Hank A. Hardister
SUPERIOR COURT OF CALIFORNIA
IN THE COUNTY OF NAPA
| CRYSTAL TYNAN Petitioner, vs. HANK A. HARDISTER Respondent |
))))))))))))))) ) ) | CASE NO.: 26-66359 RESPONDENT’S MOTION TO DISQUALIFY JUDGE JOSEPH J. SOLGA PURSUANT TO C.C.P. § 170.1 Date: Time: Dept: Trial Date: |
Respondent HANK A. HARDISTER respectfully requests Judge Joseph J. Solga be disqualified under the California Code of Civil Procedures (CCP) Section § 170.1 (a)(6)(C): “For any reason … A person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.” Petitioner believes that any reasonable person aware of the facts and circumstances would believe that Judge Solga is biased and prejudiced, and has ignored the law.
The standard for disqualification provided in Code Civ. Proc., 170.1(a)(6)(C), providing for disqualification for bias or prejudice is fundamentally an objective one. It represents a legislative judgment that, due to the sensitivity of the question and inherent difficulties of proof, as well as the importance of public confidence in the judicial system, the issue is not limited to the existence of an actual bias. Rather, if a reasonable person would entertain doubts concerning the judge’s impartiality, disqualification is mandated. To insure that proceedings appear to the public to be impartial and hence worthy of their confidence, the situation must be viewed through the eyes of the objective person. This standard indicates that the decision is not based on the judge’s personal view of his own impartiality, and also suggests that the litigants’ necessarily partisan views do not provide the applicable frame of reference. Rather, the judge ought to consider how his or her participation in a given case looks to the average person on the street. Petitioner will show that the average person off the street believes that Judge Solga has show bias directed towards Petitioner. Petitioner concurs.
INTRODUCTION
Judge Joseph Solga has been active in the case since XXXX XX, 2016 and his participation is ongoing. On XXXXXXX, Petitioner filed a motion against the Respondent alleging physical abuse acted by the Respondent against the minors. Following the motion, and considering the gravity of the allegations, Child Welfare Services and the police were involved to investigate the substance of the allegations. The Petitioner provided photographic evidence demonstrating marks indicating strangling, and bruises indicating use of physical force. The same was tendered before the court under sword statement of the events. Accompanying the Petitioner’s sworn statement was a statement sworn by Ann Lanning, counsel for the minors.
On July 13, 2020, Judge Solga made his ruling awarding the Petitioner full custody of the minors and only granted the Respondent supervised visits. The court’s ruling conflicted with the findings of the Child Welfare Services Report and Police report that confirmed investigations have determined that the Respondent is innocent of all allegations claimed by the Petitioner and the minors’ counsel. Despite the reports from independent and qualified investigators, the Judge did not dismiss the motion and instead ruled in support.
Judge Solga’s bias against Respondent can be seen by the following:
MADE PERSONAL FEELINGS KNOWN AFTER RULING
Upon delivery of the ruling, Judge Solga proceeded to make statements displaying his personal feelings about the Respondent. Judge Solga commented on the Respondent’s physical proportions while alluding that the Respondent appeared intimidating and as a result the Judge felt intimidated by the Respondent. Judge Solga further commented that the Respondent has issues and deep seeded problems. The comments went on addressing and touching on the Respondent.
IGNORING FACTS AND EVIDENCE PROVIDED BY CPS (CHILD WELFARE SERVICES)
On July 13, 2020, prior to the court making its ruling, the case proceeded for hearing alleged child abuse claims. In response to the severity of the allegations, a full investigation was completed by:
Martha Harris representing Child Welfare Services (CPS);
a child therapist who specializes in children; and a
Sheriff investigator, Cecil Brown.
The investigation’s concluded that nothing at all happened on Father’s Day as alleged by the Petitioner, or any other day, and all claims are unfounded. Martha Harris made it clear that she believed that Mother, passively and actively coerced the children into believing only negative things about Father in an effort to alienate Father.
The three appointed to investigate these claims are experts in their respective fields and. They deemed that the Father’s Day event never happened and verified the statement of the eyewitnesses who testified i.e. the Respondent’s mother.
The CPS investigator, Martha Harris, also pointed out to the court that the mother’s constant claims (five claims in five years) is a form of child abuse subjecting the children to unnecessary interviews and court actions, and believed father should have more custody.
Regardless of the testimony and compelling evidence putting the motion to doubt, Judge Solga proceeded to rule in favor of the Petitioner and her motion seeking to revoke the Respondent’s custody rights.
