Petition for Writ of Certiorari — Alicia Marie Richards, Petitioner v. Ryal W. Richards

Supreme Court briefDec 17, 2020

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Supreme Court of tfje ®mtet> States

In Re MARRIAGE OF RYAL W. RICHARDS AND ALICIA MARIE RICHARDS

ALICIA MARIE RICHARDS

Petitioner,

RYAL W. RICHARDS

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FILED

DEC 1 7 2020

Respondent.

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OFFICE OF THE CLERK

ON PETITION FOR A WRIT OF CERTIORARI TO THE CALIfMiAFO u1tH~

DISTRICT COURT OF APPEAL,

DIVISION THREE

PETITION FOR WRIT OF CERTIORARI

APPENDIX FILED SEPERATELY

Respectfully submitted 11/25/20

7s/ Alicia Marie Richards

351 Catalina Drive

Newport Beach, CA 92663

(949)813-6138

Richardsalicia007@gmail.com

Petitioner in Forma Pauperis

QUESTIONS PRESENTED FOR REVIEW (Rule 14.1(a))

1. Does the “Compel Obedience Clause” in Civil Code of Procedure Section 128

allow ex parte eviction on the court’s own motion? Would that order comply

with the due process clause to the 14th Amendment to the Constitution?

2. Did the trial court violate Ms. Richards’ due process rights when it applied

Civil Code of Procedure Section 128 and evicted her and her minor from their

lawfully owned dwelling without affording her notice that it intended to do

so, an opportunity to prepare a defense with counsel and an opportunity to be

heard in violation of the due process clause to the 14th Amendment to the

Constitution depriving Petitioner and her minor child of a significant interest

in property and the right to continued residence in their home?

3. Does Civil Code of Procedure 916(a) automatically stay an order for future

unknown amount of money sanctions pending appeal or would that future

unknown amount of sanctions order be subject to Civil Code of Procedure

Section 917.1 requiring a bond? Would it be a violation of due process and

equal protection of the law under the 14th Amendment for the Court of

Appeals not to reverse an order made without jurisdiction?

LIST OF PARTIES

PETITIONER

Alicia M. Richards (respondent/appellant below)

Proceeding Pro Se

351 Catalina Drive

Newport Beach, CA 92663

TELE: (949)813-6138

EMAIL: Richardsalicia007@gmail mm

RESPONDENT

Ryal W. Richards (petitioner/respondent below)

c/o Kevin E. Robinson, Attorney of Record SBN 88726

Law Offices of Kevin E. Robinson

970 W. 17th Street, Suite D

Santa Ana, CA 92706

TELE: (714) 245-0210

EMAIL: robinsonlawoffice@vahoo.com

RELATED CASES

Case No. S262957

California Supreme Court (denied review August 12, 2020)

350 McAllister Street, Room 1295

San Francisco, CA 94102-4797 tel. 415-865-7000

Case No. G056921 consolidated with Case No. G057041

Fourth District Court of Appeal-Div.3 (Rehearing denied 6/4/2020)

601 W. Santa Ana Blvd.

Santa Ana, CA 92701 tel. 714-571-2600

Written by the Honorable Justice Kathleen E O’Leary Affirmed in Full

Case No. G056921 consolidated with Case No. G057041

Fourth District Court of Appeal-Div.3 (Opinion issued May 18, 2020)

601 W. Santa Ana Blvd.

Santa Ana, CA 92701 tel. 714-571-2600

Written by the Honorable Justice Kathleen E O’Leary Affirmed in Full

Case No. 15d009634

Orange County Superior Court (Orders dated 11/9/18)

341 The City Drive, Orange, CA 92868

The Honorable Andre De La Cruz, Judge Dept. W10/L62

Phone: (657) 622-5562; Email: W10@occourts.com

iii

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TABLE OF CONTENTS

PETITION FOR WRIT OF CERTIORARI

QUESTIONS PRESENTED FOR REVIEW

LIST OF PARTIES

RELATED CASES

TABLE OF CONTENTS

TABLE OF AUTHORIITES

OPINION BELOW,

JURISDICTIONAL STATEMENT

CONSTITUTIONAL AND SATUTORY

PROVISIONS INVOLVED.....................

STATEMENT OF THE CASE AND FACTS

REASONS FOR GRANTING OF THE WRIT

ARGUMENT

-t

1. The Trial Court’s Eviction Order did not Comply with

the Due Process Clause to the 14th Amendment to the Constitution and

deprived Petitioner of a Substantial

Property Interest and Continued Residence of

her Property

2. The Trial Court’s Order for Sanctions is Void for

Lack of Jurisdiction because it was made Enforcing

an Order Automatically Stayed Pending Appeal

and it Was A Violation of Due Process and Equal

Protection of the Law for the Appellate Court not to

Vacate the Void Order made without jurisdiction....

CONCLUSION,

APPENDIX FILED SEPERATELY

Appendix A

Court of Appeal Fourth Appellate District, Division

Three, Case No. G056921 consolidated with

Case No. G057041 Opinion (not published) written

by Presiding Justice Kathleen E. O’Leary dated

May 18, 2020 (17 Pages).................................................

Appendix B

Court of Appeals Fourth Appellate District,

Division Three, Case No. G056921 consolidated with

Case No. G057041 Petition for Rehearing filed on

June 1, 2020 by Petitioner, Alicia Marie Richards

(50 pages).............................................................................

22a

Appendix C

Court of Appeals Fourth Appellate District, Division

Three, Case No. G056921 consolidated with Case No.

G057041 Order Denying Petition for Rehearing dated

June 4, 2020 by Presiding Justice Kathleen E. O’Leary

(1 Page)......................................................................................

85a

Appendix D

Supreme Court of California Case No. S262957 Order

Denying Petition for Review dated August 12, 2020

by Chief Justice Cantil-Sakauye (1 page)......................

87a

Appendix E

Orange County Superior Court, Family Law Court

Division, Case No. 15D009634, Trial Court Minute

Order dated 10/9/18 by Honorable Judge Andre

De La Cruz, Department L62 (1 page)......................

89a

Appendix F

Orange County Superior Court, Family Law Court

Division, Case No. 15D009634, Trial Court Minute

Order dated 11/9/18 by Honorable Judge Andre

De La Cruz, Department L62 (2 page)......................

92a

H-j

Appendix G

Orange County Superior Court, Family Law Court

Division, Case No. 15D009634,Trial Court ex parte

Eviction Order dated 11/9/18 by Honorable Judge Andre De La

Cruz, Department L62 (2 Pages).......................................................

95a

Appendix H

Orange County Superior Court, Family Law Court

Division, Case No. 15D009634, Trial Court’s sua sponte Order

Order dated July 10, 2018 ordering Clerk to Sign Listing

Agreement instead of allowing Petitioner to deposit

listing agreement pending her appeal filed

October 10, 2018 by Judge Andre De La Cruz,

Department L62 (2 pages).................................................................

97a

Appendix I

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Orange County Superior Court, Family Law Court

Division, Case No. 15D009634, Reporter’s Transcripts

of Trial Court hearing held on 11/9/18 by Orange

County Superior Court Family Law Division,

Honorable Judge Andre De La Cruz,

Department L62 (Pages 26)............. ................................

112a

Appendix J

Court of Appeals Fourth Appellate District,

Division Three, Case No. G056921 consolidated

with Case No. G057041Appellant’s Opening Brief1

filed on March 11, 2019 by Petitioner,

Alicia Marie Richards (70 Pages).................................

142a

Appendix K

Court of Appeals Fourth Appellate District, Division

Three, Case No. G056921 consolidated with Case No. G057041Appellant’s Reply

Brief filed on August 16, 2019

by Petitioner, Alicia Marie Richards (50 Pages)

210a

1 Note: Did not include Responsive Brief in Appendix because Court of Appeal Fourth Appellate District Division

Three recites it but will forward upon request if the Justices want to view it.

■v

Appendix L

Orange County Superior Court, Family Law Court

Division, Case No. 15D009634

Motion to Vacate Stipulation filed 11/13/17

Requesting Family Law Code Sec. 2030 hearing before

Court proceeded Ignored by the Trial Court and Motion Denied without allowing

any evidence to be presented and have considered

(30 pages)

289a

Appendix M

Orange County Superior Court, Family Law Court

Division, Case No. 15D009634

Motion to Vacate Judgment filed February 7, 2018

By Petitioner, Alicia Marie Richards

Still pending Adjudication (30 Pages)........................

