Archibeque v. Kekulawela

Filed 11/21/07 Archibeque v. Kekulawela CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

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Anthony Kekulawela, appearing in propria persona, purports to appeal from the denial of his motion to enforce an order recusing the San Joaquin County Department of Child Support Services in this action. The San Joaquin County Superior Court denied his motion after it found that jurisdiction over the matter of his payment of child support had been transferred to Stanislaus County in 2004. The court also denied Kekulawelas related requests for attorney fees and costs, and for orders to stop child support [wage] garnishment and for the return of previously garnished sums plus interest.

We affirm the judgment (order). Each of Kekulawelas contentions fails either because: 1) it is moot; 2) it is not supported by the record or citations to authority; or 3) it is barred by the legal doctrine of res judicata.

FACTUAL AND PROCEDURAL BACKGROUND

Prior Proceedings (Kekulawela I)

In view of the sparse record on appeal, we rely for our recitation of the facts surrounding the parties dispute on our previous opinion in a related matter (County of San Joaquin v. Kekulawela (Nov. 8, 2005, C047266) [nonpub. opn.] (KekulawelaI)).^[1] This explains the relationship between that case and the instant action:

In October 1991, San Joaquin County (the County) brought an action [case No. 238100] to establish that Kekulawela was the father of the child Angelique born to Sylvia Archibeque. One month later, Archibeque brought a similar action [case No. 238920] under the Uniform Parentage Act.

In an answer to the Countys complaint, Kekulawela denied paternity. At the hearing, however, he admitted paternity. Kekulawela was concerned that the child did not bear his

last name and he could not obtain a birth certificate. . . . Kekulawelas child support obligation was set at $492 per month. A similar judgment was entered in Archibeques case. (Kekulawela I, at p. 2.)

Soon after the paternity hearing, the trial court issued the first wage assignment order, providing for garnishment of Kekulawelas wages for support and payment of arrearages. (Kekulawela I, at pp. 2-3.)

Throughout 1993 and early 1994, Archibeque sought to limit or deny Kekulawelas visitation rights. (Kekulawela I, at p. 3.) In 1994, another wage assignment order was issued. (Kekulawela I, at p. 4.)

Between 1998 and 2003, Kekulawela tried variously -- and unsuccessfully -- to enjoin enforcement of the child support obligation (claiming inter alia that he was deceived into admitting paternity of Angelique), and to reduce the child support arrearages. (Kekulawela I, at pp. 4-5.)

In or about 2001, the San Joaquin County District Attorneys Office was ordered recused from the case. (Kekulawela I, at p. 6.)

In January 2004, Kekulawela brought a motion for Enforcement of Orders, in which he sought to stop garnishment of his wages and tax refunds for child support, and asked that the case be transferred to San Francisco. In support of his motion, Kekulawela argued the San Joaquin County Department of Child Support Services lost authority to act in the case in 2001 when the district attorneys office was recused. The trial court denied his motion to reduce child support and arrearages, but ordered the San Joaquin County Department of Child Support Services (successor to the district attorney) recused and the file forwarded to the Attorney General or another appropriate county enforcement agency. (Kekulawela I, at p. 6.)

Kekulawela appealed. We affirmed the judgment, rejecting Kekulawelas contentions that the county unlawfully garnished his wages, intercepted his tax returns, and criminally prosecuted him without authority because we found they were not supported by the record. (Kekulawela I, at p. 9.) We also found that Kekulawela had failed to show prejudice from the countys alleged willful disobedience of the trial courts order recusing the San Joaquin County District Attorneys Office. (Kekulawela I, at pp. 12-13.)

Current Proceedings

In May 2006, six months after our opinion in Kekulawela I, Kekulawela moved in the instant case for an order that the San Joaquin County pay back all the garnished money (total $95,055.65) with interest, pay my attorney fees, court cost[s], bank charges, copying and mailing costs and for orders that the county correct all the derogatory records, mug shots, finger prints, [sic] and return defendants blood sample taken for the criminal trial[,] [t]erminate orders that set child support and support arrears[, and] [p]rovide court report[ing] service at the hearing with no cost to him.

In support of this motion, he declared: I am not aware of a court entering a child support judgment against me in any of Mrs. Archibeques actions. . . . I learned about Mrs. Archibeques 1992 judgment from the Court of [A]ppeals opinion [in Kekulawela I]. According to Kekulawela, the county had no authority after the 2001 recusal order to garnish his wages or intercept his tax returns. It was also apparent from his motion that Kekulawela continued in 2006 to assert that his paternity had never been established.

