1

Filed 1/14/14 Marriage of Wang and Cunningham CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication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

FIRST APPELLATE DISTRICT

DIVISION TWO

In re the Marriage of MARY WANG and 

ARCHIBALD CUNNINGHAM.

MARY WANG,

Respondent,

v.

ARCHIBALD CUNNINGHAM,

Appellant.

 A135787

 (San Francisco County

 Super. Ct. No. FDI03-753770)

Archibald Cunningham appeals from an order entered May 25, 2012, by the San 

Francisco Superior Court, denying his order to show cause (sometimes OSC) requests for 

modification of existing child custody and visitation orders, and for other relief arising 

from the dissolution of his marriage to Mary Wang and related child custody 

proceedings.

1

The other relief sought by Cunningham and denied by the court included: 

appointing a guardian and counsel for the minor child; a full psychological evaluation of 

 

1 Cunningham has been declared a vexatious litigant and subject to a prefiling 

order in this court. This appeal and a related writ petition were filed on behalf of 

Cunningham by attorney Patrick Missud. Missud is currently the subject of a State Bar 

recommendation for disbarment and has been ordered transferred to involuntary inactive 

status pursuant to Business and Professions Code section 6007, subdivision (c)(4). (In re 

Patrick Alexandre Missud, case No. 12-O-10026-LMA, filed July 1, 2013.) Under 

Shalant v. Girardi (2011) 51 Cal.4th 1164, 1168, Cunningham may continue to prosecute 

this appeal and writ in propria persona, despite having been declared a vexatious litigant 

who is no longer represented by counsel.
2

Wang; a “two-tier evaluation” of the child; lifting of orders declaring him a vexatious 

litigant; and vacating an order against him under the Domestic Violence Prevention Act 

(Fam. Code, § 6200 et seq.) (DVPA).2

Cunningham raises numerous claims of error. Chief among them is his claim that 

the trial court erred in denying him the right to call witnesses and to present oral 

testimony in connection with his OSC requests. (§ 217; rules 5.113, 5.250 and former 

rule 5.119.) Consistent with his past practice, Cunningham seeks to use this appeal as a 

vehicle to attack previous trial court orders, long since final. We refuse to follow him 

down this rabbit hole and shall address only those claims properly cognizable on this 

appeal. That said, resolution of this appeal requires some description of a few of the 

many previous proceedings and orders in this case.

BACKGROUND

1. Order Awarding Sole Custody to Wang

In May 2007, Wang was awarded sole legal and physical custody of the parties’ 

child. Cunningham was granted visitation. We affirmed that order in an unpublished 

opinion on August 20, 2008. (Wang v. Cunningham (Aug. 20, 2008, A118629) at pp.*5, 

20, review den. Nov. 12, 2008.) 3 In affirming, we referenced findings made by the trial 

court, including its finding that “ ‘[t]he current joint physical and joint legal custody 

arrangement [has] been detrimental to the child in that the frequent transitions and 

instability has caused trauma to the child. [Citation.]’ The court specifically found: 

‘The failure of this shared custodial arrangement is due to: a) Father’s inability to coparent with Mother; b) Mother has historically, and continues to this day, to make all 

major decisions for the child, because Father unreasonably withholds his approval; 

c) Father does not support [the daughter]’s academic progress; d) Father is not able to 

 

2 Unless otherwise indicated, all statutory references are to the Family Code and 

all references to rules are to the California Rules of Court.

3 Additional factual and procedural background may be found in our unpublished 

opinions Wang v. Cunningham, supra, (Aug. 20, 2008, A118629) and Wang v. 

Cunningham (March 30, 2011, A124717) [nonpub. opn.], review den. July 13, 2011.)
3

focus on the child’s needs and is instead focused upon conflict with the Mother; e) Father 

is connected with Mother through these legal proceedings; f) Father is a poor role model 

for his daughter; and g) the child continues to be traumatized because of this conflict.’ ” 

(Id. at p. *17.)

2. Judgment On Reserved Issues, Including Orders Denying Motion to Modify 

Custody, Denying Further Visitation, Declaring Cunningham Vexatious, and Granting 

a DVPA Restraining Order

On April 12, 2010, following a hearing held February 22 through 25, 2010 at 

which oral testimony was presented, the court issued its “Final Decision On the Issues of 

[Wang’s] Request for a Restraining Order and to Declare [Cunningham] a Vexatious 

Litigant and an Award of Attorneys’ Fees and [Cunningham’s] Request for a Change of 

Custody.” Therein, the court adopted its tentative statement of decision of March 15, 

2010, which, among other things, denied Cunningham’s request to modify the existing 

custody and visitation plan, denied him visitation, granted Wang’s request for a 

restraining order under the DVPA (§ 6200 et. seq.) and section 2047, restrained

Cunningham for five years from harassing Wang, including, but not limited to annoying 

telephone calls, emails and letters, and declared him to be a vexatious litigant under Code 

of Civil Procedure, section 391, subdivision (b) (1), (2) and (3).

On April 30, 2010, the superior court entered its judgment on reserved issues.

4

 

With respect to child custody and visitation, the judgment stated: “[Cunningham’s] 

request . . . for a modification of the custody and visitation plan is hereby denied. Based 

on the statements made by [Cunningham] in open court, and on the evidence presented in 

this matter, [Cunningham] shall have no further visitation with the minor child. The 

order specified that, “Should [Cunningham] seek the right to visit his daughter, he must 

demonstrate a willingness to comply with the Court’s orders contained within the DV130 [restraining order after hearing] and that he is capable of peaceful communications 

with [Wang] limited solely to the immediate welfare of his daughter.” 

 

4

The court initially entered the order denying visitation on February 26, 2010.
4

Cunningham later sought to challenge the April 30, 2010 judgment by 

bootstrapping a challenge to his appeal of a January 30, 2012 order. We refused to 

entertain the appeal on the ground that the April 30, 2010 order “was final long ago.” 

(Wang v. Cunningham (January 31, 2013, A134757 [nonpub. opn.], review den. Apr. 10, 

2013.)

3. June 17, 2011 Denial of Ex-parte Application Seeking Reinstatement of 50-50 

Custody 

On June 17, 2011, the trial court issued an order denying Cunningham’s ex parte 

application seeking reinstatement of the original 50-50 custody order, appointment of a 

custody evaluator, and trial of the custody issue. The order stated his request was denied 

by the court without a hearing and that “[t]he reasons for doing [so] are as follows:

“1. The relief [Cunningham] seeks has been addressed in the past, most recently in the

Judgment entered on April 30, 201[0] after trial.[

5

] [Cunningham’s] pleadings present 

neither a factual or legal basis for the relief requested.

“2. The April 30, 201[0] judgment is a final Judgment on the issues addressed. One of 

the issues was custody and visitation. [Cunningham’s] pleadings fail to present any 

evidence even suggesting that there has been a change in circumstance, a requirement to 

warrant consideration of the relief requested. [(Montenegro v. Diaz (2001) 26 C[al].4th 

249, 256; [In re] Marriage of Burgess (1996) 13 C[al].4th 25, 37.]) Moreover, the above 

Judgment requires that if [Cunningham] seeks visitation with his daughter that [he] ‘must 

demonstrate a willingness to comply with the Court’s orders contained within the DV130 and that he is capable of peaceful communications with [Wang] limited solely to the 

immediate welfare of his daughter.’ As set forth in [Wang’s] opposition, [Cunningham]

continues to harass [Wang] by making contact with her family and making threats to her 

attorney.

“3. The record continues to support the finding that it is not in the minor’s best interest to

have contact with her father.