311a

Appendix N

United States Supreme Court Order Granting 150 Day

Extension to file Certiorari dated March 13, 2020 (20 pages)

369a

Appendix O

Objection to Eviction Order signed 11/9/18 After

Hearing on Motion to Deposit and Court’s OSC re Sanctions

372a

Appendix P

Objection to Court’s OSC re Sanctions Notice of Hearing

Dated 10/11/2018 filed by Orange County Superior Court,

Honorable Judge Andre De La Cruz, Presiding, Dept. L62

Filed by Alicia Marie Richards on 11/26/18...........................

vii

383a

Appendix Q

Ex Parte Motion to Deposit Listing Agreement and

Stay Enforcement Pursuant to CCP Section 917.3

after Deposit filed By Alicia Marie Richard dated 11/11/2018

And Order Denying Pending Hearing Signed by Judge

Andre De La Cruz dated 1/11/2018...............................................

392a

Appendix R

Notice of Appeal appealing November 9, 2018 Trial

Court Orders by Judge Andre De La Cruz

Filed on November 9, 2018...........................................

408a

Appendix S

Relevant Pages of Opinion G056626 by Court of Appeals

Fourth Appellate District, Division Three, Written by Presiding

Justice Kathleen E. O’Leary dated January 9, 2020 stating that

requests Made in Responsive Pleadings does not give other

party adequate notice.............................................................................

411a

Appendix T

Sur-Reply filed by Ryal W. Richards on November 7, 2018

Mailed on November 7, 2018 to Alicia Marie Richards for

Hearing dated November 9, 2018............................................

415a

Appendix U

Notice of Appeal filed 10/10/2018 by Alicia Marie Richards

against October 9, 2018 Trial Court Order to Sign listing

Agreement Enforcing Void Judgment During Stay...............

423a

Appendix V

May 25, 2018 Order Staying All Motions pending appeal

By Honorable Judge Andre De La Cruz, Presiding

Orange County Superior Court, Family Law Division,

Department L62.........................................................................

viii

425a

Appendix-W

July 10, 2018 Sanction Order by Judge Andre De La Cruz filed

July 10, 2018 appealed on July 27, 2018.........................................

429a

Appendix-X

Notice of Appeal July 10, 2018 Sanction Order

by Judge Andre De La Cruz filed July 10, 2018 appealed

on July 27, 2018 by Alicia Marie Richards..........................

432a

Appendix-Y

Reporter’s Transcripts of Hearing dated July 10, 2018

Confirming Stay...................................................................

435a

Appendix-Z

October 11, 2018 Notice of Order to Show Cause

Filed by Orange County Superior Court No Appearance

No Information on What Order Petitioner had failed to

Comply With.............................................................................

438a

Appendix AA

Due Process Clause, Fourteenth Amendment,

United States Constitution, Section 1..............

444a

Appendix BB

California Rules of Court, Rule 5.92

446a

Appendix CC

Civil Code of Procedure Section 128

450a

Appendix DD

Civil Code of Procedure Section 128.5

453a

V '

Appendix EE

Civil Code of Procedure Section 916(a)

457a

Appendix FF

Civil Code of Procedure Section 917.1

459a

Appendix GG

Civil Code of Procedure Section 917.3

461a

Appendix HH

Civil Code of Procedure Section 1005

463a

Appendix II

Family Law Code Section 2030

465a

TABLE OF AUTHORITIES

Cases

Baldwin v. Hale, 1 Wall. 223 (1864)............................................................................

Bennett v. Wilson (1898) 122 Cal. 509, 513-514........................................................

Blueberry v. Properties, LLC v. Chow (2014) 230 Cal.App. 4th 1017, 1020-1021

Boddie v. Connecticut, 401 U.S.371,91 S.Ct. 780, 28 L.Ed.2d 113 (1971)........... 13, 29

Briggs v. Brown, (2017) 3 Cal. 5th 808,852.................................................................

Elkins u. Superior Court, (2007) 41 Cal. 4th 1337,1357-1358................................. 26, 18

Elsea v. Saberi (1992) 4 Cal.App.4th 625, 629 [ 5 Cal.Rptr.2d 742]....................

Fewel v. Fewel, (1923) 23 C2d. 431, 434.....................................................................

Hale v. Morgan (1978) 22 Cal. 3d 388, 398................................................................

Hauck v. Riehl, 224 Cal.App.4th 695 (Cal. Ct. App. 2014)....................................

Hovey v. Elliott, 167 U.S. 409 (1897)...........................................................................

In Drum v. Fresno County Dept, of Public Works, 144 Cal.App. 3d 777 (1983).

In Dusenbery u. United States, 534 U.S. 161 (2002)......................................

In Green v. Lindsay 456 U.S. 444 (1982)..........................................................

9, 21

In Johnson v. Hous. Auth. Of Oakland, 38 Cal.App. 5th 603, 607, (2019) .

In re Marriage of Carlsson (2008) 163 Cal.App.4th 281,291........................

In re Marriage of Lippel (1990) 51 Cal. 3d 1160.............................................

In re Robert G. 31 Cal. 3d 437, 442 (1982).................................

Isbell u. County of Sonoma, 21 Cal. 3d 61, 72 (Cal. 1978)............................ 8, 13, 18,30

Iverson v. Superior Court 167 Cal.App.3d 544 (1985)[213 Cal. Rptr. 399] .......... 12,19

Kennedy v. South Coast Regional Com. (1977) 68 Cal.App. 3d 660, 670-672 [127

Cal.Rptr. 396]................................................................................................................... 26

Kobey v. Morton, (1991) 228 Cal.App.3d 1055, 1060.................................................... 30

Le Francois v. Goel (2005) 30, 35 Cal.4th 1094 [112 P.3d 636].................................

Lee v. Superior Court 63 Cal.App. 3d 705 at p. 711 (Cal.Ct. App. 1976)................ 13

Litchfield v. County of Marin (1955) 130 Cal.App. 2d 806, 813 [280 Cal.Rptr. 117].26

Mann v. Cracchiolo (1985) 38 Cal.3d 18, 29 [ 210 Cal.Rptr. 762, 694 P.2d 1134])....19

Marquez-Luque v. Marquez (1987) 192 Cal.App.3d 1513, 1517 [238 Cal.Rptr.172] .30

Marriage of Fingert (1990) 221 CA3d 1575, 1579 at page 1580

Marriage of Lopez (1974) 38 CA3d 114..........................................

Mooney v. Superior Court of Santa Cruz County, (2016), 245 Cal.App. 4th 523 @ 525

........................................................................................................................................... 26.30

Mullane v. Central Hannover Bank (1950) 339 U.S. 306, 313-315

[94 L.Ed. 865, 872-874, 70 S.Ct. 652]...............................................

13, 23, 27, 29

Osmond v. Spence (1972) 359 F. Supp. 124, 127...............................

Payne v. Superior Court, (1976) 17 Cal. 3d 908................................

8, 9

•V

Rochin v. Pat Johnson Manufacturing Co. (1998) 67 Cal.App. 4th 1228, 1240.).....

Scott v. City of Indian Wells (1972) 6 Cal.3d 541, 548-549

[99 Cal.Rptr. 745, 492 P. 2d 1137.]................................................................................

Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.CT. 1820, 23 L.ED.2d 349

(1969....................................................................................................................................

United States v. James Daniel Good Real Property, 510 U.S. 43,48 (1993).............

Varian Medical Systems, Inc. v. Delfino, 35 Cal.4th 180 (Cal. 2005)........................

Windsor v. McVeigh, 93 U.S. 274, 277 (1876).................................................................

Statutes

28 U.S.C. §1254(1)................................

28 U.S.C. § 1257(a).................................

Civil Code of Procedure (“CCP”) §128

Civil Code of Procedure §128.5...........

Civil Code of Procedure §916(a)..........

Civil Code of Procedure §917.1...........

Civil Code of Procedure §917.3...........

Civil Code of Procedure §1005............

Family Law Code §2030.......................

