Sconiers v. McGlothin

Filed 8/1/06 Sconiers v. McGlothin CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Fresno County. James M. Petrucelli, Judge.

Janet Sconiers, in pro. per., forAppellant.

Ronald McGlothin, in pro. per., for Respondent.

-ooOoo-

INTRODUCTION

Appellant Janet Sconiers and respondent Ronald McGlothin are the parents of Tiyeondrea, born in 1982. Appellant was granted primarily physical custody, and respondent received supervised visitation and was ordered to pay child support. Each parent was ordered to obtain health insurance for their daughter if their employer provided such coverage. Each parent was also ordered to pay one-half of their daughter's "necessary unreimbursed medical expenses." Appellant was unemployed, whereas respondent worked for Sun-Maid Growers.

Appellant filed a series of orders to show cause (OSC), requesting the court to order respondent to pay his half of unreimbursed medical expenses for chiropractic treatments received by Tiyeondrea. Appellant and respondent represented themselves for the majority of the proceedings below.

In June 2003, the court granted appellant's OSC and ordered respondent to pay $6,693 as his half of unreimbursed expenses for chiropractic treatments received by Tiyeondrea in 1997 and 1998. The court further found that as of December 30, 1998, appellant was aware that Tiyeondrea was covered by Kaiser health insurance provided by respondent's employer, and disallowed any claims for medical expenses incurred after that date.

Thereafter, appellant filed another series of OSC's, and requested the court to order respondent to pay his half of unreimbursed medical expenses for physical therapy received by Tiyeondrea in 1995 and 1996. Respondent contested the motion and argued the medical statements provided by appellant were fraudulent. In December 2004, the court found the physical therapy billing statements for 1995 and 1996, filed by appellant in support of her OSC, were fraudulent. The court also found the billing statements appellant filed in her earlier OSC, for reimbursement for chiropractic treatment allegedly received by Tiyeondrea in 1997 and 1998, were also fraudulent. The court reversed its order of June 2003, and ordered appellant to repay respondent.

On appeal, appellant asserts the court improperly reversed its prior order without notice or a hearing in violation of her due process rights. Appellant has previously been declared a vexatious litigant subject to a prefiling order. Indeed, this court has previously dismissed an appeal filed by appellant in an unrelated case because she failed to obtain the requisite prefiling order.^[1] As we will explain post, however, this court granted appellant's request for a prefiling order in the instant case, and we will consider her issues on appeal.

We will conclude the entirety of the record overwhelmingly support the court's factual findings as to appellant's lack of credibility. The record also raises grave concerns as to whether appellant committed fraud and perjury in filing various pleadings and documents with the superior court. However, we are compelled to reverse and remand the matter for further proceedings because the court made certain findings and order without proper notice to appellant.

PART I

FACTUAL BACKGROUND

In 1982, Tiyeondrea was born to appellant Janet Sconiers and respondent Ronald McGlothin. The record infers appellant and respondent were never married. Tiyeondrea lived with appellant. In various income and expense statements, appellant declared she was a student without income, and she was disabled. Respondent was employed by Sun-Maid Growers.

On or about June 29, 1982, respondent separated from appellant and Tiyeondrea. On July 27, 1982, the County of Fresno Family Support Division (now known as the Department of Child Support Services (DCSS)) filed a complaint for establishment of child support, reimbursement of public assistance, and medical coverage. Respondent appeared with counsel and contested paternity.

In July 1984, the court issued a temporary child support order against respondent. In December 1984, the court issued a wage assignment against respondent for monthly child support payments.

On October 28, 1985, a stipulated judgment was entered which declared respondent's paternity of Tiyeondrea, and ordered him to pay monthly child support of $75, and provide medical insurance coverage "'at any time such insurance is available through an employer, and provide evidence of such coverage to the Fresno County Family Support Division.'"

In November 1985, respondent moved for exclusive custody of his daughter.

On February 25, 1987, the court denied respondent's motion for exclusive custody of Tiyeondrea. The court provided for appellant and respondent to have joint legal and physical custody of their daughter, with Tiyeondrea to reside with appellant and have weekly supervised visitation with respondent.

On June 24, 1987, the court ordered respondent to pay monthly child support, that appellant and respondent were to maintain health insurance for their daughter if either of their employers offered group health insurance, and each parent was responsible for half of all of Tiyeondrea's "necessary unreimbursed medical expenses."^[2]

On November 20, 1987, the court ordered respondent to pay monthly child support of $100 and to obtain medical and health insurance for the child through his employer, and noted the child was receiving public assistance.

On May 10, 1990, the Fresno County District Attorney's Office filed an OSC to modify child support because of a change in respondent's circumstances.

On July 25, 1990, the court increased respondent's monthly child support to $160, issued a wage assignment, provided for the district attorney's office to enforce all orders, and again ordered respondent to obtain medical and health insurance for the child through his employer.

On October 4, 1995, the district attorney's office filed another OSC to increase respondent's child support obligation, and for respondent to obtain health insurance coverage through his employer.

On December 18, 1995, the court increased respondent's monthly child support to $292, and issued another wage assignment order based on respondent's child support arrearages of over $4,000. The court again ordered respondent to provide health insurance coverage for the child through his employer or other means, and held that each parent was responsible for half of the child's unreimbursed medical expenses.

