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Garrett Daily: Motion To Dismiss Appeal - Disentitlement Doctrine - Dong v. Garbe Santa Clara County Superior Court Judge Mary Anne Grilli - 6th District Court of Appeal San Jose - Administrative Presiding Judge Conrad L. Rushing - Trial Attorney Bradford Baugh
Garrett Daily: Motion To Dismiss Appeal - Disentitlement Doctrine - Dong v. Garbe Santa Clara County Superior Court Judge Mary Anne Grilli - 6th District Court of Appeal San Jose - Administrative Presiding Judge Conrad L. Rushing - Trial Attorney Bradford Baugh
OLIVIER GARBE
Respondent.
CJBNS.ORG
"
self-represented litigation in the Superior Court, yet able to continue her appeal in
propria persona in the Court of Appeal.
That, however, is not the basis for this motion to dismiss. Appellant stands
in an attitude of contempt to numerous orders made by the superior court and thus
her appeal should barred based on the disentitlement doctrine.
On December 1, 2015, the Superior Court issued its Findings and Orders
After Hearing, a copy of which is filed herewith as Exhibit D, which finds, in part,
as follows: 1
-2-
notable that this finding was made in the earlier fee order filed
June 23, 2014. [A copy of the order is included herein as
Exhibit J.] In that Order, the Court amended the earlier
Employment Efforts Order to more clearly set forth the
precise requirements for the monthly reports Mother is to
provide to Father concerning her job efforts. Mother has, once
again, failed to follow the clear terms of the Seek Work
Order.
submitted at the fee hearing to show that the Court should not
continue to impute income to Mother at that level. In the June
23, 2014 Order, the Court also found that there were jobs
-4-
-5-
-6-
CJBNS.ORG
On July 9, 2015, the Court modified Appellant's child support, finding that
her income was $10, 162 per month. (See Exhibit K, filed herewith.)
At the hearing on June 13, 2014, Appellant testified that she had just
purchased a residence for $1,093,338, using, in part, a $400,000 inheritance she
had received from her father. (RT, June 13, 2014, pp.153:10-158:9;
an
-7-
(J_{)
Garrett C. Dailey
Attorney for Respondent
Olivier Garbe
-8-
CJBNS.ORG
VERIFICATION
foregoing motion and know of its contents. The facts alleged in the motion
are within my own knowledge based upon the evidence adduced below and
correct and tat this verification was executed on February_, 2016 at San .
Jose, California
Bradford
B&ih
(}
Certificate of Compliance
,
certify that, pursuant to California Rules of Court, rule 8.204 (c)(l), this
motion contains approximately 2.1210 words, including footnotes, as
computed by the Microsoft Word 2016 word counter.
J\
Garrett C. Dailey
-9-
PROOF OF SERVICE
I, BRENDA K. PORTO, declare as follows:
I am over eighteen years of age and not a party to the within action; my business
address is 2915 McClure Street, Oakland, California 94609; I am employed in Alameda
County, California. I am familiar with my employer's practices for the collection and
processing of materials for mailing with the United States Postal Service, and that practice is
that materials are deposited with the United States Postal Service the same day of office
collection in the ordinary course of business.
On Februaryn, 2016, I served a copy of the following document(s): MOTION TO
DISMISS APPEAL
On the addressee(s):
X
BY MAIL
--
sealed envelope, with postage fully prepaid, in the United States mail at Oakland, California,
addressed as set forth below, on the date set forth above.
__
BY FACSIMILE
--
fax number(s) set forth below, on the date set forth above, before 5:00 p.m.
Diana Q. Dong
1906 Worthington Circle
Santa Clara, CA 95050
Bradford Baugh
Baugh & Amini
1550 The Alameda, Suite 155
San Jose, California 95126-2304
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct and that this declaration was executed on February'--\ , 2016, at
Oakland, California.
EXHIBIT A
BAUGH
& AMINI
(408) 287-7790
4
5
CJBNS.ORG
6
7
8
9
10
11
and
12
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l
!
DECLARATION OF OLIVIER
GARBE
Hearing:
APJ: Grilli
Dept.:83
14
15
1.
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2.
17
due me and ordered distributions from the sale of the community residence. That
18
order adopted the calculations of Ms. Alger, shown on Exhibit "A-1" through "A-2" as
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3.
21
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child support from Ms. Dong other than a check from Ms. Yeamans in the amount of
23
$3,880 on December 1, 2014. In the interest of clarity, the $397,604.51 check also
24
included sums due for previously ordered sanctions, funds removed from the
25
children's accounts, and an equalizing payment for the property judgment. The
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$397,604.51.
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4.
The order filed September 17, 2013 set child support from myself to Ms.
1
Declaration of Olivier Garbe
No. 6-08-FL000101
Dong at $544 per month, and commencing June 1, 2013, $448 per month plus
allocation for private school, uninsured healthcare costs, etc. The support orders
a.
5
6
Petitioner to me, not including interest (June 23, 2014 order at 6:11-14).
2013 through May 31, 2014 for daycare, not including interest (June 23, 2014 order
at 6:15-19).
10
11
12
13
14
2014 onward.
15
b.
16
Petitioner's request to modify to $1,639 a month commencing March 11, 2015 (order
17
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19
5.
20
Arrears:
$4,480.00
21
Daycare:
$1,800.00
22
$663.53
23
24
25
b.
26
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$23,697.08
Subtotal:
c.
$17,500.29
Payment: .
($3,880.00)
This sum does not include uninsured healthcare or daycare, which Petitioner refuses
2
Marriage of Dong & Garbe
No. 6-08-FL0001 01
to pay.
The order filed July 6, 2015 is final, not having been appealed from.
6.