 

5 Although the court stated the date of this judgment as “April 30, 2011,” the court 

clearly was referring to the judgment entered April 30, 2010. 
5

“a. As set forth in detail in the Court’s Tentative Statement of Decision filed on

March 15, 2010 (which became a Final Decision) at pages 4 through 10, the record 

demonstrates that [Cunningham] possesses an extreme level of hostility to

[Wang]. At page 10 of this decision, the Court recites [Cunningham’s] reference

to an event reported in SFGATE.COM where a parent kills a child and then

commits suicide. In [Cunningham’s] words: ‘In light of my experience, I’m

surprised most custody disputes don’t end up in murder-suicide. . . . The only

difference I see between you and the Mount Diablo Mom is a lot of money and the 

fact that she had more resolve and honesty in her megalomania and 

selfishness . . . .

“b. [Cunningham] continues to reference this event in a November 13, 2010 letter 

to [Wang’s] counsel: ‘Of course that smear works and murder-suicides are

rampant in custody disputes. . . . did you read about Judith Williams and her 16 

year old son, the scene of the Mr. Diablo crime? . . . yes, I used to think those 

people are crazy too . . . now I know better . . . now I read about those tragedies 

and recognize that behind the scenes are sleaze bag lawyers and outrageously 

incompetent judges pushing them over the brink.’

“c. On February 11, 2010, [Cunningham] stated on the record that he had no 

intention of following the existing custody and visitation order that the Court had 

reaffirmed after giving [Cunningham] the opportunity to present evidence of 

changed circumstances. After rejecting [Cunningham’s] request for relief, 

[Cunningham] announced that he had no intention of following the Judgment of 

February 21, 2008, affirmed by the Court of Appeal on August 20, 2008; that he 

intended to move to France and have no contact with his daughter. That conduct 

lead [Wang] to request that visitation be terminated; a request the Court granted

based on the facts before it.

“d. [Wang’s] opposition also contains a note that [Cunningham] sent to the 

daughter along with what appeared to be sand. However, it was not sand from a 

beach she used to visit with [Cunningham]; rather, the package contained the 
6

ashes of the family dog when the child had not known of the dog’s demise. The 

child became deeply upset at the receipt of this package and [Cunningham’s]

heartless way of telling the child of the dog’s death.

“e. [Cunningham] is a deeply troubled man, who poses a risk to mother, child and

mother’s attorney. Unless and until [Cunningham] addresses his deep seated 

hatred for mother, it is not in the child’s best interest to see her father. As his 

words indicate, the child is at risk of serious harm.

“4. Finally, the Court required that [Cunningham] file an updated I&E [Income and 

Expense Declaration] if he wished to address the issue of custody and visitation so as to 

determine whether the vexatious litigant requirement of posting a bond of $5,000 should 

be imposed before consideration of this issue. [Cunningham’s] I&E reflects that he has 

monthly income of $7,705 and expenses of $3,565. Plainly, [Cunningham] has the 

financial wherewithal to post the bond and he has not done so.”

4. Request for OSC Regarding Modifications and Case Resolution Order #1 

On April 11, 2012, through his attorney Missud, Cunningham filed a request for 

an order to show cause regarding modification of visitation in which he sought to modify

custody and the order of February 26, 2010 denying him visitation (apparently also 

intending to modify the judgment on reserved issues entered April 30, 2010), which he 

characterized as having “[t]erminated father’s parental rights.”6 Additional relief sought 

in that request included: appointment of a guardian for the minor child; a full 

psychological evaluation of Wang; a “two-tier evaluation” of the child; lifting of orders 

declaring him a vexatious litigant; and vacating of the DVPA restraining order. Hearing 

was set for May 15, 2012.

 

We note that sole custody granted to one parent “does not, however, serve to 

‘terminate’ the other parent’s parental rights or due process interest in parenting. He or 

she has secondary visitation rights as ordered by the court [citation] and retains the right 

to seek and obtain a custody modification based on a proper showing of changed 

circumstances. [In re Marriage of Brown & Yana (2006) 37 Cal.4th 947, 958.]” 

(Hogoboom and King, Cal. Practice Guide: Family Law (The Rutter Group, 2013) 

¶ 7:301, p. 7-110.) (Hogoboom and King, Family Law.) Nor does the court’s restriction 

or denial of visitation constitute a “termination” of parental rights. 
7

The request for an order to show cause also contained a “Witness List as 

Mandated by Family Code Section 217,” wherein Cunningham proposed to call as 

witnesses Dr. Melinda Miller, the child’s therapist; Dr. William Perry, the former child 

custody evaluator; Hon. Donald Sullivan, a judge involved in previous custody 

proceedings and proceedings involving the DVPA and contempt actions against 

Cunningham; Honorable Laurie Zelon, the chairperson of the Elkins task force7; Maria 

Schopp, Wang’s attorney; Wang herself; and the child. Individual “notices” denominated 

“Notice of Presentation of Oral Testimony” were also filed pursuant to section 217 and

rule 3.1306 (b), as to each proposed witness except for Justice Zelon. They again 

summarized the substance of the testimony expected from each witness.

On April 18, 2012, the court filed “Case Resolution Order #1” (hereafter CRO #1)

in connection with the hearing calendared for May 15. In CRO #1, the court recognized 

that the case had “been in single assignment since January 2009, and that since that time 

the court [had] issued orders addressing many substantive issues, including custody and 

visitation, a permanent restraining order against [Cunningham] and a finding that 

[Cunningham] is a vexatious litigant.” The court found that the case met the criteria for 

the superior court’s Case Resolution program, adopted by the San Francisco Superior 

Court in 2011. The order stated in relevant part: “Accordingly, this case is now a part of 

Case Resolution and subject to the following orders regarding setting matters for hearing.

“1. This case remains singly assigned to Judge Patrick J. Mahoney and is assigned 

to Department 405 for all purposes unless otherwise ordered.

“2. For the hearing calendared by [Cunningham] for May 15, 2012, parties are 

ordered to file on or before May 10, 2012 a statement addressing the issues set forth in 

paragraph 3 to enable the Court and the parties to address the remaining issues in this 

case in a manner consistent with the applicable law and the prior findings of the Court 

 

7

The task force had been set up by the Judicial Council at the recommendation of 

the California Supreme Court in Elkins v. Superior Court (2007) 41 Cal.4th 1337 

(Elkins), “to study and propose measures to assist trial courts in achieving efficiency and 

fairness in marital dissolution proceedings and to ensure access to justice for litigants, 

many of whom are self-represented.” (Id. at p. 1369, fn. 20.)
8

that are final determinations of fact and law. Until these issues are addressed, the Court 

finds that it is not appropriate to take oral testimony at the May 15, 2012 [hearing] and 

the parties are ordered not to subpoena any witness for that hearing. At the conclusion 

of the hearing on May 15, a determination shall be made on the need for oral testimony 

and if so, when that shall occur. [Italics added.]

“3. The issues to be addressed in the parties’ May 10, submission:

“a. Compliance with the Judgment of April 30, 2010 and subsequent order of 

June 17, 2011 related to visitation.

“b. If [Cunningham] contends that the Judgment of April 30, 2010 is not a final 

determination of the issues, he must provide legal support for that proposition.

“c. List each appeal taken or writ filed since the Findings and Order After Hearing 

on February 26, 2010 and the results thereof.

“d. What facts is [Cunningham] prepared to offer to meet the two prong burden of 

proof that the proposed new arrangement is in the child’s best interest and there is a 

substantial change in circumstances warranting a modification. [Citations.]

“e. Whether it is in the best interest of [the child] to have counsel appointed for 

her.

“f. Whether it is in the best interest of [the child] to be interviewed by a Family 

Court mediator who then would issue a Tier II report on visitation with [Cunningham].

“g. Whether there should be supervised visits between [Cunningham] and [the 

child].

“h. The legal basis for the request that Judge Sullivan be a witness.

“i. Whether the parent having legal custody must consent to testimony from [the 

child’s] therapist.

