Opinion
H043851
03-09-2018
In re Marriage of LINDA YI-TAI SHAO and TSAN-KUEN WANG. LINDA YI-TAI SHAO, Appellant, v. TSAN-KUEN WANG, Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 1-05-FL126882)
Linda Yi-Tai Shao appeals the trial court's order that she disclose her residence address to her ex-husband, Tsan-Kuen Wang, who is the father of her minor daughter, L. On appeal, Shao argues that she should not have been ordered to provide her address, because the disclosure violates her constitutional right to privacy. She also argues that Wang poses a danger to her, and that the judge was biased against her.
Shao was designated a vexatious litigant by the trial court on June 16, 2015, in Santa Clara County Superior Court No. 2012-1-CV-220571. In this appeal, she is represented by counsel and is not subject to the requirements of Code of Civil Procedure section 391.7, subdivision (a).
Wang did not file a respondent's brief in this matter.
STATEMENT OF THE CASE
Shao and Wang were married for almost 18 years. They separated in 2005. The couple have two children together, Louis, who is now an adult, and L., who was born in 2005. The court entered judgment for dissolution of marriage on May 28, 2008, following Shao's and Wang's settlement agreement.
Although there have been many trial court orders following the entry of judgment, and three appeals that we decided by opinion, the order that is the subject of this appeal was entered on July 21, 2016. Wang filed a request for order on April 28, 2016. In it, Wang sought permission to take L. to Taiwan on vacation. He also sought an order that Shao provide him her residence address.
Following the original judgment in this case on May 28, 2008, Shao filed three appeals of interim orders that were decided by this court. (In re Marriage of Shao and Wang (May 21, 2014, H037820) [nonpub. opn.]; In re Marriage of Shao and Wang (Jan. 27, 2012, H035194) [nonpub. opn.]; In re Marriage of Shao and Wang (May 23, 2017, H039823) [nonpub. opn.].)
Shao filed her response to the request for order on April 29, 2016. She argued that disclosure of her residence address puts her in danger from Wang. Shao included a domestic violence restraining order against Wang that was filed on May 25, 2005, as well as a minute order from the hearing requiring that documents containing either her or Wang's home address be sealed. She also included a police report from 2006 wherein she described suspicious activities at her home and office that she attributed to Wang, as well as her report that Wang was harassing her and was refusing to pay child support.
In addition to a copy of the restraining order, Shao included the declarations of L.'s counsel, Elise M. Mitchell, and the visitation supervisor, Esther Alex-Taylor. Mitchell stated: "I have no particular position regarding residential addresses other than to say that if Mother has supervised visitation, I am not certain it matters to release the address." Alex-Taylor stated: "Mother's non-disclosure of her residence does not cause any danger to [L.] as I am always present with [L.] when she is with her Mother during the visits for the past 6 years."
At the hearing on July 21, 2016, Shao represented herself. At the outset, Shao objected to the court's jurisdiction. She also objected to the disclosure of her address to Wang, because of "severe threats from [Wang], including his mental condition. He is under a severe mental disorder . . . ."
Shao is an attorney licensed in the State of California.
With regard to her belief that Wang suffered from a mental disorder, Shao pointed to Wang's medical records that were sent to the court in response to her subpoena duces tecum. The subpoena was issued on June 3, 2016. Shao did not notify Wang or his attorney of the subpoena. Wang's attorney objected to the use of the documents, and the court determined they were not relevant.
The court inquired into whether there was any protective order in the case that remained in effect. Wang's counsel stated that there was one temporary restraining order against Wang that was issued in 2005.
The court ordered Shao to provide her address to Wang because Shao participated in supervised visitation with L. at her residence.
In 2013, the trial court confirmed a 2010 order awarding Wang sole legal and physical custody of L. The custody order allowed Shao to have four hours of supervised visitation with L. per week due to Shao's "severe and ongoing emotional and psychological abuse" of L.
On August 1, 2016, Shao filed a notice of appeal of the July 21, 2016 order.
DISCUSSION
Standard of Review
The court ordered Shao to disclose her address to Wang because she participated in supervised visitation with L. at her residence. We review orders related to visitation for abuse of discretion. (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32.) In evaluating the factual basis for an exercise of discretion, we give broad deference to the trial court. (Rich v. Thatcher (2011) 200 Cal.App.4th 1176, 1181.) " 'The burden is on the party complaining to establish an abuse of discretion, and unless a clear case of abuse is shown and unless there has been a miscarriage of justice a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power.' " (Denham v. Superior Court (1970) 2 Cal.3d 557, 566.)
