Request Dismissal

Cal. Super. - 6th Dist.February 19, 2019

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19CH008587 Santa Clara - Civil Daniel Michalek, Pro Per 1459 Alma Loop San Jose, CA 95125 (408) 896-5437 Daniel.L.Michalek@gmail.com SUPERIOR COURT 0F THE STATE 0F CAEPHBRREA Electronically Filed by Superior Court of CA, County of Santa Clara, on 4/28/2020 7:32 AM Reviewed By: E. Pierce Case #1 9CH008587 4289824 IN AND FOR THE COUNTY OF SANTA CLARA UNLIMITED JURISDICTION DANIEL MICHALEK, Petitioner and Cross-Respondent, VS. LAUREN POST, Respondent and Cross-Petitioner Case No.2 19-CH-008587 MOTION TO DISMISS CROSS- PETITIONER’S REQUEST FOR A RESTRAINING ORDER AFTER HEARING Date: May 19, 2020 Time: 9:00 a.m. Dept: 11 Judge: Overton Petitioner’s Motion t0 Dismiss Cross-Pez‘itioner ’s Requestfor a Restraining Order after Hearing replaces the previous response filed with the Court on April 16, 2020. Respectfully submitted, Dated: April 27, 2020. /S/Dam'el Michalek Daniel Michalek, Pro Per 1459 Alma Loop San Jose, CA 95 125 (408) 896-5437 PETITIONER’S RESPONSE TO CROSS-PETITIONER’S REQUEST FOR A RESTRAINING ORDER AFTER HEARING - 1 E. Pierce 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. III. TABLE OF CONTENTS PAGE! S! INTRODUCTION .............................................................................................. 3 THE COURT SHOULD DISMISS WITH PREJUDICE CROSS-PETITIONER’S RENEWED APPLICATION FOR RESTRAINING ORDER ................................................................................... 5 A. Cross-Petitioner Admits Her Failure t0 Attend the Hearing Resulted in a Default Judgment Against Her ............................................... 5 B. Cross-Petitioner Alleges No COVID-19 Health Issues ................................ 6 C. Santa Clara County Superior Court Emergency Orders ............................... 7 D. Cross-Petitioner’s Failure to Appear at April 7, 2020 Hearing .................... 7 E. Cross-Petitioner Alleges Judgment Against Her on April 7, 2020 Hearing is “Erroneous” ................................................................................. 9 F. Cross-Petitioner Cannot Meet Her Burden 0f Proof that She Had A Legitimate Reason t0 Miss the April 7, 2020 Hearing .............. 9 CONCLUSION AND PETITIONER’S REQUEST FOR RELIEF .................. 10 PETITIONER’S RESPONSE TO CROSS-PETITIONER’S REQUEST FOR A RESTRAINING ORDER AFTER HEARING - 2 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION Cross-Petitioner’s application for a Civil Harassment Restraining Order should be dismissed With prejudice because Cross-Petitioner failed t0 appear at the April 7, 2020 hearing, and admits as much in her own words. Cross-Petitioner’s renewed application appears borne out 0f her ignorance of the law; however, ignorance is no excuse. The Court’s process and procedure for the handling of civil harassment matters at the Downtown Superior Court was unambiguous. Cross-Petitioner blames her woes on a “temporary judge” for making an “erroneous” judgment against her. Furthermore, Cross-Petitioner’s renewed application is, like her previous requests, rife with falsehoods, exaggerations, misunderstandings, and relies 0n her emotions as a substitution for established facts and logical conclusions. Cross-Petitioner’s renewed application for protection, as With her previous applications, is another example 0f Cross-Petitioner’s erratic behavior that continues t0 be the guiding principle in her animus towards Petitioner and is further evidence that she cannot argue the facts; therefore, she responds t0 the process. Petitioner believes t0 his core Cross-Petitioner is attempting t0 avenge her February 2019 and May 2019 threats against him. Cross-Petitioner’s recent Violations of this Court’s Restraining Order issued April 7, 2020 demonstrate Cross- Petitioner believes she can willfully disregard the Court’s orders solely based upon her opinion that the Court’s order is “erroneous” (Cross-Petitioner’s Application dated April 7, 2020, Attach. 