Preview
1 SUZANNE M. ALVES (SBN 195441)
salves@alvesradcliffe.com
2 ALVES RADCLIFFE, LLP
ELECTRONICALLY
2377 Gold Meadow Way, Suite 100
3 Gold River, CA 95670 F I L E D
Superior Court of California,
4 Telephone: (916) 596-1642 County of San Francisco
06/10/2020
5 Attorney for Respondents - Cross Petitioners Nationwide Biweekly Clerk of the Court
Administration, Inc., Loan Payment Administration, LLC, BY: RONNIE OTERO
Deputy Clerk
6 and Daniel S. Lipsky
7
8
9 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF SAN FRANCISCO
11 In the Matter of the Arbitration Between
Case No. CPF 18-516384
12 PONIST LAW GROUP, p.c. AND SEAN E. (assigned to Hon. Judge Ethan P. Schulman, Dept
PONIST, 302)
13 Petitioners – Cross Respondents
14 REQUEST FOR JUDICIAL NOTICE IN
SUPPORT OF RESPONSE ON BEHALF OF
vs.
15 NATIONWIDE BIWEEKLY
ADMINISTRATION, INC., LOAN PAYMENT
NATIONWIDE BIWEEKLY
16 ADMINISTRATION, LLC AND DANIEL S.
ADMINISTRATION, INC., an Ohio Corporation;
LIPSKY IN OPPOSITION TO PONIST LAW
17 LOAN PAYMENT ADMINISTRATION, LLC, an
GROUP AND SEAN E. PONIST'S REQUEST
Ohio Limited Liability Company; DANIEL S.
TO CONFIRM ARBITRATION AWARD
18 LIPSKY, a. resident of Ohio
19 Respondents – Cross-Petitioners
Date: June 18, 2020
20 Time: 9:30 a.m.
Dept 302
21
22
23
24
25
1
26
REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF RESPONSE IN OPPOSITION TO
27 PONIST REQUEST TO CONFIRM ARBITRATION AWARD
28
1 REQUEST FOR JUDICIAL NOTICE
2 Nationwide Biweekly Administration, Inc., Loan Payment Administration, LLC, and Daniel S.
3 Lipsky, (collectively, "Nationwide Parties" request that the Court take judicial notice of the documents set
4 forth below pursuant to Evidence Code section 452 subdivisions (c), (d) or (h). Courts may take judicial
5
notice of "[o]fficial acts of the legislative, executive, and judicial departments of the United States and of any
6
state of the United States." (Evid. Code § 452 (c).) Moreover, courts may judicially notice facts and
7
propositions that are not reasonably subject to dispute and that are capable of immediate and accurate
8
determination by resort to sources of reasonably indisputable accuracy. (Evid. Code § 452 (h).) Exhibit AA
9
10 is a record created by the Judicial Council and available on the California Courts website at either
11 https://www.courts.ca.gov/rules.htm and/or https://www.courts.ca.gov/documents/appendix-i.pdf.
12 available on the California Courts website. Exhibit CC are records of the California Judicial Council and
13 available on the California Judicial Council website at
14
https://jcc.legistar.com/View.ashx?M=M&ID=790621&GUID=A0ED0998-D827-4792-9BD1-
15
A3A4FCF939AA. These records are not reasonably subject to dispute.
16
Accordingly, based on the foregoing, the Court may properly take judicial notice of the following:
17
EX DESCRIPTION
18
19 AA Emergency Rules Related to COVID-19, adopted by the Judicial Council available on the
California Courts website at either https://www.courts.ca.gov/rules.htm and/or
20 https://www.courts.ca.gov/documents/appendix-i.pdf.
CC Circulating Order Memorandum to the Judicial Council, May 22, 2020, No CO-20-09,
21 https://jcc.legistar.com/View.ashx?M=M&ID=790621&GUID=A0ED0998-D827-4792-
9BD1-A3A4FCF939AA
22
Respectfully submitted,
23
24 Dated: June 10, 2020 ALVES RADCLIFFE LLP
25
________________________________
26 By: SUZANNE M. ALVES
Attorney for Respondents – Cross Petitioners
27
28
2
REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF RESPONSE IN OPPOSITION TO
PONIST REQUEST TO CONFIRM ARBITRATION AWARD
EXHIBIT A
1 Appendix I
2 Emergency Rules Related to COVID-19
3
4
5 Emergency rule 1. Unlawful detainers
6
7 (a) Application
8
9 Notwithstanding any other law, including Code of Civil Procedure sections 1166,
10 1167, 1169, and 1170.5, this rule applies to all actions for unlawful detainer.
11
12 (b) Issuance of summons
13
14 A court may not issue a summons on a complaint for unlawful detainer unless the
15 court finds, in its discretion and on the record, that the action is necessary to protect
16 public health and safety.
17
18 (c) Entry of default
19
20 A court may not enter a default or a default judgment for restitution in an unlawful
21 detainer action for failure of defendant to appear unless the court finds both of the
22 following:
23
24 (1) The action is necessary to protect public health and safety; and
25
26 (2) The defendant has not appeared in the action within the time provided by
27 law, including by any applicable executive order.
28
29 (d) Time for trial
30
31 If a defendant has appeared in the action, the court may not set a trial date earlier
32 than 60 days after a request for trial ismade unless the court finds that an earlier
33 trial date is necessary to protect public health and safety. Any trial set in an
34 unlawful detainer proceeding as of April 6, 2020 must be continued at least 60 days
35 from the initial date of trial.
36
37 (e) Sunset of rule
38
39 This rule will remain in effect until 90 days after the Governor declares that the
40 state of emergency related to the COVID-19 pandemic is lifted, or until amended or
41 repealed by the Judicial Council.
42
43
1
1 Emergency rule 2. Judicial foreclosures—suspension of actions
2
3 Notwithstanding any other law, this rule applies to any action for foreclosure on a
4 mortgage or deed of trust brought under chapter 1, title 10, of part 2 of the Code of Civil
5 Procedure, beginning at section 725a, including any action for a deficiency judgment, and
6 provides that, until 90 days after the Governor declares that the state of emergency
7 related to the COVID-19 pandemic is lifted, or until this rule isamended or repealed by
8 the Judicial Council:
9
10 (1) All such actions are stayed, and the court may take no action and issue no
11 decisions or judgments unless the court finds that action is required to further the
12 public health and safety.
13
14 (2) Any statute of limitations for filing such an action is tolled.