..passim

5, 11, 12

..passim

6, 12, 31

..passim

..2, 6, 11

Other Authorities

2 Cal. Procedure 3rd Jurisdiction, Section 234

Rules

California Rules of Court, Rule 5.92

passim

Constitutional Provisions

14th Amendment

passim

xii

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OPINION BELOW

1. Opinion, Court of Appeals, Fourth District, Division Three,

Ryal W. Richards v. Alicia Marie Richards, Court of Appeal Case No.G056921

consolidated with Case No.G057041 affirming Orange County Superior Court

Family Law Court, 10/9/18 and 11/9/18 Orders.(Appendix A)

2. Order, Orange County Superior Court, Family Law Court,

Ryal W. Richards v. Alicia Marie Richards, Case No.l5D009634, ordering real

estate listing agreement signed on property whose equity is in dispute, 10/9/18

enforcing void judgment still pending adjudication.(Appendix E p.89)

3. Order, Orange County Superior Court, Family Law Court,

Ryal W. Richards v. Alicia Marie Richards, Case N0.15D009634, ordering 11/9/18

clerk to sign listing agreement and all documents that effectuate the sale instead of

allowing it deposited pending appeal, ordering writ of possession, sale of property

within 60 days and if not sold eviction pursuant to Civil Code of Procedure (“CCP”)

§128, sanctions in the amount of $4,200 pursuant to CCP §128.5, against order on

appeal automatically stayed pursuant to CCP §916(a).(Appendix F p.92)

4. Order, Orange County Superior Court, Family Law Court,

Ryal W. Richards v. Alicia Marie Richards, Case N0.15D009634, ordering 11/9/18

change of exclusive possession [EVICTION], pursuant to CCP §128. (Appendix G

P-95)

5. Order, Orange County Superior Court, Family Law Court,

Ryal W. Richards v. Alicia Marie Richards, Case N0.15D009634, ordering 11/9/18

clerk to sign listing agreement (instead of Petitioner depositing it pending her

appeal pursuant to CCP §917.3), pursuant to CCP §128. (Appendix H p.97)

JURISDICTIONAL STATEMENT

Ms. Richards proceeding pro se because the trial court has refused to hold her

requested family law code §2030 hearing requested on 9/17/17 and several other

times including 11/9/18 (Appendix J p.194) to ensure she was equally represented to

protect her rights and instead sanctioned her $4,200 to pay her spouse’s attorney

fees pursuant to an order that the court lacked jurisdiction over because of the

automatic stay in CCP §916(a). The Appellate Court stated Wife waived this

argument by failing to include record citations to support her claim she requested

attorney fees or that the court ruled on the matter even though Petitioner’s Brief

specifically stated the court “ignored” her request at Appendix J. p.194. The trial

court after sanctioning Petitioner at its OSC re sanction hearing had ended then

evicted Petitioner and her minor from her lawfully owned property without notice

and a hearing. The trial court did not state what statute it was proceeding. The

Appellate Court stated it had authority under CCP §128 to enforce its judgments.

Petitioner posits the 10/8/18 and 11/9/18 orders deprived her of due process

and equal protection of the law in violation of the 14th Amendment and took away

her substantial property rights and continued residence in her home.

On the Court’s own motion without jurisdiction over the 7/10/18

order(Appendix W p.429;Appendix X p.432)(CCP §916(a), sanctioned Petitioner

$4,200 for filing a motion to deposit the listing agreement pending her appeal. CCP

§917.3(Appendix GG) requires the document be deposited with the court for the

automatic stay to go into effect pending appeal. The court affected the results and

Petitioner was prejudiced thereby.

The Court of Appeals stated the court had jurisdiction over the 7/10/18 order

being reviewed on appeal (Appendix W p.429-cf.Appendix X p.432) because

Petitioner did not post a bond and “California courts have inherent power to

enforce their judgments . . .’’(Appendix A p.6;Appendix P p.385)

Ms. Richards appealed the 10/9/18 and 11/9/18 orders challenging the court’s

jurisdiction and the trial court’s violation of her procedural due process and equal

protection of the law rights.(Appendix AA)

The California Court of Appeals, District Four, Division Three entered its

Opinion affirming the Trial Court 10/9/18 and 11/9/18 Orders on 5/18/20. (Appendix

A timely petition for rehearing was denied 6/4/20. (Appendix C p.85)

A timely petition for review was denied 8/12/20. (Appendix D p.87)

An automatic extension of time because of Covidl9 to file the petition for a

writ of certiorari was granted extending the deadline to file certiorari 150 days to

and including 1/9/21.(Appendix N p.369)

The jurisdiction of this Court is invoked under 28 U.S.C. §1257(a) and 28

U.S.C. §1254(1). Accordingly, this Petition is timely.

Petitioner, Alicia Marie Richards respectfully prays that a Writ of Certiorari

issue to review the trial court orders and the Opinion of the Court of Appeals,

Fourth Appellate District, Division Three.

The Court of Appeals affirmed the void sanction order for $4,200 that was

made without jurisdiction.

The Court of Appeals also affirmed the eviction order and orders taking away

Petitioner’s property rights. The Appellate Court, however, without any briefing on

the issue, stated the trial court had authority to enforce its judgments under CCP

§128.(Appendix CC)

Petitioner claims those orders violated her right to due process and equal

protection of the law because there was no noticed hearing scheduled on the issue of

eviction on 11/9/18 and the order was excessive, arbitrary and capricious and a

miscarriage of justice and should have been reversed.

The Appellate Court stated requests made in responsive pleadings was

adequate notice for the court to issue orders taking away property rights although

the same Court stated in Richards II that it was not adequate notice. The Appellate

Court did not address Petitioner’s due process and equal protection of the law

claims or whether those orders made by the court were void or voidable. It is

further not clear what judgment the trial court was enforcing because the final

judgment has yet to be resolved and has been pending a motion to vacate since

2/7/18. Petitioner posits that any orders made enforcing that void judgment should

be considered void and the Appellate Court erred by not reversing.

CONSTITUTIONAL AND SATUTORY PROVISIONS INVOLVED

Due Process Clause, Fourteenth Amendment, United States Constitution,

Section 1 (Appendix AA):

“No state . . . shall. . . deprive any person of life, liberty, or property, without due

process of law; nor deny to any person within its jurisdiction the equal protection of

the laws.”

CRC 5.92 (Appendix BB):

... (1) In a family law proceeding under the Family Code: . . .

(B) A Request for Order (form FL-300) must be used to ask for court orders,

unless another Judicial Council form has been adopted or approved for

the specific request; and . . .

(b) Request for order; required forms and filing procedure

(1) The Request for Order (form FL-300) must set forth facts sufficient to notify

the other party of the moving party's contentions in support of the relief

requested. ...

CCP §128 (Appendix CC):

“(a) Every court shall have the power to do all the following:

. . . (4) To compel obedience to its judgments, orders, and process, and to the orders

of a judge out of court, in an action or proceeding pending therein.”

CCP §128.5 (Appendix DD):

. . ”If, after notice and a reasonable opportunity to respond, the court issues an

order pursuant to subdivision (a), the court may, subject to the conditions stated

below, impose an appropriate sanction upon the party, the party’s attorney, or both,

for an action or tactic described in subdivision (a). In determining what sections, if

any, should be ordered, the court shall consider whether a party seeking sanctions

has exercised due diligence.

(A) A motion for sanctions under this section shall be made separately from other

motions or requests and shall describe the specific alleged action or tactic,

made in bad faith, that is frivolous or solely intended to cause unnecessary

delay. .. “

(B) If the alleged action or tactic is the making or opposing of a written motion

CCP §916(a) (Appendix EE):

“(a) Except as provided in Section 917.1 to 917.9, inclusive, and in Section 116.810,

the perfecting of an appeal stays proceedings in the trial court upon the judgment or

order appealed from or upon the matters embraced therein or affected thereby,

including enforcement of the judgment or order, but the trial court may proceed

upon any other matter embraced in the action and not affected by the judgment or

order. . . “

CCP §917.1 (Appendix FF):

“Unless an undertaking is given, the perfecting of an appeal shall not stay

enforcement of the judgment or order in the trial court if the judgment or order is

for any of the following: (1) Money . . .(2) Costs awarded pursuant to 998. . (3) Costs

awarded pursuant to Section 1141.21 . .”

CCP §917.3 (Appendix GG):

“The perfecting of an appeal shall not stay enforcement of the judgment or order in

the trial court if the judgment or order directs the execution of one or more

instruments unless the instrument or instruments are executed and deposited in

the office of the clerk of the court where the original judgment or order is entered to

abide the order of the reviewing court.”

