judge thadd blizzard authorizes criminal child abduction-blocks witness subpoenas for judge pro tem...

11-25-13SAUNDERS (2).txt

1 THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

2 IN AND FOR THE COUNTY OF SACRAMENTO

3 ---oOo---

4 In re the Matter of:

5 APRIL BERGER, ) ) 6 Petitioner, ) ) 7 vs ) CASE NO. 06FL04415 ) 8 ROBERT SAUNDERS, ) ) 9 Respondent. ) ) 10

11 ---oOo---

12

13 REPORTER'S TRANSCRIPT OF PROCEEDINGS

14 Held in the Superior Court, in and for the County of 15 Sacramento, Department 122, on Monday, November 25, 2013;

16

17 Before the HONORABLE THADD BLIZZARD, Judge

18 ---oOo---

19 APPEARANCES

20 For the Petitioner: RICHARD SOKOL Attorney at Law 21 1321 Howe Avenue, Suite 235 Sacramento, California 95825 22

23 For the Respondent: ARCHIBALD CUNNINGHAM Attorney at Law 24 1489 McAllister Street San Francisco, California 94115 25

26

27

28 Reported By: Tara Murany, CSR No. 12892

SACRAMENTO COUNTY OFFICIAL COURT REPORTERS

Pat

BlogBanner

Pat

Blog-Facebook-Twitter

11-25-13SAUNDERS (2).txt�

1 SACRAMENTO, CALIFORNIA

2 NOVEMBER 25, 2013

3 ---oOo---

4 Proceedings in the Matter of Berger/Saunders,

5 Case No. 06FL04415, came on regularly this day before the

6 Honorable THADD BLIZZARD, Judge of the Superior Court of

7 California, for the County of Sacramento, Department 122,

8 thereof.

9 The Petitioner, APRIL BERGER, was represented by

10 RICHARD SOKOL, Attorney at Law.

11 The Respondent, ROBERT SAUNDERS, was represented by

12 ARCHIBALD CUNNINGHAM, Attorney at Law.

13 The following proceedings were then had, to wit:

14 ---oOo---

15 THE BAILIFF: 10:00 calendar, Berger and Saunders,

16 and we have a court reporter on this matter.

17 Counsel, come forward and state your appearances

18 for the Court.

19 MR. SOKOL: I'm Richard Sokol. I'm here on behalf

20 of Petitioner in this matter.

21 THE COURT: Okay.

22 MR. CUNNINGHAM: I'm Archibald Cunningham on behalf

23 of Mr. Saunders.

24 THE RESPONDENT: I'm Robert Saunders on behalf of

25 the truth.

26 THE COURT: Good morning. Okay, I issued a ruling

27 on the previously submitted issues and asked that it be given

28 to you as soon as you arrived. Did you get it?

SACRAMENTO COUNTY OFFICIAL COURT REPORTERS 1


1 MR. SOKOL: I did get it. I have reviewed it. I

2 was going to point out that the issues I would try to address

3 this morning I believe have already been addressed in this

4 ruling on submitted matter. I was going to talk --

5 THE COURT: Sorry, let me interrupt you.

6 Did you get the ruling?

7 MR. CUNNINGHAM: I did get it. I've look at it

8 briefly.

9 THE COURT: Okay. And then I was actually more or

10 less of the same impression that the current motion, which

11 was filed apparently two days after the second hearing on the

12 prior issues, really doesn't raise anything new and is kind

13 of a rehash of those same issues. I think it

14 mischaracterized my conduct at the October 22nd hearing as

15 denying testimony of the subpoenaed witnesses. I never did

16 that. I actually don't recall ever getting a direct request

17 from Mr. Saunders' counsel at any moment that he be allowed

18 to try to question anybody. I did advise you in advance that

19 I was going to observe the relevant privileges, but --

20 MR. CUNNINGHAM: Right. Again, I read this

21 briefly. And you say after I've called witnesses, after I've

22 subpoenaed witnesses, after you've told me that you didn't

23 think that the evidentiary hearing that you set was

24 appropriate for witnesses, now in this you tell me I didn't

25 call the witnesses. Unbelievable.