“j. Whether it is in [the child’s] best interest to testify in open court and 

alternatives thereto.

“k. Whether Dr. Perry and Dr. Miller have been contacted and are willing to 

testify.
9

“l. Whether [Cunningham] has arranged to pay the expert fees for Dr. Perry and 

Dr. Miller to appear and testify.

“m. The proposed testimony of Ms. Schopp [, Wang’s attorney,] relates to issues 

in which the Court has made rulings that are now final. As a consequence, what is the 

basis for seeking this testimony.

“4. On May 10, 2012, the parties are to file current Income and Expense 

declarations and [Cunningham] is to address his ability to retain counsel and bring 

forward expert witnesses while insisting that he ought not to be required to post a bond.

“5. Requests for New Hearings: All new requests for hearings, including, but not 

limited to, orders to show cause, notices of motion, orders to show cause re: contempt, 

and at issue memorandum, shall be directed to Department 402 and shall follow the 

procedure set forth in this paragraph. Ex parte requests shall follow the procedure set 

forth in Paragraph 6. Domestic Violence Prevention Act restraining order requests shall 

follow the same procedure as set forth in San Francisco Local Rule 11.9.

“[¶] . . . [¶]” (Bolding omitted.)

Cunningham filed a petition for writ of mandate challenging this CRO #1. We 

denied the petition on April 16, 2012.

On April 25, 2012, counsel for Wang filed a response to CRO #1, stating that 

counsel had never been served with the OSC or any pleading filed by Cunningham for 

that hearing, in the manner required by the court.

Missud filed a case resolution statement on behalf of Cunningham, that 

erroneously characterized the February 26, 2010 custody order as having “terminated all 

of [Cunningham’s] parental rights.” He maintained Cunningham had a right to call 

witnesses at the May 15 hearing under Family Code section 217. In response to the 

questions posed by CRO # 1, the statement reiterated Cunningham’s grievances against 

previous court orders and rulings. It offered no argument that since the April 2010 order 

denying visitation, Cunningham had dealt with the issues the court had found warranted 

denial of visitation or that he was willing to comply with the domestic violence 

restraining order. Rather, it challenged the court’s findings regarding Cunningham’s 
10

“deep hatred” of Wang, complained Cunningham was denied contact with the child and 

maintained that he could not “show any ‘facts’ unless he [could] call witnesses and 

subpoena school documents . . . .” The statement maintained Cunningham needed to call 

professional evaluators and the therapist to answer whether severing of one parent’s 

contacts with the child was in that child’s best interest. It speculated that Drs. Miller and 

Perry would express “shock” that Cunningham was denied visitation.

With respect to the inquiry about his compliance with the June 17, 2011 order, the 

statement challenged the court’s finding with respect to Cunningham’s need to deal with 

his “deep-hatred” of Wang before restoration of visitation as unconstitutionally vague. 

The statement also urged the court to appoint counsel for the child so that such counsel 

would protect her right to a relationship with Cunningham. 

Responding to the inquiry as to the legal basis for calling Judge Sullivan, 

Cunningham’s statement merely cited Evidence Code section 703.5, which was clearly 

inapplicable, as Judge Sullivan was no longer presiding at the trial. Further, it completely 

ignored the prohibition of Evidence Code section 703.5 on calling a judge who had 

presided at a civil proceeding in any subsequent civil proceeding “as to any statement, 

conduct, decision, or ruling, occurring at or in conjunction with the prior proceeding,” 

with certain exceptions not here applicable.

Cunningham acknowledged he had not contacted either Dr. Perry or Dr. Miller, 

but speculated they would testify in his favor that severing the child’s relationship with 

him was not in her best interest.

As to supervised visitation, Cunningham stated he would be satisfied with nothing 

less than a return to 50-50 custody, arguing there had been no hearing on detriment or the 

child’s best interest. He sought to have the child testify, as permitted by Family Code 

section 3042, stating he “suspects that [she] will cry inconsolabl[y] when she testifies 

about how she feels and whether she has missed her father and whether her mother has 

tried to suppress any talk of the father and repress her feelings toward the father.” He

argued for a second two-tier evaluation of the child, acknowledging she had participated 

in such an evaluation in 2008 when she was nine years old, and he accused Wang and 
11

attorney Schopp of securing a fraudulent custody order that was detrimental to the child’s 

wellbeing. 

Cunningham’s statement also argued that the previous visitation and custody 

orders were not “final” because there had never been a fully litigated hearing in the 

underlying custody matter. The statement challenged our affirmance of the custody order 

in 2008 (Wang v. Cunningham, supra, A118629, at p. *20), contending that our 

determination was contrary to Elkins, supra, 41 Cal.4th at page 1357. Similarly, the 

statement contended that the February 26, 2010 order and the April 30, 2010 judgment 

denying Cunningham visitation (which the statement persisted in characterizing as 

“terminating all his parental rights”) were not based on a fully litigated hearing and so 

were not “final.” The statement accused Judge Mahoney of being “complicit in 

Ms. Schopp[’]s deliberate violation of the law and violation of [Cunningham’s] due 

process rights . . . .” The statement also challenged the June 17, 2011 order denying 

Cunningham’s ex parte application for reinstatement of 50-50 custody, as being full of 

“factual errors, misrepresentations, and bad faith conclusions” and accusing the court of a 

“pure fabrication, a deliberate lie to justify an order made in excess of all of a family law 

judge’s authority.” (Our review of the February 26, 2010 hearing transcript discloses that 

Judge Mahoney accurately summarized the substance of Cunningham’s diatribe, wherein 

Cunningham announced that he had no intention of following the existing custody and 

visitation orders.)

5. May 15, 2012 Hearing

At the May 15, 2012 hearing, Missud represented Cunningham. The minutes for 

the hearing reflect that the court confiscated Missud’s tape recorder on the ground that no 

authority or permission was given to Cunningham or his counsel to allow them to record 

the proceedings. The court noted that no proof of service showed that Wang’s counsel 

Schopp had been served, as required by the court’s prior orders. After argument, the 

court found there was no basis for Cunningham’s requests for appointment of a guardian 

for the child, for a full psychological evaluation of Wang or for a two-tier evaluation of 

the child, for lifting the vexatious litigant order or for vacating the DVPA order. It 
12

denied these requests. The court took remaining issues under submission and allowed 

further pleadings and responses, including requiring Missud to file further briefing 

pursuant to Code of Civil Procedure section 128.7 on sanctions, visitation, and 

Cunningham’s most recent motion to disqualify the judge.

8

 The parties did so.

6. Case Resolution Order #2 Findings and Order After Hearing

On May 25, 2012, the court filed its Case Resolution Order #2 (CRO #2), denying 

Cunningham’s requests, including his request to present oral testimony and call 

witnesses. The order provided as follows:

“Prior to the hearing, the Court direct[ed] the parties to address a series of 

questions to elicit legal arguments relevant to [Cunningham’s] pending request for relief, 

including determining that [Cunningham] is no longer a vexatious litigant, termination of 

the restraining order against [Cunningham] and reinstatement of a 50/50 custody 

arrangement. In support of this relief, [Cunningham], represented by counsel, declined to 

file the previously set vexatious litigant bond on the grounds this deprived [Cunningham] 

of due process and [Cunningham’s] expressed desire to call witnesses to testify regarding 

 

8

This hearing was not reported, as noticed by the San Francisco Superior Court 

website which provided: “Pursuant to Rule 2.956 (b)(1), and effective immediately, the 

Superior Court of California, County of San Francisco, will post the Departments in 

which the services of Official Court Reporters will not normally be available during 

regular Court hours. A notice shall be posted on the outside of each affected Department 

and in the Clerk’s Office, Room 103, Civic Center Courthouse.

