IN THE COURT OF APPEALOF THE STATE OF CALIFORNIA

Fourth Appellate District, Division Two______________________________

Elena GrossPetitioner,

vs.The Superior Court of the State of California,

County of RiversideRespondent

_____________________________

TIMOTHY GROSSReal Party of Interest

_____________________________ PETITION FOR WRIT OF MANDATE, PROHIBITION,

OR OTHER APPROPRIATE RELIEFDISQUALIFCATION OF JUDGE DALE WELLS CCP 170.6

IND 098669, INC 10002737

Elena Gross47822 Belvedere Way

Indio CA 92201760 625 0518

Appellant Pro Per

1

TABLE OF CONTENTS

TABLE OF AUTHORITIES 3INTRODUCTION WHY WRIT RELIEF SHOULD BE GRANTED 5

PETITION 5 VERIFICATION 7MEMORANUDM OF POINTS AND AUTHORITIESI. INTRODUCTION

88

II. LEGAL ARGUMENT 12A. THE RIGHT TO EXERCISE A PREMPTORY CHALLENGE

AGAINST A JUDGE IS AN EXTRAORDINARY RIGHT

THAT SHOULD BE LIBERALLY CONSTRUED TO

PROMOTE JUSTICE AND DISQUALIFCATION

PROCEEDINGS ARE CENTERED AROUND A SPECIFIC

JUDICIAL OFFICER.

12

B. A DISQUALIFIED JUDGE HAS NO POWER TO ACT

DURING A DISQUALIFCATION AND AFTER A

DISQUALFICATION.

15

CONCLUSION 17 CERTIFICATE OF WORD COUNT 18

TABLE OF EXHIBITS 20

2

TABLE OF AUTHORITIES

People V. American Contractors Indemnity Co. (2004), 33 Cal. 4th at p. 661 9

Lubben v. Selective Service System Local Bd. No 27, 435 F. 2d 645 (1st

Cir.1972).

9

Nis san motor Nissan Corp vs. Superior Court (1992) 6 CA 4th 150, 154, 7 CR2d 801 12

a Hemingway vs. Superior court (2004) 122 CA 4th District 1148, 1158, 19, CR 3d

3 Brown Vs. Superior Court (1981), 124 CA 3d 1059, 1061, 177 CR 756.

Geddes vs. Superior Court (2005) 126 CA 4th 417, 425, 23 CR 3d 857.

Gubler vs Commission on Judicial Performance (1984) 37 C3d, 27, 52, 207 CR

17

1212

12

14

Furey Vs. Commission on Judicial Performance (1987) 43 C3d 1297, 1308, 240

CR 859

14

McCartney v Commission on Judicial Qualifications (1974) 12 C3d 512, 531,

116 CR 260.

14

Solberg v Superior Court (1977) 19 C3d 182, 200, 137 CR 460. 14

School Dist. of Okaloosa County v Superior Court (1997) 58 CA4th 1126, 1136–

1137, 68 CR2d 612

14

McCartney v Commission on Judicial Qualifications (1974) 12 C3d 512, 531,

116 CR 260.

15

Wenger v Commission on Judicial performance (1981) 29 C3d 615, 643, 175 CR

420

15

California Supreme Court in People v Superior Court (Lavi) (1993) 4 C4th 1164,

17 CR2d 815.

15

Pacific Legal Foundation v. Brown (1981) 29 Cal. 3D 685, 691). 16

Cal. Housing Finance Agency v. Patitucci (1978) 22 Cal. 3D 171, 175) 16

Strong v. State Bd. Of Equalization (2007) 155 Cal. App. 4Th 1182, 1193 16

3

STATUTE

California Civil Code section 1102

28 U.S.C. § 1657. CCP § 170.6CCP § 170.6 (a) (1).

CC CPP § 170.4 (d)

CCP § 632

CCP § 634

CCP § 636

CCC C CCP §170.6(a)(2).

5

5

9

9

10

10

10

4

INTRODUCTION WHY WRIT RELIEF SHOULD BE GRANTED

Respondent Court has exceeded its jurisdiction in utilizing a judicial officer who

refuses to disqualify himself and has created conflicting orders while under a

disqualification proceeding (CCP § 170.6) dated 5/12/2011 (Exhibit 1) that was

never ruled on.