There have been findings and orders for attorney's fees under FC 271,
filed December 1, 2015. That order has not been appealed, although it was served
of entry of order of the July 6, 2015 order on July 9, 2015. No appeal was taken. I
have been awarded a further $6,000 in sanctions. None of the final sanctions, of
$26,000 have been paid, and of course, the $100,000 in sanctions on appeal has
1O
11
7.
notice
I have not been paid any of the sums due as child support listed
12
above, which total $37,317.37, not including interest. I have not been paid uninsured
13
healthcare for either of the children, which, since it was last quantified in 2014 is now
14
15
The court should be aware there is a hearing set for March 9, 2016 in
16
this case as Petitioner has brought her annual motion to modify child support.
17
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I declare under penalty of perjury the above is true and correct and this
declaration is made this 17th
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Dec.Client.2.9.16.wpd
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Marriage of Dong & Garbe
3
Declaration of Olivier Garbe
No. 6-08-FL000101
EXHIBIT B
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ENMAIL ADDRESS {Opilonai):
AHORNEY FOR (Name): Under Farnily Code 174C<l & 17406
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Petitioner/plaintiff present
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Dept.:
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matter PfOC1eded
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Date:
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Respondent/defendant present
other parent present
CASE NUMBER:
508FL000101
(name):
17400, 17406} by (name):
(specify):
f.
g.
Other
Contested
Judicial Officer:
. - .
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7Ja ny / UtJi"tVi
/
respondent/defenda_nt
other parent
[__.] Attached is a computer printout showing the parents' income and percentage of time each parent spends with the children.
The printout, which shows the calculation of child support payable, will become the court's findings.
c:=J This order is based on the attached documents
(specify):
All orders previously made in this action remain in full force and effect except as specifically modified below.
The parent ordered to pay support is the parent of and must pay current child support for the following children:
SEBASTIEN GARBE
Date of birth
04/18/1998
Name of child
07/16/2001
NATACHA GARBE
% or
one-half or c:=J
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D ,(specify amount): $
(b) The parent ordered to pay support must pay reasonable uninsured health-care costs for the children, as follows:
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one-half or
% or
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other parent
health-care provider.
NOTICE: Any party required to pay child support must pay interest on overdue amounts at the legal rate, w hic h is
Mandatory Use
Page 1of3
CASE NUMBER:
608FL000101
OTHER PARENT:
._______
__
___,___
_
4. b.
(2)
Other
(3)
For
(4)
CJ
CJ
(specify):
peyet?le on _!he
to ol of $
beginning
(date):
(specify reasons):
{5)
Any support ordered will continue until further order of court, unless terminated by operation of law.
(6)
As provided in Family Code section 4007 .5, the obligation of the person ordered to pay support will be temporarily
suspended for any period after the first 90 consecutive days in which the person ordered to pay support is incarcerated or
involuntarily institutionalized, unless that person has the ability to pay support during that time or has committed certain
c.
[_
crimes. Immediately after the person ordered to pay support is released from incarceration or involuntary institutionalization,
__;The parent ordered to pay support [=:J The parent receiving support must 1) provide and maintain health insurance
coverage for the children if available at no or reasonable cost and keep the local child support agency informed of the
availability of the coverage (the cost is presumed to be reasonable if it does not exceed 5% of gross income to add a child);
the support order will restart in the same amount as it was before it was temporarily suspended.
(2) if health insurance is not available, provide coverage when it becomes available; (3) within 20 days of the local child
support agency's request, complete and return a health insurance form; (4) provide to the local child support agency all
infonnation and forms necessary to obtain health-care services for the children; (5) present any claim to secure payment or
reimbursement to the other parent or caretaker w.h o incurs costs for health-care services for the children; and (6) assign
any rights to reimbursement to the other parent or caretaker who incurs costs for health-care services for the children. The
seek continuation of coverage for the child after the c hi l d attains the age
parent ordered to provide health insurance
when the child is no longer considered eligible for coverage as a dependent under the insurance contract, if the child is
mast
incapable of self-sustaining employment because of a physically or mentally disabling injury; illness, or condition and is
chiefly dependent upon the parent providing health insurance for support and maintenance.
d.
CJ The
(2) CJ
(3) CJ
(4) CJ
(date):
D Family support:$
on the
(datet
Interest accrues on the entire pincipal balance owing and not on each installment as it becomes due.
e. No provision of this order may operate to limit any right to collect the principal (total amount of unpaid support) or to charge and
collect interest and penalties as allowed by law. All payments ordered are subject to modification.
f.
All payments, unless specified in item 4b(1) above, must be made to the State Disbursement Unit at the address listed below
(specify address): CALIFORNIA STATE DISBURSEMENT UNIT
PO BOX 989067
WEST SACRAMENTO CA 95798-9067
issued.
h. In the even t that there is a contract between a party receiving support and a private child support collector, the party ordered to
pay support must pay the fee charged by the private child support collector. This fee must not exceed
amount of past due support nor may it exceed 50 percent of any fee charged by the private child support collector. The money
judgment created by tf)is provision is_in favor of the private child support collector and the party receiving support, jointly.
i.
If '.'The parent ordered to pay support" box is checked in item 4c, a health insurance coverage assignment must issue.
Page 2: of 3
LEGALATTO
D ate :
{/iP9"
Page Sof 0
LEGALATIO
FL-132
IF YOU HAVE A CHILD SUPPORT ORDER THAT INCLUDES A PROVISION FOR THE
given to you.
to the court.
the difference.
by the court.
those costs.
---..
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..
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, .
. . ...
Page 1of2:
ww-u.comtirdo.ca.gov
FL-192
The court has just made a child support order in your case. This order will remain the same unless a party to the action requests that the
support be changed (modified). An order for child support can be modified only by filing a motion to change child support and seNing
each party involyed in your case. If both parents and the local child support agency (if it is involved) agree on a new chi ld support
amount, you can complete, have all parties sign, and file with the court a Stipulation to Establish or Modify Child Support and Order
(form FL-350) or Stipulation and Order (Governmental) (form FL-625).
General Information
The court takes several things into account when ordering the payment of child support First, the number of children is considered.