15
16 (3) The period for electing or exercising any rights under that chapter, including
17 exercising any right of redemption from a foreclosure sale or petitioning the court
18 in relation to such a right, isextended.
19
20
21 Emergency rule 3. Use of technology for remote appearances
22
23 (a) Remote appearances
24
25 Notwithstanding any other law, in order to protect the health and safety of the public,
26 including court users, both in custody and out of custody defendants, witnesses, court
27 personnel, judicial officers, and others, courts must conduct judicial proceedings and
28 court operations as follows:
29
30 (1) Courts may require that judicial proceedings and court operations be
31 conducted remotely.
32
33 (2) In criminal proceedings, courts must receive the consent of the defendant to
34 conduct the proceeding remotely and otherwise comply with emergency rule
35 5. Notwithstanding Penal Code sections 865 and 977 or any other law, the
36 court may conduct any criminal proceeding remotely. As used in this rule,
37 “consent of the defendant” means that the consent of the defendant is
38 required only for the waiver of the defendant’s appearance as provided in
39 emergency rule 5. For good cause shown, the court may require any witness
40 to personally appear in a particular proceeding.
41
42 (3) Conducting proceedings remotely includes, but is not limited to, the use of
43 video, audio, and telephonic means for remote appearances; the electronic
2
1 exchange and authentication of documentary evidence; e-filing and e-service;
2 the use of remote interpreting; and the use of remote reporting and electronic
3 recording to make the official record of an action or proceeding.
4
5 (b) Sunset of rule
6
7 This rule will remain in effect until 90 days after the Governor declares that the
8 state of emergency related to the COVID-19 pandemic is lifted, or until amended or
9 repealed by the Judicial Council.
10
11
12 Emergency rule 4. Emergency Bail Schedule
13
14 (a) Purpose
15
16 Notwithstanding any other law, this rule establishes a statewide Emergency Bail
17 Schedule, which isintended to promulgate uniformity in the handling of certain
18 offenses during the state of emergency related to the COVID-19 pandemic.
19
20 (b) Mandatory application
21
22 No later than 5 p.m. on April 13, 2020, each superior court must apply the
23 statewide Emergency Bail Schedule:
24
25 (1) To every accused person arrested and in pretrial custody.
26
27 (2) To every accused person held in pretrial custody.
28
29 (c) Setting of bail and exceptions
30
31 Under the statewide Emergency Bail Schedule, bail for all misdemeanor and felony
32 offenses must be set at $0, with the exception of only the offenses listed below:
33
34 (1) A serious felony, as defined in Penal Code section 1192.7(c), or a violent
35 felony, as defined in Penal Code section 667.5(c);
36
37 (2) A felony violation of Penal Code section 69;
38
39 (3) A violation of Penal Code section 166(c)(1);
40
41 (4) A violation of Penal Code section 136.1 when punishment is imposed under
42 section 136.1(c);
43
3
1 (5) A violation of Penal Code section 262;
2
3 (6) A violation of Penal Code sections 243(e)(1) or 273.5;
4
5 (7) A violation of Penal Code section 273.6 if the detained person made threats
6 to kill or harm, has engaged in violence against, or has gone to the residence
7 or workplace of, the protected party;
8
9 (8) A violation of Penal Code section 422 where the offense is punished as a
10 felony;
11
12 (9) A violation of Penal Code section 646.9;
13
14 (10) A violation of an offense listed in Penal Code section 290(c);
15
16 (11) A violation of Vehicle Code sections 23152 or 23153;
17
18 (12) A felony violation of Penal Code section 463; and
19
20 (13) A violation of Penal Code section 29800.
21
22 (d) Ability to deny bail
23
24 Nothing in the Emergency Bail Schedule restricts the ability of the court to deny
25 bail as authorized by article I, section 12, or 28(f)(3) of the California Constitution.
26
27 (e) Application of countywide bail schedule
28
29 (1) The current countywide bail schedule of each superior court must remain in
30 effect for all offenses listed in exceptions (1) through (13) of the Emergency
31 Bail Schedule, including any count-specific conduct enhancements and any
32 status enhancements.
33
34 (2) Each superior court retains the authority to reduce the amount of bail listed in
35 the court’s current countywide bail schedule for offenses in exceptions (1)
36 through (13), or for any offenses not in conflict with the Emergency Bail
37 Schedule.
38
39 (f) Bail for violations of post-conviction supervision
40
41 (1) Under the statewide Emergency Bail Schedule, bail for all violations of
42 misdemeanor probation, whether the arrest is with or without a bench
43 warrant, must be set at $0.
4
1
2 (2) Bail for all violations of felony probation, parole, post-release community
3 supervision, or mandatory supervision, must be set in accord with the
4 statewide Emergency Bail Schedule, or for the bail amount in the court’s
5 countywide schedule of bail for charges of conviction listed in exceptions (1)
6 through (13), including any enhancements.
7
8 (g) Sunset of rule
9
10 This rule will remain in effect until 90 days after the Governor declares that the
11 state of emergency related to the COVID-19 pandemic is lifted, or until amended or
12 repealed by the Judicial Council.
13
14
15 Emergency rule 5. Personal appearance waivers of defendants during health
16 emergency
17
18 (a) Application
19
20 Notwithstanding any other law, including Penal Code sections 865 and 977, this
21 rule applies to all criminal proceedings except cases alleging murder with special
22 circumstances and cases in which the defendant is currently incarcerated in state
23 prison, as governed by Penal Code section 977.2.
24
25 (b) Types of personal appearance waivers
26
27 (1) With the consent of the defendant, the court must allow a defendant to waive
28 his or her personal appearance and to appear remotely, either through video
29 or telephonic appearance, when the technology is available.
30
31 (2) With the consent of the defendant, the court must allow a defendant to waive
32 his or her appearance and permit counsel to appear on his or her behalf. The
33 court must accept a defendant’s waiver of appearance or personal appearance
34 when:
35
36 (A) Counsel for the defendant makes an on the record oral representation
37 that counsel has fully discussed the waiver and its implications with the
38 defendant and the defendant has authorized counsel to proceed as
39 counsel represents to the court;
40
41 (B) Electronic communication from the defendant as confirmed by
42 defendant’s counsel; or
43
5
1 (C) Any other means that ensures the validity of the defendant’s waiver.
