for trying to achieve a legitimate level of safety and excellence within the court? Rules of professional conduct are intended not only to establish ethical standards for membership of the bar but also designed to protect the public.[Ames v. State Bar (1973) 106 Cal. Rptr. 489, 8 Cal. 3d 910, 506 P.2d 625]. I don’t know how any sentient, reasonable being would or could cite direct contempt, harassment, intimidation, and now financial parasitism by officers of the court any other way.
Am I to be at fault for not being educated as a lawyer, and watch my children suffer? Here is where I pray for relief from the Appellate Court.
I feel the opposing side led by Roy Kight and enabled by Judge David J. Cowan was retaliatory and punitive in nature by having a six month restraining order placed on me June 6th, 2008, restricting all my contact with my children(even negating contact by phone with their teachers in their respective schools), and limiting my phone contact with the children to between 7pm and & 7:10pm only on the days I don’t visit them. There is no history of violence from me as husband or father[see C.T. Augment II pg. 68].
Roy Kight’s threats[see C.T. Augment II pg. 58], Judge Cowan’s non-sanctioning response to them, along with Judge Cowan’s disregarding the subpoena are willful breaches of Business and Professional Code Section 6077: ” To establish a willful breach of rule of professional conduct, it must be demonstrated that person charged acted or omitted to act purposely, that is, that he knew that he intended either to commit act or abstain fro committing it.” [Millsberg v. State Bar (1971) 98Cal. Rptr. 223, 490 P.2d 543, 6 Cal. 3d 65; Zitny v. State Bar of Cal. (1966) 51 Cal. Rptr. 825, 415 P.2d 521, 64 Cal. 2d 787].
In West’s Annotated California Codes Court Rules, Rules of Professional Conduct, Rule 1-100 note 6, “Attorneys must conform to professional standards in whatever capacity they are acting in a particular manner.”[Crawford v. State Bar of Cal. (1960) 7 Cal. Rptr. 746, 54 Cal 2d 659; 355 P. 2d 490]. “One who is licensed to practice as an attorney must conform to professional standards in whatever capacity he may be acting in a particular matter. [Alkow v. State Bar of Cal. (1952) 38 Cal. 2d 257; 239 P. 2d 871].
“The ethical standards of the legal profession demand the ostracism of its ranks any member who has proven himself unworthy to be a member.”[Glenn v. State Bar (1939) 14 Cal. 2d 318, 94 P.2d 43].
Rule 1-120 Rules of Professional Conduct- Attorneys and State Bar- Assisting, Soliciting, or Inducing Violations: “A member shall not knowingly assist in, solicit, or induce any violation of these rules or the State Bar Act.”
“If an attorney admitted to practice in state courts commits acts in reference to federal court litigation which reflect on his integrity and fitness to enjoy rights and privileges of an attorney in state courts, proceedings may be taken against him in state court.” [Geibel v. State Bar of Cal. (1938) 11 Cal. 2d 412, 79 P.2d 1073, certiorari denied 59 S.Ct. 248, 305 U.S. 653, 83 L.Ed. 423, rehearing denied 59 S.Ct. 361, 305 U.S. 676, 83 L.Ed. 438, motion to set aside judgment denied 14 Cal.2d 144, 93 P.2d 97].
In The Code of Judicial Ethics it is written:
Rule 1-710: A member who is serving as a temporary judge, referee, or court-appointed arbitrator, and is subject under the Code of Judicial Ethics to Canon 6D, shall comply with the terms of that canon.
Canon 6(D): A temporary judge, a person serving as a referee pursuant to Code of Civil Procedure Section 638 or 639, or a court-appointed arbitrator shall comply only with the following Code provisions:
Canon 1:[integrity and independence of the judiciary]
Canon 6(A): Anyone who is an officer of the state judicial system and who performs judicial functions, including, but not limited to, a subordinate judicial officer, magistrate, court-appointed arbitrator, judge of the State Bar Court, temporary Judge, and special master, is a judge within the meaning of this Code.
Canon 6(D)(3) A temporary judge shall, from the time of notice and acceptance of appointment until termination of the appointment, disqualify himself or herself in any proceeding as follows:
(vii) for any reason:
(A) the temporary judge believes his or her recusal would further the interests of justice;
(B) the temporary judge believes there is a substantial doubt as to his or her capacity to be impartial; or
(C) a person[see C.T. Augment II pg. 68] aware of the facts might reasonably entertain a doubt that the temporary judge would be able to be impartial. Bias or prejudice toward an attorney in the proceeding may be grounds for disqualification.
Canon 3(B)(4)[patient, dignified, and courteous treatment]
(6)[require lawyers to refrain from manifestations of any form of bias or prejudice]
Canon 3(c)(2): A judge shall require “staff and personnel” under the judge’s direction and control to observe appropriate standards of conduct and to refrain from manifesting bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status in the performance of their official duties.
Canon 3(c)(5): A judge shall perform administrative duties without bias or prejudice. A judge shall not, in the performance of administrative duties, engage in speech, gestures, or other conduct that would reasonably be perceived as 1) bias or prejudice, including but not limited to bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status, or 2) sexual harassment.
Canon 3(D)(2): Whenever a judge has personal knowledge that a lawyer has violated any provisions of the Rules of Professional Conduct, the judge shall take appropriate action.
Custody of the two children, Jazz and Maya, were given back to the mother on February 7, 2008, one of many malfeasant opinions and suggestions by Minors Council, Amy L. Nieman and concurred by Comm. Cowan After months of stability and continuity in the full custody of their father[see C.T Augment II pg. 40]. That custody had actually started in the summer of 2007, after the mother’s boyfriend was accused by my daughter of touching her inappropriately (genitals). The El Segundo Police Dept. and Child Protective Services (reports made by both and filed with the court) were immediately notified by me. In the 2/7/08 proceedings, Ms. Nieman stated that “the love Mr. Duval has for his children is derived out of the hate he harbors for his ex-wife.” She interviewed both parties, and was well aware that my now ex-wife had left the marriage in the middle of a move, children in tow, while we were traveling in a 22 foot RV that was purchased by both of us. Ms. Nieman made it clear that just because I lived in the RV (I had nowhere else to go) was cause for her decision. I wish I could afford to provide the reporter’s transcript. Therein it lies.
“The issue in a case such as this is not the condition of the home but in the fitness of the parents to supervise the care, custody, and control of the child[children] and what is in the best interest of the child [children]. [Prouty v. Prouty (1940) 16 Cal 2d 190,195; 105 P. 2d 295 Civil Code Sections 84, 138 subd.1].
It seems that Comm. Cowan and Minors Council, Amy L. Nieman, have been “narrowly” guided in scope by Civil Code Section 138 subdivision 2 which requires that “other things being equal” if the child[children] is of tender years, custody of the child should be given to the mother.
“Our opinion first noted that the statutory preference for maternal custody of a child of tender years has been repealed. Under Civil Code section 4600, the sole concern, as it should be, is the best interest of the child. That issue, we observed arose here in a “special way” (ibid.), for there had been no prior court order, Ellen[Tammy] was in effect asking for a change in an established mode of custody to which she had agreed. We therefore inquired whether Wiliam’s[Damon’s] handicap represented a change in circumstances sufficient to justify a change in custody.”(Opn. J. Broussard, Burchard v. Garay 42 Cal.3d 531; 229 Cal. Rptr. 800, 724 P.2d 486).
The 2/07/08 decision was judicially erroneous and severely bias. This decision was so blatant an abuse of discretion that I, the father and my two children have suffered substantial emotional injury. If absent this reprehensible judicial error, the three of us would have obtained a more favorable result.
In the concurring opinion by C.J. Bird in Burchard v. Garay 42 Cal.3d 531; 229 Cal. Rptr. 800, 724 P.2d 486: “Stability, continuity, and a loving relationship are the most important criteria for determining the best interests of the child. (Maj. opn., ante, at pp. 538, 541). Implicit in this premise is the recognition that existing emotional bonds between parent and child are the first consideration in any best-interests determination…….. This view rests on outmoded notions of a woman’s role in our society….. this presumption is seldom, if ever, applied even handedly to fathers. The result- no one would take an unbiased look at the amount and quality of parental attention which the child was receiving from each parent.”