CCP §1005 (Appendix HH):

1005(a) Written notice shall be given, ... at least 16 court days before the hearing.

Family Law Code Section 2030 (Appendix II):

“(a)(1) In a proceeding for dissolution of marriage, nullity of marriage, or legal

separation of the parties, and in any proceeding subsequent to entry of a related

judgment, the court shall ensure that each party has access to legal representation,

including access early in the proceedings, to preserve each party's rights . . .”

STATEMENT OF THE CASE AND FACTS

Whether the court abused its authority on its own motion proceeding without

jurisdiction over the 7/10/18 order (Appendix B p.53; Appendix J p. 158159,161,165,180; Appendix P p.383 @ p.385 line 10;Appendix W p.429;Appendix X

p.432) automatically stayed pursuant to CCP §916(a) then ex parte without any

notice of its intent to evict or to take away Petitioner’s substantial property rights

did the trial court have authority under CCP §128 (Appendix A p.15) to evict

Petitioner and her minor child.

Petitioner objected (Appendix P p.383) to the Court’s Order to show Cause re

sanctions not personally served on her only attaching the 7/10/18 order (Appendix B

p.31; Appendix J p.158-159,161,165,180;Appendix W p.429;Appendix X p.432) being

reviewed on appeal stayed, stating the court was without jurisdiction to proceed

citing Civil Code of Procedure Sec. 916(a)(Appendix P p.385 line 10.

On 11/7/18, Ryal W. Richards’ filed a sur-reply (Appendix A p.18; Appendix F

P-92; Appendix B p.35; Appendix J p.159,166; Appendix S p.411; Appendix T p.415;

Appendix BB; requesting affirmative relief in his second responsive pleading filed

two days before Petitioner’s hearing (Appendix Q p.392) scheduled for 11/9/18.

Petitioner objected (Appendix I-p.l20-ln7-9&lnl3-16) on the basis that it was

untimely in violation of CCP §1005. (Appendix J p.166 lines 1-5 cf. Appendix Ip,120-ln7-9&lnl3-16)

The Court of Appeal stated that the trial court had discretion to compel

obedience to its judgment under CCP §128. (Appendix A p.15) although it is

unclear what judgment the court was enforcing: 1. the final judgment void on its

face still pending adjudication in the trial court with a motion to vacate pending

against it since 2/7/18 (Appendix M p.311); or 2. the order to sign the listing

agreement appealed on 10/10/18 (Appendix U p.423) enforcing the void judgment

still pending adjudication (Appending S) instead of Petitioner depositing the listing

agreement pending her appeal (Appendix U p.423) depriving her of due process and

equal protection of the law to have that document stayed pending review on appeal

pursuant to CCP §917.3.

The Court of Appeals’ Opinion is not supported by the evidence and has false

facts (Appendix B) and directly conflicts with Supreme Court precedent Isbell v.

County of Sonoma (1978) 21 Cal.3d 61 holding: “It is settled constitutional law that

“in every case involving a deprivation of property within the purview of the due

process clause, the Constitution requires some form of notice and a hearing”].

There is a disagreement of whether the trial court had authority under CCP

§128 (Appendix A p.15) to evict without a fully noticed motion giving Petitioner an

opportunity to prepare a defense with counsel and whether those orders would

satisfy the minimum standards of due process under the 14th Amendment to the

United States Constitution.

The Supreme Court of California stated in Payne v. Superior Court, (1976) 17

Cal. 3d 908 (“Payne”), that “Few liberties in America have been more zealously

guarded than the rights to protect one’s property in a court of law. This nation has

long realized that none of our freedoms would be secure if any person could be

deprived of his possessions without an opportunity to defend them, ‘at a meaningful

time and a meaningful manner.’” The Fourteenth Amendment to the United States

Constitution prohibits a state from depriving any person of property or their

substantial rights without due process of law. This mandate has been interpreted

to require, at a minimum, that “absent a countervailing state interest of overriding

significance, a person forced to settle their claims of right and duty through the

judicial process must be given a meaningful opportunity to be heard.” Payne at p.

914.

In Green v. Lindsay 456 U.S. 444 (1982), (“Green”) this Court stated “By

failing to afford adequate notice of the proceedings before issuing final orders of

eviction, the State deprived them of property without due process of law required by

the Fourteenth Amendment.” This Court went on to state that eviction is a

“significant interest in property, and indeed, of the right to continued residence. . .”

And that the “sufficiency of the notice must be tested with reference to its ability to

inform” of the pendency of proceedings that affect their interests. Pp. 450-451.

When the trial court evicted Petitioner and her minor child out of their lawfully

owned home on 11/9/18 (Appendix G p.95 and W), it did so without balancing the

equities (Appendix J p. 20) and affording Petitioner an opportunity to address the

question of eviction and how those orders would affect Petitioner and her minor

child. Le Francois v. Goel (2005) 30, 35 Cal.4th 1094 [112 P.3d 636] states that

parties have a right to a hearing on the issue of eviction to challenge the court’s

decision. Green u. Lindsey, supra, 456 US 444, holding that those orders would be

in violation of due process and equal protection of the law.

This Court should note that the eviction order (Appendix G&H) signed by

the trial court reflects a hearing that never took place [there was no hearing to stay

the listing agreement - Petitioner’s hearing was to enforce the stay after the listing

agreement was deposited.(Appendix 0 p.373@^f2-5) and the order was signed after

the hearing on Petitioner’s motion to deposit the listing agreement pending her

appeal (Appendix Q p.392). On 11/9/18, the judge got up from the bench while

Petitioner was still talking and vacated the courtroom and refused to take the

listing agreement so the statutory stay went into effect, instead it deprived

Petitioner of due process and equal protection of the law. The court orders and

minute order do not reflect what took place and are in direct conflict with the

reporter’s transcripts (Appendix I-p.l20-ln.-7-8&13-16). In re Marriage of Carrlson

(2008) 163 Cal.App.4th 281,291 Held: “Denying a party the right to testify or to offer

evidence is reversible per se.” However, the Court of Appeals did not reverse the

eviction order but instead affirmed it stating that the trial court had authority

under CCP §128. (Appendix A p.15).

Petitioner filed an objection to that eviction order after she found about it on

11/19/18. (Appendix 0 p.373@t2-5)

Petitioner timely appealed the trial court’s orders dated 11/9/18. (Appendix R

p.408).

The Court of Appeals, Fourth District, Division Three without any briefing on

the issue of whether the trial court had authority under CCP §128 (a)(4) to compel

obedience of its judgments even though the void judgment it is enforcing is still

pending adjudication in the trial court filed on 2/7/18. (Appendix L p.289) The

Court of Appeals relied on one case in support of its Opinion affirming the trial

court’s orders, Blueberry v. Properties, LLC v. Chow (2014) 230 Cal.App. 4th 1017,

1020-1021. (Blueberry Properties)(Appendix A p.15).

In the Blueberry Properties case, a party brought a motion giving a party

timely notice and an opportunity to oppose enforcement of a valid judgment.

Blueberry Properties is not on point. In this case, the trial court’s orders for eviction

(Appendix G p.95) and taking away Petitioner’s substantial property rights were

made without a scheduled motion. Further, the sanction order for $4,200 was

made without subject matter jurisdiction because it was enforcing the 7/10/18 order

on appeal and stayed pursuant to CCP §916(a). (Appendix A p. 10,14,15,19;

Appendix B p.53; Appendix J p. 158-159,161,165,180; Appendix O p.373@t2-5;

Appendix S p.411,W,&X)

The trial court on 7/10/18(Appendix W p.429&X), ordered Petitioner while

forcing her to proceed pro se because the trial court has refused to hold her timely

requested family law code §2030 hearing on 9/13/17 so she can be equally

represented and instead has deprived her of representation. (Appendix L p.289)

That Family Law Code §2030 hearing is still pending in the trial court.

The Court of Appeals reversed that 7/10/18 sanction order. (Appendix S p.411,W,X)

But before the order was reversed on appeal, the trial court decided to enforce it on

11/9/18 making a void or voidable order and sanctioning Petitioner $4,200 in

attorney fees pursuant to CCP §128.5. (Appendix B p.53; Appendix J p. 158159,161,165,180) Petitioner posits that sanction order is void for lack of jurisdiction.

