More on Orders After Hearing

[DecentDad]

Soc,

I got a call from OC's associate (unknown to me) today that they wish to serve by fax and mail Orders After Hearing.

I asked, "Huh?  Which hearing?"

She said the June 2006 one.

I said that we already have orders entered.  She said that they drafted new ones.  I told her just to mail it, I don't need a fax of this nonsense.

It's now 10 weeks after the hearing, and more than a month after the court entered orders on it.

They told me a few weeks ago that they were withdrawing, but I guess not.

1.  Is there any scenario where a party can draft new "Orders After Hearing" more than a month after the court already entered orders on same?  At this point, wouldn't it be "Motion to Clarify" or "Motion to Reconsider" or "Motion to Vacate" or OSC to Modify??

Thanks,
DD

[socrateaser]

>1.  Is there any scenario where a party can draft new "Orders
>After Hearing" more than a month after the court already
>entered orders on same?  At this point, wouldn't it be "Motion
>to Clarify" or "Motion to Reconsider" or "Motion to Vacate" or
>OSC to Modify??

If there is an Order after Hearing entered in the latest matter, then an attempt to have a new set of orders entered would be objectionable as "res judicata," because the matter has already been finally litigated on the merits, and entering a second order without having the first order vacated, would be an attempt to relitigate.

You could also argue that OC is attempting to perpetrate a fraud on the court, by deceiving the judge into entering a second final order, unless they first obtain a set aside of the prior order.

you could also argue that the new order is in contempt of the court's authority, because it attempts to willfully violate a valid and enforceable court order by deceiving the court into entering a new order, after the case has already been decided on the merits and without first seeking a set aside.

This is ridiculous. This attorney is insane. I'd tell him that if they attempt to enter a new order without first seeking a set aside, that you will ask the court to vacate the order as "res judicata," hold the attorney in contempt, and if you are successful, that you will file a separate abuse of process lawsuit against them.

[DecentDad]

>This is ridiculous. This attorney is insane. I'd tell him that
>if they attempt to enter a new order without first seeking a
>set aside, that you will ask the court to vacate the order as
>"res judicata," hold the attorney in contempt, and if you are
>successful, that you will file a separate abuse of process
>lawsuit against them.

Thanks.  Right now, time is a commodity to me, so I just want it to go away ASAP.

1.  Would I file objections with court (for reasons you outlined) and serve OC and minor's counsel?

2.  Is this rising to the level of warranting 271 sanctions... i.e., if I move for it, maybe OC will just drop it all?

3.  On that last part about threatening abuse of process lawsuit, what would be my damages?  Big enough punitive possibilities for someone to take on contingency?  I just don't have time to follow through on it pro per (not that I'm even competent to), and I don't like to threaten what I can't pursue.

4.  Reason enough to complain to state bar?

5.  This probably should have been my first question... should I serve a conformed copy of the entered order on OC by mail ASAP to ensure she can't claim ignorance?

Thanks,
DD

[socrateaser]

>1.  Would I file objections with court (for reasons you
>outlined) and serve OC and minor's counsel?

The process on an order after hearing is to serve your objection to the other party in a writing, and it's up to them to provide those objections to the court. If they don't, then you have grounds for a set aside. The problem here is that if you already filed the order after hearing and it was entered by the court, then that's it. This new order is completely unauthorized. It's a fraud on the court, if the attorney is attempting to deceive the court into thinking that the court hasn't already made a final order.

So, there really isn't process, other than to object to the order as "res judicata," and ask that the court deny its entry as completely unauthorized.

If the court goes ahead and enters the order, then I'd officially move to set it aside as "res judicata," so you could get a hearing.

>
>2.  Is this rising to the level of warranting 271 sanctions...
>i.e., if I move for it, maybe OC will just drop it all?

It is, but the 271 sanction is for attorney fees, and you don't have an attorney, so that's gonna get you nothing. It also falls under the vexatious litigant statute CCP 391(b), but, OC is not attempting to relitigate. They're trying to file an unauthorized order.

>3.  On that last part about threatening abuse of process
>lawsuit, what would be my damages?  Big enough punitive
>possibilities for someone to take on contingency?  I just
>don't have time to follow through on it pro per (not that I'm
>even competent to), and I don't like to threaten what I can't
>pursue.

Not my expertise. I don't know what it would be worth, except if you went to see a therapist and expressed that you were so depressed by the constant battering from the attorneys, then that would prove personal injury and then punitives could come in much bigger. After all, what jury wouldn't like to crush a lawyer for abusing the legal process?

That's a slam dunk.

>
>4.  Reason enough to complain to state bar?

Yes, but the state bar rarely investigates a complaint not initiated by a client of the complained about attorney.

>5.  This probably should have been my first question... should
>I serve a conformed copy of the entered order on OC by mail
>ASAP to ensure she can't claim ignorance?

Yes. Make certain you let them see the evidence that you sent your order to them for approval and that they never responded.