On March 24th, 2008, completely aware of our joint legal custody status, plaintiff/respondent/mother in complete defiance of two signed court orders (a Conciliation Agreement and a Divorce Judgment) and without my consent, pulled the children out of school, hid out for two days without allowing any contact. She re-enrolled one of the children, my son, Jazz, back in school in El Segundo. Also without my consent, the younger child, Maya, 4 yrs., never even completed her very first year of preschool. Both children, having had near perfect attendance, had completed 3/4 of their respective school years in the Santa Monica Malibu Unified School District.
“Averment in contempt affidavit, that custodial parent [mother] “removed the children from the state [school that they were enrolled in] without my knowledge or consent and with the intent of preventing the exercise of my visitation and communication rights with the minor children is allegation of fact… not mere conclusion.” [Rosin v. Sup. Ct.(1960) 181 Cal. App. 2d 486, 490 5 Cal. Rptr. 42].
Had the children been allowed to stay at their schools, undisturbed, the consistency and stability provided by their father over the last eight months would have achieved a continuity so stressed by any program for any child of tender years, and was stringently done so in both court-appointed programs(Parents And Children Together, P.A.C.T., and Parenting Without Conflict), attended by both parents.
However, this malfeasant decision was based on the three officers of the court’s determined intention of depriving myself, the children’s biological father, of the pleasure and of the company and necessary parental association with my two children. In defiance of signed orders and integrity out the window, the Superior Court allowed my children to be put unnecessarily in yet another emotionally compromising situation. My son, Jazz, still to this day cannot hold his bowels. This has been completely documented with counselors sought by the father throughout the past eighteen months. My daughter, Maya, uncontrollably urinated all over herself during a two-three week period when the mother’s boyfriend was accused of the fondling. She had spent months not wanting to go back in the care of the mother, hence the mother’s formal written release (after five months of continuity and stability) giving custody to me.
As if the destructive and punitive nature of all these decisions wasn’t enough for the misguided trio, it was seen fit by the court to place a six month restraining order on me from the beginning of June through December(2008). There has never been any threat of violence by myself towards the ex-wife or my children[see C.T. Augment II pg.68]. This restraining order kept me completely away from every aspect of my children’s educational process, not even being able to so much as contact the schools in which they are enrolled. I would miss my son’s first grade graduation in June of 2008. I still to this day do not know where my two children reside with their mother and the boyfriend.
In propria persona, not adroit in the Superior Court’s formalities, I made mistakes in filing, serving, not filing, and perhaps serving improperly. These were all done in good faith and pale in comparison to the negligence and abuse of discretion I have documented and presented here in this brief. This should not be held as a handicap in the wake of such injustices.
In deciding a matter so vital to the welfare and emotional stability of children it is imperative that the trial court, in order to make as wise decision as possible, should have as complete a picture of the whole background as possible, all of which would aid the court, if remaining true to set rules, in determining the probabilities of either parent meeting the basic needs for a balanced existence for the children. It may be that if some of the factors are missing or conveniently overlooked, the trial court may not arrive at the best decision.
“To be entrusted with the rearing of children a mother[parent] should be possessed of such character and conduct that by the force of his/her example he/she can train them in the paths of morality, righteousness, and rectitude.” [Currin v. Currin 125 Cal. App. 2d 644; 271 P. 2d 61 (in accord with Kelly v. Kelly 173 Cal. App. 2d 469, 474; 343 P. 2d 391)].
“Contemporary psychology confirms what wise families have perhaps always known- that the essence of parenting is not to be found in the harried rounds of daily carpooling endemic to modern suburban life, or even in the doggedly dutiful acts of togetherness committed every weekend by well-meaning fathers and mothers across America. Rather its essence lies in the ethical, emotional, and intellectual guidance the parent gives to the child throughout his/her formative years, and often beyond. The source of this guidance is the adult’s own experience of life; its motive power is parental love and concern for the child’s well-being; and its teachings deal with such fundamental matters as the child’s feelings about his/herself, relationships with others, system of values, standards of conduct, and goals and priorities in life.” [J. Mosk op. p739, in re: Marriage of Carney 24 Cal.3d 725; 157 Cal. Rptr. 383, 598 P.2d 36]. My capacity to parent was in no way related to a handicap- a 22 ft. RV. “In such matters, a handicap may well be an asset…. few can pass through the crucible of a handicap without learning enduring lessons in patience and tolerance.” [J. Mosk op. p739, in re: Marriage of Carney 24 Cal.3d 725; 157 Cal. Rptr. 383, 598 P.2d 36].
Custody change, putting the children back with the mother with a history of neglect, who fought to keep the children out of counseling, hiring(with the boyfriend) a 23 year-old babysitter who was 1) arrested with heroin pipe possession, 2) cited for driving without a license, and 3) had outstanding arrest warrants, a boyfriend accused of inappropriate fondling of a three year-old, disrupting a school year in arguably the finest public school district available is reprehensible, abominable. These are all documented and filed accounts.
“A mere recitation of the facts shows grounds for the trial court to find that the character and demeanor of the plaintiff [respondent/plaintiff/mother Tammy L. Williams] would be adverse to a proper raising of children under these circumstances.” [Santens v. Santens 180 Cal. App. 2d 809,819 4 Cal. Rptr. 635].
Conclusion
The malfeasant, punitive decisions that harmed myself and my two children will require a de novo standard of review and are appealable. My peremptory challenge was both timely and with reason under both the spirit and letter of Code of Civil Procedure Section 170.6.
I pray that the Court of Appeals will find in their review the malpractice, abuse of discretion, and prejudicial errors committed by Commissioner David J. Cowan, Minors Council, Amy L. Nieman, and Roy L. Kight, Esq. as completely unacceptable. I pray that they be held accountable for their actions by the standards set forth in the laws and codes of this so vitally necessary process.
Inarguably, the very integrity of our courts and any defenseless child of tender years depend on this check and balance. For the foregoing reasons the appellant/respondent father, Damon Anthony Duval, on behalf of his two children, Jazz and Maya, are entitled to have a reversal of judgment: Judge Cowan recused, as case authority proves my peremptory challenge was timely and with basis, all court decisions after 12/11/07 rendered moot, case #SD 023 958 reassigned, minor’s council, Amy L. Nieman removed and replaced, with the possibility of a guardian ad litem being appointed to oversee the newly appointed minors council, and sanctions imposed on/or the disbarment of Roy L. Kight, Esq. Respondent/plaintiff/mother, Tammy L. Williams, to be held in contempt of court and my children to be returned to their original Santa Monica- Malibu Unified School District schedules, and compensation provided to appellant/respondent/father Damon A. Duval, in need of funds, tirelessly working the last nine months in pro per, preparing this brief, and all other court related processes and expenses. My fee waiver application clearly states my lack of funds. In Smith v. Smith (1953) 120 Cal. App. 2d 474;261 P.2d 567; 1953 Cal. App. LEXIS 1963, it states….”We find that appellant is in need of funds……… We think that a fee of $ 350.00 for services to date is reasonable. It is impractical to fix future fees at the present time. The court will retain jurisdiction to fix, if necessary, future fees, and to make an award of costs.”
I have transposed the $ 350.00 fee through an inflation index using a loaf of bread (16 cents) and a U.S. Postage Stamp (3 cents) at 1953 prices. The averaged increase for these base items (2008 prices- bread: 3.20 per loaf; stamp: .42) is at 17 times the 1953 price. 350 x 17= $ 5950.00. The $ 347.00 per month reduction that should have been honored at the 8/30/07 trial per the 8/30/07 Disso Master equation [see doc. filed 11/15/07] to be reimbursed to the father as the children were in my care from September 2007 through February 7th, 2008. Five months at 347/mo= 1735.00. 5950+ 1735= $ 7685.00. This amount in no way takes into any account and cannot possibly measure the emotional damage inflicted upon myself, and my two children.
Article VI 4b, of the United States Constitution grants to Appellate Courts not only the power to issue prerogative writs but also “the power to issue…. all other writs necessary or proper to the complete exercise of their appellate jurisdiction.”
This verified accusation is against above named officers of the court pursuant to California Rules of Court, rule 9.13 subsections (d) through (f).
I swear, under oath this appellate brief to be the Truth, the whole Truth, and nothing but the Truth, so help me God.
Date:
__________________
Signed: ____________________________
Damon Duval in propria persona
Certificate of Compliance
Pursuant to rule 8.204(c) of the California Rules of Court, I hereby certify that this brief contains __________ words, including footnotes. In making this certification, I have relied on the word count of my “Micosoft Word” computer program used to prepare this brief.