“Pursuant to Rule 2.956(c), if the services of an Official Court Reporter are not 

available for a hearing or trial in a civil case, a party may arrange for the presence of a 

certified shorthand reporter to serve as an official pro tempore reporter. It will be that 

party’s responsibility to pay the reporter’s fee for the attendance at the proceedings, but 

the expense may be recoverable as part of the costs, provided by law.

“If a party arranges and pays for the attendance of the certified shorthand reporter, 

none of the parties will be charged the reporter’s attendance fee provided for in 

Government Code [section] 68086[, subdivisions] (a)(1) or (b) (1).

“It is further noticed that the stenographic notes of the certified shorthand reporter 

are the official records of the Court and shall be secured by the Court in either paper 

and/or electronic format in accordance with [Government Code section] 69955[, 

subdivisions] (a), (b), (c) and (d).” <http://www.sfsuperiorcourt.org/divisions/reporters> 
13

the issues presented. Having considered the parties’ submissions and the arguments of 

counsel, the Court makes the following Order.

“1. [Cunningham]’s request to find that he is no longer a vexatious litigant is 

denied. [Cunningham]’s pleadings continue to assert his alleged right to share 50/50 

custody of his daughter and [Cunningham]’s refusal to accept the fact that this issue has 

been addressed repeatedly in the trial court and affirmed on appeal. [Cunningham] 

makes no effort to present evidence of changed circumstances.

“2. The Court’s Order of June 17, 2011 delineates the reasons for denying 

[Cunningham] custody and visitation with his daughter. That Order was challenged by 

[Cunningham] in the Court of Appeal which declined to accept [Cunningham]’s 

arguments. As a consequence before there can be any change in custody or visitation, 

[Cunningham] must present evidence that he has engaged in meaningful efforts to 

address the rage he directs toward [Wang] and that he is willing to resume visitation with 

his daughter in a supervised setting. [Cunningham]’s rage continues as reflected in the 

exhibits submitted by [Wang] in [her] Statement re: Case Resolution Order # 1. It was 

further illustrated by [Cunningham’s] behavior during the hearing when he engaged in 

repeated and loud ‘conversations’ with his attorney disparaging [Wang]’s counsel and the 

Court despite admonitions by the Court that such conduct was unacceptable. At one 

point, [Cunningham] stormed out of the Court in the middle of the proceedings.

“3. For the reasons stated in paragraph 2, the Restraining Order must remain in 

place.

“4. [Cunningham] presents no evidence warranting consideration of the 

appointment of a Legal Guardian for the minor. The record reflects that the child is 

doing well and [Wang] has done an exemplary job in parenting the child in the face of 

[Cunningham’s] overriding hostility. [Cunningham]’s request for a full psychological 

evaluation of mother is denied.

“5. The request to appoint counsel for the minor and/or to order a two-tier 

evaluation of the child is denied. Unless and until [Cunningham] is able to demonstrate 

that he is capable of managing his anger and is willing to engage in supervised visits, 
14

there is no reason to involve the child. In so ruling, the Court is willing to assume that 

the child desires to see her father. In fact that is the desire of the Court. However 

visitation cannot resume unless and until [Cunningham] addresses his rage and is willing 

to engage in supervised visits. That is the only way to ensure that the child will be safe 

for the reasons delineated in the Order of June 17, 2011.

“6. [Cunningham]’s request to call witnesses is denied. The reasons stated in 

[Cunningham]’s Case Resolution Statement filed April 30, 2012 are without merit.

“7. [Wang]’s request for attorneys’ fees and sanctions for once again being 

required to address these issues is granted. [Wang] is awarded $2,000 in sanctions 

pursuant to Family Code [section] 271. At the outset, [Wang] was required to appear at a 

hearing on April 3, 2012 which was continued at [Cunningham]’s request that [his] [Code 

of Civil Procedure section] 170.1 motion to disqualify be addressed. Subsequently, that 

motion was struck, a ruling challenged unsuccessfully by [Cunningham] by writs to the 

Court of Appeal and the California Supreme Court. Then, [Wang]’s counsel [was]

required to attend the hearing on May 15, 2012 to once again respond to [Cunningham]’s 

contentions simply because [he] refuses to abide by the Court’s rulings on this subject 

and because [Cunningham] was able to find counsel to file the papers on his behalf.

“8. Going forward, the Court finds that [Cunningham] remains a vexatious litigant 

and that a bond must be filed in the amount of $1,500 to protect [Wang] from further 

harassment and the need to respond to [Cunningham]’s repeated claims. The only 

exception to the bond would be a filing by [Cunningham] that is limited to resuming 

visitation, an acknowledgement that the visitation plan begins with supervised visits and 

[Cunningham] explains the steps that he has taken to address his expressed anger toward 

[Wang] and demonstrate that he can safely maintain visits with his daughter.

“9. At the conclusion of the hearing on May 15, 2012, the Court directed 

[Cunningham]’s counsel to file a pleading addressing the issue of sanctions under [Code 

of Civil Procedure section ] 128.7. [Cunningham]’s counsel has done so.

“a. California Rule[s] of Court[, rule] 1.150(d) specifies the steps that must be 

taken before a party is authorized to use a personal recording device to transcribe a court 
15

proceeding. [Cunningham]’s counsel did not follow this procedure and began to record 

the proceedings absent the consent of the judge presiding over the hearing. Counsel 

apparently contends that an email to Court’s Presiding Judge or Chief Executive Officers 

of [sic] the Manager of Court Reporters is sufficient compliance. It is not.

“b. Counsel acknowledges that he advised [Cunningham] that counsel ‘knew 

nothing about family law’ and agreed to represent [Cunningham] on the vexatious 

litigant issue. [Citation.] Yet, the pleadings counsel puts his name to are replete with 

family law issues and on their face, appear to be written by [Cunningham] himself with 

counsel merely lending his name to the filing.

“c. The pleadings filed are replete with an inaccurate statement of the facts and 

the law to be applied to the facts of the case. It is for this reason that the Court issued 

Case Resolution Order #1 and directed the parties to address among other issues the 

effect of the Court’s earlier rulings and [Cunningham]’s failure to overturn those rulings. 

The pleading filed by counsel is devoid of any meaningful analysis that would support 

the relief requested. As to the visitation issue, counsel fails to address the Court’s prior 

findings; rather, counsel’s filings are replete with arguments made in the past and 

rejected. When asked to address the testimony of witnesses, it is obvious that the experts 

were not consulted, nor any thought was given to securing their testimony, let alone any 

theory that would authorize the taking of testimony from a judge who made earlier 

rulings in the case.

“d. [Code of Civil Procedure section ] 128.7 authorizes the imposition of 

sanctions for presenting to the Court or advocating to the Court an unwarranted legal 

contention and/or unsupported factual contention. Counsel has an affirmative duty to 

investigate the positions taken before filing pleadings reflecting such positions. The 

inquiry must be reasonable under the circumstances. [Citation.] The test is an objective 

one. Here, the pleadings filed by counsel seeking disqualification, termination of the 

vexatious litigant finding, termination of the restraining order, the challenge to the 

present visitation order, and the asserted need for testimony fail to meet the mandate of 
16

[Code of Civil Procedure section] 128.7. Moreover, counsel failed to comply with 

California Rules of Court regarding the recording of proceedings.

“e. For the reasons stated, sanctions in the sum of $1,500 are assessed against 

Paul Missud, counsel for [Cunningham]. The sanctions are to be paid within 30 days to 

[Wang].”

On May 31, 2012, Missud on behalf of himself and Cunningham, filed a “Request 

for Clarification of Case Resolution Order #2,” challenging the court’s order in numerous 

respects and accusing the judge of corruption. On June 7, 2012, the court denied the 

request for clarification.

This timely appeal followed.

DISCUSSION

Initially, we reiterate that the May 2007 judgment awarding sole custody of the 

child to Wang and the April 30, 2010 judgment denying Cunningham visitation and 

declaring him to be a vexatious litigant were final long ago, as was the order granting the 

DVPA restraining order.