NeXt, the net incomes of both parents are determined, along with the percentage of time each parent has physical custody of the
children. The court considirs both parties' tax filing status and may consider hardships, such as a child of another relationship. An
existing order for ch ild support may be modified when the net income of one of the parents changes significantly the parenting schedule
When a Child Support Order May Be Modified
u1 l:I l!E::!W
Examples
You have been ordered to pay $500 per month in child s upport. You lose your job. You will continue to owe $500 per month, plus
10 percent interest on any unpaid support, unless you
. file a motion to modify your child support to a lower amount and the court
orders a reduction.
You are currently receiving $300 per month in child support from the other parent, whose net income has just increased
substantially. You will continue to recei ve $300 per month unless you file a motion to modify your child support to a higher amount
and the court orders an increase.
You are paying child support based upon having physical custody of your children 30 percent of the time. After several months it
turns out that you actually have physical custody of the children 50 percent of the time. You may file a motion to modify child support
to a lower amount
.
To change a c hild
How to Change
Remember: You
FL-680, Notice of Motion (Governmental) or FL--683 Order to Show Cause (Governmental) and
F L-684
the local child support agency, you must fill out one of
forms:
these
Form FW-003, Order on Application for Waiver of Court Fees and Costs
You must serve the other parent. If the local ch ild support agency is involved, serve it too.
This means someone 18 or over - not you
must serve the other parent copies of your filed court forms at least 16 court days before
the hearing. Add 5 calendar days if you serve by mail within California (see Code of Civi l Procedure section 1005 for other situations).
Court days are weekdays when the court is ope n for business (Monday through Friday except court holidays). Calendar days include
afl days of the month, including weekends and holidays. To determine court and calendar days, go to
wvvw. courtinfo. ca. govlseffhelplcourtcalendarsl.
-
FL-320, Responsive Declaration to Order to Show Cause or Notice of Motion and FL-150, Income and Expense Declaration,
Then the server fills out and signs a Proof of Service (form FL-330 or
Go to
you r hearing
Fl-335). Take
this form
.
to the clerk a nd
or
file it.
your tax returns from the las t two years and your last two
months' pay stubs. The judge wi!l look at your information, listen to both p.arents, and make an order. After the hea ring , fill out:
Need help?
Contact the family law facilitator in Y.9.':1!..f9.Y.nty or1::9.!l voyr coul}ty'.s bar as.;o._cia,_tion and ask for an experiencedj[l.i.!Y lJvvYer
FL-192[Rev Julyl.2007j
NOTICE OF RIGHTS AND RESPONSIB!UTES
Health-Care C o sts and Reimbursement Procedures
P"QCZofZ
f-G6VERNMENTALAGENCY
[-
Fl-686
FOR COURT use: ONL y
gi:486
200000001510049
TELEPHONE NO:
(866) 901-3212
\!5113-1000
608FL000101
3.
Notice of Opposition and Notice of Motion on Claim of Exemption (Governmental) (form FL-677)
Other (specify):
(form FL-285)
b.
CJ
[ZJ
depositing the sealed envelope with the U.S. Postal Service with the postage fully prepaid.
placing the envelope for collection and mailing on the date and at the place shown in item 4 following our ordinary
business practices. I am readily familiar with the business's practice for collecting and processing correspondence for
mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of
business with the U.S. Postal Service in a sealed envelope with postage fully prepaid.
(Goermental)
Page 1 of z
www.courls.ca.gov
.
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S E NU M B E R
N T F F D IA NA Q A OD O N G
ONE
I R GARBE
RESPONDENT/DEFENDANT: OLIVE
ffiITT
mailed as follows:
Q B FL
{c) Address:
(c)
CJ Name of party or
FL686
1
--
--
II
Address:
attorney served:
(c) Address:
(c) Address:
BRADFORD BAUGH
1550 THE ALAMEDA STE 155
SAN JOSE CA 95126-2325
(c) Address:
(c) Address:
00
verified by the California Child Support Enforcement System {CSE) as the current primary mailing address on file.
b. D other
(specify):
6. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Date: 12/02/.2014
MINNIE S!NGLA
(S!GN/>.'tUR9yr
! i
ii
------"
(Governmental)
f-ORt,ij
......__,,..... ______
Page 2012
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EXHIBIT C
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ATTORNEY FOR
MC-700
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{Name):
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vs.
Olivier Garbe
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TELEPHONE NO:
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1. Name and address of each plaintiff or cross-complainant or
other party subject to this prefiling order:
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Diana Dong
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1,
D the court
Olivier Garbe,
respondent
litigation in the courts of California without approval of the presiding justice or presiding judge of the court in which
co p y of this order to the Cal iforn ia Judicial Council by fax at 415-865-4329 or by mail
Date:
June 9,
2015
Mandatory Use
Jodlcial Council or Califomi2
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served
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fully prepa i d ,
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sealed
envelop e
( 1 0 8 ) 8 8 2 2 6 9 0 or
addressed to
each
BAUGH
3
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& AMINI
CJBNS.ORG
(408) 287-7790
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P etitioner: D IANA D O N G
NOTICE O F ENTRY O F O RD E R
11
and
12
13
14
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P LEAS E TAKE N OTI C E that o n J u ly 6, 201 5 , the cou rt entered the o rder
attached .
16
17
Dated: J u ly 8 , 20 1 5
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19
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at (time): 9 : 0 0
9 , 2015
(date):
by J.udge (name): Mary Ann Gr i l l i
June
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in Dept.:
a. m.
83
0 Temporary Judge
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On the order to. show cause, notice of motion or request for order f)led: (dae): .* .
a.
Attorney
minors
for
by (n ame):
O!herparty present
Roo m :
{ Hmited . .
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i}Q Petitionerfplaintiff p resent
b. IXl
c. IXl
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attached
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As attached
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As
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Attorney's fees
As attached
Oth e r orders:
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PETITIONER/PLAINTIFF
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FL- 346
Other
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Not applicable
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Other
on form
As attached
RESPONDENT/DEFENDANT
(time}:
in Dept.:
at ta cbJi,,,_
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c.u..