By______________________________
Damon Duval
My First Appeal to the Higher Court
(Written by me with a lot of help from Lisa Jaskol at Public Counsel)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT, DIVISION 2
Tammy L. Williams, Court of Appeal # B 207343
Plantiff/Respondent
v. Superior Court Case # SD 023 958
Damon A. Duval,
Defendant/Appellant
______________________
An Appeal From an Order After Judgment
Of The Superior Court Of California, County Of Los Angeles
Hon. David J. Cowan ________________________________________________________
APPELLANT’S OPENING BRIEF
________________________________________________________
Roy L. Kight, Esq. Damon A. Duval
115 Sheldon St. P.O. Box 3313
El Segundo, CA 90245 Santa Monica, CA 90408
Ph 310-535-0000 Ph. 310-463-2371
Counsel for Ms. Williams Appellant In Pro Per
Table of Contents
Table of Authorities……………………………………………….ii
Statement of the Case- Facts and Procedural History……………………………………………………………..1
Statement of Appealability………………………………………..22
Argument………………………………………………………….23
Conclusion…………………………………………………………39
Certificate of Compliance…………………………………………42
Table of Authorities
Constitutional Authority
Article VI 4b of the United States Constitution pg. 41
Case Authorities
Alkow v. State Bar of Cal.(1952) 38 Cal. 2d 257; 239 P. 2d 871
pg. 28
Ames v. State Bar (1973) 106 Cal. Rptr. 489, 8 Cal. 3d 910, 506 P.2d 625 pg. 26
Burchard v. Garay (1986) 42 Cal. 3d 531;229 Cal. Rptr. 800, 724 P.2d 486 pgs. 32,33
Crawford v. State Bar of Cal.(1960) 7 Cal. Rptr. 746, 54 Cal 2d 659; 355 P. 2d 490 pg. 28
Currin v. Currin 125 Cal. App. 2d 644; 271 P. 2d 61 pg. 36
Day v. Collingwood (2006) 144 CA4th 1116, 1123, 50 CR3rd 903, 908(denial of CCP Section 128.7 sanctions after judgment of dismissal) pg. 22
Geibel v. State Bar of Cal. (1938) 11 Cal. 2d 412, 79 P.2d 1073, certiorari denied 59 S.Ct. 248, 305 U.S. 653, 83 L.Ed. 423, rehearing denied 59 S.Ct. 361, 305 U.S. 676, 83 L.Ed. 438, motion to set aside judgment denied 14 Cal.2d 144, 93 P.2d 97 pg. 28
Glenn v. State Bar (1939) 14 Cal. 2d 318, 94 P.2d 43 pg. 28
In re: Marriage of Carney 24 Cal.3d 725; 157 Cal. Rptr. 383, 598 P.2d36(J. Mosk Opn., p.739) pg. 37
Kelly v. Kelly 173 Cal. App. 2d 469, 474; 343 P. 2d 391 pg. 36
Marriage of Dupre (2005) 127 CA4th 1517,1524-1525, 26 CR3d 328, 333-334(denial of Family Code Section 3027.1 sanctions) pg. 22
Mayr v. Superior Court (1964) 228 Cal. App. 2d 60, 64, 39 Cal. Rptr. 240 pgs. 20, 24
Millsberg v. State Bar (1971) 98Cal. Rptr. 223, 490 P.2d 543, 6 Cal. 3d 65 pg. 27
Prouty v. Prouty (1940) 16 Cal 2d 190,195; 105 P. 2d 295 Civil Code Sections 84, 138 subd.1 pg. 32
Rosin v. Sup. Ct. (1960) 181 Cal. App. 2d 486, 490 5 Cal. Rptr. 421
pg. 34
Santens v. Santens 180 Cal. App. 2d 809,819 4 Cal. Rptr. 635
pg. 38
Schorr v. Superior Court (1980) 105 Cal. App. 3d 568, 164 Cal. Rptr. 478 pgs. 20, 24
Shelton v. Rancho Mortg. & Invest. Corp. (2002) 94 CA4th 1337, 1345, 115CR2d 82, 88 (denial of sanctions under former CCP Section 128.5) pg. 22
Smith v. Smith (1953) 120 Cal. App. 2d 474;261 P.2d 567; 1953 Cal. App. LEXIS 1963 pg. 40
Zitny v. State Bar of Cal. (1966) 51 Cal. Rptr. 825, 415 P.2d 521, 64 Cal. 2d 787 pg. 27
Rules
Business and Professional Code Section 6077 pg. 27
California Rules of Court- Rule 9.13 subds (d) through (f) pg. 41
Rule 8.208
Rule 8.204(c) pg. 42
West’s Annotated California Codes Court Rules, Rules of Professional Conduct- Rule 1-100 note 6 pg. 28
Rules of Professional Conduct-
Attorneys and State Bar Rule 1-120 pg. 28
The Code of Judicial Ethics Rule 1-710 pg. 29
Canons of Judicial Ethics: Canons 6, 1, and 3 pgs. 19, 29-31
Statutes
Civil Code of Procedure Section 84 pg. 32
Civil Code of Procedure Section 138 subdivisions 1, 2 pg. 32
Civil Code of Procedure Section 170.3 (c)(1) pgs.20, 23
Civil Code of Procedure Section 170.6 pgs. 20, 23, 24, 39
Code of Civil Procedure Section 904.1(a)(2). pg. 22
Civil Code of Procedure Section 4600 pg. 32
Statement of the Case- Facts and Procedural History
On September 27th, 2006, with the Honorable Bobbi Tillmon presiding over case# SD 023 958 in the Superior Court of California County of Los Angeles at the West District Branch Santa Monica Courthouse, a Conciliation Agreement was signed by myself, appellant/respondent/father Damon Anthony Duval and respondent/plaintiff/mother Tammy LaDonna Williams,. Primary custody of the two children, Jazz (born 09/28/2001) and Maya (born 12/21/2003), was awarded to the mother and Legal Custody was agreed upon as joint. Visitation for myself was liberal, including overnights, and would remain that way for about the next year[see C.T. Augment II pgs. 3-7] until the mother gave me full custody(non court ordered) on 12/06/07[see C.T Augment II pg. 40].
Judge Tillmon ordered both parents to attend the P.A.C.T. Program(Parents and Children Together). Both parents complied and received certificates of compliance by attending[see C.T. Augment II pgs. 1, 2].
In the last week of March of 2007, upon picking up my children for the day, Jazz to be taken to kindergarten as he had been enrolled by the mother at the Center Street Elementary School in El Segundo, and Maya to be taken in my care to pre-preschool classes at the Santa Monica Library, Ms. Williams informed me that she would be taking on full-time employment the following Monday. She added that both children would be placed in the daily care of a babysitter, one Joanna Gardner, while she was at work.
I had been working the better part of the previous year, but had become unemployed and had also become extremely concerned about the people, decisions, behavior, and overall safety surrounding my two children while in the primary custody of Ms. Williams, her boyfriend Marcus Boesch, and their “friends”. I was to stay as close as I legally could to my children with their safety in mind.
Joanna Gardner was a 23-year old neighbor of and already occasional babysitter for Ms. Williams and her new boyfriend, Markus Boesch. I would find out months later, through a neighborhood watch participant, and a trip downtown to the criminal court building that Ms. Gardner was a in fact a drug addict, felon, and had a criminal record along with outstanding warrants[see C.T. pg. 59; see C.T Augment II pg. 51 line 11]. Ms. Gardner was supposed to be hired 4/2/2007 to be the one taking my son to and from school every day(aside from my parenting time, Tues/Thurs), with my daughter in tow the entire time. One can only imagine the risk being taken in placing two children of tender years under “care” such as this, to say nothing of the “adults” that would place them in such risk.
Words don’t come close describing my gratitude for all the neighbors’ concern for the safety of my children and their willingness to come forward with information available for a complete stranger.
This is negligence and indirect abuse. Indirect abuse that would soon turn into direct abuse.
As I said, with no proof yet of Ms. Gardner’s pending issues or criminal record, and acting only out of sheer intuition, I overrode the babysitter decision of Ms. Williams and would, starting on 4/2/2007 personally provide transportation to and from school for my son and take personal care of my daughter in the interim, almost always going to the library in Santa Monica attending pre-preschool classes while Jazz was in school.
This negligence included introducing new partners into the children’s lives much too early as the P.A.C.T. Program had so clearly suggested. The program had strongly suggested parents wait at least one year before introducing any new partners, so as to provide safe emotional harbor to children of tender years(children of ages five and three, such as Jazz and Maya, can hardly be described as children of “learned, resilient years”).