26 THE COURT: Well --

27 MR. CUNNINGHAM: Incredible, just incredible. Then

28 on the other hand, sir --



1 THE COURT: No, stop. I'm going to respond to

2 that. Let the record reflect that counsel is displaying

3 anger and disgust I think would be a fair way of

4 characterizing it. You may want to --

5 MR. CUNNINGHAM: Dismay perhaps?

6 THE COURT: Well, I think it goes beyond that,

7 Mr. Cunningham.

8 MR. CUNNINGHAM: Disingenuousness, disbelief,

9 incredulity.

10 THE COURT: Stop interrupting me. It's time for me

11 to finish my sentence.

12 MR. CUNNINGHAM: Sure.

13 THE COURT: There was a court reporter at that last

14 hearing. I have not seen the transcript. I assume you have

15 access --

16 MR. CUNNINGHAM: I have a copy of the transcript

17 here. We can read it into the record.

18 THE COURT: I don't wish to read anything into the

19 record. If you think I have misstated what occurred, then

20 you have more power to point that out than I do, but that is

21 based on my recollection. In fact, I was very conscious

22 throughout the entire, very lengthy hearing that I set to

23 give you all the time you needed on October 22nd, that you

24 never once asked me to question any witnesses. And it's not

25 my job to tell you to do at that, but if I'm wrong --

26 MR. CUNNINGHAM: Sir --

27 THE COURT: -- I'm going from my memory.

28 MR. CUNNINGHAM: -- let me just see if I understand



1 this correctly. I subpoena witnesses. I call witnesses in.

2 And we can read the transcript, but as I recall, and this was

3 in my pleadings from two days later, Mr. Sokol alleged some

4 privilege, confidentiality. You used his privilege, which

5 you don't have, to deny my right to call witnesses under

6 Family Code Section 217. Where in the unwritten rules, in

7 unpublished rules of your courtroom -- and remember Elkins

8 versus Superior Court, Chief Justice George, said that there

9 are inherent rule-making rights a court has, but they need to

10 be written, and they need to be published. Now, if you have

11 some unwritten rule that you can assert a privilege to deny a

12 217 hearing, please, let me know what that rule is, sir,

13 because it's baffling to me.

14 THE COURT: Okay. There's no unwritten rule. I

15 didn't assert any privilege. I simply said -- and again,

16 there's a record, so you know, what's said is said. But as I

17 recall it, I said that I was going to observe --

18 MR. CUNNINGHAM: Do you have the transcript?

19 THE COURT: -- any privileges that might be

20 asserted.

21 THE RESPONDENT: I gave it to you.

22 THE COURT: But I think we're sort of spinning our

23 wheels here because the nature of what I gather from your

24 repeated filings is that you want to litigate what we're

25 litigating. You want to keep going over who said what at a

26 prior hearing. And now you're arguing about what I said and

27 all about what you wanted Mr. Sokol or somebody else to

28 testify about as to what they said at a prior hearing, all of



1 which relates to --

2 MR. CUNNINGHAM: Sir, sir, the --

3 THE COURT: You're interrupting me. Stop. All of

4 which relates to whether mother moved away before she filed

5 her motion or was here or there on a certain day, all of

6 which I have ruled in my ruling doesn't matter to me under

7 the circumstances. I think you're entitled to a long-cause

8 hearing after you get your evaluation, which you were ordered

9 repeatedly, Mr. Saunders, to do, which you now said you're

10 willing to do.

11 I've issued my ruling, and I don't want to spend a

12 whole lot of time having an angry person disrespectfully

13 confront me and accuse me of having unwritten rules, which is

14 not true. And I never asserted any privilege on behalf of

15 anybody.

16 MR. CUNNINGHAM: Okay. Well, first of all, angry,

17 I don't know. I think Chief Justice George in his Elkins

18 decision said that witnesses who are denied their day in

19 court express their shock, outrage and anger. So I would

20 just qualify this as a normal expression of shock, outrage

21 and anger when one's denied their privilege of having their

22 day in court, sir.

23 Also I would say Mr. Saunders has gotten an

24 evaluation from a family law therapist, and I can be sure

25 there will be new red herrings and new excuses to deny

26 Mr. Saunders visitation. He hasn't seen his kid in five

27 years because Mr. Sokol says an evaluation is a precondition

28 to being a father. And I've asked repeatedly, give me



1 chapter and verse because I don't know where that exists,

2 where that law exists.