This petition seeks a writ of prohibition under California Civil Code section 1102

or other relief that the Court may deem appropriate, to require respondents to

restore the status quo of the case in IND 098669 as Respondent Court's orders and

proceedings are in excess of the jurisdiction of such tribunal, corporation, board or

person.

PETITION

TO THE HONORABLE PRESIDING JUSTICE AND ASSOCIATE

JUSTICES OF THE COURT OF APPEAL OF THE STATE OF

CALIFORNIA, FOURTH APPELLATE DISTRICT:

Petitioner alleges:

1. Petitioner is the petitioner in the action entitled “In Re the Marriage of

Timothy and Elena Gross, IND 098669, pending before the Respondent

Court and the appellate court.

2. Respondent is the Superior Court of the State of California, County of

Riverside, in which the above entitled action is pending.

3. The Real Party in interest is Timothy Gross, who has an interest directly

affected by these proceedings as he is the respondent in the above-entitled

action.

4. That Petitioner filed a CCP § 170.6 declaration against Judge Dale Wells on

5/12/2011 which was never ruled on (exhibit 1).

5

5. The minute order references that Judge Wells was in receipt of a CCP §

170.6 declaration which was never addressed and affects all other rulings

that occurred after the 12th of May 2011 in case IND 098669.

6. A CCP § 170.6 declaration was filed and granted in case INC 10002737

against Judge Dale Wells on 10/28/2011, (exhibit 2).

7. Judge Wells is and has been disqualified from making any further rulings in

case IND 098669 and INC1000273.

8. Petitioner filed her objections to Judge Wells hearing any further

proceedings in case IND 098669 (exhibit 3) on 11/28/2011.

9. Judge Wells’s diverse orders are the subject of a number of appeals in the

4th district division two appellate court in case numbers: E054634, E054567

E054450.

10. Respondent Court has abused its discretion and acted in excess of

jurisdiction by allowing a Judge to proceed while he was under a 170.6

CCP disqualification which was not ruled on and when he has been

disqualified from any further proceedings on 10/28/2011 upon a granted

170.6 in case INC1000273.

11. Petitioner has no plain, speedy and adequate remedy in the ordinary course

of law, other than the relief sought in this petition, as the Respondent Court

completely exceeded its jurisdiction, allocated by statute and the California

constitution and Petitioner and the minor children in this case have already

been irreparably harmed through the actions of Judge Dale Wells.

Wherefore, Petitioner prays:

1. That the court issues a writ of prohibition commanding Respondent court to

vacate all orders by Judge Wells that were issued during a disqualification

period that was never ruled.

6

2. That the Court issue a writ of prohibition ordering Judge Dale Wells to

disqualify himself from any further proceeding due to the granted 170.6

declaration that was issued in case INC10002737 on 10/28/2011.

3. That the Respondent court issue a directive to Superior Court reconsidering

any hearings that were ruled on Judge Wells in IND 098669 during his

disqualification and which have not rendered a final judgment.

4. That the Court, alternatively, issue any appropriate relief to petitioner and

the minor children.

DATED: 12/15/2011

__________________

Elena Gross

VERIFICATION

I, Elena Gross, am the Petitioner in this proceeding. I have read the foregoing

petition and know its contents. The facts stated therein are true and are within my

personal knowledge. The supporting exhibits attached to this Writ are true and

accurate copies of the exhibits that have been filed in the Superior Court in case

IND 098669 and INC10002737.

I declare under the penalty of perjury under the laws of the State of California that

the foregoing is true and correct.

Dated: 12/15/2011 Elena Gross, Petitioner

7

MEMORANUDM OF POINTS AND AUTHORITIES

INTRODUCTION

This extraordinary writ petition concerns diverse orders issued by the Superior

Court of Riverside in a dissolution action, the real party of interest (Timothy

Gross) brought against his former Spouse, Elena Gross.

The trial court, acted in excess of its jurisdiction by allowing a judicial officer who

was acting while under a CCP § 170.6 disqualification proceeding dated 5/12/2011

to issue any orders while under disqualification and to continue to preside over

the case and issue devastating rulings in case IND 098669, affecting the health and

welfare of the minor children.