The Court of Appeals disagreed and stated that the court had jurisdiction over the

•„

7/10/18 sanction order (Appendix W p.429-cf.Appendix X p.432) because Petitioner

did not post a bond and “California courts have inherent power to enforce their

judgments . .

(Appendix A p.6 cf. Appendix P p.385) Petitioner disagrees and so

does the Legislature who enacted CCP §916(a). CCP §917.1 does not apply because

it was not a money judgment that would require a bond. Whether the Court had

jurisdiction to make an order enforcing the 7/10/18 order under Civil Code of

Procedure Section 128.5 and whether that order need to comply with Civil Code of

Procedure Section 917.1 and requiring a bond to stay its enforcement is before this

court for determination. Court’s do not have discretion to enforce judgment “not

inconsistent with statute.” See Iverson v. Superior Court 167 Cal.App.3d 544

(1985)[213 Cal. Rptr. 399]

It is also before this Court as to whether the court had authority under CCP

§128 (Appendix A p. 15) to issue orders taking away a party of a substantial

property interest and continued residence in her home without a full, fair hearing

on the issue of eviction and whether that order is in direct conflict with the due

process clause to the Fourteenth Amendment.

In this Case, there is no final judgment (Appendix B p.39) because the

judgment has yet to be resolved and a motion to vacate it (Appendix L p.289) has

been pending since 2/7/18 stayed by the trial court. (Appendix B p.75; Appendix J p.

168; Appendix K p. 247;Appendix Y p.437-ln8-15) The final judgment was procured

by the fraud on the Court by Ryal W. Richards giving him more than the court had

authority to grant and was by default [stipulated]. However, “the damage is done;

. . . [Petitioner] now subject to an obligation imposed in violation of [her] due

process rights, . . . and [Ryal W. Richards] can immediately employ legal process to

enforce that obligation” even though void. Isbell v. County of Sonoma, 21 Cal. 3d

61, 72 (Cal. 1978) citing Osmond v. Spence (1972) 359 F. Supp. 124, 127 explaining

that “unless the validity . . is determined before the judgment is entered an alleged

[party] will be deprived of his due process rights on every occasion when an effective

waiver [or judgment] has not occurred” citing Supreme Court cases in support of

“notice and a hearing on the merits” Boddie v. Connecticut, 401 U.S.371,91 S.Ct.

780, 28 L.Ed.2d 113 (1971); Sniadach v. Family Finance Corp., 395 U.S. 337, 89

S.CT. 1820, 23 L.ED.2d 349 (1969); and Mullane u. Central Hanover Trust Co., 339

U.S. 306, 70 S. Ct. 652, 94 L.Ed. 865

On 10/9/18, the court ordered (Appendix E p.89) Petitioner to sign a listing

agreement that it had stayed (Appendix B p.75; Appendix J p.1687; Appendix K

p.247; Appendix V p.428-last-sentence;Appendix-S;AppendixY p.432 Reporter’s

Transcripts-p.l58-line-8-15) pending appeal to sell the property whose equity is in

dispute. Petitioner filed an appeal. (Appendix U p.423) The trial court did not lift

the stay but allowed Ryal W. Richards to proceed without jurisdiction to enforce the

void judgment. The premature sale without putting any safeguards in to ensure

Petitioner her fair share before liquidation of the large asset would prejudice

Petitioner by depriving her of a way to collect after all her claims had been heard

including the void judgment. (Appendix B p.40; Appendix J p.182) Lee v. Superior

Court 63 Cal.App. 3d 705 at p. 711 (Cal.Ct. App. 1976) [Premature sale is not

authorized unless safeguards to ensure other party’s rights are protected.]

Petitioner brought the listing agreement to court to deposit it with clerk as

required by Civ. Code of Proc. Section 917.3, but the clerk refused to take it and told

Petitioner to ask the judge.(Appendix B p.76) On 10/11/18, Petitioner filed an

exparte to deposit the listing agreement pending her appeal. At the ex parte, the

trial court denied the ex parte to take the listing agreement and instead set it for a

full hearing on November 9, 2018. (Appendix Q p.392)

On 10/11/18, the court set a concurrent OSC re Sanctions hearing (Appendix

P p.385-cf-Appendix Z p.438) and attached a copy of the 7/10/18 (Appendix P;Appendix W p. 429;AppendixX p.432)Order that was being reviewed on appeal

subject to the automatic stay in CCP § 916(a)(Appendix Y p.435). The court mailed

notice of its OSC re sanctions with the 7/10/18 order (Appendix-P) without any

information as to what order Petitioner had failed to comply with (Appendix Z

p.438). The trial court did not personally serve its OSC re sanction motion on

Petitioner nor did it hold a hearing to make sure she was adequately represented to

ensure her rights were protected. (Appendix B p.58,81; Appendix J p. 158159,161,165,180;)

Petitioner timely objected to the Court’s OSC re Sanctions hearing stating

the court lacked jurisdiction to proceed because the 7/10/18 order was on appeal and

stayed pursuant to CCP §916(a).(Appendix P p.385 line 10;AppendixW p.

429;AppendixX p.432; Appendix Y p.435)

^ •

The trial court and Ryal W. Richards did not respond to Petitioner’s objection

(Appendix P p.385 line 10) to jurisdiction over the 7/10/18 order(AppendixW

p.429;AppendixX p.432) and Ryal W. Richards did not address it on the appeal.

(Appendix F p.92) On 11/9/18, the court proceeding without jurisdiction pursuant to

the 7/10/18 order (Appendix W p.429&X p.432), enforcing a void on its face

judgment (Appendix M p.311) procured by the fraud on the court by Ryal W.

Richards and instead of allowing Petitioner to deposit the listing agreement as

requested at her duly noticed motion (Appendix Q p.392), instead ordered the clerk

to sign it depriving Petitioner of due process and equal protection of the law to the

statutory stay pending appeal.(Appendix F p.92 and I)

The Court did not inform Petitioner at any time it was going to address

anything other than the 7/10/18 (Appendix W p.429&X p.432) order on 11/9/18.

(Appendix P p.385 line 10) The trial court further violated Petitioner’s right to be

heard when it got up from the bench while she was still talking without a word and

vacated the courtroom and ended the proceedings without taking the listing

agreement. (Appendix I-p.l20-ln.7-8&p.13-16) The court deprived Petitioner of her

statutory right to the automatic stay in CCP § 917.3 when it refused to take the

listing agreement and instead made orders without any notice it intended to do so

depriving Petitioner of an opportunity to prepare a defense and depriving her of her

substantial property rights and continued residence in her property without due

process and equal protection of the law.

After the OSC re sanctions hearing, the court signed Ryal W. Richards’

proposed orders (Appendix G p.95 and I) evicting petitioner and her minor out of

their property as well as another order for the clerk to sign on Petitioner’s behalf

the listing agreement that Petitioner was trying to deposit pending her appeal filed

10/10/18 enforcing the void judgment. (Appendix U p.423);Appendix O p.373@1f2-5)

Petitioner timely appealed. (Appendix R p.408)

On appeal Petitioner argued she was denied of fair warning that that the

trial court was going to make orders for eviction and clerk signing instead of

Petitioner depositing - issues not before the court by noticed motion depriving

Petitioner of due process and equal protection of the law.(Appendix-I) The Court of

Appeals stated that the trial court had authority under CCP §128 to enforce its

judgments. (Appendix A p. 15)

The Court of Appeals further stated the court had jurisdiction over the

7/10/18 order (Appendix W p.429;AppendixX p.432)being reviewed on appeal to

award the $4,200 in sanctions because Petitioner did not post a bond and

“California courts have inherent power to enforce their judgments . . .”

(Appendix A p. 6,10,14,15,19; Appendix B p. 53; Appendix J p. 158159,161,165,180;)

Petitioner brought up the fact that she was denied due process and equal

protection of the law in her Opening Brief at p.158,161,166,169,182-187,192,194.