2
3 (c) Consent by the defendant
4
5 (1) For purposes of arraignment and entry of a not guilty plea, consent means a
6 knowing, intelligent, and voluntary waiver of the right to appear personally in
7 court. Counsel for the defendant must state on the record at each applicable
8 hearing that counsel is proceeding with the defendant’s consent.
9
10 (2) For purposes of waiving time for a preliminary hearing, consent also means a
11 knowing, intelligent, and voluntary waiver of the right to hold a preliminary
12 hearing within required time limits specified either in Penal Code section
13 859b or under emergency orders issued by the Chief Justice and Chair of the
14 Judicial Council.
15
16 (3) The court must accept defense counsel’s representation that the defendant
17 understands and agrees with waiving any right to appear unless the court has
18 specific concerns in a particular matter about the validity of the waiver.
19
20 (d) Appearance through counsel
21
22 (1) When counsel appears on behalf of a defendant, courts must allow counsel to
23 do any of the following:
24
25 (A) Waive reading and advisement of rights for arraignment.
26
27 (B) Enter a plea of not guilty.
28
29 (C) Waive time for the preliminary hearing.
30
31 (2) For appearances by counsel, including where the defendant is either
32 appearing remotely or has waived his or her appearance and or counsel is
33 appearing by remote access, counsel must confirm to the court at each
34 hearing that the appearance by counsel is made with the consent of the
35 defendant.
36
37 (e) Conduct of remote hearings
38
39 (1) With the defendant’s consent, a defendant may appear remotely for any
40 pretrial criminal proceeding.
41
42 (2) Where a defendant appears remotely, counsel may not be required to be
43 personally present with the defendant for any portion of the criminal
6
1 proceeding provided that the audio and/or video conferencing system or other
2 technology allows for private communication between the defendant and his
3 or her counsel. Any private communication is confidential and privileged
4 under Evidence Code section 952.
5
6 (f) Sunset of rule
7
8 This rule will remain in effect until 90 days after the Governor declares that the
9 state of emergency related to the COVID-19 pandemic is lifted, or until amended or
10 repealed by the Judicial Council.
11
12
13 Emergency rule 6. Emergency orders: juvenile dependency proceedings
14
15 (a) Application
16
17 This rule applies to all juvenile dependency proceedings filed or pending until the
18 state of emergency related to the COVID-19 pandemic is lifted.
19
20 (b) Essential hearings and orders
21
22 The following matters should be prioritized in accordance with existing statutory
23 time requirements.
24
25 (1) Protective custody warrants filed under Welfare and Institutions Code section
26 340.
27
28 (2) Detention hearings under Welfare and Institutions Code section 319. The
29 court is required to determine if it iscontrary to the child’s welfare to remain
30 with the parent, whether reasonable efforts were made to prevent removal,
31 and whether to vest the placing agency with temporary placement and care.
32
33 (3) Psychotropic medication applications.
34
35 (4) Emergency medical requests.
36
37 (5) A petition for reentry of a nonminor dependent.
38
39 (6) Welfare and Institutions Code section 388 petitions that require an immediate
40 response based on the health and safety of the child, which should be
41 reviewed for a prima facie showing of change of circumstances sufficient to
42 grant the petition or to set a hearing. The court may extend the final ruling on
43 the petition beyond 30 days.
7
1 (c) Foster care hearings and continuances during the state of emergency
2
3 (1) A court may hold any proceeding under this rule via remote technology
4 consistent with rule 5.531 and emergency rule 3.
5
6 (2) At the beginning of any hearing at which one or more participants appears
7 remotely, the court must admonish all the participants that the proceeding is
8 confidential and of the possible sanctions for violating confidentiality.
9
10 (3) The child welfare agency is responsible for notice of remote hearings unless
11 other arrangements have been made with counsel for parents and children.
12 Notice is required for all parties and may include notice by telephone or other
13 electronic means. The notice must also include instructions on how to
14 participate in the court hearing remotely.
15
16 (4) Court reports
17
18 (A) Attorneys for parents and children must accept service of the court
19 report electronically.
20
21 (B) The child welfare agency must ensure that the parent and the child
22 receive a copy of the court report on time.
23
24 (C) If a parent or child cannot receive the report electronically, the child
25 welfare agency must deliver a hard copy of the report to the parent and
26 the child on time.
27
28 (5) Nothing in this subdivision prohibits the court from making statutorily
29 required findings and orders, by minute order only and without a court
30 reporter, by accepting written stipulations from counsel when appearances
31 are waived if the stipulations are confirmed on the applicable Judicial
32 Council forms or equivalent local court forms.
33
34 (6) If a court hearing cannot occur either in the courthouse or remotely, the
35 hearing may be continued up to 60 days, except as otherwise specified.
36
37 (A) A dispositional hearing under Welfare and Institutions Code section
38 360 should not be continued more than 6 months after the detention
39 hearing without review of the child’s circumstances. In determining
40 exceptional circumstances that justify holding the dispositional hearing
41 more than 6 months after the child was taken into protective custody,
42 the impact of the state of emergency related to the COVID-19
43 pandemic must be considered.
8
1
2 i. If the dispositional hearing is continued more than 6 months after
3 the start date of protective custody, a review of the child must be
4 held at the 6-month date. At the review, the court must determine
5 the continued necessity for and appropriateness of the placement;
6 the extent of compliance with the case plan or available services
7 that have been offered; the extent of progress which has been
8 made toward alleviating or mitigating the causes necessitating
9 placement; and the projected likely date by which the child may
10 return home or placed permanently.
11
12 ii. The court may continue the matter for a full hearing on all
13 dispositional findings and orders.
14
15 (B) A judicial determination of reasonable efforts must be made within 12
16 months of the date a child enters foster care to maintain a child’s
17 federal title IV-E availability. If a permanency hearing is continued
18 beyond the 12-month date, the court must review the case to determine
19 if the agency has made reasonable efforts to return the child home or
20 arrange for the child to be placed permanently. This finding can be
21 made without prejudice and may be reconsidered at a full hearing.
22
23 (7) During the state of emergency related to the COVID-19 pandemic, previously
24 authorized visitation must continue, but the child welfare agency is to
25 determine the manner of visitation to ensure that the needs of the family are
26 met. If the child welfare agency changes the manner of visitation for a child
27 and a parent or legal guardian in reunification, or for the child and a
28 sibling(s), or a hearing is pending under Welfare and Institutions Code
29 section 366.26, the child welfare agency must notify the attorneys for the
30 children and parents within 5 court days of the change. All changes in
31 manner of visitation during this time period must be made on a case by case
32 basis, balance the public health directives and best interest of the child, and
33 take into consideration whether in-person visitation may continue to be held
34 safely. Family time is important for child and parent well-being, as well as
35 for efforts toward reunification. Family time is especially important during
36 times of crisis. Visitation may only be suspended ifa detriment finding is
37 made in a particular case based on the facts unique to that case. A detriment
38 finding must not be based solely on the existence of the impact of the state of
39 emergency related to the COVID-19 pandemic or related public health
40 directives.