BASIS FOR RELIEF

Petitioner has no adequate legal remedy other than writ relief due to the unlawful

nature of allowing a judicial officer to proceed and render rulings in case IND

098669 while under disqualification and after disqualification. Based on the

legislative and constitutional irregularities that Respondent Court participated in

by not ensuring that the assigned judge had dealt with the disqualification

proceeding and stopped rendering rulings after he was disqualified Judge Wells

rulings are void. Petitioner's constitutional due process rights under the 14th and 5th

amendment have been significantly impacted and jurisdiction of a number of

Judge Wells' orders are in the 4th district appellate division 2 court.

SUMMARY OF ARGUMENT

8

The Respondent trial court completely exceeded its jurisdiction by not following

the necessary mandatory procedural requirements conferring jurisdictional

authority on a judicial officer to hear a case, during a disqualification proceeding

and after the judicial officer was disqualified.

No trial judge, commissioner, or referee may try any civil proceeding or

criminal Civil or criminal proceeding or hear any matter involving a contested

issue of law if it established that the judicial officer is prejudiced against a party or

attorney or the interest of a party or attorney, CCP § 170.6 (a) (1).

A disqualified judge has no power to act after the disqualification, CCP § 170.4

(d) or after the filing of a statement of disqualification until the question of his or

her disqualification has been determined (CCP § 170.4 (d)).

When a statute authorizes a prescribed procedure and the court acts contrary to

the authority conferred, the court exceeds its jurisdiction (People V. American

Contractors Indemnity Co. (2004), 33 Cal. 4th at p. 661). A court must vacate any

judgment entered in excess of its jurisdiction (Lubben v. Selective Service System

Local Bd. No 27, 435 F. 2d 645 (1st Cir.1972).

STATEMENT OF THE CASE

This writ petition concerns the lack of jurisdiction of a judicial officer to preside

over a case as he did not follow the mandatory procedural requirements conferring

constitutional and legislative jurisdictional authority on a judicial officer to hear

the case during a disqualification proceeding and after the judicial officer was dis-

qualified.

Between the 2nd to the 5th of May 2011, Judge Dale Wells presided over a

custody trial. Petitioner requested a statement of decision and a tentative

statement of decision was provided on 5/5/2011 by Judge Dale Wells.

9

Petitioner filed her objections to the inaccuracies and ambiguities in the tentative

statement of decision pursuant to CCP § 632 and CA rules of court 3.1590 on

(5/9/2011).

The real party of interest filed an exparte motion for custody and visitation on

5/12/2011.

Petitioner submitted a CCP § 170.6 disqualification prior to the hearing, and

referenced the CCP § 170.6 disqualification declaration in a corresponding oral

motion. Judge Wells referenced the CCP § 170.6 disqualification in the minute

order for proceedings of 5/12/2011 but never issued any ruling on the written CCP

§ 170.6 disqualification. The court record reflects that no decision was made on

the CCP § 170.6 disqualification request (exhibit 1).

The court modified its tentative statement of decision of the custody trial on

5/23/2011 with a proposed statement of decision (exhibit A).

Petitioner again filed objections to the statement of decision and proposed

judgment pursuant to CCP § 632, and CA rules of court 3.1590 on 6/3/2011.

The court issued its statement of decision on 6/13/2011. No final judgment has

been issued and formally signed on the statement of decision pursuant to CCP §

634-636.

Petitioner filed her objections to the statement of decision and proposed

judgment on 6/14/2011.

Petitioner filed a motion to set aside the statement of decision and motion for

new trial on 6/30/2011, set for hearing on 8/5/2011.

On 8/5/2011 Judge Wels heard the motion to set aside the statement of decision,

and motion for new trial and overruled Petitioner’s objections and denied the

motion and left the original statement of decision dated 6/13/2011 citing Joint

legal and joint physical custody to both petitioner and the real party of interest in

place (exhibit 4).

Judge Wells issued a non noticed exparte citing that the mother was an

immediate flight risk based on the same set of circumstances that existed at the

10

time of the hearing on 5/12/0211, and the trial between 5/2/2011-5/5/2011,

(Exhibit 4), when evidence of the mother’s expired passports had been presented

to the court, and issued temporary orders that conflict with the current orders of

joint physical and joint legal custody that are in place.