7(a)3 page 2). T0 put things in perspective, since March 2019, Cross-Petitioner claims she is fearful 0f Petitioner a total 0f 18 times through her written and oral testimony. Contrast that With Petitioner’s evidence 0f more than 185 recordings 0f Cross-Petitioner, her son, either one or both 0f Cross-Petitioner’s cats, 0r some combination thereof immediately outside Petitioner’s home PETITIONER’S RESPONSE TO CROSS-PETITIONER’S REQUEST FOR A RESTRAINING ORDER AFTER HEARING - 3 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 dating t0 March 2019. Logically, it does not make any sense that Cross-Petitioner is fearful of Petitioner while she has, in many 0f the more than 185 instances, come Within inches of his front door 0r allowed one 0r both 0f her cats t0 come within inches of his front door. It is unfathomable t0 Petitioner that Cross-Petitioner is complaining that she is being bullied, attacked, harassed and made t0 feel like her reputation is being harmed. Cross- Petitioner “in order t0 protect [herself] [Cross-Petitioner] campaigned and was elected t0 the HOA board 0f directors” (Cross-Petitioner’s Application dated April 12, 2019, Attach. 7b) (emphasis added). Cross-Petitioner weaponized her position on the board t0 enact a course of harassing conduct that thus far includes two verbal threats against Petitioner, and subsequent and increasingly Violent harassment in public and at Petitioner’s home. Now, Petitioner is using this Court as both the shield and the dagger against Cross-Petitioner, Which is an incredibly malicious tactic. The backlash t0 Cross-Petitioner’s antagonistic provocations over the last 15 months is not Petitioner harassing Cross-Petitioner, rather it is Petitioner defending himself, his home, and his reputation against a person Who seems t0 be intent 0n avenging her threats against him. II. THE COURT SHOULD DISMISS WITH PREJUDICE CROSS- PETITIONER’S RENEWED APPLICATION FOR RESTRAINING ORDER A. Cross-Petitioner Admits Her Failure to Attend the Hearing Resulted in a Default Judgment Against Her Cross-Petitioner admits her failure t0 attend the April 7, 2020 hearing resulted in a default judgment against her, “because I wasn’t present in time” (Cross-Petitioner’s Application dated April 7, 2020, Attach. 11). Cross-Petitioner’s renewed application is predicated 0n the idea that a “temporary judge” (Cross-Petitioner’s Application dated April 7, 2020, Attach. 11) made a judgment against PETITIONER’S RESPONSE TO CROSS-PETITIONER’S REQUEST FOR A RESTRAINING ORDER AFTER HEARING - 4 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 her and said judgment is “erroneous” (Cross-Petitioner’s Application dated April 7, 2020, Attach. 7(a)3 page 2). Cross-Petitioner’s premise is flawed. Cross-Petitioner’s insinuation Commissioner Copeland is a mere “temporary judge” is misguided, at best. Cross-Petitioner’s further insinuation Her Honor’s decision is somehow “erroneous” because Her Honor was the judicial officer hearing the Court’s civil harassment calendar 0n April 7, 2020 is demeaning t0 the Court and the judicial process. Cross-Petitioner submits in her renewed application the Court did not have the “history” of this matter. The facts 0f this case are not so unique only a specific judicial officer is capable 0f hearing the matter. Petitioner believes Commissioner Copeland When she indicated t0 him at the outset of the hearing that she had reviewed the matter and read his detailed response. Furthermore, Petitioner stipulated t0 the commissioner hearing the matter. As such, Petitioner believes the commissioner was clothed With “full judicial powers,” and her orders were “as final and nonreviewable as those 0f a permanent judge.” (In re Mark L., supra, 34 Ca1.3d at p. 178.) B. Cross-Petitioner Alleges N0 COVID-19 Health Issues Petitioner recalls during the April 7, 2020 hearing, the Court asked each party 0n the calendar Who was present (where the other party was absent) if the present party knew 0f any reasons related to COVID- 1 9 that would have prevented the absent party from attending the hearing. In each situation Where one party was absent, the Court gave the benefit of the doubt t0 the absent party, indicating the absent party’s request would be dismissed pending aprimafacie argument that their absence at the hearing was due t0 health reasons due to COVID-19. Cross- Petitioner’s absence from the hearing