41
42 (A) The attorney for the child or parent may ask the juvenile court to
43 review the change in manner of visitation. The child or parent has the
9
1 burden of showing that the change is not in the best interest of the child
2 or is not based on current public health directives.
3
4 (B) A request for the court to review the change in visitation during this
5 time period must be made within 14 court days of the change. In
6 reviewing the change in visitation, the court should take into
7 consideration the factors in (c)(7).
8
9 (d) Sunset of rule
10
11 This rule will remain in effect until 90 days after the Governor declares that the
12 state of emergency related to the COVID-19 pandemic is lifted, or until amended or
13 repealed by the Judicial Council.
14
15 Advisory Committee Comment
16
17 When courts are unable to hold regular proceedings because of an emergency that has resulted in
18 an order as authorized under Government Code section 68115, federal timelines do not stop.
19 Circumstances may arise where reunification services to the parent, including visitation, may not
20 occur or be provided. The court must consider the circumstances of the emergency when deciding
21 whether to extend or terminate reunification services and whether services were reasonable given
22 the state of the emergency. (Citations: 42 U.S.C. § 672(a)(1)–(2), (5); 45 CFR § 1355.20; 45 CFR
23 § 1356.21 (b) – (d); 45 C.F.R. § 1356.71(d)(1)(iii); Child Welfare Policy Manual, 8.3A.9 Title
24 IV-E, Foster Care Maintenance Payments Program, Reasonable efforts, Question 2
25 (www.acf.hhs.gov/cwpm/public_html/programs/cb/laws_policies/laws/cwpm/policy_dsp.jsp?citI
26 D=92)]); Letter dated March 27, 2020, from Jerry Milner, Associate Commissioner, Children’s
27 Bureau, Administration for Children and Families, U.S. Department of Health and Human
28 Services.)
29
30
31 Emergency rule 7. Emergency orders: juvenile delinquency proceedings
32
33 (a) Application
34
35 This rule applies to all proceedings in which a petition has been filed under Welfare
36 and Institutions Code section 602 in which a hearing would be statutorily required
37 during the state of emergency related to the COVID-19 pandemic.
38
39 (b) Juvenile delinquency hearings and orders during the state of emergency
40
41 (1) A hearing on a petition for a child who is in custody under Welfare and
42 Institutions Code section 632 or 636 must be held within the statutory
43 timeframes as modified by an order of the court authorized by Government
10
1 Code section 68115. The court must determine if it iscontrary to the welfare
2 of the child to remain in the home, whether reasonable services to prevent
3 removal occurred, and whether to place temporary placement with the
4 probation agency if the court will be keeping the child detained and out of the
5 home.
6
7 (2) If a child isdetained in custody and an in-person appearance is not feasible
8 due to the state of emergency, courts must make reasonable efforts to hold
9 any statutorily required hearing for that case via remote appearance within
10 the required statutory time frame and as modified by an order of the court
11 authorized under Government Code section 68115 for that proceeding. If a
12 remote proceeding is not a feasible option for such a case during the state of
13 emergency, the court may continue the case as provided in (d) for the
14 minimum period of time necessary to hold the proceedings.
15
16 (3) Without regard to the custodial status of the child, the following hearings
17 should be prioritized during the state of emergency related to the COVID-19
18 pandemic:
19
20 (A) Psychotropic medication applications.
21
22 (B) All emergency medical requests.
23
24 (C) A petition for reentry of a nonminor dependent.
25
26 (D) A hearing on any request for a warrant for a child.
27
28 (E) A probable cause determination for a child who has been detained but
29 has not had a detention hearing within the statutory time limits.
30
31 (4) Notwithstanding any other law, and except as described in (5), during the
32 state of emergency related to the COVID-19 pandemic, the court may
33 continue for good cause any hearing for a child not detained in custody who
34 is subject to its juvenile delinquency jurisdiction until a date after the state of
35 emergency has been lifted considering the priority for continued hearings in
36 (d).
37
38 (5) For children placed in foster care under probation supervision, a judicial
39 determination of reasonable efforts must be made within 12 months of the
40 date the child enters foster care to maintain a child’s federal title IV-E
41 availability. If a permanency hearing is continued beyond the 12-month date,
42 the court must nevertheless hold a review to determine if the agency has
43 made reasonable efforts to return the child home or place the child
11
1 permanently. This finding can be made without prejudice and may be
2 reconsidered at a full hearing.
3
4 (c) Proceedings with remote appearances during the state of emergency.
5
6 (1) A court may hold any proceeding under this rule via remote technology
7 consistent with rule 5.531 and emergency rule 3.
8
9 (2) At the beginning of any hearing conducted with one or more participants
10 appearing remotely, the court must admonish all the participants that the
11 proceeding is confidential and of the possible sanctions for violating
12 confidentiality.
13
14 (3) The court is responsible for giving notice of remote hearings, except for
15 notice to a victim, which is the responsibility of the prosecuting attorney or
16 the probation department. Notice is required for all parties and may include
17 notice by telephone or other electronic means. The notice must also include
18 instructions on how to participate in the hearing remotely.
19
20 (4) During the state of emergency, the court has broad discretion to take evidence
21 in the manner most compatible with the remote hearing process, including
22 but not limited to taking testimony by written declaration. If counsel for a
23 child or the prosecuting attorney objects to the court’s evidentiary
24 procedures, that is a basis for issuing a continuance under (d).
25
26 (d) Continuances of hearings during the state of emergency.
27
28 Notwithstanding any other law, the court may for good cause continue any hearing
29 other than a detention hearing for a child who is detained in custody. In making this
30 determination, the court must consider the custody status of the child, whether there
31 are evidentiary issues that are contested, and, if so, the ability for those issues to be
32 fairly contested via a remote proceeding.