Judge Wells issued an Order to show cause for custody, and sanctions and

issued temporary exparte orders sanctioning the mother with her children without

notice and set a hearing date. Judge Wells did not change any orders on 9/9/2011,

(exhibit 5) or 9/28/2011 (exhibit 6).

Petitioner filed an exparte request to vacate orders dated 6/13/2011, 8/5/2011,

9/9/2011 and 9/28/2011 and remove Joshua and Garbrial Gross as sanctions on

10/4/2011. The exparte request was denied and set for hearing for 10/20/2011 and

continued until 11/29/2011 (exhibit 7).

Petitioner filed a motion to bifurcate and terminate marital status on

9/156/2011, which was set for hearing on 10/20/2011 and continued until

11/29/2011 (exhibit 7).

On 10/19/2011 Petitioner filed a request for restraining order which was denied,

and denied at the hearing on 11/29/2011 (Exhibit 8).

On 10/28/2011 Judge Dale Wells granted the CCP § 170.6 disqualification

challenge that was filed against him in case INC10002737 (exhibit 2).

On 11/28/2011 Petitioner filed her objections in case IND 098669, to Judge Dale

Wells hearing any further proceedings due to his granted CCP § 170.6

disqualification (exhibit 3).

On 11/29/2011 the court continued the divorce proceeding based upon the status

of the civil case from which Judge Wells is disqualified, (Exhibit 9).

On 11/29/2011 the court issued further orders (exhibit 10).

On 12/13/2011, the court left the orders on 8/5/2011 in effect (exhibit 11) and took

the divorce motion off calendar (exhibit 12).

11

LEGAL ARGUMENT

A. THE RIGHT TO EXERCISE A PREMPTORY CHALLENGE

AGAINST A JUDGE IS AN EXTRAORDINARY RIGHT THAT

SHOULD BE LIBERALLY CONSTRUED TO PROMOTE JUSTICE

AND DISQUALIFCATION PROCEEDINGS ARE CENTERED

AROUND A SPECIFIC JUDICIAL OFFICER

The statute governing the right to file a preemptory challenge is defined by CCP §

170.6 and must be liberally construed to promote justice, Nissan motor Corp vs.

Superior Court (1992) 6 CA 4th 150, 154, 7 CR2d 801, see also Hemingway vs.

Superior court (2004) 122 CA 4th District 1148, 1158, 19, CR 3d 363, (court must

refrain from any tactic or maneuver that has practical effect of diminishing this

right).

A judge who has been disqualified under CCP § 170.6 may no longer hear any

proceedings in the case even when the party who sought disqualification later

expresses a preference for appearing before this judge, Brown Vs. Superior Court

(1981), 124 CA 3d 1059, 1061, 177 CR 756.

Disqualification under CCP § 170.6 is not limited to any particular motion or

issue, but deprives a judge of jurisdiction in any further proceeding in the case that

involves a contested issue of law of fact (Geddes vs. Superior Court (2005) 126

CA 4th 417, 425, 23 CR 3d 857.

The purpose of the CCP § 170.6 disqualification statute is to exercise the

preemptory right to disqualify the specific judicial officer affected by this

challenge as specified by statute, who renders any rulings on any contested issue

affecting the specific party filing the disqualification.

The procedural guidelines specified by the CCP § 170.4 statutes are very clear.

A judge under a disqualification proceeding may not render any rulings until the

disqualification has been decided on.

12

The disqualification affects the judicial officer to whom it is directed and to

whom the specific party declares under the penalty of perjury that the judge is

biased and prejudiced against said party or the interest of the party so that the de-

clarant cannot or believes that he or she cannot have a fair and impartial trial or

hearing before the judge court commissioner or referee, (CCP § 170.6 (a) (6)).

Granting a CCP § 170.6 declaration confirms that the judicial officer is biased

and prejudiced against said party or the interests of said party and that the declar-

ant will not receive a fair and impartial trial or hearing before the specific judicial

officer involved.

It contradicts the intent of the statute to accept a declaration of bias and

prejudice against a specific judicial officer and to expect the judicial officer to

render fair and impartial rulings in any contested issue or fact affecting the interest

of the declarant or party in any other proceeding.