The only issues properly before us on this appeal relate to the May 25, 2012 

CRO #2, denying Cunningham’s OSC requests, and specifically: 

1. Whether the San Francisco Superior Court Case Resolution Program and the 

CROs issued under that program deny due process and equal protection of the law. 

Whether they contravene state statutes and case law by denying litigants the right to 

present oral testimony on any orders to show cause. (See Elkins, supra, 41 Cal.4th at 

pp. 1351-1352.)

2. Whether the court erred in denying Cunningham the right to present oral 

testimony with respect to his OSC regarding modification of the custody and visitation 

orders and his other claims for relief.

3. Whether the court erred in requiring Cunningham to demonstrate changed 

circumstances in order to modify the custody order.

4. Whether the court erred in denying his other requests for relief, i.e. , 

reinstatement of visitation, appointment of a guardian or counsel for the minor child; a 
17

full psychological evaluation of Wang; a “two-tier evaluation” of the child; lifting of 

orders declaring him a vexatious litigant and vacating an order against him under the 

DVPA.

6. Whether the court erred in refusing to allow him to tape record the May 15, 

2012 hearing.

I. The right to an evidentiary hearing in family law cases

We begin with the seminal case of Elkins, supra, 41 Cal.4th 1337. There, the 

California Supreme Court held that at contested family law trials leading to judgment,

courts may not prohibit oral testimony or require parties to present their case at trial by 

affidavits. (Id. at pp. 1355-1357.) The parties have a right “ ‘to present all competent, 

relevant, and material evidence, bearing upon any issue properly presented for 

determination.’ ” (Id. at p. 1357, italics added.) Each party has the right to testify in his 

or her own behalf, to call witnesses to testify and to proffer admissible evidence. (Id. at 

p. 1357.)

The Supreme Court in Elkins distinguished the “requirement that at a contested 

marital dissolution trial, prior to entry of judgment, the court must hold an evidentiary 

hearing on the disputed issues, at which the usual rules of evidence apply” (Elkins, 

supra, 41 Cal.4th at p. 1361), from established authority holding that “once a judgment

has been entered in the custody matter, a postjudgment motion or request for an order to 

show cause for a change in custody . . . requires an evidentiary hearing only if 

necessary—that is, only if the moving party is able to make a prima facie showing [of 

detriment] to the child or has identified ‘a material but contested factual issue that should 

be resolved through the taking of oral testimony.’ ([In re Marriage of] Brown & Yana

[(2006)] 37 Cal.4th [947,] 962; see id. at p. 959.)” (Elkins. at p. 1360.) “Indeed, we 

explained that a trial court had authority to deny a full evidentiary hearing in Brown & 

Yana in part because the custody issue already had been fully litigated and the resulting 

judgment therefore was entitled to substantial deference in the absence of a showing of a 

significant change of circumstances. [Citations.]” (Id. at p. 1361.)
18

This distinction appears to have been undermined by the subsequent enactment of 

Family Code section 217, subdivision (a), and rule 5.113 (formerly rule 5.119), which 

effectively extend to the parties at OSC and motion hearings in family law proceedings 

the rights that Elkins, supra, 41 Cal.4th 1337 concluded must be afforded the parties at 

contested family law trials leading to judgment. (See Hogoboom and King, Family Law, 

supra, at ¶ ¶ 5:491.1, 7:562.3, pp. 5-193, 7-225.)

Family Code section 217 provides:

“(a) At a hearing on any order to show cause or notice of motion brought pursuant 

to this code, absent a stipulation of the parties or a finding of good cause pursuant to 

subdivision (b), the court shall receive any live, competent testimony that is relevant and 

within the scope of the hearing and the court may ask questions of the parties.

“(b) In appropriate cases, a court may make a finding of good cause to refuse to 

receive live testimony and shall state its reasons for the finding on the record or in 

writing. The Judicial Council shall, by January 1, 2012, adopt a statewide rule of court 

regarding the factors a court shall consider in making a finding of good cause.

“(c) A party seeking to present live testimony from witnesses other than the parties 

shall, prior to the hearing, file and serve a witness list with a brief description of the 

anticipated testimony. If the witness list is not served prior to the hearing, the court may, 

on request, grant a brief continuance and may make appropriate temporary orders 

pending the continued hearing.” (Italics added.)

At the time the court issued the CROs here, the factors to be considered by the 

trial court in making a finding of good cause to refuse to receive live testimony under 

Family Code section 217 were set forth in former rule 5.119. 9 (Former rule 5.119 was 

 

9

 Former rule 5.119, effective January 1, 2011, provided: 

“(a) Purpose [¶] Under Family Code section 217, at a hearing on any order to show cause 

or notice of motion brought under the Family Code, absent a stipulation of the parties or a 

finding of good cause under (b), the court must receive any live, competent, and 

admissible testimony that is relevant and within the scope of the hearing.

“(b) Factors [¶] A court must consider the following factors in making a finding of good 

cause to refuse to receive live testimony under Family Code section 217:
19

repealed and replaced by rule 5.113, effective January 1, 2013, which is substantially 

similar.)

Consequently, absent a finding of good cause by the court, Cunningham had a 

right to present live, competent testimony, that was relevant and within the scope of the 

hearing on his order to show cause. The right is statutorily based on Family Code section 

217.

 

“(1) Whether a substantive matter is at issue—such as child custody, parenting 

time (visitation), parentage, child support, spousal support, requests for restraining 

orders, or the characterization, division, or temporary use and control of the property or 

debt of the parties;

“(2) Whether material facts are in controversy;

“(3) Whether live testimony is necessary for the court to assess the credibility of 

the parties or other witnesses;

“(4) The right of the parties to question anyone submitting reports or other 

information to the court;

“(5) In testimony from persons other than the parties, whether there has been 

compliance with Family Code section 217(c); and

“(6) Any other factor that is just and equitable.

“(c) Findings [¶] If the court makes a finding of good cause to exclude live testimony, it 

must state its reasons on the record or in writing. The court is required to state only those 

factors on which the finding of good cause is based.

“(d) Minor children [¶] When receiving or excluding testimony from minor children, in 

addition to fulfilling the requirements of Evidence Code section 765, the court must 

follow the procedures in Family Code section 3042 and California Rules of Court 

governing children’s testimony.

“(e) Witness lists [¶] Witness lists required by Family Code section 217(c) must be 

served along with the order to show cause, notice of motion, or responsive papers in the 

manner required for the service of those documents. If no witness list has been served, 

the court may require an offer of proof before allowing any nonparty witness to testify.

“(f) Continuance [¶] The court must consider whether or not a brief continuance is 

necessary to allow a litigant adequate opportunity to prepare for questioning any witness 

for the other parties. When a brief continuance is granted to allow time to prepare for 

questioning witnesses, the court should make appropriate temporary orders.

“(g) Questioning by court [¶] Whenever the court receives live testimony from a party or 

any witness it may elicit testimony by directing questions to the parties and other 

witnesses.” (Bolding omitted.)
20

II. The Case Resolution Program

In issuing its CRO # 1, the family court referenced the San Francisco Superior 

Court’s adoption of a Case Resolution Program in 2011, and found the case met the 

criteria for the program. Cunningham argues the Case Resolution Program adopted by 

the San Francisco Superior Court denies him and other litigants like him due process and 

equal protection of the law, in that it places obstacles in the way of those involved in 

protracted custody disputes or other “difficult” cases who seek to exercise their right to 

present oral testimony and live witnesses. He further argues the program is

constitutionally vague. We disagree.