33
34 (e) Extension of time limits under Welfare and Institutions Code section 709
35
36 In any case in which a child has been found incompetent under Welfare and
37 Institutions Code section 709 and that child is eligible for remediation services or
38 has been found to require secure detention, any time limits imposed by section 709
39 for
Preview
1 SUZANNE M. ALVES (SBN 195441) salves@alvesradcliffe.com 2 ALVES RADCLIFFE, LLP ELECTRONICALLY 2377 Gold Meadow Way, Suite 100 3 Gold River, CA 95670 F I L E D Superior Court of California, 4 Telephone: (916) 596-1642 County of San Francisco 06/10/2020 5 Attorney for Respondents - Cross Petitioners Nationwide Biweekly Clerk of the Court Administration, Inc., Loan Payment Administration, LLC, BY: RONNIE OTERO Deputy Clerk 6 and Daniel S. Lipsky 7 8 9 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SAN FRANCISCO 11 In the Matter of the Arbitration Between Case No. CPF 18-516384 12 PONIST LAW GROUP, p.c. AND SEAN E. (assigned to Hon. Judge Ethan P. Schulman, Dept PONIST, 302) 13 Petitioners – Cross Respondents 14 REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF RESPONSE ON BEHALF OF vs. 15 NATIONWIDE BIWEEKLY ADMINISTRATION, INC., LOAN PAYMENT NATIONWIDE BIWEEKLY 16 ADMINISTRATION, LLC AND DANIEL S. ADMINISTRATION, INC., an Ohio Corporation; LIPSKY IN OPPOSITION TO PONIST LAW 17 LOAN PAYMENT ADMINISTRATION, LLC, an GROUP AND SEAN E. PONIST'S REQUEST Ohio Limited Liability Company; DANIEL S. TO CONFIRM ARBITRATION AWARD 18 LIPSKY, a. resident of Ohio 19 Respondents – Cross-Petitioners Date: June 18, 2020 20 Time: 9:30 a.m. Dept 302 21 22 23 24 25 1 26 REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF RESPONSE IN OPPOSITION TO 27 PONIST REQUEST TO CONFIRM ARBITRATION AWARD 28 1 REQUEST FOR JUDICIAL NOTICE 2 Nationwide Biweekly Administration, Inc., Loan Payment Administration, LLC, and Daniel S. 3 Lipsky, (collectively, "Nationwide Parties" request that the Court take judicial notice of the documents set 4 forth below pursuant to Evidence Code section 452 subdivisions (c), (d) or (h). Courts may take judicial 5 notice of "[o]fficial acts of the legislative, executive, and judicial departments of the United States and of any 6 state of the United States." (Evid. Code § 452 (c).) Moreover, courts may judicially notice facts and 7 propositions that are not reasonably subject to dispute and that are capable of immediate and accurate 8 determination by resort to sources of reasonably indisputable accuracy. (Evid. Code § 452 (h).) Exhibit AA 9 10 is a record created by the Judicial Council and available on the California Courts website at either 11 https://www.courts.ca.gov/rules.htm and/or https://www.courts.ca.gov/documents/appendix-i.pdf. 12 available on the California Courts website. Exhibit CC are records of the California Judicial Council and 13 available on the California Judicial Council website at 14 https://jcc.legistar.com/View.ashx?M=M&ID=790621&GUID=A0ED0998-D827-4792-9BD1- 15 A3A4FCF939AA. These records are not reasonably subject to dispute. 16 Accordingly, based on the foregoing, the Court may properly take judicial notice of the following: 17 EX DESCRIPTION 18 19 AA Emergency Rules Related to COVID-19, adopted by the Judicial Council available on the California Courts website at either https://www.courts.ca.gov/rules.htm and/or 20 https://www.courts.ca.gov/documents/appendix-i.pdf. CC Circulating Order Memorandum to the Judicial Council, May 22, 2020, No CO-20-09, 21 https://jcc.legistar.com/View.ashx?M=M&ID=790621&GUID=A0ED0998-D827-4792- 9BD1-A3A4FCF939AA 22 Respectfully submitted, 23 24 Dated: June 10, 2020 ALVES RADCLIFFE LLP 25 ________________________________ 26 By: SUZANNE M. ALVES Attorney for Respondents – Cross Petitioners 27 28 2 REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF RESPONSE IN OPPOSITION TO PONIST REQUEST TO CONFIRM ARBITRATION AWARD EXHIBIT A 1 Appendix I 2 Emergency Rules Related to COVID-19 3 4 5 Emergency rule 1. Unlawful detainers 6 7 (a) Application 8 9 Notwithstanding any other law, including Code of Civil Procedure sections 1166, 10 1167, 1169, and 1170.5, this rule applies to all actions for unlawful detainer. 11 12 (b) Issuance of summons 13 14 A court may not issue a summons on a complaint for unlawful detainer unless the 15 court finds, in its discretion and on the record, that the action is necessary to protect 16 public health and safety. 17 18 (c) Entry of default 19 20 A court may not enter a default or a default judgment for restitution in an unlawful 21 detainer action for failure of defendant to appear unless the court finds both of the 22 following: 23 24 (1) The action is necessary to protect public health and safety; and 25 26 (2) The defendant has not appeared in the action within the time provided by 27 law, including by any applicable executive order. 28 29 (d) Time for trial 30 31 If a defendant has appeared in the action, the court may not set a trial date earlier 32 than 60 days after a request for trial ismade unless the court finds that an earlier 33 trial date is necessary to protect public health and safety. Any trial set in an 34 unlawful detainer proceeding as of April 6, 2020 must be continued at least 60 days 35 from the initial date of trial. 36 37 (e) Sunset of rule 38 39 This rule will remain in effect until 90 days after the Governor declares that the 40 state of emergency related to the COVID-19 pandemic is lifted, or until amended or 41 repealed by the Judicial Council. 42 43 1 1 Emergency rule 2. Judicial foreclosures—suspension of actions 2 3 Notwithstanding any other law, this rule applies to any action for foreclosure on a 4 mortgage or deed of trust brought under chapter 1, title 10, of part 2 of the Code of Civil 5 Procedure, beginning at section 725a, including any action for a deficiency judgment, and 6 provides that, until 90 days after the Governor declares that the state of emergency 7 related to the COVID-19 pandemic is lifted, or until this rule isamended or repealed by 8 the Judicial Council: 9 10 (1) All such actions are stayed, and the court may take no action and issue no 11 decisions or judgments unless the court finds that action is required to further the 12 public health and safety. 13 14 (2) Any statute of limitations for filing such an action is tolled. 15 16 (3) The period for electing or exercising any rights under that chapter, including 17 exercising any right of redemption from a foreclosure sale or petitioning the court 18 in relation to such a right, isextended. 19 20 21 Emergency rule 3. Use of technology for remote appearances 22 23 (a) Remote appearances 24 25 Notwithstanding any other law, in order to protect the health and safety of the public, 26 including court users, both in custody and out of custody defendants, witnesses, court 27 personnel, judicial officers, and others, courts must conduct judicial proceedings and 28 court operations as follows: 29 30 (1) Courts may require that judicial proceedings and court operations be 31 conducted remotely. 