The Court of Appeals did not address Petitioner’s due process and equal protection

of the law violations in its Opinion (Appendix A). Instead, the Court of Appeals

stated that petitioner had adequate notice of eviction because she objected to Ryal

W. Richards’ late responsive pleading [on the record contrary to the court] stating

that his requests were inappropriate without a fully noticed motion depriving

. Petitioner of a full hearing. (Appendix A p.14; Appendix A p.18 1 1 lines 5 to 7,41;

Appendix F p.92; Appendix B p. 57; Appendix J p.159,166; Appendix S p.411) Thus,

the Court of Appeals held that the trial court had authority to issue orders on issues

not properly noticed and before the court pursuant to CCP §128 to enforce its

judgments. (Appendix A p.15 cf. Appendix M p.311 and Appendix Q p.393)

REASONS FOR GRANTING OF THE WRIT

This Court has not defined whether CCP §128 gives the court authority to

order eviction without a motion and would that be in violation of the due process

clause to the Fourteenth Amendment? In the absence of direction from this Court,

a conflict has occurred in the court of appeals on whether the court has authority

under the compel obedience to its judgments clause in CCP §128 to evict a party

and take away her property rights without proper notice of its intent, giving her

adequate time to prepare a defense with counsel and a full and fair hearing at a

meaningful time and meaningful place. Would those orders made on 11/9/18 be in

violation of the due process clause to the 14th Amendment to the Constitution? The

answer should be yes.

The Court of Appeals, Fourth Appellate District Division Three decided an

appeal on 1/9/20, case no. G056626 stating that requests made in responsive

pleadings would not give a party adequate notice to put a party on notice that those

requests for orders would be addressed. (Appendix B p. 77; Appendix S p.411)

However, on 5/18/20, the Court of Appeals stated the complete opposite - requests

for orders brought in a responsive pleading would be adequate notice to put the

party on notice that the court would be enforcing a judgment pursuant to CCP §128

(Appendix A p.l5;Appendix B p.77). However, contrary to Elkins v. Superior Court,

(2007) 41 Cal. 4th 1337,1357-1358 the court stated that “. . . the efforts of a judge

presiding over family law cases to expedite matters ‘should never be directed in

such a manner as to prevent a full and fair opportunity to the parties to present all

competent, relevant, and material evidence bearing upon any issue properly

presented for determination.”’ In this case, Petitioner had a motion to deposit the

listing agreement pending her appeal because the clerk refused to take it.

(Appendix Q p.392) The court scheduled a concurrent OSC re sanctions to enforce

its 7/10/18 order (Appendix O p.373@f2-5) being reviewed on appeal automatic

stayed by CCP §916(a) and proceeded without subject matter jurisdiction

sanctioning Petitioner $4,200 for filing the motion that the court told her to file

even though the Court of Appeal stated it was for not signing the listing agreement

at Petitioner’s hearing to deposit the listing agreement. (Appendix B p.53; Appendix

J p. 158-159,161,165,180; Appendix G p.95; Appendix O p.373@^[2-5) Petitioner

posits the sanction order should be considered void. There were no other motions for

request for orders scheduled to be heard on 11/9/18.

In Isbell u. County of Sonoma (1978) 21 Cal. 3d 61, the court stated that: “It

is settled constitutional law that “in every case involving a deprivation of property

within the purview of the due process clause, the Constitution requires some form of

notice and a hearing”]. Whether a party does not have to comply with California

Rules of Court, Rule 5.92 or CCP §1005 and files 2 days, before another party’s

hearing requests in a responsive pleading is adequate notice as defined by the due

process clause to the Fourteenth Amendment is before this Court. The Supreme

Court of California stated that “Under the due process clause of the federal

Constitution, a court may enter judgment against a defendant only if the record

shows that either (a) the defendant has received notice and an opportunity to be

heard, or (b) the defendant has voluntarily, knowingly and intelligently waived his

constitutional rights.” Petitioner did not waive her constitutional rights to due

process and equal protection of the law and she was completely surprised by the

court’s orders because at no time did the court inform her that he would be making

eviction orders or orders for the clerk to sign on her behalf instead of allowing her to

deposit the listings agreement depriving her of her right to have that listing

agreement stayed while it was being reviewed on appeal in violation of due process

and equal protection of the law. Further, Courts do not have discretion to enforce a

judgment “not inconsistent with statute.” See Iverson v. Superior Court, supra, 167

Cal.App.3d 544 “However, since the Judicial Council may only adopt rules not

inconsistent with law, and since local rules have the force of law only when there is

no legislative direction to the contrary” citing (.Mann v. Cracchiolo (1985) 38 Cal.3d

18, 29 [ 210 Cal.Rptr. 762, 694 P.2d 1134]) A responsive pleading requesting

affirmative relief 2 days before another party’s hearing violates CCP § 1005 and

CRC 5.92 and Petitioner objected.

In Briggs v. Brown, (2017) 3 Cal. 5th 808,852, the court stated that a superior

“court has both the inherent authority and responsibility to fairly and efficiently

administer all the judicial proceedings that are pending before it, and that one

important element of a court’s inherent judicial authority is to . . . ‘weigh competing

interests and maintain an even balance.’” The court did not weigh competing

interests like the fact that Petitioner’s claims against Ryal W. Richards have yet to

be litigated (Appendix B p.82) and would offset (Appendix J p.160) anything he had

coming against the equity in the residence, or whether Petitioner and her minor

could obtain adequate housing elsewhere knowing that Ryal W. Richards has

refused to pay child support and alimony for the last four years. The Court abused

its discretion enforcing a void judgment (Appendix B p.40) and trying to sell the

property whose equity is in dispute before all the claims have been resolved

(Appendix B p.82), including the judgment that is void on its face because it was

procured by the fraud on the court by Ryal W. Richards giving him more than the

court had authority to grant. Petitioner’s motion to vacate the void judgment and

has been pending since 2/7/18 (Appendix B p.39,75; Appendix J p.168; Appendix K

p. 247) and although it was brought under a motion to correct, it was recently

discovered that an order correcting a void on its face judgment is also void. The

Court’s only remedy is to void the void judgment and litigate the disputes.

(Appendix M p.311) “A void judgment [or order] is, in legal effect, no judgment. By

it no rights are divested. From it no rights can be obtained. Being worthless in

itself, all proceedings founded upon it are equally worthless. It neither binds nor

bards any one.” [Citation.]’ Bennett v. Wilson (1898) 122 Cal. 509, 513-514.” Rochin

v. Pat Johnson Manufacturing Co. (1998) 67 Cal.App. 4th 1228, 1240.) [Thus, an

order to correct a void judgment is itself void.] Even though the judgment should be

considered void and has yet to be adjudicated stayed by the trial court (Appendix B

p.39,75; Appendix J p.168; Appendix K p.247), Ryal W. Richards has been trying to

enforce it. Petitioner brought her appeal under both theories void and voidable.

(Appendix J p.185) The Court of Appeals did not address either argument.

Petitioner’s argument of whether the trial court violated her due process

rights when it used its authority under CCP §128 (Appendix A p.15) and evicted

her and her minor from their lawfully owned dwelling without affording her notice

that it intended to do so, an opportunity to prepare a defense with counsel and an

opportunity to be heard at a meaningful time and place in violation of the due

process clause to the 14th Amendment of the Constitution depriving Petitioner and

her minor child of a significant interest in property and the right to continued

residence in their home raises substantial constitutional questions. Greene v.

Lindsey, supra, 456 U.S. 444 stated that “continued residence in their home” was a

significant interest in property and proper notice would go a long way toward

providing the constitutionally required assurance that the State has not allowed its

power to be invoked against a person who has had no opportunity to present a

defense. Pp. 455-456. In Johnson v. Hous. Auth. Of Oakland, 38 Cal.App. 5th 603,

607, (2019) states that “notice must be specifically specific.” And the purpose of the

written notice is “to inform the [party] of the allegations so he can prepare a

defense.” Id at 689.

In In re Robert G. 31 Cal. 3d 437, 442 (1982) states: “[D]ue process requires .

. . adequate notice of the charge so that he may intelligently prepare a defense.”

Compliance with this requirement has been held “by the Supreme Court to mandate

. .[a party] be notified, in writing, of the specific charge or factual allegations to be

considered at the hearing, and that such written notice be given at the earliest

practicable time, and in any event sufficiently in advance of the hearing to permit

preparation.” Id p.442. In this case, there was no petition filed by Ryal W.

Richards setting forth the facts and the Court’s OSC re Sanctions notice was

completely insufficient because the court attached the 7/10/18 order (Appendix W p.

429;AppendixX p.432)that was on appeal. Petitioner objected to proceeding for lack

of jurisdiction. (Appendix P p.385 line 10) No other information was given to

Petitioner setting forth the charge that she would be evicted at her hearing to

deposit the listing agreement and it was an abuse of the trial courts discretion to

not continue the hearing on eviction to give Petitioner adequate time to obtain

counsel and prepare a defense of why there should be no eviction.