In 2010, Family Code section 2450 was amended to allow the court to order case 

management without the stipulation of the parties. (See Fam. Code, §§ 2450 and 2451; 

Hogoboom and King, Family Law, supra, ¶¶ 5:200-5:203, pp. 5-95 through 5-100.) “The 

purpose of family centered case resolution is to benefit the parties by providing judicial 

assistance and management to the parties in actions for dissolution of marriage for the 

purpose of expediting the processing of the case, reducing the expense of litigation, and 

focusing on early resolution by settlement. Family centered case resolution is a tool to 

allow the courts to better assist families. . . .” (Fam. Code, §§ 2450, subd. (a).) “ ‘Family 

centered case resolution’ had its genesis in the former statutory program for a ‘judicial 

case management plan’ that could be ordered only upon the parties’ stipulation. That 

program is now significantly expanded . . . .” (Hogoboom and King, Family Law, at ¶ 

5:200.1, p. 5-95.) Hogoboom and King observe that a family court may now order a 

family case resolution plan in an appropriate dissolution case on motion of a party or sua 

sponte, subject to due process limitations. (Ibid.; see Fam. Code § 2450, subd. (b).) 

“The current statutory scheme for a family centered case resolution plan eliminates the 

party stipulation requirement [citations]. In its place, however, the Code expressly states 

that a family centered case resolution plan ‘must be in conformance with due process 

requirements . . . .’ (Fam. C[ode] § 2451[, subd.] (a).)” (Hogoboom and King, Family 

Law, at ¶ 5:201, p. 5-96, italics added.) 
21

In his related writ petition (Cunningham v. Superior Court (A137742)),

Cunningham has requested we take judicial notice of the response of Ann Donlan, 

Superior Court Communications Director, to his public records request and of the two 

records attached thereto, described in the Donlan response as: “A March 2011 list of 

cases included on a list titled ‘Family Case Resolution Hearings Department 

Assignments’ [hereafter, Department Assignments]” and “ ‘[a] policy document titled,

‘Case Resolution Calendar Protocol and Guidelines [(hereafter, CRC Protocol)].’ ” ’

10

 

This case, Wang v. Cunningham [Superior Court No. FDI-03-753770], is listed on the 

“Dormant List” of the Department Assignments list. The reason given for its dormant 

status is “On Appeal”. It is unclear whether the San Francisco Superior Court currently 

utilizes the program. The response from Donlan states, in pertinent part: “Unfortunately 

the list [of cases included on the Department Assignments] has not been updated beyond 

its initial creation because the court employees responsible for maintaining it were laid 

off in September 2011.”

In his request for judicial notice, Cunningham maintains that these records are

relevant because they show the family court uses the CRC Protocol to deny hearings that 

would otherwise be required by Family Code section 217 and principles of due process. 

CRC Protocol, section 2, provides: “2. Purpose: The Case Resolution calendar will 

allow the judicial officer to track the litigation to ensure timely resolutions. The Court 

will determine the outstanding issues and the steps needed to resolve those issues. The 

Case Plan will limit multiple hearings by requiring judicial approval before a new 

hearing is set. (See “Request for Hearing and Order Thereon.)” (Italics added.)

At the outset, we observe that the superior court’s implementation of family 

centered case resolution, pursuant to Family Code sections 2450 and 2451, cannot be 

utilized to undermine a litigant’s statutory right to an evidentiary hearing to which the 

litigant is otherwise entitled. Sections 2450 and 2451 do not purport to provide such 

 

10

 We grant the request for judicial notice and deny the writ petition in 

Cunningham v. Superior Court (A137742) by separate order filed with this opinion.
22

authority. Indeed, they expressly provide that “[a] court-ordered family centered case 

resolution plan must be in conformance with due process requirements . . . .” (§ 2451.) 

However, we reject Cunningham’s claim that the family centered case resolution 

process, as it existed at the time the CROs here were issued, denied him or others due 

process. To the extent the live testimony requirement of Elkins, supra, 41 Cal.4th 1337, 

was based upon due process principles—and the Supreme Court expressly refused to 

determine that question, basing its determination on hearsay rule requirements (id. at 

p. 1345) —the Supreme Court acknowledged that motions and OSC requests after

judgment were not subject to the requirement. (Id. at pp. 1360-1361, 1363, 1345 &

fn. 1.) The requirements with respect to hearings on motions and OSC requests were put 

into place by statute and rule and are subject to the good cause exception set forth therein, 

as well as to the requirement that the live testimony sought to be presented be “competent 

testimony that is relevant and within the scope of the hearing.” (§ 217; see former rule 

5.119; rule 5.113.)

Cunningham claims that the “purpose” statement of the San Francisco Superior 

Court’s CRC Protocol has been used to deny him access to court and to undermine his 

rights to present live testimony, to call witnesses and to present evidence at a hearing on 

his OSC requests. Because the family court could not limit Cunningham’s statutory right 

to present live testimony at a hearing on his OSC requests in a manner inconsistent with 

section 217 or with due process, the key question here is whether the court in the 

circumstances met the requirement of that statute.

III. Section 217 – Good Cause

Section 217 requires that in making its finding of “good cause” to refuse to receive 

live testimony, the court “shall state its reasons for the finding on the record or in 

writing.” (§ 217, subd. (b).) Standing alone, the court’s finding that the reasons for 

calling witnesses and presenting live testimony stated in Cunningham’s April 30, 2012 

response to the court’s prehearing CRO # 1 “are without merit” is insufficient to comply 

with the requirement of subdivision (b) that the court “state its reasons on the record or in 

writing.” However, that statement does not stand alone. To find the court’s reasons
23

inadequate in a vacuum would ignore the comprehensive statements of the court’s

reasons for requiring Cunningham to respond to the questions raised in CRO #1 before 

allowing him to call the witnesses he requested and the court’s explanation of the bases 

for denying his requests in CRO #2 and orders referred to therein.

Consequently, in determining whether good cause supported the trial court’s 

refusal to allow Cunningham to present the live testimony he requested, we look to the

witness list proffered by Cunningham pursuant to section 217, to the two CROs issued by 

the court and the orders referenced therein, to the parties’ responses to CRO #1, and to 

their supplemental papers filed pursuant to the court’s request following the May 15, 

2012 hearing. Considered together, these orders and pleadings constitute a more than 

sufficient statement of reasons for the court’s refusal to allow Cunningham to present the 

live witness testimony he sought.11

We reiterate that the family court’s obligation is to receive proffered live 

testimony that is “competent, and admissible,” “relevant and within the scope of the 

hearing.” (§ 217, subd. (a), italics added; former rule 5.119(a), rule 5.113.) “Clearly 

then, [section] 217 and Rule 5.113 [or former rule 5.119] do not open the door for a party 

to present his or her entire case or air and argue all of his or her accusations and 

complaints at an OSC or motion hearing. Nor does the statute or Rule give the parties or 

the court a license to ignore the rules of evidence (‘competent’ testimony means 

admissible evidence—i.e., based on personal knowledge, no inadmissible hearsay, etc.).” 

(Hogoboom and King, Family Law, supra, ¶ 5:492, p. 5-194.)

In its CRO #1, the court explained that in light of the numerous previous orders in 

the case addressing substantive issues, the finding that Cunningham was a vexatious 

litigant, and the permanent restraining order against him, it was requiring the parties to 

answer a series of questions before determining the need for oral testimony. Such was 

 

11

 The court did not expressly use the phrase “good cause” in denying 

Cunningham’s request to present live testimony and review would have been easier had it 

done so with a concise summary of its reasons. However, to reverse and remand on this 

basis would serve little purpose in this case, where good cause is abundant and was 

adequately articulated by the court, albeit without expressly denominating it as such.
24

necessary to “enable the Court and the parties to address the remaining issues in this case 

in a manner consistent with the applicable law and the prior findings of the Court that are 

final determinations of fact and law.” In CRO #2, the court further explained that it had 

issued CRO #1 because Cunningham’s “pleadings filed are replete with an inaccurate 

statement of the facts and the law to be applied to the facts of the case.” The court further 

found that the pleadings filed by Cunningham’s attorney were “devoid of any meaningful 

analysis that would support the relief requested. As to the visitation issue, counsel fails 

to address the Court’s prior findings; rather, counsel’s filings are replete with arguments 

made in the past and rejected.”

