Filed 6/14/16 J.M. v. L.H. CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
     publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
                               publication or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



J.M.,

         Plaintiff and Respondent,                                      E061742

v.                                                                      (Super.Ct.No. TED006074)

L.H.,                                                                   OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Bradley O. Snell,

Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

         L.H., in pro. per., for Defendant and Appellant.

         No appearance for Plaintiff and Respondent.

         On July 15, 2015, defendant and appellant L.H. (Mother) was granted sole legal

and physical custody of the daughter (Daughter) she shares with plaintiff and

respondent J.M. (Father). Mother contends the family court violated her rights of due

process on (1) August 1, 2014, because the court was biased against Mother and

because the court did not provide Mother sufficient time to present her evidence; and

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(2) March 20, 2015, when the family court denied Mother’s request for an evidentiary

hearing. We affirm the judgments.

                    FACTUAL AND PROCEDURAL HISTORY

       A.     AUGUST 1, 2014

       On March 28, 2014, the family court held a trial on Mother’s request to modify

child custody. The trial began at approximately 9:30 a.m. and continued until 4:20 p.m.

on that day. Mother called four witnesses who testified. The court calendared the

second day of trial for August 1, so Daughter could be present and be questioned.

       On April 25, the family court held a hearing concerning modifying the August 1

trial date. The court scheduled Daughter’s interview for July 29, but kept the August 1

date on calendar. The time estimate for August 1 was three hours.

       On July 29, the second day of trial commenced at 1:55 p.m. Father, who had

been testifying when trial adjourned on March 28, resumed his testimony. The Child

Custody Recommendation Counselor, who interviewed Daughter, also testified. The

trial adjourned at 4:19 p.m.

       On August 1, the third day of trial commenced at 9:21 a.m. Mother testified.

Father was recalled and again testified. The family court denied Mother’s request to

modify child custody because the court found there was not a change of circumstances.

In regard to visitation, the court explained it did not “have time right now to truly work

over the significant changes to the current order,” but agreed that modifying the

visitation order to provide greater flexibility “makes sense.” The court set the visitation

issue for a review hearing on October 6.


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       B.     MARCH 20, 2015

       On March 20, 2015, the family court held a hearing on two issues. First, the

court addressed child support arrears. Father was sworn-in as a witness and provided

testimony about the arrears. The family court considered an audit by the Department of

Child Support Services, which included an arrears breakdown, and marked it as Exhibit

1.

       Mother had two volumes of exhibits that “involve[d] transcripts and . . . much of

the history of this case.” Mother explained that the arrears were problematic because

she should not have lost custody of Daughter. Mother asserted she only lost custody of

Daughter because she was falsely accused of abusing Daughter. Mother argued, “I lost

custody because they said that I abused her, that she was—it’s all here in the transcripts.

Nobody has ever given me my day in court.” The court responded, “You’ve had plenty

of days in court, and you’ve exhausted your appeals.” Mother had previously been

designated a vexatious litigant. Mother said that, in 2007, “[i]t took [her] 13 months to

get back into court” after Daughter was removed.

       The family court responded, “You’ve been fighting the system for years. And I

know you feel like you’ve been victimized. And I know you don’t want to accept that

the decisions that were made back then were, in the eyes of the court, the right

decisions. You might find discrepancies that you feel like prove what you’re trying to

say. But the reality is, sitting here today, on March 20th, 2015, everything that’s

happened before was done the right way. All right? I can’t go back and consider it

differently, so I’m not going to.”


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       Mother said to the court, “But the rulings are not right.” Mother continued, “I’ve

lost everything because I was accused of domestic violence. Why can’t I address that?”

The family court responded, “I guess you can address it in the proper forum. And you

might want to vent—I mean, I don’t know how I can help, ma’am. But this isn’t that

forum.”

       As to the issue of arrears and Mother being unable to access the court to adjust

the child support, the family court looked at the history of the case. The court explained

Mother had raised the issue of child support in 2009, but surmised that possibly because

she failed to file an Income and Expense Declaration, the matter was taken off calendar.

Mother tried to file a motion to adjust the child support on August 2, 2010, but was

prevented from doing so due to being a vexatious litigant. The court explained, “The

challenge I have is I don’t know what your income was back on August 2nd of 2010,

because I didn’t get the Income and Expense Declaration.” Mother explained that she

filed a tax return in 2010 but didn’t have any income.