Around this time in 2007, my son Jazz had been showing signs of severe emotional distress, most notably, walking into the nearest place of seclusion and defecating uncontrollably in his pants[see C.T. Augment II pg. 36 line 15], and lying enough at school to call the parents in regarding the behavior[see C.T. Augment II pg. 34]. To this day (October, 2008) he hasn’t been able to quell the internalization of the chaos bestowed upon him. Before this new living situation with his mother, he was perfectly potty trained and had just completed two years of preschool without incident. He has not been able to quell this internalization and suffers from this trauma to this day.
I pleaded with the mother and court[see C.T. Augment II pg. 8, pg. 9 line 1] several times for consent to let me take Jazz(and Maya) to counseling as it was offered free of charge through the elementary school at the South Bay Youth Project, under the care of Terry deHavilland. My aim was to lessen both children’s emotional load. Aside from the continuous defecating, Jazz had already told me that he wished he was two people. Another occasion, Jazz was acting in defense in sending my daughter into the living room(while he was in the bathtub) to strike the mother physically while she was on one of her many verbal tirades[see C.T Augment II pgs. 47, 48]. These children were in dire need of counseling- a vocabulary (vehicle for) their emotions. It was obvious that these emotions were getting the best of my son and it would be counterproductive to prevention not to have Maya participate as well. She would need it.
The mother, after many of my requests, would not consent to the kids being counseled. She said she thought they didn’t need it. The situation (Jazz’s comments, actions, and defecating) was in no way anything short of an emergency. I told the mother I was taking the children to counseling. I was charged by respondent/plaintiff/mother’s counsel, Roy Kight with contempt of court on February 28th, 2007[see C.T. Augment II pg. 13]. That request was granted by Judge Cowan[see C.T. Augment I pg. 1]. I asked the mother over the phone to please drop the charges as the kids, especially Jazz, are in need of the counseling. It was free through the elementary school. The request fell on deaf ears.
Judge Cowan somehow couldn’t see any “emergency” in what was happening to my son and daughter, ordered all counseling for the children stopped, and allowed the contempt charges to stand. He informed me of the quasi-criminal aspects of contempt and that I would need lawyer. He sent me on two wild goose chases. Once holding up court while I walked down the hall to use the pay phone to make an appointment for a public defender at the Airport Courthouse. Then, I drove all the way down to the Airport Courthouse to acquire this public defender only to be turned away [see C.T. Augment II pg. 21]. He himself, Commissioner David J. Cowan, was the very one who should have appointed me counsel. Bayliff Jefferson would whisper in my ear in the courtroom hallway, after the fiasco, “He’s new”.
After receiving a public defender, and contempt charges were finally dropped, I received a letter from the mother consenting to Jazz and Maya’s counseling. Months of litigation negating counseling for the children in the interim is nothing short of a complete abuse of discretion by the court. This was only the start of what would be a consistent pattern of such an abuse.
On July 25th, 2007, my daughter Maya, while under my instruction to not let any strangers “touch” her private parts, disclosed to me the fact that the mother’s new boyfriend, Markus Boesch, “touches her pee-pee”. The prior week and for a couple of weeks to follow, Maya would be urinating uncontrollably in public. She never had shown any of these symptoms after having been completely potty trained for at last a year up to this point. The following morning, during an exchange of the children with the mother, I let the mother know what Maya had shared with me the night before, that it was, as understated as it could be, “not appropriate”, and I would be contacting the proper authorities. The mother proceeded to scream “you lied” at my daughter, numerous times, adding that I was just mad she had a boyfriend. My daughter had just told me the night before what no father wants to ever hear. I don’t know how these two adults would come near the concern I had for my daughter, a defenseless child. Ms. Williams drove off furious and with both children terrified. The tirade must have continued for two hours or so because when I received a phone call from the mother and, upon my answering this call, I heard a quite audible instruction, “Tell him you lied”. Maya took the phone. “I lied Daddy.” I let my daughter know she need not worry, and that I loved her. I went to my social services caseworker, Barbara Seeler, who directed me to child protective services. The El Segundo Police Department was next. Terry deHavilland, the children’s active counselor, accompanied me to the El Segundo Police Department to make my report.
A Detective Mulroney[see C.T. Augment II pgs. 2-4 ] was assigned to the investigation and after interviewing the boyfriend. The detective felt the allegations were unsubstantiated. Choking on the “unsubstantiated evidence” label by his legal authority, I, at the closing of the case meeting with Det. Mulroney, informed the detective that I knew something lewd and lascivious had been taking place and although he felt that Markus Boesch didn’t fit any “profile” he needed to further his investigation, I was leaving the Police Station unconvinced that with my daughter’s statement and uncontrolled urination proved a crime beyond any reasonable doubt. Detective Mulroney seeing my obvious concern, stopped me in my departing and said, verbatim, “Listen, Mr. Duval, this guy[Markus Boesch] might get through her[your ex-wife’s] defenses, but he’s not going to get through yours.” Detective Mulroney had simply confirmed what I already knew…. that my children were not safe with their mother, yet they were safe with me. In discussing this matter and my frustration with Lt. Alex Padilla, a friend of over 35 years, and a veteran of the Santa Monica Police Department, he shared with me the unfortunate fact with investigations like this, and how difficult they are to prove with children of tender years. He added that a civil suit, like that of the O.J. trial, might be my only recourse for justice.
With these traumatic incidents bestowed upon my two children, the next few months were nothing short of complete and utter damage control. Jazz’s uncontrollable defecation was still consistent. I speak for myself as the only apparent parent and sober-minded individual acting on behalf of my children. In August, 2007, I enrolled Jazz at Roosevelt Elementary School and Maya at McKinley Head Start within the Santa Monica-Malibu Unified School District. My time now spent with the children was well over 50 percent of the time. On August 30th, 2007, court proceedings allowed for a divorce agreement to be signed by both parents [see C.T. Augment I pgs. 15-26]. Judge Cowan, for some unknown reason, would only assess that the children were being shared 50/50[see C.T. Augment II pg. 11], even though it was 80% of the time with me, including overnights mostly with me, and 20% with Ms. Williams, few overnights. Disso Master numbers[see C.T. Augment II pg. 25] were run at the trial with the errant 50/50 equation, and found in favor of Ms. Williams, who was fully employed, having to pay me $547.00/month. Somehow Judge Cowan, for some unknown reason found it only necessary that Ms. Williams pay $200.00 of the figure. I stood dumfounded. I was doing everything a parent should for these children: food, shelter, clothing, cleaning, transportation, medical, parenting for the next six months, until February 7th, 2008- Ms. Williams, with my consent, would have visits Tues/Thurs afternoons 3:30-6:30pm and every other weekend 8am-6pm both days. Her visitation was not court-ordered. I was to receive county assistance in cash, food stamps, and health care as well. When the school year commenced, September ’07, all overnights were with me, the father. Counseling with Terry deHavilland was ceased as the drive to Torrance was geographically/timely not achievable. Gasoline prices played a role in this decision as well.
On 12/06/07, Ms. Williams signed over full custody of both children to me[see C.T. Augment II pg. 40]. Her signing over full custody was not court-ordered. For the children, all aspects of education showed superior marks. Jazz was scoring in the 93rd percentile on his district tests, Maya, in the Head Start program from 8am- 2:30pm Monday through Friday was in contact with all that any elementary school had to offer, including computer skills courses and field trips. On 12/11/07 Ms. Williams ceased child support payments as her employment was terminated. She would make no further payments to me again.
From September through December ’07, tearful requests not to have to go reside with their mother were consistent, especially with Maya. The mother even pled helplessly with me one time for me to “change their minds” when they defiantly decided to stay with Dad as opposed to be in the company of Ms. Williams and Markus Boesch. My participation as a volunteer at both schools, was consistent and plenary[see C.T. Augment II pg. 65]. Library time was every afternoon after school.
My financial situation was my only weak link in my “providing chain”. Any and all other aspects of parenting were completely fulfilled and arguably surpassed.
In early January 2008, with the subsequent need for the children to re-enter counseling, I started intake formalities at the Saint John Child Development Center in Santa Monica. I would wait or the January 16th, 2008 hearings to proceed ahead legally with more overdue counseling.
On January 16th, 2008. Commissioner David J. Cowan was stipulated by one attorney and two parties present to preside over case #023 958. In pro per, I had no idea that a judicial change could be requested. I was not given any formal reason (verbal or written document) as to even why the change was taking place- why Judge Tillmon was not presiding further.