A CCP § 170.6 declaration was filed and acknowledged by Judge Wells on the

morning of 5/12/2011 and that he would make a timely decision on the

disqualification. No decision on the CCP § 170.6 was made or referenced in the

court docket in case IND 098669. The procedural posture of the case reflects that

Judge Wells was under disqualification proceedings with every decision that was

rendered after 5/12/2011 in case IND 098669.

Judge Wells granted the CCP § 170.6 challenge that was filed on 10/28/2011 in

case INC 10002737, effectively disqualifying Judge Wells from any proceeding of

any contested issue that affects the interest of the party.

Judge Wells referenced the civil case in a minute order on 11/29/2011 as the basis

for his decision to continue the divorce proceeding although he was formally

disqualified on 10/28/2011 and did not issue any decision on the § 170.6

challenge that was filed on 5/12/2011.

Once a judge has been disqualified under CCP § 170.6 the specific judicial officer

may not communicate with the new judge or attempt to influence the decision of

the judicial officer assigned to hear the case, Gubler vs Commission on Judicial

13

Performance (1984) 37 C3d, 27, 52, 207 CR 171 (attempt to influence is basis for

possible discipline by Commission on Judicial Performance), Furey Vs.

Commission on Judicial Performance (1987) 43 C3d 1297, 1308, 240 CR 859

(attempt to communicate with new judge regarding recommended sentence was

prejudicial misconduct).

Case law is clear that the disqualification intent of the statute refers to a specific

judicial officer and the specific party filing the disqualification declaration as bias,

prejudice and lack of impartiality at a trial or hearing affecting the contested

interest of the party filing the disqualification is the basis of the disqualification.

The disqualification is automatic in the sense that a good faith belief in preju-

dice is in itself sufficient to disqualify the judge. CCP §170.6(a)(3); McCartney v

Commission on Judicial Qualifications (1974) 12 C3d 512, 531, 116 CR 260.

Good faith is presumed from the act of challenging the judge under oath. Solberg

v Superior Court (1977) 19 C3d 182, 200, 137 CR 460. Although CCP §170.6(a)

(2) requires the party or attorney to show “good faith” by declaring under oath that

the judge is prejudiced, it does not follow that a showing of bad faith invalidates

the disqualification motion. School Dist. of Okaloosa County v Superior Court

(1997) 58 CA4th 1126, 1136–1137, 68 CR2d 612 (timely disqualification motion

must be granted without regard to disruption it may cause to orderly administra-

tion of case).

In Solberg v Superior Court, supra, the Supreme Court upheld the constitution-

ality of CCP §170.6 by stating that the legislature’s method in trying to maintain

the appearance as well as the fact of impartiality in the judicial system was a reas-

onable one. 19 C3d at 192. To preserve public confidence in the impartiality of the

courts, a good faith statement of belief alone justifies disqualification. 19 C3d at

193.

.

14

C. A DISQUALIFIED JUDGE HAS NO POWER TO ACT DURING A

DISQUALIFCATION AND AFTER A DISQUALFICATION

After a challenge has been made, a judge has no jurisdiction to hold further pro-

ceedings except to inquire into the timeliness of the and the technical sufficiency

CCP §170.4(d); McCartney v Commission on Judicial Qualifications (1974) 12

C3d 512, 531, 116 CR 260 (immediate disqualification is mandatory); see Spru-

ance v Commission on Judicial Qualifications (1975) 13 C3d 778, 797, 119 CR

841 (judge may not cross-examine attorney making challenge). It is prejudicial

misconduct for a judge, after a valid peremptory challenge has been made, to con-

tinue to decide any contested issue. Wenger v Commission on Judicial perform-

ance (1981) 29 C3d 615, 643, 175 CR 420 and the judicial officer needs to make

an immediate decision.

In case IND 098669 Judge Wells never rendered any decision on 5/12/2011,

with regard to the timeliness or the technical sufficiency of the CCP § 170.6

challenge that was referenced in the minute order of 5/12/2011. The court docket

does not reflect or reference any §170.6 challenge as granted or denied in case

IND 098669 by Judge Dale Wells after 5/12/2011.