       Mother’s child support had been set at $1,300 per month. In November 2014,

the family court modified the child support to $350 per month. Father offered for

Mother’s child support to be $350 for the 96 months she failed to pay support; $350

multiplied by 96 months is $33,600, plus interest. Father explained he simply wanted

the matter resolved and did not want to return to court for a hearing involving tax

returns and bank statements.

       Mother responded that she and Father, in 2009, had agreed Mother would pay for

Daughter’s transportation in lieu of child support. Father resides in Arizona, and


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Mother resides in California. The court found there was no written agreement, so an

agreement for Mother to pay for transportation in lieu of child support did not exist.

       The family court modified the child support to $350 going back to July 1, 2009.

The court found $43,812 would have been owed during that period. Mother had made a

payment of $1,230.60, and there were credits from Aflac and a tax offset for the

amounts of $1,205, $115.34, and $102. The family court calculated Mother’s principal

arrearages at $42,364. The court calculated interest at 10 percent per annum, as agreed

to by the parties, which totaled $4,236. The court set the arrears at $46,600.

       Second, the court addressed the allegation that Father was denying Mother

visitation. Father explained Mother was supposed to have Daughter the second

weekend of every month unless there were school functions or other activities that

weekend. Father asserted Mother was not willing to change weekends in order to

accommodate Daughter’s school functions or other activities—that Mother always

wanted the second weekend of the month regardless of Daughter’s schedule. Father

suggested Mother come to Arizona and see Daughter participate in the various

activities. Father explained the activities were things such as a school dance and a

friend’s birthday party.

       Mother said Daughter was spending time with Daughter’s boyfriend—not at

school functions or other activities. Mother said she wanted Daughter to visit the

second weekend of every month, unless there was a school function.

       The court ordered Daughter to visit Mother one weekend per month, and it would

be the second weekend of the month, unless there were a school event or other activity


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Daughter wanted to attend, in which case a different weekend of the month would be

selected.

       Mother asked what form she needed to complete in order to raise the issue of

fraud on the court. Mother said, “[Y]ou said there is a different form [sic] to bring up

all this stuff that I say is wrong[.] What is the form[?]” The court said it did not

understand what form Mother was discussing. Mother responded, “Because you said

there was no fraud on the court because of what it is. So what form do I have to raise

to—” The court replied, “Forum, not form. Forum, meaning—I don’t know. Maybe

there’s a group out there of people who feel like they’ve been violated in court. The

forum—this is what we’ve just been discussing . . . .”

       C.     JULY 15, 20151

       On July 15, 2015, the family court heard Father’s motion to relinquish his

parental rights. The court allowed Father to relinquish his rights and granted Mother

sole legal and physical custody of Daughter. The court awarded Father visitation with

Daughter at Daughter’s discretion.

                                      DISCUSSION

       A.     CONTENTION

       Mother contends the family court violated her rights of due process on

(1) August 1, 2014, because the court was biased against Mother and because the time

       1  This court takes judicial notice of one of the July 15, 2015, minute orders filed
in the superior court case. The minute order of which we take judicial notice has as the
hearing “Ex-Parte Hearing re: Mod Ch.Cust/Temp Ords/Minor to be heard Granted
filed by [L.H.] represented by pro/per.” (All caps. omitted.)


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estimated for trial (three hours) was the only amount of time the court gave for

presenting evidence that day; and (2) March 20, 2015, when the trial court denied

Mother’s request for an evidentiary hearing.

        In Mother’s Appellant’s Opening Brief, she “prays for a fair hearing in proving

the falsity of this case.” Mother explains that she is “asking to remand March 20, 2015

evidentiary hearing to bring in all the facts of the falsity.” (Sic.)

        B.     MARCH 20, 2015

        Mother writes in her Appellant’s Opening Brief, in regard to the March 20

hearing, that the trial court “denied mother’s due process rights [again], violated her due

process by denying her a trial after an all day trial was scheduled, denying mother the

opportunity to complete or even offer her presentation of evidence and/or offer rebuttal

evidence to show the falsity of this case, and it’s fundamentally unfairness when the

transcripts and medical reports’ show the evidence of, opposing counsel . . . and minor’s

counsel . . . lied about material facts.” (Sic.) Mother cites to (1) the first page of this

court’s prior tentative opinion, which concerned an order from 2012; and (2) the first

page of another of this court’s prior tentative opinions, which concerned an order from

2012.