On this day, with a stable, consistent, unwavering schedule being strictly adhered to, since the beginning of the school year, Judge David J. Cowan for some apparent reason felt the need to uproot the children, change the custody arrangement again, place them in need of a 30-minute daily drive to and from school, disregard all the negligent behavior by the mother, and place them in a nothing short of unsavory home with an alleged child molester. It took this appeal to get the evidence of the mother’s babysitter’s criminal record put into the case file as Judge Cowan, in court, just handed the copy of the record back to me after merely glancing at it. I argued that Detective Mulroney had commented about the boyfriend’s danger to the safety of the children. Judge Cowan, after a painfully pregnant pause, then appointed a Minors Council, Amy L. Nieman. The court proceeding was continued to February 7th, 2008, after Ms. Nieman could perform her interviews. Until that day, the children would stay with me and the schedule would remain the same. I was also threatened physically this day in court(for the second time) by Ms. Williams’ attorney Roy Kight[see C.T. Augment II pg. 58; see C.R. partial transcript pg.5, line 8- pg.6 line 27]. That matter has been sent to the California Supreme Court for review/investigation [case #08-15788].
On February 7th, 2008, Minors Council Amy L. Nieman, seemingly unconcerned with the children’s emotional state, and after two brief interviews to assess over eighteen months of abhorrent actions by my ex-wife(and her friends) decided to deliver an unfavorable report, regarding my RV as the basis for destabilizing the children. Not only would she advise uprooting the children via custodial change, recommend possibly changing schools, and she would go as far as saying, in court, that the love I have for my children is only a manifestation out of the hate I harbor for my ex-wife. My time with the children would be shortened to two visits per week. One weekday from 3 -6:30pm, and on Sunday from 9am- 1pm. Parenting Without Conflict Seminars were ordered to be attended by both parents. Both parents complied with the order. This drastic change ordered by the court signified one more dose of trauma through destabilization and inconsistency. These orders completely demolished and are in direct conflict with the two most necessary elements of children of tender years: stabilization and consistency. Thank God the children were to recommence, per the court, counseling at the Saint John’s Child Development Center. It would not be presumptuous to declare the children in need of counseling simply because of this court’s 2/7/08 ruling.
“The child whose custody was established by means other than judicial decree has the same need for and right to stability and continuity.” [conc. opn. J. Broussard, Burchard v. Garay (1986) 42 Cal. 3d 531;229 Cal. Rptr. 800, 724 P.2d 486]
Numerous phone calls to Amy L. Nieman(ph # 310-575-5555), two on February 8th, three on February 11th, one on February 15th, and three on February 21st[see C.T. pgs. 21-26] regarding my concern over the disruptive nature of the 2/07/08 order and in an attempt to balance out the chaos that was ensuing, and the precious parenting time that was being “stolen” for lack of a better term. In telling Ms. Nieman I was going to go back to court ex-parte for a more balanced schedule, she would reply, “The judge will probably side with YOU.”
My peremptory challenge was addressed at the 4/11/08 hearing [see C.T. pg. 50]. On that day, Judge Cowan denied the peremptory challenge as untimely and without reason [see C.T. pg. 50]. He was answering the affidavit of prejudice[see C.T. Augment I pg. 37]. The front page of the affidavit states clearly that “The judicial officer named above….. is prejudice against the party…… so that the declarant cannot, or believes that he or she cannot have a fair and impartial trial.” If that isn’t a “reason” I don’t know where else one might be drummed up. [See Canon 6(D)(3)(vii)(C){Canons of Judicial Ethics}] Filing the 170.6 peremptory challenge was timely as I had just learned at the Law Offices of Levitt and Quinn(for a $ 60.00 consultation fee) that such a document could be filed as my right of due process. They could not provide my dire needs for pro bono counsel, only make suggestion.
On Wednesday, March 12th, 2008, at 10:17am I phoned Ms. Nieman [see C.T. pg. 34] to request more parenting time during the two week Spring Break Vacation that started the following Monday the 17th. The phone call to Ms. Nieman was prompted by that morning’s conversation where respondent/plaintiff/mother Tammy Williams’ desire not to comply with the conciliation agreement/divorce judgment regarding holiday/vacation schedules that are clearly stated as taking precedence over regular schedules. Vacation Schedules are to be split and Ms. Williams knowledge of this is clear. On December 19th 2006, Ms. Williams provided me with a letter stating her knowledge of the custody agreement[see C.T. Augment II pg. 42]. On January 29th, 2007 in a letter written by her, she states her knowledge of the conciliation agreement and divorce judgment[see C.T. Augment II pg. 20]. Her attorney also is aware of the letter as he mentioned it in his O.S.C. filed 2/28/07[see C.T. Augment II pg. 18 line 23]. Ms. Nieman said she felt that I should get more time, but added, “if you think you’re getting overnights, you’re crazy.” She said she would talk to Tammy and get back to me.
On Friday, March 14th, 2008, I was volunteering at the Roosevelt Elementary BBQ where Ms. Williams would be picking up the kids after school. Ms. Williams upon arrival said she had communicated earlier with Ms. Nieman, and together they had agreed on, only for the Spring Break, two additional hours for each of my visits. I received a phone call on March 17th at 5:44pm from Amy Nieman [see C.T. pg. 36]. She was brief and stern. She said clearly, “Don’t you dare mention my name in that decision about your visitation.” I just pacified her and said have a nice weekend. I filed an ex-parte notice [see C.T. Augment I pg. 33] to rectify this seemingly runaway train of injustice. At that trial, opposing council, Roy Kight, and Ms. Williams did not show up. I told the judge that this taking of my children during a vacation schedule was a quasi-abduction. She suggested I call the police. I told her I still did not know where my children lived as Ms. Williams had not disclosed their new address to me since they moved into the residence in February ’08, which is also in violation of our conciliation agreement/divorce judgment. I was told by Judge Hammer, who was sitting in pro-tem, to “get a lawyer.”
I, appellant/defendant/father, adhered to the two hour addition to the existing two visits per week in complete protest, as I have strictly adhered to all orders in these proceedings.
On March 24th, 2008, a Monday the first day back to school after Spring Break, Jazz and Maya did not show up at their respective schools. Their mother failed as well to call them in absent, as was the operating procedure for Jazz’s elementary school. I also had received no notification from her of any illnesses or pending absence. I had just been with the children the day before, Sunday, March 23rd on my regularly scheduled parenting time. After waiting at the school for about 30 minutes, I phoned the mother(ph. # 310-387-9632) on Tuesday, March 25th at 8:46am[see C.T. pg. 41] and received no return phone call, and none throughout the day. Same scenario would take place that evening on my usual phone call before bedtime. No return calls. Same scenario would take place the following morning, 3/26/08[see C.T. pg. 43], and in the afternoon as well.
The afternoon of 3/25/08 at Jazz’s Roosevelt Elementary School, I would meet Jon Keane, president of the Roosevelt P.T.A., just outside the school gate. I told him of my plight. He mentioned that Bela, who works the front administration office, could call the mother for me to find out what, if anything, was happening. Bela would go to the school’s computer and reveal to me an email(though not giving me a copy per school policy) from the mother from earlier in the day, requesting all of Jazz’s school transcripts as he was being un-enrolled at Roosevelt and now being enrolled at Center Street Elementary in El Segundo. This was being done without my consent and in complete violation of our joint legal custodial agreement.
On April 2nd, 2008, a hearing started to address an Order to Show Cause that had been filed by me on 2/25/08 . I had improperly served those papers, and the hearing was continued until 4/17/08, after proper service was made. Not being an attorney has hindered my ability to protect my children. The courts are the only way, through peaceful means, to achieve this protection, given it is a safe place to do so.
On April 3rd, 2008, I called an ex-parte hearing regarding no consent given by father for school change[see C.T. pg. 3].