This case provides this Court with an opportunity to address whether

requests brought in responsive pleadings would give a party adequate notice that a

court may consider those requests at another party’s duly noticed hearing and in

light of the fact that California Rules of Court, Rule 5.92(b) states that in family law

proceedings, “A request for Order (form FL-300) must be used to ask for court

orders and must set forth facts sufficient to notify the other party of the [moving]

party’s contentions in support of the relief requested.” CRC 5.92 further states that

“the moving party must file the documents with the court clerk and obtain a court

date and then have a filed copy served the timelines required by law. CCP §1005

requires that a party be served 16 court days before the hearing. Ryal W. Richards

did not file a separate motion, he did not serve petitioner 16 court days before the

hearing, in fact, he filed a reply and an additional a sur-reply to petitioner’s motion

to deposit the listing agreement 2 days before the hearing and Petitioner objected as

untimely and not in compliance with CCP § 1005. (Appendix A p.17; Appendix F

P-92; Appendix B p. 57; Appendix J p. 159,166; Appendix S p.411; Appendix I-p.120ln7-9&p. 13-16)

In Dusenbery v. United States, 534 U.S. 161 (2002), the court stated that “the

Due Process Clause of the Fifth Amendment prohibits the United States, as the Due

Process Clause of the Fourteenth Amendment prohibits the States, from depriving

any person without “due process of law.” This Court “determined that individual

whose property interests are at stake are entitled to ‘notice and an opportunity to be

heard.’” Citing United States v. James Daniel Good Real Property, 510 U.S. 43,48

(1993). This Court has regularly turned to Mullane v. Central Hannover Bank

(1950) 339 U.S. 306, 313-315 [94 L.Ed. 865,872-874, 70 S.Ct. 652] holding that “It is

fundamental to the concept of due process that a defendant be given notice of the

existence of [an action] and notice of the specific relief which is sought. . .” when

confronted with adequacy of the method used to give notice. Whether a responsive

pleading would give adequate notice of an action requesting specific relief is a

question before this court because of the conflicting opinions of the Fourth Appellate

District, Division Three and considering that the due process clause to the

Fourteenth Amendment and CRC 5.92 states otherwise and considering the fact

that the trial court judge got up from the bench in the middle of Petitioner’s

argument and vacated the courtroom depriving her of an opportunity to be heard.

(Appendix J p. 159) See: In re Marriage of Carlsson (2008) 163 Cal.App.4th 281,291

[Re: "Denying a party the right to testify or to offer evidence is reversible per se."]

Petitioner’s hearing to deposit would have been completely unnecessary had

the trial court’s clerk not refused to take the listing agreement and telling her to

ask the judge. (Appendix B p. 71) The Court’s error affected the results and injury

resulted from that error by eviction by unlawful means resulting in a miscarriage of

justice and affecting Petitioner’s substantial rights to her property and continued

residence and absent the Court’s error, Petitioner would have obtained a more

favorable result by being allowed to deposit the Listing Agreement and the Court

enforcing the stay granted by statute and no unlawful eviction. In re Marriage of

Carrlson, supra, 163 Cal.App.4th 281.

By this Court granting this writ would settle the above important questions

and divergent opinions issued by the Fourth Appellate District, Division Three

departing from the accepted and usual course of judicial proceedings calling for an

exercise of this Court’s supervisory power to bring back conformity to the justice

system instead of allowing this gross miscarriage of justice and deprivation of

property and substantial rights without due process and equal protection of the law

in violation of the 14th Amendment to the Constitution.

Ms. Richards respectfully requests that the Court grant certiorari to review

the trial court’s orders and Court of Appeals, Fourth Appellate District, Division

Three’s Opinion in order to resolve these important constitutional questions.

ARGUMENT

1. The Trial Court’s Eviction Order did not Comply with the Due

Process Clause to the 14th Amendment to the Constitution and

deprived Petitioner of a Substantial Property Interest and

Continued Residence of her Property

The Appellate Court did not allow any briefing on the issue on whether the

trial court had authority under CCP §128 (Appendix A p. 15) to enforce its

judgments on 11/9/18.

The question here is whether the “Compel Obedience Clause” in CCP §128

(Appendix A p. 15) allows the trial court to evict without a fully noticed motion filed

by the opposing party and would the ex parte eviction order comply the due process

clause to the 14th Amendment? Petitioner posits that it did not comply and was not

adequate notice denying her of her substantial property interest and continued

residence in her home.

In Drum v. Fresno County Dept, of Public Works, 144 Cal.App. 3d 777 (1983)

stated that “Wholly inadequate notice is no notice at all.” Id at p. 783 The Court

further stated that “Several cases have held to be adequate ‘the notice must be such

as would according to common experience be reasonably adequate to the purpose”

citing for example Kennedy u. South Coast Regional Com. (1977) 68 Cal.App. 3d

660, 670-672 [127 Cal.Rptr. 396]; Litchfield v. County of Marin (1955) 130 Cal.App.

2d 806, 813 [280 Cal.Rptr. 117]. “[C]ommon sense and wise public policy . . . require

an opportunity for property owners to be heard before [requests for orders] which

substantially affect their property rights are [affected] . . .” citing Scott v. City of

Indian Wells (1972) 6 Cal.3d 541, 548-549 [99 Cal.Rptr. 745, 492 P. 2d 1137.] CRC

5.92(b) states that a request for order must be filed on the FL-300 form and set

forth with specificity the grounds for the relief requested and comply with CCP

§1005 . None of these requirements were met in these proceedings causing a

miscarriage of justice and denial of due process and equal protection of the law.

The question here is did the court violate Ms. Richards’ due process rights

when it applied CCP §128 and evicted her and her minor from their lawfully owned

dwelling without affording her notice that it intended to do so, an opportunity to

prepare a defense with counsel and an opportunity to be heard in violation of the

due process clause to the 14th Amendment depriving Petitioner and her minor child

of a significant interest in property and the right to continued residence in their

home? In Mooney u. Superior Court of Santa Cruz County, (2016), 245 Cal.App. 4th

523 @ 525 states that without a motion the court was not authorized to proceed.

And in Elkins v. Superior Court, (2007) 41 Cal.4th 1337, 1357-1338 states that “. . .

the efforts of a judge presiding over family law cases to expedite matters ‘should

never be directed in such a manner to prevent a full and fair opportunity to the

parties to present all competent, relevant and material evidence bearing upon any

ul.

issue properly presented for determination.” (Appendix J p. 253) The question in

this case was the issue of eviction properly submitted for determination because

there was no motion for eviction or for the clerk to sign instead of Petitioner

depositing and would a request made in a responsive pleading without setting forth

the grounds in contradiction with court procedure and CRC 5.92 be considered a

violation of Petitioner’s due process and equal protection of the law rights when the

court proceeded on issue not properly before the court depriving Petitioner of an

opportunity to prepare a defense with counsel taking away her substantial property

rights and continued residence in her home in violation of due process clause of the

14th Amendment to the Constitution.

The United States Constitution Article XIV (Appendix J. p. 229) states that

“It is a fundamental concept of due process that a judgment against a [party] cannot

be entered unless he was given proper notice and an opportunity to defend.” In re

Marriage of Lippel (1990) 51 Cal. 3d 1160. (Lippel) (Appendix J p.183-184) The

question here is whether due process and CCP §128 permit a court to order eviction

of a party out of her property enforcing a void on its face judgment still pending

adjudication and no request for eviction was pending by noticed motion and

defendant had not received notice that it may be awarded. The Supreme Court in

Lippel stated that that is not allowed citing Mullane v. Central Hannover Bank

(1950) 339 U.S. 306, 313-315 [94 L.Ed. 865, 872-874, 70 S.Ct. 652] holding that “It is

fundamental to the concept of due process that a defendant be given notice of the

existence of [an action] and notice of the specific relief which is sought. . .” The case

went on to state that “A defendant is not in a position to make such a decision if he

has not been given full notice. “ In the instant case, there was no motion setting

forth the specific facts and no request for relief and based on the CRC 5.92 states

that if a party requests an order from a court that he is to file a separate motion

setting for the specific facts on which his requests rests so they can prepare a

defense. The Responsive pleading did not comply.