ALLOWED FAKE PICTURES TO BE PRESENTED WITHOUT REPERCUSSION
Allegations by the Petitioner were supported by photographic evidence which the Petitioner released into the custody of Investigator Cecil Brown, CPS and the minors’ Counsel. The evidence showed marks indicating strangling, and bruises indicating use of physical force. However, none of the photos revealed the faces or any identifiable feature of the minors. Investigations were conducted independently, and each concluded the allegations to be false. Further, the photographic evidence was also concluded as false and fabricated/manipulated by the Petitioner.
Martha Harris makes it clear in her report that the pictures presented are not consistent with the claims and definitely did not originated from the Father’s Day event. Napa Child Welfare Services also makes it clear that neither of the minors had any bruises, scratches or signs of any abuse the days after Father’s Day.
Napa Child Welfare Services stated in its report that “CW is concerned that the presentation of 2-year-old unverified pictures was an attempt by Mother to Bias the investigation. And after meeting with Mother 5 times over the years these claims and pictures never came up before”
During the hearing on July 13, 2020, the Petitioner was put to the stand. She was presented with side-by-side comparisons of photographs she presented and others that clearly show the eldest child’s face, neck and ear. It was obvious, without doubt, that the pictures not only were altered in color but the pictures presented in no way could possibly be the same child. The Petitioner admitted that the pictures were not from Father’s Day and the kids had no marks or bruises after Father’s Day.
Despite the apparent evidence, Judge Solga took no action against the Petitioner or Minor’s Counsel for perjury or for supporting perjury even when there was no doubt the Police and CPS both state the pictures are questionable and most likely not the eldest minor as claimed by Petitioner. Judge Solga even commented after the pictures were proven false, that he placed no value in the photographs. Yet, the judge allowed the Petitioner’s motion.
IGNORED HISTORICAL CONDUCT BY THE PETITIONER
As mentioned above, this case has been going on for close to 6 years and there has been several claims of domestic abuse, child abuse and child neglect comprising some of the false accusations by the Petitioner. Over the years through court hearings, depositions and evidence the constant claims of abuse and domestic violence have been proven false time and time again. This does not stop the Petitioner from including in every court filing false claims, the most inflammatory and aggressive language possible. During each hearing before Judge Solga, has denied the Respondent all attempts to direct the attention of the court to previous motions by the Petitioner presenting false allegations only for the same to be disproved and disqualified later on. Further, the Respondents was barred from presenting the very documents disproving the Petitioner’s claims.
INTERVIEWED MINORS ONLY IN THE PRESENCE OF MINORS COUNSEL IN VIOLATION OF 6TH AMENDMENT
During the hearing on July 13, 2020, Judge Solga consulted the parties on whether they were objecting to the minors being interviewed by the court. Both parties agreed however, the Respondent agreed on condition that Minor’s Counsel not be present during the interview. Reason being that the Minors Counsel has indirectly shown a working relationship between herself and the Petitioner as opposed to what was instead of what was in the best interest of the minors. The Minors’ Counsel has supported perjury in supporting the Petitioner’s false claims of abuse.
Each of the minors was interviewed in chambers separately, and in the presence of the Minors’ Counsel. This occurred despite the fact that the Respondent objected to the presence of the Minors’ Counsel and had in fact already filed a motion to that effect. She was aware of this motion at the time she was asked to be the children’s witness. There was no court reporter in that room and what was said remains unknown. Any attempt to cross examine the minors was denied in violation of the Respondent’s constitutional rights.
QUESTIONED WITNESSES IN THE AFFIRMATIVE THAT MR. HARDISTER WAS AN ABUSER
During the hearing on July 13, 2020, a number of witnesses were put to the stand to testify before the court. Among the witnesses was Edsel Mac, who the judge personally asked questions pertaining to the Respondent’s character and likelihood of abuse. Judge Solga repeatedly asked questions that Edsel felt were inappropriate where he tried to draw conclusions to abuse.
After the hearing, it was a universal feeling that Judge Solga had a serious agenda and a personal issue with the Respondent.
DEFENDANT’S DISAPPOINTMENT
During a hearing that took place on June 11th, 2020, the issue at hand was a request for orders awarding the Petitioner Full legal custody. True to her character, Petitioner continued with claims of abuse and extreme claims of conflicts in parenting.
Judge Solga moved forward in granting Petitioner’s request despite a motion before the judge to have minors’ Counsel removed. The entire hearing was one sided and in a heavy-handed manner against the Respondent.