is due t0 her failure to prioritize her appearance at the hearing, which she admits t0 in her renewed application. PETITIONER’S RESPONSE TO CROSS-PETITIONER’S REQUEST FOR A RESTRAINING ORDER AFTER HEARING - 5 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Cross-Petitioner’s explanation for not attending the hearing is, “I was under the assumption COVID-shelter-in-place meant court date postponed” (Cross-Petitioner’s Application dated April 7, 2020, Attach. CV-5014 page 1 at 4c). Cross-Petitioner alleges n0 exigent circumstances related t0 COVID-19, which prevented her from appearing either in person 0r by telephone, such as her hospitalization for symptoms related t0 Coronavirus. Cross- Petitioner does not allege she has an order from the County 0f Santa Clara Health Department requiring her quarantine due t0 CoronaVirus. Petitioner believes, after testifying on April 7, 2020, that Commissioner Copeland not only understood the severity 0f Cross-Petitioner’s actions against him Which he was granted the temporary order for on March 12, 2020, the Court also agreed With Petitioner that if this matter was of such great importance t0 Cross-Petitioner, she would have prioritized her attendance at the hearing. C. Santa Clara County Superior Court Emergency Orders The Court issued emergency orders dated March 13, 2020, in response t0 the State’s shelter-in-place order. Continuances were granted in certain types of matters. Civil harassment restraining order matters were excluded from the list 0f continued types 0f matters. On March 17, 2020, the Court issued a press release titled “Santa Clara Superior Court Suspends A11 Non-Essential Functions for Duration of ‘Shelter in Place’ Order,” in Which the Court makes clear Civil Harassment Restraining Orders are an “essential function” handled in one (1) courtroom at the Civil Courthouse Downtown Superior Court, located at 191 North First Street, San Jose, CA 951 13. Furthermore, all cases calendared with the Superior Court have online PETITIONER’S RESPONSE TO CROSS-PETITIONER’S REQUEST FOR A RESTRAINING ORDER AFTER HEARING - 6 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 statuses maintained 0n the Court’s website. Parties t0 legal matters before the Court should confirm the status 0f the hearing prior to the hearing. D. Cross-Petitioner’s Failure t0 Appear at April 7, 2020 Hearing Cross-Petitioner admits in her application that she did not connect t0 the hearing in time. For this reason alone, the Court should dismiss with prejudice, Cross-Petitioner’s application. Petitioner recalls Cross-Petitioner was home at 9:00 a.m. on Tuesday, April 7, 2020. Petitioner’s Ring Video doorbell recorded at least one 0f Cross-Petitioner’s cats roaming unattended in the common area immediately outside his unit at approximately 9:00 am. This action by Cross-Petitioner further illustrates the pattern 0f Cross-Petitioner leaving one 0r both of her cats outside and unattended When she is home. Cross-Petitioner’s facts regarding her absence from court are contradicted in her papers. Cross-Petitioner submitted Attachment 7a(3), stating she, “called into [her] court date (Tuesday, April 7th, 2020) but didn’t get connected t0 the proper proceeding until too late.” However, 0n page 1 of the CH-5014, Cross-Petitioner contradicts herself stating, “I was under the assumption COVID-shelter-in-place meant court date postponed.” Cross-Petitioner is effectively seeking a second bite at the apple because she failed t0 prioritize her appearance at a hearing for a matter she initiated. Petitioner recalls the Court ask the CourtCall operator if Cross-Petitioner was on the line at least twice between 9:45 am. when she called the matter and 9:47 am. When she granted Petitioner’s request for restraining order. The operator confirmed each time Cross- Petitioner was not present. Petitioner also recalls the court room (and a second over-flow court room) full 0f people Who managed t0 find their way t0 court t0 make a personal appearance t0 PETITIONER’S RESPONSE TO CROSS-PETITIONER’S REQUEST FOR A RESTRAINING ORDER AFTER HEARING - 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 have their case heard. If Cross-Petitioner was unsuccessful