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JUDICIAL OFFICER
OTHER PARTY
---- _:.!._o!.1.. ..
- .couns.cs,gov
1
2
P e ti ti o ne r bing
matter having
presen with
..
following
argument makes th e
orders:
1.
1 .0
support.
11
2.
3:
On
12
14
15
u nti l further
17
"A" and
20
4.
incorporate_d as findi119s.
By
a.
Natacha,
21
22
23
a bs e n t written
24
- b.
rq ue st for $50,000 in
19
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to p a y Respond ent,
16
18
13
3
4
CJBNS.ORG
vi s i ts .
The visits
sh
M o th e r
a l l go b a ck to being
and Petitioner.
su p e rvi s e
25
of the Penin s l a i n Palo Al.to on J une 1 oth, but she is not to: approac h , call out to , or
26
27
28
violation o f this
'
mino r
reaso n .
5.
700)
Administrative Office of the Couris . Th e request for b.o rid is denied without
6.
12
1
Dated:
1-5
16
_
_
_
_
_
_
14
.Approved
as
__
4(a)
19
conforming
DATE D:
21
24
Al\ach.F&OAH.6.9.15.wpd
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25
26
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BB;e&
Jun.Z'5 ,
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PTfCT.KrG-NB"OYEN-- -- ----------
Attorn(;ly fo r Petitioner
20
prejudice.
(b), above.
17
18
./;
an
set each .party's requet for attorney1s fees from that time, as
1 -1
13
matter s moved to
29 1 5 . The court wi ll
10
comply Jith a prefiling order. A separate prefiling order, (J u d lciql Council Form MC-
child uncomfqrtabl'e .
DATED;
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Attorney for the Minor C hildren
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The Alame d a , S u i t e 1 5 5
S a n Jo s e , CA
9 5 12 6
TELEPHONE NO.: ( 4 0 8 )
2 8 7 - 7 7 9 Q FAX NO.
(Options/):
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ATIORNEY FDR INa1ne; O l i v i e r
STREET ADDREss: 6 0 5 W .
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MAILING ADDREss: 1 9 1
N . First
Jo s e, CA
BRANCH NAME: F ami 1 y L a w
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S t r e et
CA
Sunnyv a l e ,
2 8 Q -57 4 8
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94 087
95113
DONG
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CASE NUMBER:
6 - 0 8 - FL O O O l O l
RESPONDENT/DEFENDANT: O L I V I E R GARBE
OTHER PARENT/PARTY:
PROOF OF
9 KF
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oFL-3.35
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S ERV I C E BY MAIL
----
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. ,. .
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HEARING DATE:
DEPT.: 8 3
HEARING TIME:
..._________...._
..._
_
_
_
_
_
_
_
_
_ -----
\IOTlCE: To serve temporary restraini n g o rd e rs you m u st use pe rs o n al service (see form F L-330).
1.
2.
1 am at least
18 years of age, not a party to this action, and I am a resident of or employed in the cou nty here the mailing took
place.
1 5 5 0 T h e A l ameda , Su i t e
S an Jo s e , CA 9 5 1 2 6
3.
155
Notice
of
Ent ry
of
O r de r ;
orde r
f i led
Ju l y ,
2015
a. D
b.
IXl
depositing the sealed envelope with the United States P ostal S e rvice with the postage fully prepaid.
placing the envelope for collection and mailing o n the d ate and at the place shown in item 4 following our ordinary.
business practices.
am readily familiar with thi s business's practice for collecting and processing correspondence for
ma li g .
4.
a.
Ad dre s s :
c.
Date m ai l e d : Ju l y
d.
5.
b.
H eather
2 07 6
S an
8 , . 2015
San
Al l a n
Lincoln
Jos e ,
Jo s e ,
Phong
84
Avenue
CA
95125
San
S an t a
Jo s e ,
95113
Clara
CA
Street,
i7 9 0
CA
I served a request to modify a child custody, visitation, o r child support judgment or permanent order which included an
ljrpo;n.)
'.
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l
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J /lJj!./t}J f-? ,
address verification declaration. (Declaration Regarding Address Verification-Postjl!dgment Request to Modify a Child
Custody, Visitation, or C/Jild Supporl Order (form FL-334) may b e used for this
6.
Nguyen
W.
Date: July 8 ,
2015
......
..
orrect.
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_____ ____. _
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EXHIBIT D
CJBNS.ORG
3
4
5
6
In Re the Marriage of
10
Petitioner:
11
13
14
16
17
Ann Grilli, Judge of the Superior Court, presiding. Phong Nguyen appeared with the Petitioner.
ii
and evidence in the matter, and good cause appearing, makes the following findings and orders:
Code 2030 and 27 1 . Respondent (hereinafter referrnd to as Father for clarity) has requested fees
under fm1ily:_.Code 27 1 .
20
This case i s a high conflict and contentious action. There are now over 3 2 volumes of
21
the court file. Mother has previously been ordered to pay fees to Father in the sum of $ 1 00,000 on
22
June 23, 2 0 1 4, pursuant to fmn_i h::._Code 271 and 3557. In addition, on November 26, 201 4, Mother
23
26
Bradford B augh appeared with Respondent. The Court, having heard testimony, reviewed the files
Petitioner (hereinafter referred to as Mother for clarity) has requested fees under Family
19
25
)
)
FINDINGS AND
ORDER AFTER HEARING
This maiter came on regulady for hearing on November 20, 20 1 5, the Honorable Mmy
18
24
)
)
12
15
)
)
was also ordered to pay an additional fee amount o.f$6,000. None of the fees or interest thereon have
1
AND
ORDER
AFTER HEAR I NG
.,
!j
:
or wage assignment. CruTently, Mother is not paying the monthly child support due. There is a motion
fl1!