Judge Wells was formerly disqualified on 10/28/2011 in case INC 10002737,

where the § 170.6 challenge against him was granted. The time limits for filing a

peremptory challenge are set forth in CCP §170.6(a)(2), as interpreted by the Cali-

fornia Supreme Court in People v Superior Court (Lavi) (1993) 4 C4th 1164, 17

CR2d 815. In Lavi, the supreme court stated that, as a general rule, a challenge of

a judge is permitted under CCP §170.6 any time before a trial or hearing begins.

The California Supreme Court repeatedly has explained as a “fundamental

principle of constitutional adjudication'” in California, that “[u]nlike the federal

constitution which is a grant of power to congress, the California Constitution is a

limitation or restriction on the powers of the legislature, “which otherwise would

be plenary. (Pacific Legal Foundation v. Brown (1981) 29 Cal. 3D 685, 691).

15

From this fundamental principal flow “two important considerations'”. First, “the

entire law-making authority of the state, except the people's right of initiative and

referendum, is vested in the Legislature, and that body may exercise any and all

legislative powers which are not expressly, or by necessary implication denied to it

by the Constitution.” Second, '”all intendments favor the exercise of the Legis-

lature's plenary authority.” (Ibid).

The California Supreme Court has elaborated as follows: “If there is any doubt

as to the Legislature's power to act in any given case, the doubt should be resolved

in favor of the Legislature's action, “. As a consequence, “restrictions and limita-

tions” that the California Constitution imposes “are to be construed strictly and are

not be extended to include matters not covered by the language used'” (Ibid).

This “strong presumption” is a a “cardinal rule “ and “elementary”, and the

Court has over the decades reiterated it in numerous cases in addition to Pacific

Legal Foundation and Methodist Hospital (See, eg. Cal. Housing Finance Agency

v. Patitucci (1978) 22 Cal. 3D 171, 175), (reiterating nature of state constitution

and explaining that “[a]ny constitutional limitations are to be narrowly construed,

and a strong presumption of the constitutionality, supports the Legislature's acts;

Pacific Indemnity Co. v. Accident Com (1932) 1215 Cal. 461, 463-464 (it is

a “cardinal rule” that “[t]he presumption in favor of constitutionality and the con-

travention of the constitution must be clear and unquestionable:), City and County

of San Francisco v. Industrial Accident Com. (1920) 183 Cal. 273, 279 (“[T]he

courts should not and must not annul [a legislative act], as contrary to the constitu-

tion … unless it can be said of the statute that it positively and certainly is opposed

to the constitution. This is elementary).”

Various Panels of the Court of Appeal, followed the Supreme Court, have

done the same, (See, eg. Strong v. State Bd. Of Equalization (2007) 155 Cal. App.

4Th 1182, 1193 (relying on the “fundamental principles of constitutional adjudica-

tion” discussed in Pacific Legal Foundation, including “presumption of constitu-

16

tionality” (we start with the premise of validity, resolving all doubts in favor of the

Legislature's action”); Armstrong v. County of San Mateo (1983) 146

Cal. App. 3D 597, 624 . [“[All] intendments favor the exercise of the Legislature's

plenary authority: If there is any doubt as to the Legislature's power to act in given

case, the doubt should be resolved in favor of the Legislature's action …..'”) (quot-

ing Methodist Hospital supra, 5 Cal. 3D at p. 691).

CONCLUSION

Wherefore, Petitioner prays:

1. That the court issues a writ of prohibition commanding Respondent

court to vacate the orders where Respondent court exceeded its

jurisdiction and allowed a judge under disqualification to issue orders

during a disqualification period and to restore the prior status quo of the

case prior to disqualification.

2. That this court remand the undecided proceedings back to the Superior

Court after the CCP section 170.6 disqualification that was never ruled

on after 5/12/2011 and after Judge Wells was formerly disqualified on

10/28/2011 in case INC 10002737.

3. That the Court, alternatively, issues any appropriate relief to petitioner.

DATED:12/15/2011 Elena Gross

17

CERTIFICATE OF WORD COUNT

I, Elena Gross, certify pursuant to the California Rules of Court, that the word

count for this document is 4064 words excluding the tables, this certificate, and

any attachment permitted under rule 8.204(d). This document was prepared in

[Microsoft Word], and this is the word count generated by the program for this

document.

I certify under penalty of perjury under the laws of the State of California that the

foregoing is true and correct.

Executed, at Indio California, on 12/15/2011.

Elena GrossPetitioner

18

19