Discouraged and deprived of any hope for justice, the Respondent left the hearing. While exiting, the Respondent addressed the court and expressed his disappointment with the manner in which the hearing was being conducted.
This conduct was attributed to the fact that the Respondent can no longer afford the services of an attorney. The Respondent’s financial situation has deteriorated due to the disputes involving him and his ex-wife, the Petitioner.
Nevertheless, the Petitioner wrote a formal apology to the court for the manner in which he conducted he exited the courtroom. During the next hearing, Judge Solga allowed the Respondent to read the apology in open court, which apology the judge accepted and appreciated but at the conclusion of the final hearing, Judge Solga made disparaging personal comments towards the Respondent as mentioned earlier above.
Along with the ruling, Judge Solga’s personal comments made it clear he still held resentment towards the Respondent.
MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF RESPONDENT’S MOTION TO RECUSE JUDICIAL AUTHORITY
Any party may challenge a judge for cause by filing a written, verified statement with the clerk’s office objecting to the hearing or trial before the judge and setting forth the facts constituting the basis for the disqualification. CCP §170.3(c)(1). Copies of the statement must be served on all parties or on any of their attorneys who have appeared. CCP §170.3(c)(1); see McCartney v Superior Court (1990) 223 CA3d 1334, 1340, 273 CR 250 (statement in reply to opposition to disqualification statement does not satisfy notice requirements of CCP §170.3). A copy must be personally served on the judge who is alleged to be disqualified, or on his or her courtroom clerk, provided that the judge is present in the courthouse or in chambers. See CCP §170.3(c)(1).
At this time Respondent believes that Judge Solga’s rulings disqualify him. Respondent argues that specific statements taken in context of Judge Sogla’s handling of this matter, particular findings, and particular rulings reveal a biased and prejudiced mindset, including a willingness to slant the law in favor of the Petitioner and Minors Counsel. Judge Solga’s admission of evidence disqualified by investigative reports, and statement personally attacking the Respondent showed a biased and prejudiced mindset that may be clearly discerned by any reasonable person who has knowledge of the facts and the law. Furthermore, historical records demonstrate a pattern of abuse of court process by the Petitioner yet rulings by Judge Solga continue to uphold this behavior. By his actions, Judicial Officer Solga has demonstrated he will not rule in favour . “In order to disqualify a judge, his/her prejudice must be against a party [Karen Rozier] to the action; . . .” Evans v Superior Court (1930) 107 CA 372, 290 P 662; Kreling v Superior Court (1944) 63 CA2d 353, 146 P2d 935.
JUDICIAL CANON OF ETHICS:
- CANON 2 A. Promoting Public Confidence, A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. The comments made by the Judge indicate that his behavior is not promoting public confidence. Additionally, the timing of his deciding to require Respondent to place the bond early smacks of retaliation.
- Canon 3 B. A judge shall be faithful to the law* regardless of partisan interests, public clamor, or fear of criticism, and shall maintain professional competence in the law.*: The law is clear that evidence submitted in court under false pretences shall not be admissible. In this instant case, Judge Solga allowed and relied on photographic evidence and statements that were found to be false by investigating authorities.
C. Administrative Responsibilities section (1) (1) A judge shall diligently discharge the judge’s administrative responsibilities impartially,* on the basis of merit, without bias or prejudice, free of conflict of interest, and in a manner that promotes public confidence in the integrity* of the judiciary. A judge shall not, in the performance of administrative duties, engage in speech, gestures, or other conduct that would reasonably be perceived as (i) bias or prejudice, including but not limited to bias or prejudice based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, or socioeconomic status, or political affiliation, or (ii) sexual harassment.: The crafters of this document including the phrase “including but not limited to when describing the types of discriminatory behavior judges should avoid precisely because they wanted them to avoid all types of discriminatory behavior. When Judge Solga indicated in open court that he finds the he finds the Respondent’s physical proportions to be intimidating and that he himself feels intimidated by the same, he violated the Canon with both her speech and gesture. His act concerned members of the public enough for them to express their concerns. Further, the manner in which the hearing was conducted on June 11th, 2020, where the witness was insistently and unreasonably questioned by the Judge so as to affirm the court’s opinion that the Respondent is abusive, violated this Canon.