II\i
h
:i
6
7
8
10
11
12
13
14
never voluntarily paid any child suppo1t in this action. The only child support paid was paid via a writ
i
!'
l
i!
to modify child support pending, but such a motio n does not excuse the Mother in this case from
paying any child support for the children.
Mother has been found to be a vexatious litigant in thi s action on June 9, 20 1 5 . There
have been numerous motions fi led by Mother that were frivolous and served to prolong this action and
increase the expenses Father has had to pay. In her last support motion, for example, Mother sought
spousal support in addition to child support. Pursuant to the Judgment in this action, spousal support
I in this matter terminated on January 25, 20 1 3 , and the Court retained no jurisdiction to extend spousal
I
support beyond that date. This is but one example of many unfounded and frivolous motions in this
matter filed by Mother.
Mother seeks fees under Fm:nily Code 2030 and 27 1 .
Declaration states that Mother is seeking $ 1 25,000 in fees and costs. Father is seeking $50,000 in fees
Mother contends that she has no income and that Father should pay her fees, including
15
the past fees as well as claims for future fees. Issues relating to fees herein have been litigated on a
17
Mother has been the subj ect of a Seek Work or Employment Efforts Order since
16
18
19
20
21
22
23
24
25
26
number of occa<>ions.
November, 20 1 2 . Her latest j ob search efforts do not comply with the terms ofthe order. It is notable
that this finding was made in the earlier fee order filed June 23, 2014. In that Order, the Court
amended the earlier Employment Efforts Order to more clearly set forth the precise requirements for
I! the monthly reports Mother is to provide to Father concerning her j ob efforts. Mother has, once again,
failed to follow the clear terms of the Seek Work Order.
The Seek Work Order requires the Mother to provide monthly reports in the form that is
attached to the Seek Work Order, a eopy o f which was attached to the Order, For clarity, the Court
vvill again attach a copy ofthe Seek Work Order and incorporate it herein. Mother must fully comply
with the orders and provide all of the information the report attached to the Order requires. This
F I ND I NGS
AND
ORDER
AFTER HEAR I NG
includes, but is not limited to, providing infonnation on who she contacted, name and phone number
or other address for contacts, what follow up efforts were made, and the results of the application
process.
Mother is a highly educated and skilled worker. The evidence she presented indicated
that it appears that she did not generate even a single interview for the period in question.
In its order dated June 23, 20 1 4, the Court impute d income to the Mother at $ 1 0,962 per
month. No evidence was submitted at the fee hearing to show that the Court should not continue to
impute income to Mother at that level. In the June 23, 2 0 1 4 Order, the Court also found that there were
7
8
9
10
ll
12
13
14
15
16
jobs available to Mother and she clearly had the ability to earn at that level. At the hearing on this
'
motion, no evidence was submitted that the current situation would justify a change in this finding
In addition, in the Jm1e 23, 2014 order, the Court found that Mother' s testimony lacked
and did not list on her prior Income and Expense Declaration. The Court incorporates its findings
from June 23, 20 1 4, into this Findings and Order.
Mother, in her latest Income and Expense Declaration, again asserts that she has no
income. She also asserts that her mortgage payments are being paid by equity payments from her
house, yet no such payment is shown on the estimated expenses listed. The last payment shown on the
17
HELOC loan was alleged to have been made in September, 20 14, over a year ago. Mother also shows
19
21
payments on her $ 1 ,093,068 home, while at the same time not paying any amount toward the
18
20
The Court finds that Mother seems able to manage to maintain in some way the loan
22
24
23
25
26
Father has earnings of approximately $20.833 per month in wages plus a fringe benefit of
mo nth
recently bought a house, which has interest payments of approximately $3039 per month and property
taxes of $2,3 8 1 per month.
F I ND I NG S
AND ORDER
A FTER HEAR I NG
-5
any child support other than that taken by writ. Substantial arrears exist, but Mother pays none of the
child support, both current and arrears now due, not even a fraction of them. Instead, Mother elected
,,
f
11
In this case, Mother seeks an award o ffees while she ignores virtually every court order
12
in this matter. She has been declared a vexatious litigant as a result of her actions. Her conduct should
13
14
While i t is correct that there is a disparity in income between the parties, even with
15
imputed income to Mother, that fact does not, in and of itself deprive the Court of its ability to weigh
16
the facts and the law and to deny a fee request. The Court finds that this is one of those cases where a
17
18
22
23
24
25
26
who has refused to follow or disobeys court orders . See, Ho goboom & King, section 1 6:327,7, p. 1 6-
10
21
what is known as the disentitlement doctrine. This doctrine can be applied to deny relief to a party
20
this case to order the Father to pay the attorney' s fees ofthe Mother. Mother has chosen to fail to pay
19
The Court has reviewed all applicable factors under Familv Codg 4320, as well as all of
I
1
I
..
appropriate under the facts of this case to order Mother to pay fees as sanctions to Father, through his
attorney, in the sum of $20,000, which sum shall be due forthwith. This order will not cause an undue
financial hardship. Mother has real property valued at over l million dollars, which she apparently is
not paying the debt per her Income and Expense Declaration.
working since 20 12, yet, somehow, she meets her expenses. HO\vever, she chooses not to pay child
support or past due court ordered fees. Mother has been found to be vexatious relating to her actions
F I ND I NG S
AND
ORDER A FTER
4
HEAR I NG
during the course of this case. Those actions and the findings herein j ustify an order for fees under
section 27 1 .
Based upon the files and evidence in this matter and the findings herein,
10
11
12
13
l4
15
16
17
Mother' s request for fees under Finnilv Code27 1 is unsupported by any credible
IT IS ORDERED THAT:
Family Codc203 0 is
1.
2.
Respondent ' s request for fees pursuant to Family Code 27 1 is granted. Petitioner
denied.
shall pay to Respondent, through his counsel, the sum of $20,000, which sum is due forthwith.
These fees as ordered will not create an undue financial hardship. Any outstanding balance shall
Petitioner's request for fees pursuant to Familv Code 27 1 is denied. Petitioner did
not meet the burden of proof for orders under this section.