3 THE COURT: Okay. Well, you cited to me a United

4 States Supreme Court case, which I spent quite a bit of time

5 reading, which was, I think, frivolously cited and meritless

6 and had no application at all to this hearing. In fact, I

7 think I was wasting my time, and I considered sanctioning you

8 personally for citing that, but I didn't. I don't think you

9 had any shock and dismay on October 22nd at the end of the

10 hearing after I let you speak voluminously. And you never

11 asked -- I mean, I don't recall you ever asking to question

12 any of these witnesses that you had subpoenaed.

13 MR. CUNNINGHAM: Sir --

14 THE COURT: And --

15 MR. CUNNINGHAM: -- you said that you didn't give

16 an evidentiary hearing so we could call other witnesses. We

17 called and subpoenaed the mother and the children in Hawaii

18 to testify because they're 14 now, and under Title V,

19 Rule 5.250 they have the right to testify to their

20 preferences.

21 THE COURT: Okay.

22 MR. CUNNINGHAM: You -- that was just, you know,

23 brushed over and blown away. That wasn't even addressed. So

24 I had called Mr. -- wanted to call Mr. Sokol because the

25 problem in this case and the problem that's been repeatedly

26 in this case is when did Dr. Berger move to Hawaii. She

27 moved to Hawaii without a move-away order, without any best

28 interest determination. Elkins says that any presumption of



1 finality on a judgment depends on a fully litigated hearing.

2 In the five, ten years here there's never been a fully

3 litigated hearing about the best interest of the kids,

4 period. So Dr. Berger moves away to Hawaii without a

5 move-away order, without a hearing, without giving

6 Mr. Saunders the right to raise a detrimental result on the

7 children, and you apparently rubber stamp it in this.

8 THE COURT: You asked me to reinstate

9 Judge Balonon's order of 2009, I think it is, which required

10 that your client have a psychological evaluation. Other

11 judges have ordered it. I have repeated that order. You

12 have said your client is willing to do it. That needs to

13 happen before there can be further long-cause hearings on

14 custody in my view.

15 MR. CUNNINGHAM: Oh, that's fine. And my client

16 has complied with that order, and he does have a

17 psychological evaluation from a woman who's licensed to

18 perform these sorts of things.

19 THE COURT: Well, that doesn't conform to my order,

20 and this is the first I've heard of that, of course. And

21 there may be some time and place for us to hash out whether

22 that's an appropriate evaluation, I have no idea. It's the

23 first I've heard of it. It's not in your papers.

24 MR. CUNNINGHAM: I just got it on Saturday from

25 him.

26 THE COURT: Okay. But don't blame me that you got

27 a piece of paper today or Saturday that you're now saying

28 undercuts the whole purpose of this hearing.



1 MR. CUNNINGHAM: I'm not. All I'm saying is

2 there's been so much uncertainty about the facts, there's

3 been so much uncertainty about what needs to get done still.

4 I mean, sure, we can take this, we can writ this. We can

5 file file a Writ of Mandamus and ask the Court of Appeal for

6 the Third District how a mother can move away without a

7 move-away order and how that squares with In Re Brown versus

8 Yana, In Re Burgess, with every case ever written. It's just

9 outrageous.

10 THE COURT: No comment. My minute order is:

11 Motion denied for the reasons stated in the Ruling on

12 Submitted Matter of this date.

13 MR. CUNNINGHAM: What about a long-cause hearing --

14 MR. SOKOL: Thank you.

15 MR. CUNNINGHAM: -- you mentioned?

16 THE COURT: Well, as I said in my Ruling on

17 Submitted Matter of this date, the long-cause hearing will be

18 set, but only after the psychological evaluation of father

19 has been completed and the parties have all had sufficient

20 time to receive and absorb any resulting report and consult

21 any experts they desire to include in any anticipated

22 long-cause proceedings. That's on page 10, lines 12 through

23 14.

24 MR. CUNNINGHAM: Could I ask you one question?

25 Because I know this is going to be a problem, because what's

26 happened here, we've filed this back in June. And the way it

27 works in family law court is you get some misdirection, and

28 then you get some, you know, shilly-shally, and then more



1 misdirection, and now we're pushing Christmas, and we haven't

2 gotten any further. And so now you say, oh, we need the

3 evaluation. So is that from a licensed psychologist? Is

4 that from a therapist? What exactly do you want? Because I

5 know whatever evaluation he's going to get, we're going to

6 get slammed with objections to the doctor, the quality, the

7 time, all of that stuff.