It is well stated in CCP 170.1 (a) (6) (C) a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial. Bias or prejudice towards a party in the proceeding may be grounds for disqualification. The previous corresponding statute–Sec. 170, subdivision (a)(5)–which was repealed in 1984, had been construed to require bias in fact, with the enactment of Sec. 170.1, however, a party seeking to disqualify a California judge for cause was no longer required to prove that the judge was actually biased. The test to be applied in evaluating recusal and disqualification of judges was clearly stated many years ago in Berger v United States (1921) 255 U.S. 22: Does the [Declaration] of Prejudice give fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment (225 U.S.) In the case United Farm Workers of America v Superior Court (1985, 4th Dist) 170 Cal App 3d 97, 216 Cal Rptr 4.
Code Civ. Proc., § 170.1, subd. (a)(6)(C) (Judge disqualified if person aware of facts might reasonably entertain doubt that judge would be impartial) makes the disqualification standard fundamentally an objective one. It represents a legislative judgment that due to the sensitivity of the question and inherent difficulties of proof as well as the importance of public confidence in the judicial system, the issue is not limited to the existence of an actual bias. Rather, if a reasonable man or woman would entertain doubts concerning the judge’s impartiality, disqualification is mandated. To ensure that the proceedings appear to the public to be impartial and hence worthy of their confidence, the situation must be viewed through the eyes of the objective person. The reason for the objective standard of proof is the difficulty in showing that a judge is biased unless the judge so admits. In addition, public perceptions of justice are not furthered when a judge who is reasonably thought to be biased in a matter hears the case. (emphasis added)” Catchpole v Brannon (1995, 1st Dist) 36 Cal App 4th 237, 42 Cal Rptr 2d 440.
While, Canon 3C states that a judge should recuse when “the judge’s impartiality may
reasonably be questioned.” Case law states a judge should be disqualified when “a reasonable
man knowing all the circumstances would have doubts about the judge’s ability to rule . . . in an impartial manner.” McClendon v. Clinard, 38 N.C. App. 353, 356, 247 S.E.2d 783, 785 (1978). In State v. Fie, 320 N.C. 626, 628, 359 S.E.2d 774, 776 (1987)
Pleadings in this case are being filed by Respondent In Propria Persona, wherein pleadings are Propria, pleadings are not to be held to the same high standards of perfection as practicing lawyers. Haines v. Kerner 92 Sct 594, also See Power 914 F2d 1459 (11th Cir1990), also See Hulsey v. Ownes 63 F3d 354 (5th Cir 1995). also See In Re: HALL v. BELLMON 935 F.2d 1106 (10th Cir. 1991).”
It is held that a pro-se pleading requires less stringent reading than one drafted by a lawyer (Puckett v. Cox 456 F2d 233 (1972 Sixth Circuit USCA). And, Justice Blackin, Conley v. Gibson, 355 U.S. 41 at 48 (1957) “The Federal Rules rejects the approach that pleading is not a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits.” According to Rule 8(f) FRCP and the State Court rule which holds that all pleadings shall be construed to do substantial justice.”
CONCLUSION
A reasonable person looking at the current bench in the Respondent’s case can see bias and prejudice against the Pro Se Respondent, and, the ignoring of the law by Judge Solga. He is not aiming for substantial justice. As evidence by the comments, admission of evidence, disregard for investigative report conclusions which encourage further false accusations from the Petitioner. As discussed above, the Court has ample cause to disqualify Joseph Solga from the case.
Therefore, the Respondent respectfully requests that Judge Solga and anyone under his supervision be disqualified under CCP 170.1(a)(6)(C) et seq and that every one of his orders be vacated. Respondent further requests that the Presiding Judge of the Superior Court of California, Central Justice Center, Santa Ana, California assign Petitioner’s case to another department within the Complex Court, or in the alternative as the judicial Counsel to assign an independent Judge to this case. As the court should be aware, this case has dragged on for six years now since it was instituted.
In the best interest and for respect of the court this request for disqualification must be granted. The California legislature made reasonable decisions in these rules for disqualification and the rules must be followed.
Dated:
Respectfully submitted,
__________________________________________
Hank A. Hardister
RESPONDENT, in Pro Per
VERIFICATION
I, HANK A. HARDISTER, declare I am a resident in Claifornia over the age of 18 years of age. I am the Respondent in this mater and declare that the foregoing is true and correct under penalty of perjury under the laws of the state of California, and can and will testify to such in any court or hearing.
Executed in the state of California, in the County of Napa, California.
DATED:
Respectfully submitted,
__________________________________________
Hank A. Hardister
RESPONDENT in Pro Per
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