On this day, Ms. Williams appears in court without her council, Roy Kight. Judge Cowan is informed about the children’s removal from their respective schools, without their father’s consent, and are, in effect, “still on Spring Break Vacation”. Ms. Williams admitted this fact. Judge Cowan informed her of the contemptuous nature of these acts. She acknowledged, yet contended she was unaware of the contemptuousness of such acts. The facts show he was fully aware of our conciliatory agreement. On December 19th 2006, Ms. Williams provided me with a letter stating her knowledge of the custody agreement[see C.T. Augment II pg. 42]. On January 29th, 2007 in a letter written by her, she states her knowledge of the conciliation agreement and divorce judgment[see C.T. Augment II pg. 20]. Her attorney also is aware of the letter as he mentioned her giving it to me in his O.S.C. filed 2/28/07[see C.T. Augment II pg. 18 line 23].. Ms. Williams claimed her attorney was out of town and acted on her own accord. Judge Cowan, with knowledge of all these disruptions that had plagued these children of tender years is looking directly at yet another complete disruption. Rather than put the children’s best interest first and foremost, and demand the return of the children back into their schools, where they had already completed seventy-five percent of the year with almost perfect attendance, Judge Cowan saw it fit to wait for Roy Kight to return from out of town the following week and “see what he has to say”. Court was continued until the following Monday, April 7, 2008. The children were to remain out of school while school was in full commencement.
On this day, April 7, 2008 [see C.T. Augment I pg. 36], all parties are present. The Court deems the mother’s actions acceptable and that the children were to finish the last part of the school year in El Segundo. Mother states that it would be another two weeks or so until Jazz starts his completion of first grade. Judge Cowan allows this as well. Jazz would end up having a four week ’08 Spring Break Vacation this year. Maya, who was a full-time student in the Head Start Program, would not even return to school that semester. This was done also without the father’s consent.
On April 11th, I filed an Affidavit of Prejudice[see C.T. Augment I pg. 37].
My peremptory challenge was addressed at the 4/11/08 hearing [see C.T. pg. 50]. On that day, Judge Cowan denied the peremptory challenge as untimely and without reason [see C.T. pg. 50]. He was answering the affidavit of prejudice[see C.T. Augment I pg. 37]. The front page of the affidavit states clearly that “The judicial officer named above….. is prejudice against the party…… so that the declarant cannot, or believes that he or she cannot have a fair and impartial trial.” If that isn’t a “reason” I don’t know where else one might be drummed up. [See Canon 6(D)(3)(vii)(C){Canons of Judicial Ethics} pg. 34 this appeal]. Filing the 170.6 peremptory challenge was timely as I had just learned at the Law Offices of Levitt and Quinn(for a $ 60.00 consultation fee) that such a document could be filed as my right of due process. They could not provide my dire needs for pro bono counsel, only make suggestion.
Code of Civil Procedure Section 170.3(c)(1) states “If a judge who should disqualify himself or herself refuses or fails to do so, any party may file with the clerk a written verified statement objecting to the hearing or trial before the judge and setting forth the facts constituting the grounds for disqualification of the judge. The statement should be presented at the earliest practicable opportunity after discovery of the facts constituting the grounds for disqualification.”
In Schorr v. Superior Court (1980) 105 Cal. App. 3d 568, 164 Cal. Rptr. 478 “….. the commissioner denied the motion as being without basis and untimely…… the court[of appeals] held that the husband’s challenge was timely made as it was made at the end of the[a] conference at which the husband could have learned the disqualifying facts and therefore was made at the earliest practicable opportunity after discovery of those facts.” in Mayr v. Superior Court (1964) 228 Cal. App. 2d 60, 64, 39 Cal. Rptr. 240 “….It[the court of appeal] concluded that the motion was timely, was properly made, and should have been granted and stated that if a party moves as expeditiously as possible….. the motion is timely under both the spirit and letter of Code of Civil Procedure Section 170.6.”
On April 14th, I filed this appeal regarding the April 11th decision that denied the peremptory challenge.
Statement of Appealability
The order after judgment appealed from is appealable under Code of Civil Procedure Section 904.1(a)(2).
An order after judgment denying sanctions is appealable pursuant to Section 904.1(a)(2) because it is a final determination of the rights and liabilities of the parties arising from the judgment and is not preliminary to some future judgment from which the order may be appealed.[Day v. Collingwood (2006) 144 CA4th 1116, 1123, 50 CR3rd 903, 908(denial of CCP Section 128.7 sanctions after judgment of dismissal); Shelton v. Rancho Mortg. & Invest. Corp. (2002) 94 CA4th 1337, 1345, 115CR2d 82, 88 (denial of sanctions under former CCP Section 128.5); Marriage of Dupre (2005) 127 CA4th 1517,1524-1525, 26 CR3d 328, 333-334(denial of Family Code Section 3027.1 sanctions)]
Argument
What has transpired so far in case SD 023 958 in the Superior Court of California, County of Los Angeles, West District at 1725 Main Street, Santa Monica, CA, 90405, is nothing short of a blatant abuse of discretion and prejudicial error. This abuse is a direct result bias and judicial error. The Honorable Commissioner David J. Cowan, judge pro tem, the court-appointed Minors Council, Amy L. Nieman, respondent/plaintiff/mother, Tammy L. Williams, and her attorney, Roy L. Kight, Esq. have all displayed a complete and utter disregard for basic law, signed court agreements and judgments, the Judicial Code of Ethics, the Business and Professional Code, the California Code of Professional Conduct, and most destructive and perseverant of all these, the harm being done to the emotional and physical well-being of children of tender years. These being my, Damon A. Duval’s children, Jazz(born 09/28/2001) and Maya(born 12/21/2003. My peremptory challenge was both timely and with reason under both the spirit and letter of Code of Civil Procedure Section 170.6.
Code of Civil Procedure Section 170.3(c)(1) states “If a judge who should disqualify himself or herself refuses or fails to do so, any party may file with the clerk a written verified statement objecting to the hearing or trial before the judge and setting forth the facts constituting the grounds for disqualification of the judge. The statement should be presented at the earliest practicable opportunity after discovery of the facts constituting the grounds for disqualification.”
In Schorr v. Superior Court (1980) 105 Cal. App. 3d 568, 164 Cal. Rptr. 478 “….. the commissioner denied the motion as being without basis and untimely…… the court[of appeals] held that the husband’s challenge was timely made as it was made at the end of the[a] conference at which the husband could have learned the disqualifying facts and therefore was made at the earliest practicable opportunity after discovery of those facts.” in Mayr v. Superior Court (1964) 228 Cal. App. 2d 60, 64, 39 Cal. Rptr. 240 “….It[the court of appeal] concluded that the motion was timely, was properly made, and should have been granted and stated that if a party moves as expeditiously as possible….. the motion is timely under both the spirit and letter of Code of Civil Procedure Section 170.6.”
Judge Cowan should have recused himself at my request along with minor’s council, Amy L. Nieman, and let someone of legitimate standing take the bench and re-appoint a new minors council. Roy Kight should have had sanctions imposed as a result of his threats. In this lesser light, their conduct has turned the integrity of our great court system into what is commonly described as a “Kangaroo Court” or “Drumhead Trial”. With all due respect to resilient “adults”, the harm that may be bestowed upon children of tender years by such malfeasant orders is easily beyond an inept court’s scope of awareness.
This court has not been confronted with a situation with one immoral act, but with a continuous course of unmoral if not immoral conduct.
On November 26th, 2006 Ms. Williams personally issued me an order, through her attorney, telling me exactly when and how I should contact my children[see C.T. Augment II pg. 35] that was filed in an O.S.C. by me on 12/11/07[see C.T. Augment II page 44].
The incontrovertible evidence is unquestionably sufficient enough to show this abuse of discretion, prove the substantial emotional injury sustained by this father and two children, and allow the higher courts to apply the proper punishment, and restore and uphold the integrity of the United States Court.
Roy Kight’s physical threat, in court, asserting that he “hasn’t hit me yet”[see C.R. partial transcript pg.5, line 8- pg.6 line 27], just after admitting a prior similar threat eight months before just outside the courtroom door, and Comm. Cowan’s denial of sanctions, inability to uphold the court’s legitimacy, weren’t remote incidents.
I took the action of placing a restraining order on Mr. Kight, but without the witness, Comm. David J. Cowan, the case got dismissed by Judge Rosenberg . On 2/21/08, A subpoena had been issued for Judge Cowan’s written statement and/or personal appearance and I never heard back . He was a no-show at the hearing. Perhaps I failed to serve the subpoena, as I thought simply filing it with the clerk and it being placed in his file was sufficient enough to get it to the judge. It says “issued” on the front. It states on my filed subpoena that the issuing person was Julia Rojas. I am not an attorney, just a father in due diligence fighting for the safety of his two children. I have since been handed a $ 5,215.00 bill for Mr. Kight’s legal fees for the dismissed case # SS 016 418. I, and my two children, are the ones being punished and harassed. I an innocent victim of two physical threats, one right in the presence of Judge Cowan, the other admitted to, the subsequent prejudicial error, and I now have to pay for trying to achieve a legitimate level of safety and excellence within the court? Rules of professional conduct are intended not only to establish ethical standards for membership of the bar but also designed to protect the public.[Ames v. State Bar (1973) 106 Cal. Rptr. 489, 8 Cal. 3d 910, 506 P.2d 625]. I don’t know how any sentient, reasonable being would or could cite direct contempt, harassment, intimidation, and now financial parasitism by officers of the court any other way.