8 THE COURT: On page 9 of my ruling of today's date

9 -- excuse me, let me rephrase that. On page 12 starting at

10 line 21 through page 13, line 2, I describe the terms of my

11 order for the psychological evaluation. And I don't think I

12 need to road it aloud, but it describes who should be the

13 evaluator.

14 And I note again, I guess I don't even need to, you

15 put it yourself on the record, your patent disdain for this

16 process. You, yourself, have twice now filed papers within

17 two days or three days after a prior hearing when I've

18 submitted -- you've submitted to me issues. Then you hit me

19 with more papers, then I have more hearings, then you hit me

20 with more papers. I'm trying to deal with this long,

21 drawn-out case with all kinds of accusations. I'm doing my

22 best to figure it out.

23 I don't think there's uncertainty in the facts once

24 you -- once you dig into it, which it took me some time to

25 do, except to the extent you raise issues like the Hicks

26 case, which is completely in opposite.

27 MR. CUNNINGHAM: I told you, sir, that that case

28 dealt with a mandatory presumption, nothing else. It has



1 nothing to do with family law.

2 THE COURT: Why did you mention it then? If

3 someone says they've been denied their US Supreme Court 14th

4 Amendment rights under a US Supreme Court case and gives me

5 the name of it, I'm going to go read it.

6 MR. CUNNINGHAM: I was telling you that the

7 mandatory presumption applied when Mr. Sokol said that having

8 an evaluation was some mandatory requirement before an

9 evaluation. Those kind of mandatory presumptions don't

10 apply. Whether it's specifically in the realm of family law,

11 I don't know. I told you at the time, and the record will

12 reflect, that it was about mandatory presumptions. It wasn't

13 about mandatory presumptions about evaluations. It's about

14 the nature of mandatory presumptions. I could have quoted

15 the Evidence Code, sir.

16 THE COURT: Okay. Well --

17 MR. SOKOL: If I could, Your Honor?

18 THE COURT: Yes, sir.

19 MR. SOKOL: I'll point out to counsel on page 12,

20 the bottom line of your order, that the parties are to

21 mutually agree on a qualified, licensed mental health

22 professional to do this, and I'm willing to cooperate with

23 that process.

24 THE COURT: And it has a fallback in case you can't

25 agree. You can submit two names to me, and I pick one. All

26 right. Good luck.

27 THE RESPONDENT: Since I'm here speaking for the

28 truth, I want to state that on September 23rd, 2008



1 Elaine Van Beveren --

2 MR. CUNNINGHAM: Robert, Robert, Robert.

3 THE RESPONDENT: -- physically assaulted my

4 children.

5 THE COURT: Stop. Stop. Please, stop.

6 MR. CUNNINGHAM: Robert, Robert, Robert.

7 THE COURT: You have an attorney. He'll speak for

8 you. All right. We're off the record. Next case.

9 (Whereupon, proceedings concluded.)

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28



1 CERTIFICATE OF SHORTHAND REPORTER

2 ---oOo---

3 I, Tara Murany, a Certified Shorthand Reporter of

4 the State of California, do hereby certify that I am a

5 disinterested person herein; that I reported the foregoing

6 hearing in shorthand writing to the best of my ability; that

7 I thereafter caused my shorthand writing to be transcribed

8 into typewriting.

9 I further certify that I am not of counsel or

10 attorney for any of the parties to said hearing, or in any

11 way interested in the outcome of said hearing.

12 IN WITNESS WHEREOF, I have hereunto set my hand

13 this 2nd day of December, 2013.

14

15

16 CAUSE: The Matter of Berger/Saunders

17 COURT: Sacramento County Court

18 JUDGE: Thadd Blizzard

19 DATE: November 25, 2013

20

21

22

23

24 ____________________________

25 Tara Murany CSR No. 12892

26

27

28

SACRAMENTO COUNTY OFFICIAL COURT REPORTERS

judge thadd blizzard authorizes criminal child abduction-blocks witness subpoenas for judge pro tem...

Documents