Shao's Right to Privacy
Citing Planned Parenthood Golden Gate v. Superior Court (2000) 83 Cal.App.4th 347, Shao asserts that the court's order requiring her to disclose her address violated her constitutional right to privacy. In Planned Parenthood, the Court of Appeal considered whether a trial court properly ordered discovery of the names and address of employees and supporters of Planned Parenthood who were not parties to the action. The court found that the discovery order was improper, because the trial court "failed to balance the constitutional privacy interests of nonparties against the state's interest in compelling disclosure of the information at issue." (Id. at p. 370.)
The important fact in Planned Parenthood which makes the case inapplicable here, is that the order in Planned Parenthood was for the discovery of the residence addresses of nonparties. Not only is Shao a party in this case, she is L.'s mother, and participates in supervised visitation with L. at her residence. The court was under no obligation to balance Shao's right to privacy with the state's interest in seeking the information. Requiring Shao to provide her residence address to L.'s custodial parent did not violate Shao's constitutional right to privacy.
Danger to Shao
Shao argues that disclosing her address to Wang places her in grave danger. She points to evidence of incidents that occurred in 2005 and 2006. Specifically, while Wang was in custody on a domestic violence charge, he threatened to cut his throat and allow the blood to spill onto Shao. Wang slammed a door to his son's room so hard the hinges came loose. Wang punched a table when he was angry at Shao, and he harassed her and tampered with her office equipment.
Shao believes that Wang suffers from a mental disorder that makes him dangerous. Shao claims that in 2011, the trial court ordered Wang to complete a psychological evaluation, and that Wang did not do so. However, the order included in the record to which Shao refers does not state that Wang was required to complete a psychological evaluation as Shao contends.
Shao argues that Wang's medical records that were before the court because of Shao's subpoena showed that Wang suffered from a mental disorder. However, the court reviewed the records, which were duplicates of records produced in 2014, and determined that they were not relevant.
Despite her claim that Wang poses a great danger to her, Shao did not seek an extension of the 2005 restraining order, nor did she seek another restraining order against Wang during the 11 years prior to the request for order that is the subject of this appeal. There is nothing in the record showing that Wang poses any current danger to Shao such that she should not be ordered to disclose her residence address to him.
Discovery
Shao claims that she was denied her right to discovery under Family Code section 218 when the court did not grant her request for a continuance of the hearing on Wang's request for order.
Family Code section 218 provides, in relevant part: "With respect to the ability to conduct formal discovery in family law proceedings, when a request for order or other motion is filed and served after entry of judgment, discovery shall automatically reopen as to the issues raised in the postjudgment pleadings currently before the court."
At the hearing on July 21, 2016, Shao stated that she should be permitted to seek discovery from Wang, and in particular, to depose Wang in connection with her safety concerns. The court did not rule on Shao's request. Instead, the court conducted the hearing and ordered Shao to disclose her address to Wang because she visits with L. at her residence.
While Shao is correct that under Family Code section 218 discovery automatically reopened when Wang filed the request for order, Shao was not automatically entitled to a continuance of the July 21, 2016 hearing in order to depose Wang. Shao had nearly three months during which to conduct discovery—from April 28, 2016, when Wang filed his request for order, to July 21, 2016, when the hearing was set. Shao provided no evidence to the court that she made any attempt to depose Wang, or seek any other discovery from him during those three months.
The decision whether to grant or deny a continuance request is within the trial court's discretion. (Scott v. C.R. Bard, Inc. (2014) 231 Cal.App.4th 763, 783.) While the court did not explicitly rule on Shao's request to depose Wang, it did deny her request for a continuance that she needed in order to do so. Given the three-month period during which Shao could have made efforts to secure discovery from Wang, the court's denial of a continuance was not an abuse of discretion.
Judicial Bias
Shao claims that the judge who ordered her to disclose her residence address, the Honorable Joshua Weinstein, should have been disqualified and should not have decided the issue of the disclosure of her residence address because he was biased against her.
On May 26, 2016, Shao filed a document entitled "Verified Statement of Disqualification of Judge Joshua Weinstein Pursuant to C.C.P. §§ 170.1 & 170.3." This document is referenced in Shao's opening brief, but it is not contained in Shao's appendix.