        It appears Mother is not taking issue with the trial court’s rulings on arrears and

visitation, which were the topics of the March 20 hearing. Rather, Mother is faulting

the trial court for not also holding an evidentiary hearing on the issue of fraud. Due

process requires Father be notified of the scope and nature of the hearing. (See In re

Marriage of Ryall (1984) 154 Cal.App.3d 743, 750; see also In re Michael D. (1981)


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116 Cal.App.3d 237, 245.) The March 20, 2015, hearing concerned child support

arrears and visitation. Father filed an order to show cause and affidavit for contempt

related to Mother’s arrears. Mother filed a request for an order directing the family

court to enforce its visitation orders. Because the noticed subject matter of the hearing

was arrears and visitation, we cannot fault the family court for not holding a hearing on

the issue of fraud—fraud was not within the scope of the hearing that day. Therefore,

the family court was correct in not addressing it.

       To the extent Mother wanted the family court to overrule prior orders of the

family court and prior opinions of this court, the family court does not have that

authority. (Payne v. City of Perris (1993) 12 Cal.App.4th 1738, 1742 [“‘one trial court

judge may not reconsider and overrule a ruling of another judge’”]; Auto Equity Sales,

Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450, 456 [a court of

inferior jurisdiction must follow the decisions of the court of higher jurisdiction].) So,

again, we cannot fault the family court for not taking evidence on the issue of fraud. In

sum, we conclude the family court did not err.

       C.     AUGUST 1, 2014

       Mother contends the family court was biased against her and did not provide her

sufficient time to present evidence. At the August 1 hearing, the family court denied

Mother’s request to modify the custody order, and set Mother’s request to modify the

visitation order for review in October 2014.

       If Mother is correct that the family court was biased against her, then the remedy

would be to reverse the ruling and conduct a new hearing on the issue of modifying


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child custody (Code Civ. Proc., § 657, subd. (1); Haluck v. Ricoh Electronics, Inc.

(2007) 151 Cal.App.4th 994, 1009). If Mother is correct that the family court denied

her a sufficient opportunity to present her evidence, then the remedy would again be to

reverse the ruling and conduct a new hearing on the issue of modifying child custody.

(In re Sara D. (2001) 87 Cal.App.4th 661, 673; In re Matthew P. (1999) 71 Cal.App.4th

841, 844.)

       On July 15, 2015, the family court granted Mother sole legal and physical

custody of Daughter. Thus, there is no relief that this court can provide to Mother—

Mother has already obtained the relief she was seeking, which was custody of Daughter.

Accordingly, the August 1, 2014, issue is moot. (In re Jessica K. (2000) 79 Cal.App.4th

1313, 1315 [issue is moot when no effective relief can be provided].)

       In Mother’s Appellant’s Opening Brief, she writes, “This process has caused

extreme irreparable financial loss, harm and hardship to mother and her children.” To

the extent Mother is seeking monetary damages for the alleged judicial bias or due

process issues, this appeal is not the proper procedural vehicle for such relief. As stated

ante, the remedy, if bias or a due process violation existed, would be a new hearing.

However, a new hearing would be unnecessary in this case because Mother has already

been granted sole legal and physical custody of Daughter.

       Mother asserts the issue is not moot because it is an issue of public importance.

(People v. Harris (1993) 14 Cal.App.4th 984, 989 [a moot issue may be reviewed if the

issue is of continuing public importance].) Mother does not explain why this is an issue

of public importance, and Mother fails to explain in what way the family court was


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biased against her. Additionally, Mother does not reconcile the court’s alleged bias

with the court granting Mother sole legal and physical custody of Daughter. We note it

was the same commissioner who conducted the August 1, 2014, hearing; the March 20,

2015, hearing; and the July 15, 2015, hearing; so the same commissioner who

conducted the August 1 hearing granted Mother sole custody on July 15. Due to the

lack of information and explanation relating to how this is an issue of public

importance, we find Mother’s “public importance” argument to be unpersuasive.

                                       DISPOSITION

       The judgments are affirmed. The parties are to bear their own costs on appeal.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                       MILLER
                                                                                        J.


We concur:


RAMIREZ
                               P. J.


SLOUGH
                                  J.




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