32 33 (2) In criminal proceedings, courts must receive the consent of the defendant to 34 conduct the proceeding remotely and otherwise comply with emergency rule 35 5. Notwithstanding Penal Code sections 865 and 977 or any other law, the 36 court may conduct any criminal proceeding remotely. As used in this rule, 37 “consent of the defendant” means that the consent of the defendant is 38 required only for the waiver of the defendant’s appearance as provided in 39 emergency rule 5. For good cause shown, the court may require any witness 40 to personally appear in a particular proceeding. 41 42 (3) Conducting proceedings remotely includes, but is not limited to, the use of 43 video, audio, and telephonic means for remote appearances; the electronic 2 1 exchange and authentication of documentary evidence; e-filing and e-service; 2 the use of remote interpreting; and the use of remote reporting and electronic 3 recording to make the official record of an action or proceeding. 4 5 (b) Sunset of rule 6 7 This rule will remain in effect until 90 days after the Governor declares that the 8 state of emergency related to the COVID-19 pandemic is lifted, or until amended or 9 repealed by the Judicial Council. 10 11 12 Emergency rule 4. Emergency Bail Schedule 13 14 (a) Purpose 15 16 Notwithstanding any other law, this rule establishes a statewide Emergency Bail 17 Schedule, which isintended to promulgate uniformity in the handling of certain 18 offenses during the state of emergency related to the COVID-19 pandemic. 19 20 (b) Mandatory application 21 22 No later than 5 p.m. on April 13, 2020, each superior court must apply the 23 statewide Emergency Bail Schedule: 24 25 (1) To every accused person arrested and in pretrial custody. 26 27 (2) To every accused person held in pretrial custody. 28 29 (c) Setting of bail and exceptions 30 31 Under the statewide Emergency Bail Schedule, bail for all misdemeanor and felony 32 offenses must be set at $0, with the exception of only the offenses listed below: 33 34 (1) A serious felony, as defined in Penal Code section 1192.7(c), or a violent 35 felony, as defined in Penal Code section 667.5(c); 36 37 (2) A felony violation of Penal Code section 69; 38 39 (3) A violation of Penal Code section 166(c)(1); 40 41 (4) A violation of Penal Code section 136.1 when punishment is imposed under 42 section 136.1(c); 43 3 1 (5) A violation of Penal Code section 262; 2 3 (6) A violation of Penal Code sections 243(e)(1) or 273.5; 4 5 (7) A violation of Penal Code section 273.6 if the detained person made threats 6 to kill or harm, has engaged in violence against, or has gone to the residence 7 or workplace of, the protected party; 8 9 (8) A violation of Penal Code section 422 where the offense is punished as a 10 felony; 11 12 (9) A violation of Penal Code section 646.9; 13 14 (10) A violation of an offense listed in Penal Code section 290(c); 15 16 (11) A violation of Vehicle Code sections 23152 or 23153; 17 18 (12) A felony violation of Penal Code section 463; and 19 20 (13) A violation of Penal Code section 29800. 21 22 (d) Ability to deny bail 23 24 Nothing in the Emergency Bail Schedule restricts the ability of the court to deny 25 bail as authorized by article I, section 12, or 28(f)(3) of the California Constitution. 26 27 (e) Application of countywide bail schedule 28 29 (1) The current countywide bail schedule of each superior court must remain in 30 effect for all offenses listed in exceptions (1) through (13) of the Emergency 31 Bail Schedule, including any count-specific conduct enhancements and any 32 status enhancements. 33 34 (2) Each superior court retains the authority to reduce the amount of bail listed in 35 the court’s current countywide bail schedule for offenses in exceptions (1) 36 through (13), or for any offenses not in conflict with the Emergency Bail 37 Schedule. 38 39 (f) Bail for violations of post-conviction supervision 40 41 (1) Under the statewide Emergency Bail Schedule, bail for all violations of 42 misdemeanor probation, whether the arrest is with or without a bench 43 warrant, must be set at $0. 4 1 2 (2) Bail for all violations of felony probation, parole, post-release community 3 supervision, or mandatory supervision, must be set in accord with the 4 statewide Emergency Bail Schedule, or for the bail amount in the court’s 5 countywide schedule of bail for charges of conviction listed in exceptions (1) 6 through (13), including any enhancements. 7 8 (g) Sunset of rule 9 10 This rule will remain in effect until 90 days after the Governor declares that the 11 state of emergency related to the COVID-19 pandemic is lifted, or until amended or 12 repealed by the Judicial Council. 13 14 15 Emergency rule 5. Personal appearance waivers of defendants during health 16 emergency 17 18 (a) Application 19 20 Notwithstanding any other law, including Penal Code sections 865 and 977, this 21 rule applies to all criminal proceedings except cases alleging murder with special 22 circumstances and cases in which the defendant is currently incarcerated in state 23 prison, as governed by Penal Code section 977.2. 24 25 (b) Types of personal appearance waivers 26 27 (1) With the consent of the defendant, the court must allow a defendant to waive 28 his or her personal appearance and to appear remotely, either through video 29 or telephonic appearance, when the technology is available. 30 31 (2) With the consent of the defendant, the court must allow a defendant to waive 32 his or her appearance and permit counsel to appear on his or her behalf. The 33 court must accept a defendant’s waiver of appearance or personal appearance 34 when: 35 36 (A) Counsel for the defendant makes an on the record oral representation 37 that counsel has fully discussed the waiver and its implications with the 38 defendant and the defendant has authorized counsel to proceed as 39 counsel represents to the court; 40 41 (B) Electronic communication from the defendant as confirmed by 42 defendant’s counsel; or 43 5 1 (C) Any other means that ensures the validity of the defendant’s waiver. 2 3 (c) Consent by the defendant 4 5 (1) For purposes of arraignment and entry of a not guilty plea, consent means a 6 knowing, intelligent, and voluntary waiver of the right to appear personally in 7 court. Counsel for the defendant must state on the record at each applicable 8 hearing that counsel is proceeding with the defendant’s consent. 9 10 (2) For purposes of waiving time for a preliminary hearing, consent also means a 11 knowing, intelligent, and voluntary waiver of the right to hold a preliminary 12 hearing within required time limits specified either in Penal Code section 13 859b or under emergency orders issued by the Chief Justice and Chair of the 14 Judicial Council. 15 16 (3) The court must accept defense counsel’s representation that the defendant 17 understands and agrees with waiving any right to appear unless the court has 18 specific concerns in a particular matter about the validity of the waiver. 19 20 (d) Appearance through counsel 21 22 (1) When counsel appears on behalf of a defendant, courts must allow counsel to 23 do any of the following: 24 25 (A) Waive reading and advisement of rights for arraignment. 