On May 31, 2016, Judge Weinstein struck Shao's statement pursuant to Code of Civil Procedure section 170.4, because it did not cite facts that would "constitute any of the grounds for disqualification described in Code of Civil Procedure section 170.1."
The ground for Shao's bias claim is that Judge Weinstein improperly ordered some of her pleadings stricken and taken off-calendar. Specifically, on April 29, 2016, Judge Weinstein made the following order: "Petitioner, Linda Shao is a vexatious litigant. Clerk having filed 3 Request for Orders and Memorandum of Points and Authorities, in error, on April 26 and April 27, 2016 hereby cancels said filings and off-calendar hearings scheduled for June 2 and June 8, 2016 and orders reimbursement of 2 filing fees in the amount of $90.00 each to Petitioner, Linda Shao."
The proper procedure when the clerk mistakenly files new litigation from a vexatious litigant is set forth in Code of Civil Procedure section 391.7, subdivision (c), which provides, in relevant part: "[A]ny party may file with the clerk and serve, or the presiding justice or presiding judge may direct the clerk to file and serve, on the plaintiff and other parties a notice stating that the plaintiff is a vexatious litigant subject to a prefiling order as set forth in subdivision (a). The filing of the notice shall automatically stay the litigation. The litigation shall be automatically dismissed unless the plaintiff within 10 days of the filing of that notice obtains an order from the presiding justice or presiding judge permitting the filing of the litigation as set forth in subdivision (b). If the presiding justice or presiding judge issues an order permitting the filing, the stay of the litigation shall remain in effect, and the defendants need not plead, until 10 days after the defendants are served with a copy of the order."
On May 6, 2016, Shao filed an objection to Judge Weinstein's order striking her pleadings. The matter was referred to the Honorable Risë Jones Pichon, the Presiding Judge of Santa Clara County Superior Court. Judge Pichon found that Shao's pleadings which were ordered off-calendar by Judge Weinstein were not properly filed by the clerk's office, because Shao did not first receive permission from the presiding judge to file them. Judge Pichon also found that Code of Civil Procedure "section 391.7 does not otherwise authorize a judge to summarily strike or cancel a filing that does not comport with a prefiling order."
While Judge Pichon found that Judge Weinstein did not follow the correct procedure when he ordered Shao's improperly filed pleadings to be taken off-calendar, she found it was not necessary to vacate his order, noting, "this Court, but for the completed issuance and processing of the Order, would have invoked the procedure under section 391.7, subdivision (c) upon discovering [Shao's] unauthorized filings; and [Shao] remains free to submit to this Court a request to file new litigation, which step should have been undertaken in the first instance."
Shao argues that when Judge Weinstein improperly ordered her pleadings off-calendar, he "gave the appearance of acting as an advocate for Wang to defeat Shao's efforts to bring motions against Wang." However, adverse rulings or errors on the part of a judge do not demonstrate his or her partiality or bias. (Dietrich v. Litton Industries, Inc. (1970) 12 Cal.App.3d 704, 719.) "[T]he mere fact a judicial officer rules against a party does not show bias." (In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1328.) "[L]itigants and attorneys sometimes manifest their emotional pique at a decision by blaming the judge for being biased. This type of accusation appears more frequently in the family law arena than any other area of law. The accuser's description of the questioned decision is at best incomplete and at worst self-servingly inaccurate." (Id. at p. 1326.)
The fact that Judge Weinstein did not follow the proper procedure when he ordered that Shao's pleadings be stricken and taken off-calendar does not show that he was biased against her, nor does it show that he intended to deny Shao access to the court.
Conclusion
The trial court's order that Shao disclose her residence address to Wang was not an abuse of discretion. The fact that Shao participated in supervised visitation with L. at her residence was a legitimate reason for the court to order her to provide her address to Wang. As L.'s custodial parent, Wang has a right to know where his minor child is at all times, regardless of whether a supervisor is present for Shao's visitation with L.
Moreover, the court was not required to balance Shao's constitutional right to privacy, there was no evidence that Wang posed a current threat to Shao's safety, and there were no facts showing that Judge Weinstein was biased against her.
DISPOSITION
The order is affirmed.
/s/_________
Premo, Acting P.J. WE CONCUR: /s/_________
Mihara, J. /s/_________
Grover, J.