Barron v. Kendall

• Court: District Court, S.D. California
• Decided: April 28, 2020
• Docket: 3:20-cv-00648
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 PAMELA DELGADO BARRON, Case No.: 20-cv-00648-AJB-KSC Petitioner, 13 ORDER DENYING WITHOUT v. PREJUDICE PETITIONER’S EX 14 PARTE MOTION TO STAY STATE MATTHEW D. KENDALL, 15 COURT PROCEEDINGS, AND Respondent. MOTION TO VACATE STATE 16 COURT ORDER (Doc. No. 9.) 17

18 Currently pending before the Court is Pamela Delgado Barron’s (“Petitioner”) ex 19 parte motion to stay the proceedings in San Diego Superior Court, and ex parte motion for 20 an order vacating the February 20, 2020 temporary custody and visitation order issued by 21 the San Diego Superior Court. (Doc. No. 9.) For the reasons set forth below, the Court 22 DENIES WITHOUT PREJUDICE Petitioner’s ex parte motion to stay and motion to 23 vacate the San Diego Superior Court’s order. 24 I. BACKGROUND 25 On April 2, 2020, Petitioner filed a Petition for the Return of the Child (“the 26 Petition”) pursuant to the Hague Convention on the Civil Aspects of International Child 27 Abduction (“Hague Convention”) and the International Child Abduction Remedies Act 28 (“ICARA”). Petitioner seeks the return of her five year old child, S.D. (“the Child”), to 1 Mexico. Additionally, on April 3, 2020, Petitioner filed a “Memorandum of Points and 2 Authorities in Support of Order to Show Cause Under the Hague Convention for the 3 Scheduling of an Expedited Hearing.” (Doc. No. 3.) Petitioner sought, among other things, 4 an expedited hearing on the Petition and for this Court to vacate an order issued by the San 5 Diego Superior Court granting Respondent temporary custody of the Child. (Id.) The Court 6 ordered Respondent to show cause why the Court should not grant the Petition, and why 7 the Court should not vacate the state court order. (Doc. No. 6.) The Court scheduled an 8 expedited hearing for May 6, 2020. (Id.) On April 21, 2020, Petitioner filed an ex parte 9 motion to stay the San Diego Superior Court proceedings, and an ex parte motion for an 10 order vacating the San Diego Superior Court temporary custody and visitation order. (Doc. 11 No. 9.) This order follows. 12 II. DISCUSSION 13 A proper ex parte motion must “address . . . why the regular noticed motion 14 procedures must be bypassed,” i.e., “it must show why the moving party should be allowed 15 to go to the head of the line in front of all other litigants and receive special treatment.” 16 Mission Power Eng’g Co. v. Cont’l Cas. Co., 883 F. Supp. 488, 492 (C.D. Cal. 1995). This 17 requires the moving party to “show that the moving party’s cause will be irreparably 18 prejudiced if the underlying motion is heard according to regular noticed motion 19 procedures” and “that the moving party is without fault in creating the crisis that requires 20 ex parte relief, or that the crisis occurred as a result of excusable neglect.” Id.; see also 21 Hammett v. Sherman, No. 19-CV-605 JLS (LL), 2019 WL 8013763, at *1 (S.D. Cal. Sept. 22 23, 2019). Here, Petitioner seeks an ex parte (1) stay of the San Diego Superior Court 23 proceedings, and (2) an order vacating the temporary emergency custody and visitation 24 order issued by the San Diego Superior Court. The Court addresses both requests below. 25 A. Petitioner’s Ex Parte Motion to Stay 26 First, on April 21, 2020, Petitioner requested ex parte a stay of the state court 27 proceedings because Respondent had allegedly indicated he was going to file an ex parte 28 application for an expedited Hague hearing in San Diego Superior Court on April 22, 2020. 1 (Doc. No. 9 at 3.) Petitioner—without explanation—requested that Respondent not be 2 given an opportunity to respond to the instant ex parte application. Under Judge Anthony 3 J. Battaglia’s Civil Case Procedures Rule III.2, parties are given “until 5:00 p.m. on the 4 next business day to respond” to ex parte motions. However, on April 22, 2020, before 5 Respondent opposed, Petitioner submitted a supplemental filing, demonstrating that 6 Respondent’s ex parte request to schedule an expedited Hague hearing in the San Diego 7 Superior Court had been denied. (Doc. No. 11.) The San Diego Superior Court determined 8 that the ex parte application was neither a legal emergency nor was it ripe for ex parte 9 relief. (Doc. No. 11 at 3.) As such, with the state court’s denial of Respondent’s request for 10 an expedited Hague hearing, Petitioner’s request is rendered moot, and Petitioner has not 11 shown that she will be otherwise prejudiced. Mission Power Eng’g Co., 883 F. Supp. at 12 492. Accordingly, Petitioner’s ex parte motion for a stay of the state court proceedings is 13 DENIED WITHOUT PREJUDICE. 14 B. Petitioner’s Ex Parte Motion to Vacate State Court Order 15 Next, Petitioner again seeks an order to vacate the San Diego Superior Court’s 16 temporary custody and visitation order. (Doc. No. 9 at 4.) While the Court is authorized to 17 vacate state court orders in contravention of the Hague Convention, “the court declines to 18 do so at this time. The state court’s [] order does not create a direct conflict with any of this 19 court’s orders.” Rehder v. Rehder, No. C14-CV-1242 RAJ, 2014 WL 5324295, at *2 (W.D. 20 Wash. Oct. 17, 2014). In particular, the state court’s temporary emergency order and this 21 Court’s April 13, 2020 order both ensure that the Child remains within this Court’s 22 jurisdiction until resolution of the Petition. (Doc. No. 6.) Furthermore, Petitioner’s instant 23 request is duplicative of relief already sought by Petitioner in her Request for an Order to 24 Show Cause. This matter is more opportunity resolved after an opportunity is given to be 25 heard at the expedited hearing. Additionally, should the Court decide to return the child to 26 Mexico, it would not be bound by any state court custody determination. See Hague 27 Convention, art. 17 (“The sole fact that a decision relating to custody has been given in or 28 is entitled to recognition in the requested State shall not be ground for refusing to return a 1 |;child under this convention. . .. ”). Thus, the Court also DENIES WITHOUT 2 || PREJUDICE Petitioner’s ex parte request for this Court to vacate the state court’s ruling. 3 CONCLUSION 4 In light of the foregoing, Petitioner’s ex parte motions to stay and to vacate the state 5 court order are DENIED WITHOUT PREJUDICE. As further guidance, the expedited 6 telephonic hearing on May 6, 2020 will address the issues in the submitted briefing 7 ||regarding the Petition and order to show cause, and particularly the issue of abstention. If 8 ||determined to be necessary, the Court may schedule a further evidentiary hearing. The 9 || Court will provide the dial information to counsel in advance of the hearing. 10 11 IT IS SO ORDERED. 12 ||Dated: April 28, 2020 © 13 Hon, Anthony J.Battaglia 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28