DATED :
,,---
,___. \-{
18
19
2. 0
21
22
23 .
24
25
26
II
- --- -
_____________..,_
PETITIONER:
- -
RESPONDENT:
-----
: T i S ORDEREO THAT:
-
..'.1
CASE NU MBER:
sE E K WORK ORDER
----- - - ------- - -
- -
bi . Petitioner
Respondent sha!I make ail reasonab!e good faith efforts to seek and obtain gainful. .. . . . .
employment i n accordance with his/her ski!ls and abilities. Failure to d o s o may result i n the Court basing
su pport o n ability to earn for the purposes of determining c h i ld and spousal support. Failure to make
g o o d faith efforts may be considered by the court as a basls for modifying, s etting, or terminating
support.
2.
0 ten {10) 0
__
appl ications
for j o bs
every week
and
shall
immediately reg ister with at least five (5). temporary employment agencies, including the One Stop
Center in hisfher cou nty. The job seeker shall keep a written log of all efforts to obtain employment, including
registering for work with temporary agencies during any periods of u nemployment. The log shall be ln writing
on the form attached to this Order and shall incl ude the name, address, telephone n umber, and email address,
if applicable, of any application made, the date of the job appl ication or interview, and the results of the
applicatlon and any follow up done. Copies of the log shall be sent to the other party and his or her attorney on
.
Online job applications
a monthly basis on or before the first of each mon 'i. starti ng
a l o n e s h all not b e s ufficient to satisfy the requirem ents of this order to actively s eek emp loyment.
YOU MUST B RI N G T H E O RIGI NAL LOGS TO THE N EXT COU RT H EARl N G .
0 Other Orders:
3.
I n the event that the j o b seeker becomes employed o r self-employed , whethe r full time o r part time, that party
shall within 48 hours notify the other party or the attorney for the other party in writing of the name, telephone
number, and address of the new employer, as well as the rate of pay. Any modification of support as a result
copies
of obtaining employment shall be effective as of the d ate of employment. If the job seeker has obtained
Of three
available) or a letter of employment for any p eriods of employment as well as the logs for any periods of
unemployment.
4.
LJ
a.m./ p . m. in Department
at
before
the Court Settlement Officer to review the efforts toward obtaining employment. to recommend additional or
different efforts toward obtaining employment, and, if appropriate , to order recalculation of support based on
the lack of good faith efforts toward o btaining employment, inciuding the imputation of income. Such
imputation and recalculation may relate back to the fi ling date of this order.
N OTICE: FAILURE T O APPEAR FOR THE REVI EW HEARING O N THE DATE ABOVE MAY RESULT IN A
APPEARANCE. S U P P O RT MAY BE BASED U P O N YO U R ABI LITY TO EARN WHETHER OR NOT YOU ARE
EMPLOYED.
ACTUALLY
D ate:
-
- -
. - - - - ---
.,..._
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. ------
Superior Court
Page 1 of 2
REPORT PERI O D :
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SUPERIOR COURT
19 1
OF
CALIFORNIA ,
N.
S an Jo s e ,
COUNTY
OF
SANTA CLARA
9 5 113 - 10 9 0
First
CA
S treet
u
n r-r'
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....... 0 1' 20'j '.}
Bradford Baugh
Dok Baugh Tarvin & Amini
1 5 5 0 The Alameda
Suite 1 5 5
S an Jos e ,
CA 9 5 1 2 6
TO :
RE :
Diana Q . Dong And Ol ivier Garbe
Ca s e Nbr :
6 - 0 8 - FL - 0 0 0 1 0 1
PROOF O F SERVICE
F i ndings
1 1 - 2 0 - 1 5 hearing
was del ivered to the part i e s l i s ted be low in the above ent i t led c a s e as
forth in the s worn dec larat ion be low .
P a r t i e s /At torneys
s et
of Record :
CC :
Phong Nguyen
R4
r f you,
S anta C l ara S t ,
p:7.r::y rp?:sented by
Cd.se.'b:.. l i ties
th.:
WP. s t
J.\ct
Voi.o/rcz:
jrou .
S an Jose ,
CaJ. i.forni?.
Relay se1:vice ,
or a witness t o be cElled en
CA 9 5 1 1 3
12/02/::.. s .
{ 3 0 0 } 7 3 5 - :2 92 7. .
sei.-ved
DAV.ID .H .
#790 ,
_; '
y/..111..SF-_K:r
at
tb is nc: t i c e
{408) SB2-2700,
by enclosing
or use
a t:.rue copy
in
a sealed envelope ,
Ofticer/Cl.erk
by Jal'.f;? t t a Reser,
( 4 0 8 ) 8 9:2 - 2 6 9 0
Deputy
or
add:r:esseci" to ea.ch
EXHIBIT E
CJBNS.ORG
3
4
5
(408) 287-7790
.::i
----
--
6
7
8
9
Case N o . 6-08-FL000 1 01
10
11
and
12
13
14
15
16
17
Dated J uly 8, 2 0 1 5
18
19
20
kADFORD
Attorney for
Notice.Entry.wpd
BB:cs
21
22
23
24
25
26
27
28
t:tr<Jt/9fl[f=o
B r ad f o r d B augh
-Baugh
&
68 6 6 1 )
Ami n i
1 5 5 0 T h e Alame da r Suite
S an Jo s e , CA 9 5 1 2 6
TELEPHONE NO.: { 4 0 8 )
2 8 7 -7 7 9Q
E-MAIL ADDRESS (Optional):
155
FAX NO. (Optional):
MAILING AODREss: 1 9 1
W.
N.