calling into t0 the hearing at 0r before 9:00 a.m., she had plenty of time t0 attend in person. Petitioner used Uber t0 travel t0 and from the hearing and recalls traffic t0 the courthouse that morning was very light - from home t0 court, his door-to-door trip lasted approximately six minutes. This matter was initiated by Cross-Petitioner, who claims she is suffering “constant emotional pain and suffering” (Cross-Petitioner’s Application dated April 7, 2020, CH-lOO, page 3). She attempts t0 explain her failure to appear by saying she made an assumption the hearing was postponed due t0 "COVID-shelter-in-place" (Cross-Petitioner’s Application dated April 7, 2020, Attach. CV-5014 page 1 at 4c). The fact is the matter was not postponed, and dozens 0f people, including Petitioner, managed t0 prioritize their appearance in court t0 have their cases heard. Cross-Petitioner was given the date and time 0f the hearing on three separate occasions: at the court hearing on February 5, 2020; and through personal service 0f papers on March 9, 2020 and March 18, 2020. Petitioner should not be given a second bite at the apple and her application should be dismissed with prejudice. E. Cross-Petitioner Alleges Judgment Against Her 0n April 7, 2020 Hearing is “Erroneous” As with many of her filings since March 2019, Cross-Petitioner conflates and confuses basic facts in her renewed application. Cross-Petitioner alleges in her renewed petition, “the temporary judge, not knowing the history 0f our case informed that she had dismissed my attempt at a restraining order and instead granted Mr. Michalek’s counter-suit restraining order against me because I wasn’t present in time” (Cross-Petitioner’s Application dated April 7, 2020, Attach. 11). For Cross-Petitioner t0 suggest the Court’s ruling is somehow erroneous because she does not agree with the decision smacks 0fbad faith. Petitioner believes the commissioner was PETITIONER’S RESPONSE TO CROSS-PETITIONER’S REQUEST FOR A RESTRAINING ORDER AFTER HEARING - 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 clothed with “full judicial powers,” and her orders were “as final and nonreviewable as those of a permanent judge.” (In re Mark L., supra, 34 Cal.3d at p. 178.) F. Cross-Petitioner Cannot Meet Her Burden 0f Proof that She Had A Legitimate Reason t0 Miss the April 7, 2020 Hearing If Cross-Petitioner is t0 be believed that she truly is “living in constant fear” 0f Petitioner, there is n0 doubt she would have prioritized her attendance at the hearing. It is Petitioner’s belief that Cross-Petitioner was neither ill nor hospitalized due t0 Coronavirus, which were the two exigent circumstances the Court said would be the basis for considering a request for restraining order after a party failed t0 appear at the hearing on April 7, 2020. Furthermore, Cross-Petitioner admits in her own words that she did not connect t0 the hearing in time, which resulted in the judgment against her. III. CONCLUSION AND PETITIONER’S REQUEST FOR RELIEF Cross-Petitioner’s renewed request for a restraining order is rife with contradictions about Why she failed to attend the hearing, which she so desperately wanted. Thus, Cross-Petitioner cannot show by clear and convincing evidence that she missed the April 7, 2020 hearing for any legitimate reason outside 0f her failure to prioritize the matter in her life. Furthermore, Cross-Petitioner cannot show she suffered any exigent circumstances related t0 COVID-19 affecting her health, Which required she remain in her home on April 7, 2020. Additionally, Cross-Petitioner alleges n0 new facts that support the Court entertaining another application for protection. Accordingly, Petitioner asks this Court t0 deny With prejudice Cross- Petitioner’s application for a restraining order and deny Cross-Petitioner’s request for attorney’s fees. PETITIONER’S RESPONSE TO CROSS-PETITIONER’S REQUEST FOR A RESTRAINING ORDER AFTER HEARING - 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Respectfully submitted, Dated: April 27, 2020. /s/Daniel Michalek Daniel Michalek, Pro Per 1459 Alma Loop San Jose, CA 95 125 (408) 896-5437 PETITIONER’S RESPONSE TO CROSS-PETITIONER’S REQUEST FOR A RESTRAINING ORDER AFTER HEARING - 10