Am I to be at fault for not being educated as a lawyer, and watch my children suffer? Here is where I pray for relief from the Appellate Court.
I feel the opposing side led by Roy Kight and enabled by Judge David J. Cowan was retaliatory and punitive in nature by having a six month restraining order placed on me June 6th, 2008, restricting all my contact with my children(even negating contact by phone with their teachers in their respective schools), and limiting my phone contact with the children to between 7pm and & 7:10pm only on the days I don’t visit them. There is no history of violence from me as husband or father[see C.T. Augment II pg. 68].
Roy Kight’s threats[see C.T. Augment II pg. 58], Judge Cowan’s non-sanctioning response to them, along with Judge Cowan’s disregarding the subpoena are willful breaches of Business and Professional Code Section 6077: ” To establish a willful breach of rule of professional conduct, it must be demonstrated that person charged acted or omitted to act purposely, that is, that he knew that he intended either to commit act or abstain fro committing it.” [Millsberg v. State Bar (1971) 98Cal. Rptr. 223, 490 P.2d 543, 6 Cal. 3d 65; Zitny v. State Bar of Cal. (1966) 51 Cal. Rptr. 825, 415 P.2d 521, 64 Cal. 2d 787].
In West’s Annotated California Codes Court Rules, Rules of Professional Conduct, Rule 1-100 note 6, “Attorneys must conform to professional standards in whatever capacity they are acting in a particular manner.”[Crawford v. State Bar of Cal. (1960) 7 Cal. Rptr. 746, 54 Cal 2d 659; 355 P. 2d 490]. “One who is licensed to practice as an attorney must conform to professional standards in whatever capacity he may be acting in a particular matter. [Alkow v. State Bar of Cal. (1952) 38 Cal. 2d 257; 239 P. 2d 871].
“The ethical standards of the legal profession demand the ostracism of its ranks any member who has proven himself unworthy to be a member.”[Glenn v. State Bar (1939) 14 Cal. 2d 318, 94 P.2d 43].
Rule 1-120 Rules of Professional Conduct- Attorneys and State Bar- Assisting, Soliciting, or Inducing Violations: “A member shall not knowingly assist in, solicit, or induce any violation of these rules or the State Bar Act.”
“If an attorney admitted to practice in state courts commits acts in reference to federal court litigation which reflect on his integrity and fitness to enjoy rights and privileges of an attorney in state courts, proceedings may be taken against him in state court.” [Geibel v. State Bar of Cal. (1938) 11 Cal. 2d 412, 79 P.2d 1073, certiorari denied 59 S.Ct. 248, 305 U.S. 653, 83 L.Ed. 423, rehearing denied 59 S.Ct. 361, 305 U.S. 676, 83 L.Ed. 438, motion to set aside judgment denied 14 Cal.2d 144, 93 P.2d 97].
In The Code of Judicial Ethics it is written:
Rule 1-710: A member who is serving as a temporary judge, referee, or court-appointed arbitrator, and is subject under the Code of Judicial Ethics to Canon 6D, shall comply with the terms of that canon.
Canon 6(D): A temporary judge, a person serving as a referee pursuant to Code of Civil Procedure Section 638 or 639, or a court-appointed arbitrator shall comply only with the following Code provisions:
Canon 1:[integrity and independence of the judiciary]
Canon 6(A): Anyone who is an officer of the state judicial system and who performs judicial functions, including, but not limited to, a subordinate judicial officer, magistrate, court-appointed arbitrator, judge of the State Bar Court, temporary Judge, and special master, is a judge within the meaning of this Code.
Canon 6(D)(3) A temporary judge shall, from the time of notice and acceptance of appointment until termination of the appointment, disqualify himself or herself in any proceeding as follows:
(vii) for any reason:
(A) the temporary judge believes his or her recusal would further the interests of justice;
(B) the temporary judge believes there is a substantial doubt as to his or her capacity to be impartial; or
(C) a person[see C.T. Augment II pg. 68] aware of the facts might reasonably entertain a doubt that the temporary judge would be able to be impartial. Bias or prejudice toward an attorney in the proceeding may be grounds for disqualification.
Canon 3(B)(4)[patient, dignified, and courteous treatment]
(6)[require lawyers to refrain from manifestations of any form of bias or prejudice]
Canon 3(c)(2): A judge shall require “staff and personnel” under the judge’s direction and control to observe appropriate standards of conduct and to refrain from manifesting bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status in the performance of their official duties.
Canon 3(c)(5): A judge shall perform administrative duties without bias or prejudice. A judge shall not, in the performance of administrative duties, engage in speech, gestures, or other conduct that would reasonably be perceived as 1) bias or prejudice, including but not limited to bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status, or 2) sexual harassment.
Canon 3(D)(2): Whenever a judge has personal knowledge that a lawyer has violated any provisions of the Rules of Professional Conduct, the judge shall take appropriate action.
Custody of the two children, Jazz and Maya, were given back to the mother on February 7, 2008, one of many malfeasant opinions and suggestions by Minors Council, Amy L. Nieman and concurred by Comm. Cowan After months of stability and continuity in the full custody of their father[see C.T Augment II pg. 40]. That custody had actually started in the summer of 2007, after the mother’s boyfriend was accused by my daughter of touching her inappropriately (genitals). The El Segundo Police Dept. and Child Protective Services (reports made by both and filed with the court) were immediately notified by me. In the 2/7/08 proceedings, Ms. Nieman stated that “the love Mr. Duval has for his children is derived out of the hate he harbors for his ex-wife.” She interviewed both parties, and was well aware that my now ex-wife had left the marriage in the middle of a move, children in tow, while we were traveling in a 22 foot RV that was purchased by both of us. Ms. Nieman made it clear that just because I lived in the RV (I had nowhere else to go) was cause for her decision. I wish I could afford to provide the reporter’s transcript. Therein it lies.
“The issue in a case such as this is not the condition of the home but in the fitness of the parents to supervise the care, custody, and control of the child[children] and what is in the best interest of the child [children]. [Prouty v. Prouty (1940) 16 Cal 2d 190,195; 105 P. 2d 295 Civil Code Sections 84, 138 subd.1].
It seems that Comm. Cowan and Minors Council, Amy L. Nieman, have been “narrowly” guided in scope by Civil Code Section 138 subdivision 2 which requires that “other things being equal” if the child[children] is of tender years, custody of the child should be given to the mother.
“Our opinion first noted that the statutory preference for maternal custody of a child of tender years has been repealed. Under Civil Code section 4600, the sole concern, as it should be, is the best interest of the child. That issue, we observed arose here in a “special way” (ibid.), for there had been no prior court order, Ellen[Tammy] was in effect asking for a change in an established mode of custody to which she had agreed. We therefore inquired whether Wiliam’s[Damon’s] handicap represented a change in circumstances sufficient to justify a change in custody.”(Opn. J. Broussard, Burchard v. Garay 42 Cal.3d 531; 229 Cal. Rptr. 800, 724 P.2d 486).
The 2/07/08 decision was judicially erroneous and severely bias. This decision was so blatant an abuse of discretion that I, the father and my two children have suffered substantial emotional injury. If absent this reprehensible judicial error, the three of us would have obtained a more favorable result.
In the concurring opinion by C.J. Bird in Burchard v. Garay 42 Cal.3d 531; 229 Cal. Rptr. 800, 724 P.2d 486: “Stability, continuity, and a loving relationship are the most important criteria for determining the best interests of the child. (Maj. opn., ante, at pp. 538, 541). Implicit in this premise is the recognition that existing emotional bonds between parent and child are the first consideration in any best-interests determination…….. This view rests on outmoded notions of a woman’s role in our society….. this presumption is seldom, if ever, applied even handedly to fathers. The result- no one would take an unbiased look at the amount and quality of parental attention which the child was receiving from each parent.”