(4Q8)
S an t
Oliv i e r G a rbe
El C amino Re a l ,
F i r s t S t reet
95113
c1rr .ANo z1P cooE: S an Jo s e , CA
BRANcH NAMe: Fa mi l y Law
ZHIS
2 8 0- 57 4 8
FL-340
- -
FILED
lll -r,
I : 50
S u nn yv a l e CA
cl a r a
---,.__
------
DONG
RESPONDENT/DEFENDANT:OLIVIJ;:: R GARBE
OTHER PAR1Y:
,.,._ --
1.
6 - 0 8 - FLO O O l O l
THE
2,
COURT O RDERS
support:
( al l pending motions
0 other
0 Not applicable
lXI )bftP&t2
D Other
0 Not applicable
As attached
1XJ XiKlGKKlX1
As attached
4.
As attached
IX))Q3
O Other
D Not applicable
5.
Property orders:
As attached
D on form FL-344
D Other
W Not applicable
D Other
W Not applicable
0 on form FL-346
6. Attorney's fees
As attached
7.
Other orders:
IXl As attached
9.
D Not applicable
at (time):
)ate:
:.
On atta chment
= orm
in Dept.:
JUDICIAL OFFICER
PETITIONER/PLAINTIFF
RESPONDENT/DEFENDANT
OTHER PARTY
.courts.ca.gov
Page 1 of 1
r - -t- -
. '
1
2
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7
8
-- .
--
The above-entitled matter having come on for hearing on J une 9, 201 5 and
P etitio n e r b?ing
mi h o rs , Heather A!lan; being p res n t; a n d Res ond ent a ppearil}g with his attorney,
B ra dfo rd Baug h and the co u rt havmg heard evidence and argment makes the
I foHowing orders:
1.
10
s upp o rt.
11
2.
3;
12
13
as
the
1 st d ay of
14
to pay Respondent,
15
16
u ntil further o rd e r df the court. The DissoMaster tl)e yOUrt u s e d is attached as Exhibit
17
. 4.
18
19
'
a.
uns u pe rvis ed visit to be agreeable to Ms. Al.Ian, the m i n o r, Natacha, a nd P etiti o n er.
20
The vi sit wil l be unup rvised. After that u supervised vi s it, the parties shall m eet
.
21
22
23
being s uper:vised
absent written agre ement of the parties o r order of the court, however.
24
of the
25
b.
Peninsula in Palo Alto on J une 1 0th, but she is n o t to .. approach, call out to,
26
or
27
28
vio l atio n of this ord e r, however. It is contempl ated Mother will le ave promptly after
------- -- --A . L I. - _ L __ _ _
.
encouraged to do so by M oth e r, that will not be a
"---
'
'
'
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reason .
5.
comply y..rith
6.
9.
requires her to
6.
litigant ad
an endorse(j-filed copy to th e
This matter .is moved _to status conference at 1 :30 p.m. cm June 251.
set each
1 0
11
12
13
Dated:
14
15
1'6
Approved as
17
18
DATE D :
19
PHONG-f\fGlJYEN
-21
22
23
25
26
f,
(t I .It
.\
20
24
DATED;
Attach.F&OAH.6.9.15.wpd
BB:cs
R
f\Lt:AN
Attorney for the Minor Children .
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68661)
ATIORNEY OR PARTY WITHOUT ATIORNEY (Name, Stale Bar number, and adlfress):
i_ B r a d f o rd
&
( S BN :
Baugh
1 5 5 0 T h e Alame da , Sui t e 1 5 5
S a n Jo s e , CA
9 5 12 6
( 4 0 8 ) 2 8 7 - 7 7 9 0 FAX NO. (Optional): ( 4 0 8 )
TELEPHONE NO.:
B augh
Ami n i
R
ATIO NEY FOR (NameJ:
605 w .
191 N .
El
COUNTY
Camino
2 8 0 - 57 4 8
Sunnyval e ,
9 4 087
CA
First S t reet
c
c1TYANo z1P oDE: S a n
Jo s e, CA 9 5 1 1 3
BRANCH NAME: Fami ly
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O F S ERVICE BY
______
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personal service
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FOR CO R
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ASE N
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6-0 8 -F
LO O O l O l
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HEARING DATE:
83
HEARING TIME:
DEPT.:
(see form
FL-330).
l am at least 1 B years of age, not a party to this action, and I am a resident of or employed in the county where the mailing took
place.
2.
3.
o f Entry 0 O r de r ;
f i l e d July 6 ,
N o t i ce
o rd e r
2015
D d epositing the sealed envelope with the United States Postal Service with the postage fully prepaid.
IX) pl acing the envelope for collection and mailing on the date and at the place shown in item 4 following our ordinary.
business practices. I am readily familiar with his business's practice for collecting and processing correspondence for
mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of
business with the United States Postal Service in a sealed envelope with postage fully prepaid.
4.
5.
b.
Address:
H e a th e r A l l an
2 015
8r
c.
d.
Phong Nguyen
2 0 7 6 Lincoln Avenue
S an Jos e , CA 9 5 1 2 5
S an
Jo s e ,
84 W.
S an t a Clara
S a n Jo s e ,
CA 9 5 1 1 3
Stre e t ,
#7 9 0
CA
l served a request to modify a child custody, visitation, or child support judgment o r permanent order which included an
p pose.)
address verification declaration. (Declaration Regarding Address Verification-Postjl.!dgment Request to Modify a Child
7 regclftJi j
Custody, Visitation, or Child Support Order (form FL-334) may be used for this
6.
Date: Ju ly
8,
201s
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state of California th .
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P RO O F OF S E RVICE BY MAIL
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www.courts.ca gov
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(408) 287-7790
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S U P E RIOR C O U RT OF CALIFORNIA, C O U NTY O F SANTA CLARA
I n re Marriage of:
Case N o . 6-08-FL000 1 0 1
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Petitioner: D IANA D O N G
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and
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PLEAS E TAKE N OT I C E that o n July 6 , 20 1 5, the cou rt entered the order
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attached.