We agree with the court’s characterization of Cunningham’s pleadings. The vast 

majority of the evidence sought to be presented by Cunningham was outside the scope of 

the hearing. Rather than seeking a modification of the orders for custody and visitation in 

light of changed circumstances, indicating a willingness to comply with the court’s 

visitation prerequisites, or attempting to show that he was no longer vexatious, the 

evidence Cunningham sought to present was aimed at revisiting and challenging orders 

already final, on the basis that they were erroneous when made. In these circumstances,

there was “good cause” for the court’s decision to require Cunningham to answer the 

questions raised in CRO #1.

As to the specific witnesses Cunningham sought to call and the testimony he 

sought to elicit from them, Cunningham failed to show that they could present competent, 

admissible, and relevant evidence that was within the scope of the hearing.

He presented no applicable legal authority that could allow him to call Judge 

Sullivan regarding the legality of the DPVA order, the judge’s previous rulings in the 

case, or the judge’s opinion regarding proceedings in the case. (See Evid. Code, § 703.5, 

[prohibiting such].) Similarly, Cunningham utterly failed to identify any testimony that 

Judge Sullivan or Wang’s attorney Schopp (whom he stated would testify about her 

previous “improper[] and illegal” behavior in relation to the visitation order, the 

vexatious litigant order, and obtaining sanctions against Cunningham) could provide that 

would be within the scope of the hearing.
25

Similarly, the testimony Cunningham sought to present from therapist Miller and 

former custody evaluator Perry was clearly aimed at challenging the order granting sole 

custody to Wang and the order denying visitation unless and until Cunningham 

demonstrated he was not a risk to the child. Cunningham did not claim, and it does not 

appear, that such testimony was presented in order to support modification of custody on 

the ground of changed circumstances or that it would address the concerns that led to the 

court’s imposition of a no visitation order. Rather, Cunningham refused to accept the 

finality of the previous orders and his filings repeated his “arguments made in the past 

and rejected.” In addition, the court found it was “obvious that the experts were not 

consulted, nor any thought . . . given to securing their testimony . . . .”

With respect to his desire to call Wang, the notice states the testimony to be 

elicited from her related to her actions preventing him from knowing about his daughter 

and the alleged smearing of Cunningham’s character as part of a “legal strategy 

calculated to destroy the father’s custody rights and because she does not want and is 

incapable of sharing custody or visitation.” In its CRO #2, the court referenced its 

previous final order of June 17, 2011, stating it “delineates the reasons for denying 

custody and visitation.” CRO #2 states that before any change in custody or visitation, 

Cunningham “must present evidence that he has engaged in meaningful efforts to address 

the rage he directs toward [Wang] and that he is willing to resume visitation with his 

daughter in a supervised setting.” The court found Cunningham’s “rage continues,” as 

reflected in the exhibits submitted by Wang in her response and by Cunningham’s 

behavior at the May 15, 2012 hearing. Findings incorporated into the June 17, 2011 

order delineating reasons for denying custody and visitation, included reiterating findings 

detailed in the May 9, 2007 order granting sole custody to Wang, including finding that 

Cunningham was unable to co-parent the child, as reflected in his e-mail correspondence 

with Wang, “and his investment in continuing the conflict with [Wang].” “Father is not 

able to focus on the child’s needs and is instead focused upon conflict with Mother; . . 

.Father is connected with Mother through these legal proceedings; . . . and . . . the child 
26

continues to be traumatized because of this conflict.” (Italics added.) 12 These findings 

present ample “good cause” for the court’s refusal to allow Cunningham to call Wang to 

testify at the hearing on his motion to modify custody. Not only was the testimony he 

wished to elicit from Wang outside the scope of the hearing, which was addressed to 

modification of the existing orders and required evidence of changed circumstances; but 

also, good cause for denying the oral testimony by Wang was provided by the findings 

that Cunningham was using the legal proceedings as a way to continue his connection 

with Wang and was focused upon his conflict with her and his rage at her, rather than 

upon the best interests of their child.

Finally, the court had ample reason to deny Cunningham’s request to call the 12-

year-old child to testify. In CRO #1, the court had asked the parties to address “[w]hether 

it is in [the child’s] best interest to testify in open court and alternatives thereto.” 

Cunningham speculated in his request that the child would testify that her mother would 

not allow her to speak to or have contact with her father; that Wang had told the child 

Cunningham means to harm the child; that the child misses being with Cunningham and 

that she wants a relationship with him; that she cried after her dog died and was upset that 

she was not allowed to visit the dog. Section 3042 provides that “[i]f a child is of 

 

12 In the custody order of May 9, 2007, the court cited to the custody evaluation 

conducted by Perry in finding: “Additional reasons which demonstrate an order of sole 

legal and sole physical custody to Mother is in the child’s best interest is Father’s 

inability to focus on the child’s needs, because his judgment is clouded-over by his rage 

at Mother for ending their relationship. (Child Custody Evaluation, page 10, ¶ 3.) The 

facts presented in this case show Father is not able to focus on and serve the child’s best 

interests, because his anger at Mother, rather than the best interests of his daughter, 

remains his primary focus from which he cannot or will not detach. (Child Custody 

Evaluation, ¶ 4.) Father’s communications with Mother are often mean-spirited, 

insulting, insensitive, disrespectful, threatening and pejorative. Father is, therefore, 

clear[ly] not serving the needs of [the child] and his negative and destructive conduct do 

not serve [her] best interests. Mother, on the other hand, is a good and conscientious 

parent, and is the parent who is primarily focused on the child and the child’s needs. 

(Child Custody Evaluation , ¶ 3.) . . . .” In the June 17, 2011 order referenced by the 

court in its CRO #2 of May 25, 2012, the court stated that it “remains true today as it 

was in 2007,” that Cunningham “does not want resolution of this case and he is attached 

to the conflict between himself and Mother.” (Italics added.) 
27

sufficient age and capacity to reason so as to form an intelligent preference as to custody 

or visitation, the court shall consider, and give due weight to, the wishes of the child in 

making an order granting or modifying custody or visitation.” (§ 3042, subd. (a).) Here, 

in denying Cunningham’s requests to appoint counsel for the child and to order a two-tier 

evaluation of the child, the court explained: “Unless and until [Cunningham] is able to 

demonstrate that he is capable of managing his anger and is willing to engage in 

supervised visits, there is no reason to involve the child. In so ruling, the Court is willing 

to assume that the child desires to see her father. In fact that is the desire of the Court. 

However visitation cannot resume unless and until [Cunningham] addresses his rage and 

is willing to engage in supervised visits. That is the only way to ensure that the child will 

be safe for the reasons delineated in the Order of June 17, 2011.” (Italics added.)

As observed by Hogoboom and King: “[A] child’s participation in family law 

matters must be considered on a case-by-case basis. No statutory mandate, rule, or 

practice requires children to participate in court or prohibits them from doing so. When a 

child does wish to participate, ‘the court should find a balance between protecting the 

child, the statutory duty to consider the wishes of and input from the child, and the 

probative value of the child’s input while ensuring all parties due process rights to 

challenge evidence relied upon by the court in making custody decisions.’ [Citations.]” 

(Hogoboom and King, Family Law, supra, ¶ 7:324, p. 7-131.) Moreover, before 

allowing a child under age 14 to testify, “the court must first determine it would be 

appropriate pursuant to the child’s best interests. [Citations.]” (Id. at ¶ 7:324.2, p. 7-132, 

citing Fam. Code, § 3042, subd. (d); Chalmers v. Hirschkop (2013) 213 Cal.App.4th 289, 

313 [statute simply requires court give “due weight” to child’s preferences and the court

may permit a child under 14 years to address the court if it finds doing so is in child’s 

best interest].)