Petitioner had no idea that the court would make orders at her hearing for

the other party and she specifically objected. (Appendix I-p.l20-ln7-9&lnl3-16)

Petitioner thought that was enough and the court should have either continued the

matter to give petitioner due process and equal protection of the law or told Ryal W.

Richards to file his own motion to set forth the facts and good cause for eviction. In

this matter, although there was no support for eviction or statement the court based

its ruling, Petitioner can only assume she was evicted because she wanted to

deposit the listing agreement pending her appeal and have that listing agreement

viewed for an abuse of discretion by the court of appeals. In Hale v. Morgan (1978)

22 Cal. 3d 388, 398 [Penalty exceeded constitutional limit and was arbitrary,

excessive, and unreasonable.] Evicting a party out of their property without notice

of intent to do so, setting forth the facts exceeds the constitutional limits and was

arbitrary, excessive and unreasonable. The eviction order was a miscarriage of

justice and should have been reversed by the Court of Appeals and remanded for

further proceedings to provide Petitioner a full, fair hearing on the issue of eviction.

Even the Appellate Court stated in Richards II that requests made in

responsive pleadings were not adequate notice (Appendix S p.411) to put the other

party on notice then contradicted itself in this appeal. In Boddie v. Connecticut, 401

U.S. 371 (1971) states “Prior cases establish, first, that due process requires, at a

minimum, that absent a countervailing state interest of overriding significance,

persons forced to settle their claims of right and duty through the judicial process

must be given a meaningful opportunity to be heard. Early in our jurisprudence,

this Court voiced the doctrine that "[wjherever one is assailed in his person or his

property, there he may defend,” citing Windsor v. McVeigh, 93 U.S. 274, 277 (1876)

and Baldwin v. Hale, 1 Wall. 223 (1864); Hovey v. Elliott, 167 U.S. 409 (1897)

stating “The theme that ‘due process of law signifies a right to be heard in one’s

defense,” Hovey v. Elliott, supra, at 471. Mr. Justice Jackson wrote for the Court in

Mullane v. Central Hanover Tr. Co., 339 U.S. 306 (1950), “there can be no doubt

that at a minimum they require that deprivation of life, liberty or property by

adjudication be preceded by notice and opportunity for hearing appropriate to the

nature of the case.” Id., at 313. See Constitution Article 1 § 1 and § 2, United States

Constitution Fourteenth Amendment; See also Marriage ofFingert (1990) 221 CA3d

1575, 1579 at page 1580; Marriage of Lopez (1974) 38 CA3d 114; See also Fewel v.

Fewel, (1923) 23 C2d. 431, 434 [Re: Right to produce evidence and cross examine

adverse witnesses.]; See also 2 Cal. Procedure 3rd Jurisdiction, Section 234, et seq.

Finally, pursuant to CRC 5.92, a Request for Order (form FL-300) must set

forth facts sufficient to notify the other party of the “moving” party's contentions in

v«

support of the relief requested.] In this case, Ryal W. Richards was not the moving

party. In Mooney v. Superior Court of Santa Cruz Cnty, supra, 245 Cal.App.4th523

[absence of motion court was not authorized.] CCP §917.3 [Stay after lodging

document ordered to sign] Isbell v. County of Sonoma, (1978), 21 Cal.3d 61[Held: it

is settled Constitutional Law that 'in every case involving a deprivation of property

within the purview of the due process clause, the Constitution requires some form of

notice and a hearing." ] and whether a request for order in a responsive pleading

was adequate notice to put Petitioner on notice that the court would evicts is a

question before this court for determination. In Kobey v. Morton, (1991) 228

Cal.App.3d 1055, 1060 [Held: "The Court's inherent power does not extend so far as

to encompass an order without a petition to serve as a vehicle for that order."]

Marquez-Luque v. Marquez (1987) 192 Cal.App.3d 1513, 1517 [238 Cal.Rptr.172]

[Re: There is no statute or equity that gave the court authority to evict without

basic requirements of due process.] This Court should decide whether CCP §128

trumps the due process requirements provided in the 14th Amendment in direct

conflict with Kobey v. Morton, (1991) 228 Cal.App.3d 1055, 1060 that states “neither

statute or equity gave the court authority to evict the defendant from his dwelling;

and Marquez-Luque v. Marquez (1987) 192 Cal.App.3d 1513, 1517 [238

Cal.Rptr.172] [Re: There is no statute or equity that gave the court authority to

evict without basic requirements of due process.]; Isbell v. County of Sonoma,

(1978), 21 Cal.3d 61[“notice and a hearing." ] and whether a request in a responsive

pleading was adequate notice to put Petitioner on notice that the court would evict

her at her hearing to deposit the listing agreement is a question before this court for

determination.

Ms. Richards respectfully requests that the Court grant certiorari to review

the trial court’s orders and Court of Appeals, Fourth Appellate District, Division

Three’s Opinion to resolve these important constitutional questions.

2. The Trial Court’s Order for Sanctions is Void for Lack of Jurisdiction

because it was made Enforcing an Order Automatically Stayed

Pending Appeal and it Was A Violation of Due Process and Equal

Protection of the Law for the Appellate Court not to Vacate the Void

Order made without jurisdiction.

The question is does CCP 916(a) automatically stay the sanction order

(Appendix P p.385 line 10) for future unknown amount or would that order be

subject to Civil Code of Procedure Section 917.1 requiring a bond and did the court

have inherent power to enforce its judgment while on appeal. (Appendix A p.6) Petitioner posits that CCP §917.1 does not apply. The trial court did not have

jurisdiction over that order and all orders made against it should be considered void

for lack of subject matter jurisdiction, however, the court of appeals did not reverse

the $4,200 void order made without subject matter jurisdiction instead it stated the

court had jurisdiction over that order because Petitioner failed to post a bond.

(Appendix A p. 3 and 15). The Supreme Court of California in Varian Medical

Systems, Inc. v. Delfino, 35 Cal.4th 180 (Cal. 2005) (Varian Medical Systems, Inc.)

stated that “Subject to certain exceptions not relevant here, "the perfecting of an

appeal stays proceedings in the trial court upon the judgment or order appealed

from or upon the matters embraced therein or affected thereby, including

enforcement of the judgment or order . . "

916(a).) The purpose of the automatic

stay provision of section 916(a) "is to protect the appellate court's jurisdiction by

preserving the status quo until the appeal is decided. The [automatic stay] prevents

the trial court from rendering an appeal futile by altering the appealed judgment or

order by conducting other proceedings that may affect it." Citing ( Elsea v. Saberi

(1992) 4 Cal.App.4th 625, 629 [ 5 Cal.Rptr.2d 742] (Elsea).)

In Varion Medical Systems, Inc. the court went on to state “(2) To accomplish

this purpose, section 916, subdivision (a) stays all further trial court proceedings

"upon the matters embraced" in or "affected" by the appeal. In determining whether

a proceeding is embraced in or affected by the appeal, we must consider the appeal

and its possible outcomes in relation to the proceeding and its possible results. In

Hauck v. Riehl, 224 Cal.App.4th 695 (Cal. Ct. App. 2014) the court stated that “If

the court lacked jurisdiction ... it did not have the power to issue any . . orders, no

matter what evidence was or was not presented by the parties to the action. Citing

Valenta v. Regents of University of California (1991) 231 Cal.App. 3d 1465, 1470, fn.

2 282 Cal.Rptr. 812 Held: “It is axiomatic that a judgment entered by a court which

lacked jurisdiction is void and must be reversed” The Court of appeals, however, did

not reverse the void order but instead it affirmed it on the basis that because

Petitioner failed to post a bond, the trial court had authority to enforce it in direct

conflict with CCP §916(a) and court precedent.

Ms. Richards respectfully requests that the Court grant certiorari to review

the trial court’s orders and the Court of Appeals, Fourth Appellate District Division

Three’s Opinion to resolve this important question of jurisdiction.

CONCLUSION

In consideration of the foregoing, Petitioner urges the Court to grant

certiorari review in order to resolve these important questions. Petitioner

respectfully submits that the Petition for Certiorari should be granted, the orders of

the trial court and judgment by the Court of Appeals, Fourth Appellate District be

vacated, and the case remanded for further consideration.

Respectfully submitted,

Alicia Marie Richards

351 Catalina Drive

Newport Beach, CA 92663

(949)813-6138

Richardsalicia007@gmail.com

Petitioner in Forma Pauperis

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.