After a hearing at which both Archibeque and Kekulawela appeared, the trial court denied Kekulawelas motion to enforce the recusal order, for reimbursement of sums garnished for child support, and for attorney fees. The minute order also states: Stanislaus County has jurisdiction as of May 11, 2004.

Kekulawela sought reconsideration of the courts denial of his motion, on the grounds that there is no record of this action ever [having] been transferred to any other court, and no legal grounds for this court to transfer this action to any other court. To the contrary, he argued, the county has disregarded the recusal order and its subsequent garnishment of his wages for child support was unauthorized. He continued to deny knowing of any court order requiring that he pay child support in any actions, and asserted that [a]ccording to [this courts opinion in Kekulawela I], [he] was not ordered to pay child support or child support arrear[age]s.

The court denied his motion for reconsideration, stating that it reinformed [defendant] that the support issues in this matter have been assigned to Stanislaus County and the Court has no jurisdiction to hear this matter.

DISCUSSION

I

Standard Of Review

Applicable Rules Of Appellate Practice

We begin by briefly recounting some general rules of appellate practice applicable here.

On appeal, we must presume that the trial courts judgment or order is correct. (See Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) An appellant has the burden of showing reversible error and in the absence of such a showing, the judgment or order will be affirmed. (Walling v. Kimball (1941) 17 Cal.2d 364, 373.)

As part of this burden, the appellant must produce an adequate record on appeal to affirmatively show error. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141; Davenport v. Unemployment Ins. Appeals Bd. (1994) 24 Cal.App.4th 1695, 1700.) Thus, an appellant must not present just an analysis of the facts and legal authority on each point made; he must also support arguments with appropriate citations to the material facts in the record; if he fails to do so, the argument is forfeited. (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.)

Kekulawela is not exempt from the foregoing rules because he is representing himself on appeal in propria persona. A party representing himself is to be treated like any other party and is entitled to the same, but no greater, consideration than other litigants and attorneys. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247; see Leslie v. Board of Medical Quality Assurance (1991) 234 Cal.App.3d 117, 121 [self-represented parties are held to the same restrictive procedural rules as an attorney].)

II

Issues Related To Compliance With The Recusal Order Are Moot

On appeal, Kekulawela insists action by this court is necessary because the orders recusing the San Joaquin County District Attorneys Office from handling matters related to his case are still being violated. He is mistaken.

We addressed the matter of the recusal orders briefly in our unpublished opinion Kekulawela I. We described the recusal as occurring when the district attorneys office was ordered recused from the case and ordered to request the appearance of the Attorney Generals Office at the next hearing. (Kekulawela I, at p. 5.) However, we wrote, [t]he family support division of the district attorneys office continued to appear; the record does not reveal that the recusal order was ever rescinded or otherwise explain the violation of this court order. (Kekulawela I, at p. 5.) Later, we noted that [t]he record does not reveal the reason for the recusal order although a substantial reason is required to recuse the entire district attorneys office. (Kekulawela I, at p. 12, fn. 2.)

These events have been clarified in the instant appeal, wherein we have granted a motion for judicial notice filed by the county. (Ante, fn. 1.) Among the documents of which we take judicial notice is a May 23, 2006, declaration filed in this action by the child support attorney with the San Joaquin County Department of Child Support Services. She states that the recusal order was entered against the San Joaquin County Department of Child Support Services in 2001, and was made due to the fact that [Kekulawela] was in the middle of a law suit [sic] against several San Joaquin County child support attorneys. The Attorney General refused the case[,] stating that an attorney from this office could be assigned who was not a defendant in [Kekulawela]s civil suit. Both parties were notified that San Joaquin County Department of Child Support Services would continue to appear. No objections were raised by either party until [Kekulawela] mentioned it at the March 1, 2004 hearing. For three years this office appeared without objection. When the objection was raised again, this court ordered San Joaquin County Department of Child Support Services to find another county to take the case. San Joaquin County is no longer enforcing this order. The case was transferred to Stanislaus County in September 2004 pursuant to this courts order of May 11, 2004.

The record in this appeal makes clear that the order recusing the San Joaquin County District Attorneys Office from enforcing child support orders is not currently being violated. San Joaquin County is taking no action to enforce child support orders against Kekulawela. In fact, San Joaquin County has not been enforcing such orders since 2004, when the matter was transferred to Stanislaus County.^[2] Thus, there is nothing further for this court to do on this issue.

When, as here, an event occurs which renders it impossible for the appellate court to grant the appellant any effectual relief whatever, even if it should decide the case in favor of the appellant, the appeal is moot. (See Consol. etc. Corp. v. United A. etc. Workers (1946) 27 Cal.2d 859, 863; accord, e.g., Simi Corp. v. Garamendi (2003) 109 Cal.App.4th 1496, 1503 [A case becomes moot when a court ruling can have no practical impact or cannot provide the parties with effective relief].)