26 27 (B) Enter a plea of not guilty. 28 29 (C) Waive time for the preliminary hearing. 30 31 (2) For appearances by counsel, including where the defendant is either 32 appearing remotely or has waived his or her appearance and or counsel is 33 appearing by remote access, counsel must confirm to the court at each 34 hearing that the appearance by counsel is made with the consent of the 35 defendant. 36 37 (e) Conduct of remote hearings 38 39 (1) With the defendant’s consent, a defendant may appear remotely for any 40 pretrial criminal proceeding. 41 42 (2) Where a defendant appears remotely, counsel may not be required to be 43 personally present with the defendant for any portion of the criminal 6 1 proceeding provided that the audio and/or video conferencing system or other 2 technology allows for private communication between the defendant and his 3 or her counsel. Any private communication is confidential and privileged 4 under Evidence Code section 952. 5 6 (f) Sunset of rule 7 8 This rule will remain in effect until 90 days after the Governor declares that the 9 state of emergency related to the COVID-19 pandemic is lifted, or until amended or 10 repealed by the Judicial Council. 11 12 13 Emergency rule 6. Emergency orders: juvenile dependency proceedings 14 15 (a) Application 16 17 This rule applies to all juvenile dependency proceedings filed or pending until the 18 state of emergency related to the COVID-19 pandemic is lifted. 19 20 (b) Essential hearings and orders 21 22 The following matters should be prioritized in accordance with existing statutory 23 time requirements. 24 25 (1) Protective custody warrants filed under Welfare and Institutions Code section 26 340. 27 28 (2) Detention hearings under Welfare and Institutions Code section 319. The 29 court is required to determine if it iscontrary to the child’s welfare to remain 30 with the parent, whether reasonable efforts were made to prevent removal, 31 and whether to vest the placing agency with temporary placement and care. 32 33 (3) Psychotropic medication applications. 34 35 (4) Emergency medical requests. 36 37 (5) A petition for reentry of a nonminor dependent. 38 39 (6) Welfare and Institutions Code section 388 petitions that require an immediate 40 response based on the health and safety of the child, which should be 41 reviewed for a prima facie showing of change of circumstances sufficient to 42 grant the petition or to set a hearing. The court may extend the final ruling on 43 the petition beyond 30 days. 7 1 (c) Foster care hearings and continuances during the state of emergency 2 3 (1) A court may hold any proceeding under this rule via remote technology 4 consistent with rule 5.531 and emergency rule 3. 5 6 (2) At the beginning of any hearing at which one or more participants appears 7 remotely, the court must admonish all the participants that the proceeding is 8 confidential and of the possible sanctions for violating confidentiality. 9 10 (3) The child welfare agency is responsible for notice of remote hearings unless 11 other arrangements have been made with counsel for parents and children. 12 Notice is required for all parties and may include notice by telephone or other 13 electronic means. The notice must also include instructions on how to 14 participate in the court hearing remotely. 15 16 (4) Court reports 17 18 (A) Attorneys for parents and children must accept service of the court 19 report electronically. 20 21 (B) The child welfare agency must ensure that the parent and the child 22 receive a copy of the court report on time. 23 24 (C) If a parent or child cannot receive the report electronically, the child 25 welfare agency must deliver a hard copy of the report to the parent and 26 the child on time. 27 28 (5) Nothing in this subdivision prohibits the court from making statutorily 29 required findings and orders, by minute order only and without a court 30 reporter, by accepting written stipulations from counsel when appearances 31 are waived if the stipulations are confirmed on the applicable Judicial 32 Council forms or equivalent local court forms. 33 34 (6) If a court hearing cannot occur either in the courthouse or remotely, the 35 hearing may be continued up to 60 days, except as otherwise specified. 36 37 (A) A dispositional hearing under Welfare and Institutions Code section 38 360 should not be continued more than 6 months after the detention 39 hearing without review of the child’s circumstances. In determining 40 exceptional circumstances that justify holding the dispositional hearing 41 more than 6 months after the child was taken into protective custody, 42 the impact of the state of emergency related to the COVID-19 43 pandemic must be considered. 8 1 2 i. If the dispositional hearing is continued more than 6 months after 3 the start date of protective custody, a review of the child must be 4 held at the 6-month date. At the review, the court must determine 5 the continued necessity for and appropriateness of the placement; 6 the extent of compliance with the case plan or available services 7 that have been offered; the extent of progress which has been 8 made toward alleviating or mitigating the causes necessitating 9 placement; and the projected likely date by which the child may 10 return home or placed permanently. 11 12 ii. The court may continue the matter for a full hearing on all 13 dispositional findings and orders. 14 15 (B) A judicial determination of reasonable efforts must be made within 12 16 months of the date a child enters foster care to maintain a child’s 17 federal title IV-E availability. If a permanency hearing is continued 18 beyond the 12-month date, the court must review the case to determine 19 if the agency has made reasonable efforts to return the child home or 20 arrange for the child to be placed permanently. This finding can be 21 made without prejudice and may be reconsidered at a full hearing. 22 23 (7) During the state of emergency related to the COVID-19 pandemic, previously 24 authorized visitation must continue, but the child welfare agency is to 25 determine the manner of visitation to ensure that the needs of the family are 26 met. If the child welfare agency changes the manner of visitation for a child 27 and a parent or legal guardian in reunification, or for the child and a 28 sibling(s), or a hearing is pending under Welfare and Institutions Code 29 section 366.26, the child welfare agency must notify the attorneys for the 30 children and parents within 5 court days of the change. All changes in 31 manner of visitation during this time period must be made on a case by case 32 basis, balance the public health directives and best interest of the child, and 33 take into consideration whether in-person visitation may continue to be held 34 safely. Family time is important for child and parent well-being, as well as 35 for efforts toward reunification. Family time is especially important during 36 times of crisis. Visitation may only be suspended ifa detriment finding is 37 made in a particular case based on the facts unique to that case. A detriment 38 finding must not be based solely on the existence of the impact of the state of 39 emergency related to the COVID-19 pandemic or related public health 40 directives. 