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Dated: J uly 8, 2 0 1 5
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B y_
BRAD FORD
Attorney for
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Notice.try.wpd
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BB:cs
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II Marriage of Dong
&
Garbe
1
Notice of Entry of Order
No. 6-08..fL000101
EXHIBIT F
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STREET ADDRESS:
PETITIONER:
RESPONDENT:
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! CASE NUMBER:
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IT IS O RD ERED THAT :
Petitioner
Respondent shall make a ! I reasonabie aood faith efforts t o seek and obtain ga!nfu!
s u p port o n a b i l i ty
to
s u p port.
earn
2.
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NDV3l./201'l.
MAlLI NG ADDRESS:
CJBNS.ORG
th e Court basing
121.-
- a P1pp
a l ications for jobs
0 ten (1 0)
least five (5) tem po rary
in
registering for work with temporary agencies d u ring a ny periods of unemployment. The log shall be in writing
C enter in his/her county. The job seeker shall keep a written log of all efforts to obtain employment, including
o n th e form attached to th ls Order and shall inclu d e the name, address, telephone number, and email address,
a p p l ication and any fol low u p done. Copies of the log shall b e sen.t to the othe r p arty and his or her atrorney on
if a p p!icabie, of any application made, the date of the job application or interview, and the results of the
i2:::.:.L:j .
a l o n e s h all n o t be suffi c i e n t to satisfy the requ irements of 'this order to actively seek employment.
a m o nthly basis on or before the first of each month, starting
0
3.
O t h e r Orders:
I n th e event that the job seeker becom es employed or self-employed , whether full time or part time, that party
shall within 48 hours notify the other party or the attorney for the other party in writing of the name, telephone
n u m b er, and a d d ress of the n ew employer, as w e l l as the rate of pay. Any m od ification of support as a result
of obtaining employment s h a l l be effective as of the date of employment. If the job seeker has obtained
employment before the next heari n g , he cir s h e is to bring copies of three (3) m ost recent paystubs (if
availabl e) or a letter of employment for any p eriod s of employment as well as the logs for any periods of
4.
unemployment.
( --{)--fj
Jp.m.
'3
the l ack of good faith efforts toward obtaining employment, includ in g the imputation of income.
may relate
back t o t h e fil i n g
Such
N OTICE: FAI L U R E TO APPEAR FOR THE REVIEW H EARIN G O N THE DAT E ABOVE MAY RESULT !N A
S U P P O RT ORDE R BASED U P O N AN I M P UTED O R ESTIMATED LEVEL O F YOU R INCOME WITHOUT YOUR
APPEARANCE. S U P P O RT M AY BE B AS E D U P O N YOU R ABILITY TO EARN WHETHER OR NOT YOU ARE
ACT U AL LY E M P LOYED .
D ate:
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J udicial Officer
of the
Su perior Court
WORK S EARCH RE P O RT
TO :
REPORT PERIOD:
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You must. bring the originals to y=. courearing an mak a copy for your re!.._:_
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your
r -- - r oate of "" - E'mpioyero"r-Agency- -Contacnqame" "'" "'" ' ' How-ciici yau --
Empioym"ent '', ,
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I declare u n d e r p enalty of perjury under the laws of the State of California that the i nformation contained in this report is true a n.d correct.
Date:
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Sig nature:
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CJBNS.ORG
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S U PERIO R C O U RT OF CALI FORN IA, COU NTY O F SANTA CLARA
I n re Marriage of:
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and
DECLARATION OF OLIVIER
GARBE
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Hearing :
APJ : Grilli
Dept. : 83
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1.
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2.
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due me and ordered distributions from the sale of the com m u n ity residence. That
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order adopted the calculations of M s. Alger, shown on Exhibit "A- 1 11 through "A-2" as
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of Februa ry 24 , 20 1 3 .
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3.
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child support from Ms. Dong other than a check from Ms. Yeamans in the amount of
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$3, 880 on Decembe r 1 , 20 1 4 . In .the interest of clarity, the $397 ,604. 5 1 check also
24
included sums due fo r p reviously o rdered sanctions, fun d s removed from the
25
children's accounts, and an equalizing payment fo r the p roperty judg ment. The
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27
$397,604 . 5 1 .
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4.
No. 6-08-FL0001 01
Dong at $544 per m onth, and commencing J une 1 , 20 1 3, $448 per month plus
allocation for private school, uninsured healthcare costs, etc. The support orders
a.
5
6
at 6 : 1 5- 1 9) .
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201 4 onward.
b.
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filed J u ly 6 , 20 1 5 at 1 : 1 3- 1 7 ) .
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5.
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Arrears:
$4,480.00
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Daycare:
$ 1 , 800.00
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$66 3 . 53
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25
Subtotal :
b.
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c.
$23 , 697. 08
$ 1 7 , 500.29
Payment:
($3, 880.00)
This sum does n ot i nclude uninsured healthcare or daycare , which Petitioner refuses
2
Declaration of Olivier Garbe
No. 6-08-FL000 1 01
to pay.
The order filed J uly 6, 20 1 5 is final, not having been appealed fro m .
6.
There h ave been findings and orders for attorney's fees under FC 27 1 ,
fi led Decem ber 1 , 2 0 1 5. That order has not been a ppealed , although it was served
o n Mr. Ng uyen, Petitioner's counsel of record o n that date . My cou nsel filed a notice
have been awarded a furthe r $6,000 i n sanctions. None of the final sanctions, of
$26, 000 have been pai d , and of cou rse, the $ 1 00,000 i n sanctions on appeal has
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7.
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para g raphs 4 and 5 , above, which total $37,3 1 7.37, not i ncluding i nterest. I have not
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been paid uninsured daycare o r healthcare for either of the children , which, since it
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8.
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thi s case as Petitio ner has b rought her annual m otion to modify child support.
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I declare under penalty of perj u ry the above i s true and correct a n d this
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OLIVI ER GARBE
Respondent
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Dec.Client.2.9.i6.wpd
BB:cs
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Marriage of Dong & Garbe
3
Declaration of Olivier Garbe
No.
6-08-FL000101