Here, the court could well determine it was not in the child’s best interest to testify 

in this proceeding. In stating its willingness to assume the child desires to visit with her

father and in view of the high level of conflict between the parents, Cunningham’s 

investment in maintaining the conflict, rather than pursuing his daughter’s best interest, 
28

the suffering of the child due to the conflict, and the level of vitriol and disrespect for the 

court and opposing parties that Cunningham brings to the proceedings in which he has 

participated, a case-specific consideration of the child’s participation supports the court’s 

determination. Moreover, given the court’s willingness to assume the child desired visits, 

Cunningham was not prejudiced in the court’s refusal to let him call the child to testify. 

The court did not abuse its discretion in refusing Cunningham’s request to call the child. 

Nor, in these circumstances, did the court abuse its discretion in refusing to appoint 

counsel for the child to communicate her wishes to the court.

The court did not err in denying Cunningham’s requests for another two-tier 

custody evaluation of the child and in refusing to appoint a guardian for the child. 

Nothing in Cunningham’s pleadings indicated any reasonable bases for such requests nor 

did Cunningham present any evidence supporting a need for a psychiatric evaluation of 

Wang.

Nothing in Cunningham’s pleadings or papers suggested a need for live testimony 

relating to his request for lifting of orders declaring him a vexatious litigant and vacating 

an order against him under the DVPA. He provided no reason to believe that he had in 

any way changed his attitude or the behaviors that led the court to declare him vexatious

and to impose the restraining order again him. His arguments boiled down to his many 

times rejected legal claims that the court erred in declaring him vexatious and in granting 

the restraining order in the first place. The court did not err in refusing to lift the 

vexatious litigant order or the DVPA restraining order.

Assuming, without deciding, that section 217 applies to requests to lift vexatious 

litigant orders and DVPA restraining orders in family law cases, we are convinced that 

good cause supports the trial court’s refusal to entertain oral testimony at the hearing on 

the OSC.

IV. Changed Circumstances – Custody Modification

Cunningham contends here, as he contended below, that the doctrine of changed 

circumstances did not apply to his requests for modification of custody. He is wrong.
29

As observed by our Supreme Court in Montenegro v. Diaz (2001) 26 Cal.4th 249, 

256: “Although the statutory scheme only requires courts to ascertain the ‘best interest of 

the child’ [citations], this court has articulated a variation on the best interest standard 

once a final judicial custody determination is in place. Under the so-called changed 

circumstance rule, a party seeking to modify a permanent custody order can do so only if 

he or she demonstrates a significant change of circumstances justifying a modification. 

([In re Marriage of ] Burgess [(1996)] 13 Cal.4th [25,] 37.) According to our earlier 

decisions, ‘[t]he changed-circumstance rule is not a different test, devised to supplant the 

statutory test, but an adjunct to the best-interest test. It provides, in essence, that once it 

has been established that a particular custodial arrangement is in the best interests of the 

child, the court need not reexamine that question. Instead, it should preserve the 

established mode of custody unless some significant change in circumstances indicates 

that a different arrangement would be in the child’s best interest. The rule thus fosters 

the dual goals of judicial economy and protecting stable custody arrangements.’

(Burchard [v. Garay (1986)] 42 Cal.3d [531,] 535.)”

Consequently, to justify a change in custody, there must be a persuasive showing 

by the noncustodial parent of substantial changed circumstances relating directly to the 

child’s best interests. (In re Marriage of McLoren (1988) 202 Cal.App.3d 108, 116 

[family court abused its discretion in changing custody from sole to joint legal custody in 

the absence of a showing of substantially changed circumstances].) The moving party 

has the burden not only of establishing that circumstances now warrant a change in

custody, but also that modification of custody is in the child’s best interests. (Id. at 

p. 114; see In re Marriage of Burgess, supra, 13 Cal.4th at pp. 37-38; Burchard v. Garay,

supra, 42 Cal.3d at p. 535; Hogoboom & King, Family Law, supra, ¶¶ 17:310- 17:311, 

pp. 17-75 to 17-76.) Although the decision to modify the custody arrangement generally 

should be based upon the circumstances existing at the time of the requested 
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modification, prior conduct may be considered by the court in determining which parent 

will serve the best interests of the child. (In re Marriage of McLoren, at p. 115.)

The court did not err in applying the changed circumstances test or in refusing to 

modify the order granting Wang sole physical and legal custody. Cunningham’s claim 

that the custody order was not final has been repeatedly rejected. We need not address it 

further.

V. Modification of Visitation

“[T]he changed circumstances rule does not apply when a parent requests only a 

modification of the visitation arrangement (whether in a joint custody or sole custody 

situation). Because such a modification does not change ‘custody,’ the trial court 

considers a visitation modification solely under the child’s best interests standard.

[([In re] Marriage of Lucio (2008) 161 [Cal.App.]4th 1068, 1077–1080 (citing text) 

(collecting cases)—noncustodial parent who had supervised visitation not required to 

show changed circumstances in support of request for unmonitored visits and additional 

visitation time not amounting to ‘de facto joint custody’].” (Hogoboom and King, 

Family Law, supra, at ¶17:302.3, p.17-74; see also, Chalmers v. Hirschkop, supra,

213 Cal.App.4th at p. 305 [“When a legal parent seeks to modify a visitation schedule set 

forth in a final custody order, the changed circumstance rule does not apply. [Citations.] 

The court has residual and broad discretion to modify visitation orders for legal parents to

‘ “obviate time-consuming custody litigation . . . .” ’ [Citation.]”].)

The court here explained its reasons for refusing to modify the visitation order. 

Those reasons were rooted in its determination of the best interests of the child. In its 

CRO #2, the court stated explicitly that despite its wish that visitation could be resumed, 

“visitation cannot resume unless and until [Cunningham] addresses his rage and is willing 

to engage in supervised visits. That is the only way to ensure that the child will be safe 

for the reasons delineated in the Order of June 17, 2011.” Ample evidence supports the 

court’s determination that visitation would not be resumed until Cunningham complied 
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with the requirements the court set in place to provide for the child’s safety. Such 

requirements are consistent with the mandate of section 3100, subdivision (b), that in 

making a visitation order, “the court shall consider whether the best interest of the child 

requires that any visitation by [the parent to whom a protective order as defined in section 

6218 has been directed] shall be limited to situations in which a third person, specified by 

the court, is present, or whether visitation shall be suspended or denied. . . .” (§ 3100, 

subd. (b); see also §§ 3031, subd. (c) [essentially the same where emergency protective 

order “or other restraining order” has been issued]; 6323, subd. (d) [same in DVPA 

proceedings]; Hogoboom and King, Family Law, supra, ¶ 7:489, p. 7-190.) “The 

ultimate decision lies within the court’s discretion. However, the exercise of discretion 

must reflect a consideration of the nature of the acts from which the parent was enjoined 

and the period of time elapsed since the order issued. [Citation.]” (Hogoboom and King, 

Family Law, supra, ¶ 7:489.1, p. 7-190.) Such was the case here.

CONCLUSION

Ample evidence supported the court’s denial of the OSC requests in this case. 

Further, the court’s refusal to take oral testimony at the hearing on the OSC was 

supported by good cause, pursuant to section 217.

DISPOSITION

The order after judgment entered May 25, 2012 is affirmed.
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_________________________

Kline, P.J.

We concur:

_________________________

Richman, J.

_________________________

Brick, J.*

* Judge of the Alameda County Superior Court, assigned by the Chief Justice 

pursuant to article VI, section 6 of the California Constitution.