41 42 (A) The attorney for the child or parent may ask the juvenile court to 43 review the change in manner of visitation. The child or parent has the 9 1 burden of showing that the change is not in the best interest of the child 2 or is not based on current public health directives. 3 4 (B) A request for the court to review the change in visitation during this 5 time period must be made within 14 court days of the change. In 6 reviewing the change in visitation, the court should take into 7 consideration the factors in (c)(7). 8 9 (d) Sunset of rule 10 11 This rule will remain in effect until 90 days after the Governor declares that the 12 state of emergency related to the COVID-19 pandemic is lifted, or until amended or 13 repealed by the Judicial Council. 14 15 Advisory Committee Comment 16 17 When courts are unable to hold regular proceedings because of an emergency that has resulted in 18 an order as authorized under Government Code section 68115, federal timelines do not stop. 19 Circumstances may arise where reunification services to the parent, including visitation, may not 20 occur or be provided. The court must consider the circumstances of the emergency when deciding 21 whether to extend or terminate reunification services and whether services were reasonable given 22 the state of the emergency. (Citations: 42 U.S.C. § 672(a)(1)–(2), (5); 45 CFR § 1355.20; 45 CFR 23 § 1356.21 (b) – (d); 45 C.F.R. § 1356.71(d)(1)(iii); Child Welfare Policy Manual, 8.3A.9 Title 24 IV-E, Foster Care Maintenance Payments Program, Reasonable efforts, Question 2 25 (www.acf.hhs.gov/cwpm/public_html/programs/cb/laws_policies/laws/cwpm/policy_dsp.jsp?citI 26 D=92)]); Letter dated March 27, 2020, from Jerry Milner, Associate Commissioner, Children’s 27 Bureau, Administration for Children and Families, U.S. Department of Health and Human 28 Services.) 29 30 31 Emergency rule 7. Emergency orders: juvenile delinquency proceedings 32 33 (a) Application 34 35 This rule applies to all proceedings in which a petition has been filed under Welfare 36 and Institutions Code section 602 in which a hearing would be statutorily required 37 during the state of emergency related to the COVID-19 pandemic. 38 39 (b) Juvenile delinquency hearings and orders during the state of emergency 40 41 (1) A hearing on a petition for a child who is in custody under Welfare and 42 Institutions Code section 632 or 636 must be held within the statutory 43 timeframes as modified by an order of the court authorized by Government 10 1 Code section 68115. The court must determine if it iscontrary to the welfare 2 of the child to remain in the home, whether reasonable services to prevent 3 removal occurred, and whether to place temporary placement with the 4 probation agency if the court will be keeping the child detained and out of the 5 home. 6 7 (2) If a child isdetained in custody and an in-person appearance is not feasible 8 due to the state of emergency, courts must make reasonable efforts to hold 9 any statutorily required hearing for that case via remote appearance within 10 the required statutory time frame and as modified by an order of the court 11 authorized under Government Code section 68115 for that proceeding. If a 12 remote proceeding is not a feasible option for such a case during the state of 13 emergency, the court may continue the case as provided in (d) for the 14 minimum period of time necessary to hold the proceedings. 15 16 (3) Without regard to the custodial status of the child, the following hearings 17 should be prioritized during the state of emergency related to the COVID-19 18 pandemic: 19 20 (A) Psychotropic medication applications. 21 22 (B) All emergency medical requests. 23 24 (C) A petition for reentry of a nonminor dependent. 25 26 (D) A hearing on any request for a warrant for a child. 27 28 (E) A probable cause determination for a child who has been detained but 29 has not had a detention hearing within the statutory time limits. 30 31 (4) Notwithstanding any other law, and except as described in (5), during the 32 state of emergency related to the COVID-19 pandemic, the court may 33 continue for good cause any hearing for a child not detained in custody who 34 is subject to its juvenile delinquency jurisdiction until a date after the state of 35 emergency has been lifted considering the priority for continued hearings in 36 (d). 37 38 (5) For children placed in foster care under probation supervision, a judicial 39 determination of reasonable efforts must be made within 12 months of the 40 date the child enters foster care to maintain a child’s federal title IV-E 41 availability. If a permanency hearing is continued beyond the 12-month date, 42 the court must nevertheless hold a review to determine if the agency has 43 made reasonable efforts to return the child home or place the child 11 1 permanently. This finding can be made without prejudice and may be 2 reconsidered at a full hearing. 3 4 (c) Proceedings with remote appearances during the state of emergency. 5 6 (1) A court may hold any proceeding under this rule via remote technology 7 consistent with rule 5.531 and emergency rule 3. 8 9 (2) At the beginning of any hearing conducted with one or more participants 10 appearing remotely, the court must admonish all the participants that the 11 proceeding is confidential and of the possible sanctions for violating 12 confidentiality. 13 14 (3) The court is responsible for giving notice of remote hearings, except for 15 notice to a victim, which is the responsibility of the prosecuting attorney or 16 the probation department. Notice is required for all parties and may include 17 notice by telephone or other electronic means. The notice must also include 18 instructions on how to participate in the hearing remotely. 19 20 (4) During the state of emergency, the court has broad discretion to take evidence 21 in the manner most compatible with the remote hearing process, including 22 but not limited to taking testimony by written declaration. If counsel for a 23 child or the prosecuting attorney objects to the court’s evidentiary 24 procedures, that is a basis for issuing a continuance under (d). 25 26 (d) Continuances of hearings during the state of emergency. 27 28 Notwithstanding any other law, the court may for good cause continue any hearing 29 other than a detention hearing for a child who is detained in custody. In making this 30 determination, the court must consider the custody status of the child, whether there 31 are evidentiary issues that are contested, and, if so, the ability for those issues to be 32 fairly contested via a remote proceeding. 33 34 (e) Extension of time limits under Welfare and Institutions Code section 709 35 36 In any case in which a child has been found incompetent under Welfare and 37 Institutions Code section 709 and that child is eligible for remediation services or 38 has been found to require secure detention, any time limits imposed by section 709 39 for