On March 24th, 2008, completely aware of our joint legal custody status, plaintiff/respondent/mother in complete defiance of two signed court orders (a Conciliation Agreement and a Divorce Judgment) and without my consent, pulled the children out of school, hid out for two days without allowing any contact. She re-enrolled one of the children, my son, Jazz, back in school in El Segundo. Also without my consent, the younger child, Maya, 4 yrs., never even completed her very first year of preschool. Both children, having had near perfect attendance, had completed 3/4 of their respective school years in the Santa Monica Malibu Unified School District.
“Averment in contempt affidavit, that custodial parent [mother] “removed the children from the state [school that they were enrolled in] without my knowledge or consent and with the intent of preventing the exercise of my visitation and communication rights with the minor children is allegation of fact… not mere conclusion.” [Rosin v. Sup. Ct.(1960) 181 Cal. App. 2d 486, 490 5 Cal. Rptr. 42].
Had the children been allowed to stay at their schools, undisturbed, the consistency and stability provided by their father over the last eight months would have achieved a continuity so stressed by any program for any child of tender years, and was stringently done so in both court-appointed programs(Parents And Children Together, P.A.C.T., and Parenting Without Conflict), attended by both parents.
However, this malfeasant decision was based on the three officers of the court’s determined intention of depriving myself, the children’s biological father, of the pleasure and of the company and necessary parental association with my two children. In defiance of signed orders and integrity out the window, the Superior Court allowed my children to be put unnecessarily in yet another emotionally compromising situation. My son, Jazz, still to this day cannot hold his bowels. This has been completely documented with counselors sought by the father throughout the past eighteen months. My daughter, Maya, uncontrollably urinated all over herself during a two-three week period when the mother’s boyfriend was accused of the fondling. She had spent months not wanting to go back in the care of the mother, hence the mother’s formal written release (after five months of continuity and stability) giving custody to me.
As if the destructive and punitive nature of all these decisions wasn’t enough for the misguided trio, it was seen fit by the court to place a six month restraining order on me from the beginning of June through December(2008). There has never been any threat of violence by myself towards the ex-wife or my children[see C.T. Augment II pg.68]. This restraining order kept me completely away from every aspect of my children’s educational process, not even being able to so much as contact the schools in which they are enrolled. I would miss my son’s first grade graduation in June of 2008. I still to this day do not know where my two children reside with their mother and the boyfriend.
In propria persona, not adroit in the Superior Court’s formalities, I made mistakes in filing, serving, not filing, and perhaps serving improperly. These were all done in good faith and pale in comparison to the negligence and abuse of discretion I have documented and presented here in this brief. This should not be held as a handicap in the wake of such injustices.
In deciding a matter so vital to the welfare and emotional stability of children it is imperative that the trial court, in order to make as wise decision as possible, should have as complete a picture of the whole background as possible, all of which would aid the court, if remaining true to set rules, in determining the probabilities of either parent meeting the basic needs for a balanced existence for the children. It may be that if some of the factors are missing or conveniently overlooked, the trial court may not arrive at the best decision.
“To be entrusted with the rearing of children a mother[parent] should be possessed of such character and conduct that by the force of his/her example he/she can train them in the paths of morality, righteousness, and rectitude.” [Currin v. Currin 125 Cal. App. 2d 644; 271 P. 2d 61 (in accord with Kelly v. Kelly 173 Cal. App. 2d 469, 474; 343 P. 2d 391)].
“Contemporary psychology confirms what wise families have perhaps always known- that the essence of parenting is not to be found in the harried rounds of daily carpooling endemic to modern suburban life, or even in the doggedly dutiful acts of togetherness committed every weekend by well-meaning fathers and mothers across America. Rather its essence lies in the ethical, emotional, and intellectual guidance the parent gives to the child throughout his/her formative years, and often beyond. The source of this guidance is the adult’s own experience of life; its motive power is parental love and concern for the child’s well-being; and its teachings deal with such fundamental matters as the child’s feelings about his/herself, relationships with others, system of values, standards of conduct, and goals and priorities in life.” [J. Mosk op. p739, in re: Marriage of Carney 24 Cal.3d 725; 157 Cal. Rptr. 383, 598 P.2d 36]. My capacity to parent was in no way related to a handicap- a 22 ft. RV. “In such matters, a handicap may well be an asset…. few can pass through the crucible of a handicap without learning enduring lessons in patience and tolerance.” [J. Mosk op. p739, in re: Marriage of Carney 24 Cal.3d 725; 157 Cal. Rptr. 383, 598 P.2d 36].
Custody change, putting the children back with the mother with a history of neglect, who fought to keep the children out of counseling, hiring(with the boyfriend) a 23 year-old babysitter who was 1) arrested with heroin pipe possession, 2) cited for driving without a license, and 3) had outstanding arrest warrants, a boyfriend accused of inappropriate fondling of a three year-old, disrupting a school year in arguably the finest public school district available is reprehensible, abominable. These are all documented and filed accounts.
“A mere recitation of the facts shows grounds for the trial court to find that the character and demeanor of the plaintiff [respondent/plaintiff/mother Tammy L. Williams] would be adverse to a proper raising of children under these circumstances.” [Santens v. Santens 180 Cal. App. 2d 809,819 4 Cal. Rptr. 635].
Conclusion
The malfeasant, punitive decisions that harmed myself and my two children will require a de novo standard of review and are appealable. My peremptory challenge was both timely and with reason under both the spirit and letter of Code of Civil Procedure Section 170.6.
I pray that the Court of Appeals will find in their review the malpractice, abuse of discretion, and prejudicial errors committed by Commissioner David J. Cowan, Minors Council, Amy L. Nieman, and Roy L. Kight, Esq. as completely unacceptable. I pray that they be held accountable for their actions by the standards set forth in the laws and codes of this so vitally necessary process.
Inarguably, the very integrity of our courts and any defenseless child of tender years depend on this check and balance. For the foregoing reasons the appellant/respondent father, Damon Anthony Duval, on behalf of his two children, Jazz and Maya, are entitled to have a reversal of judgment: Judge Cowan recused, as case authority proves my peremptory challenge was timely and with basis, all court decisions after 12/11/07 rendered moot, case #SD 023 958 reassigned, minor’s council, Amy L. Nieman removed and replaced, with the possibility of a guardian ad litem being appointed to oversee the newly appointed minors council, and sanctions imposed on/or the disbarment of Roy L. Kight, Esq. Respondent/plaintiff/mother, Tammy L. Williams, to be held in contempt of court and my children to be returned to their original Santa Monica- Malibu Unified School District schedules, and compensation provided to appellant/respondent/father Damon A. Duval, in need of funds, tirelessly working the last nine months in pro per, preparing this brief, and all other court related processes and expenses. My fee waiver application clearly states my lack of funds. In Smith v. Smith (1953) 120 Cal. App. 2d 474;261 P.2d 567; 1953 Cal. App. LEXIS 1963, it states….”We find that appellant is in need of funds……… We think that a fee of $ 350.00 for services to date is reasonable. It is impractical to fix future fees at the present time. The court will retain jurisdiction to fix, if necessary, future fees, and to make an award of costs.”
I have transposed the $ 350.00 fee through an inflation index using a loaf of bread (16 cents) and a U.S. Postage Stamp (3 cents) at 1953 prices. The averaged increase for these base items (2008 prices- bread: 3.20 per loaf; stamp: .42) is at 17 times the 1953 price. 350 x 17= $ 5950.00. The $ 347.00 per month reduction that should have been honored at the 8/30/07 trial per the 8/30/07 Disso Master equation [see doc. filed 11/15/07] to be reimbursed to the father as the children were in my care from September 2007 through February 7th, 2008. Five months at 347/mo= 1735.00. 5950+ 1735= $ 7685.00. This amount in no way takes into any account and cannot possibly measure the emotional damage inflicted upon myself, and my two children.
Article VI 4b, of the United States Constitution grants to Appellate Courts not only the power to issue prerogative writs but also “the power to issue…. all other writs necessary or proper to the complete exercise of their appellate jurisdiction.”
This verified accusation is against above named officers of the court pursuant to California Rules of Court, rule 9.13 subsections (d) through (f).
I swear, under oath this appellate brief to be the Truth, the whole Truth, and nothing but the Truth, so help me God.
Date:
__________________
Signed: ____________________________
Damon Duval in propria persona
Certificate of Compliance
Pursuant to rule 8.204(c) of the California Rules of Court, I hereby certify that this brief contains __________ words, including footnotes. In making this certification, I have relied on the word count of my “Micosoft Word” computer program used to prepare this brief.
By______________________________