The trial court properly denied Kekulawelas efforts to enforce the recusal order. The issue is moot.

III

Remaining Issues Of Paternity, Child Support, Wage

Garnishment, Criminal Enforcement Proceedings, And Transfer Of

The Case To San Francisco Have Already Been Decided

Kekulawela devotes the lions share of his appellate brief to a set of points related to issues of paternity and child support: he (1) seeks to stop the garnishment of his wages and tax refunds; (2) argues the San Joaquin County Department of Child Support Services lost authority to act in the case when the district attorneys office was recused in March 2001; (3) asserts he should not have been criminally prosecuted for failure to pay child support; (4) complains the Attorney General and the San Joaquin County Superior Court are prejudiced against him or are unfair to him; (5) seeks a transfer of the case to San Francisco; and (6) contends the countys 1998 order to show cause why he should not be held in contempt for failure to pay child support violates Government Code section 6200.

The citations to the record he provides do not support his arguments and, with the exception of the single reference to Government Code section 6200 (which, in any event, does not apply).^[3], he provides no legal authority for any of his points. His failure to present an analysis of the facts and legal authority on each point made and to support those arguments with appropriate citations to the material facts in the record render his arguments forfeited and we do not consider them. (See Duarte v. Chino Community Hospital, supra, 72 Cal.App.4th at p. 856.)^[4]

But even were these arguments not forfeited by his failure to properly present them on appeal, they would be (as the Attorney General correctly points out in his respondents brief) barred by the legal doctrine of res judicata because each was already resolved against him in previous proceedings.

The doctrine of res judicata gives certain conclusive effect to a former judgment in subsequent litigation involving the same controversy. It seeks to curtail multiple litigation causing vexation and expense to the parties and wasted effort and expense in judicial administration. It is well established in common law and civil law jurisdictions, and is frequently declared by statute. (7 Witkin, Cal. Procedure (4th ed. 1997) Judgment, 280, p. 820, italics omitted.)

Our opinion in Kekulawela I resolved the issues of his paternity, wage garnishment for child support, and whether venue should have been moved to San Francisco in the context of the lawsuit initiated by San Joaquin County. Then, as now, he also refers to criminal charges filed against him which are not in the record. (See Kekulawela I, at pp. 11-12.) Those prior proceedings effectively bar Kekulawela from attempting to relitigate them in this action initiated by Archibeque.

DISPOSITION

The judgment (order) is affirmed. Prevailing parties Archibeque and the County of San Joaquin, to recover costs on appeal. (Cal. Rules of Court, rule 8.276(a)(1), (4).)

ROBIE , J.

We concur:

DAVIS, Acting P.J.

BUTZ , J.

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^[1] The Attorney General, representing the San Joaquin County Department of Child Support Services on appeal, asks us by separately filed motion to take judicial notice of the respondents brief filed in this court in Kekulawela I,together with an order filed in the underlying San Joaquin County Superior Court case No. 238100; two documents filed in the trial court in this action brought by the childs mother, Archibeque v. Kekulawela, San Joaquin County Superior Court case No. 238920; and a statement for registration of California support orders, filed November 8, 2004 and July 5, 2005, in County of San Joaquin v. Kekulawela, Stanislaus County Superior Court case No. 328637. We hereby grant the request. (Evid. Code, 452, subd. (d), 459.)

^[2] Kekulawela does not argue that transfer of the matter to Stanislaus County was improper.

^[3] Government Code section 6200 states: Every officer having the custody of any record, map, or book, or of any paper or proceeding of any court, filed or deposited in any public office, or placed in his or her hands for any purpose, is punishable by imprisonment in the state prison for two, three, or four years if, as to the whole or any part of the record, map, book, paper, or proceeding, the officer willfully does or permits any other person to do any of the following: [] (a) Steal, remove, or secrete. [] (b) Destroy, mutilate, or deface. [] (c) Alter or falsify.

Kekulawela does not present any facts to suggest this section has been violated.

^[4] What Kekulawela does cite is our prior unpublished opinion in Kekulawela I, which he interprets as creating an independent justification for his current appeal. It does not: as we have explained, this court in Kekulawela I granted him no affirmative relief. Rather, in it we affirmed -- that is, agreed with -- the trial courts rejection of his challenges to the establishment of paternity and child support, its rejection of his assertions that the San Joaquin County Superior Court had no authority to order him to pay child support, its rejection of the notion that the case must be transferred to San Francisco, and its rejection of Kekulawelas challenge to the filing of criminal charges against him.