Tiyeondrea's Insurance

As noted ante, respondent was employed by Sun-Maid Growers. As of October 1, 1997, Tiyeondrea was covered by Sun-Maid's health and welfare plan as respondent's dependent; she had dental coverage through Delta Dental, and medical and vision coverage from Kaiser. Prior to October 1997, Tiyeondrea was covered by Sun-Maid's policy with HealthComp Incorporated.

On July 10, 2000, in the midst of the ongoing family law proceedings, respondent received a letter from Sun-Maid reciting Tiyeondrea's health insurance coverage before and after October 1, 1997. The letter stated the group and identification numbers for the insurance polices, and also stated: "Please note that to have claims covered under the medical plan, services must be rendered at Kaiser."

On July 24, 2000, Kaiser advised respondent, by letter, that Tiyeondrea had been continually covered by Kaiser's medical plan since October 1, 1997, through Sun-Maid's group insurance, and that Tiyeondrea had accessed health care through Kaiser since that date.

PART II

APPELLANT'S OSC FOR REIMBURSEMENT OF CHIROPRATIC EXPENSES

INCURRED FROM 1997 TO 2000

As of January 2000, appellant had primary custody of Tiyeondrea, respondent paid child support and was also ordered to pay half of Tiyeondrea's unreimbursed medical expenses, respondent had a substantial child support arrearages, and he was subject to a wage assignment.

In March 2000, Tiyeondrea turned 18 years old.

On September 29, 2000, appellant filed an OSC for modification of the existing child support order, and for respondent to pay half of Tiyeondrea's unreimbursed expenses for specific dental and chiropractic treatment Tiyeondrea received in 1997, 1998, and 1999. Appellant's OSC was based on her declaration and numerous documentary exhibits.

Appellant filed a declaration that she had incurred medical and dental expenses for Tiyeondrea in 1997, 1998, and 1999; that she paid Tiyeondrea's medical and dental bills with help from her family; that she requested respondent to pay his half of the bills and he refused; that she brought a small claims action against respondent for $5,000 in medical expenses, but the court dismissed the small claims action and instructed her to bring the instant motion in the pending family law proceedings. Appellant requested the court to order respondent to pay half of these unreimbursed medical and dental expenses, pursuant to the court's earlier order that respondent was responsible for such expenses.

Appellant further declared that on January 10, 1997, she "authorized chiropractic services" for Tiyeondrea, based on a letter "sent to Kaiser Permanente." Appellant attached a copy of that letter as an exhibit. The attached letter, dated January 10, 1997, was on stationery with a distinctive type font (not reproduced below) and the following letterhead:

"ROSSI MOBILE CHIROPRACTIC SERVICES

"EDWIN ROSSI, D.C.

"209 N. Maple

"FRESNO, CA 93702

"559-217-4350"

The two-page letter was from Edwin Rossi, D.C., to Kaiser Permanente of Fresno, and stated 14-year-old Tiyeondrea was evaluated on January 3, 1997, for lower back pain and constant headaches. Edwin Rossi (Rossi) summarized the evaluation, and stated it was "obvious" she suffered from ongoing pain in the lumbar muscles. The treatment plan was to see Tiyeondrea once a week, order exercises to strength and stabilize her cervical spine, and excuse her from physical education at school.^[3]

Also in support of her OSC, appellant attached copies of "ledger cards," expense statements, and bills from "Rossi Mobile Chriopractic Services," with the same letterhead, address and telephone number as the stationery used in Edwin Rossi's letter to Kaiser. These documents stated Tiyeondrea received weekly chiropractic treatment as follows: from January to December 1997, for which appellant paid $5,415.04; from January to December 1998, for which appellant paid $5,515.01; and from January to December 1999, for which appellant paid $5,786.24.

Appellant's documentary exhibits also included copies of letters she purportedly sent to respondent in 1998, 1999, and 2000, advising him that his half of Tiyeondrea's unreimbursed medical expenses were as follows: $2,757.51 for medical expenses incurred in 1997, $5,465.03 for medical expenses incurred in 1998, and $10,405.49 as of May 15, 2000.

Appellant also attached copies of bills issued in 1999 and 2000 for Tiyeondrea's dental treatment and X-rays, Kaiser's authorization for Tiyeondrea to receive such dental treatment from a non-Kaiser provider, and Kaiser pharmacy bills.^[4]

Appellant also included declarations from her brother and sister, that they helped pay Tiyeondrea's medical expenses, they had paid $20,810.97 since 1997, and they wanted to be repaid.

On September 29, 2000, appellant's OSC was taken off calendar at her request for lack of timely service upon respondent.

On January 30, 2001, appellant refiled the same OSC against respondent, for payment of half of Tiyeondrea's unreimbursed medical expenses for dental and chiropractic treatments, but without the numerous exhibits she filed with her first OSC. The proof of service states that respondent was served in person on February 2, 2001.

On February 14, 2001, the district attorney's office filed a responsive declaration to join appellant's OSC, and consented to an order consistent with support guidelines.

Respondent did not file a responsive declaration or opposition of any kind to appellant's OSC for reimbursement for medical expenses.

The Court's Ruling of March 5, 2001

On March 5, 2001, Commissioner Glenda Allen-Hill conducted a hearing on appellant's OSC. Appellant was present but respondent did not appear. The court granted the district attorney's motion for joinder, and ordered respondent to pay $10,405.10 to appellant representing half of Tiyeondrea's unreimbursed medical expenses, presumably based on appellant's OSC for expenses incurred for dental and chiropractic treatment Tiyeondrea received in 1997, 1998, and 1999.

Appellant prepared the order after hearing, which was filed on July 20, 2001. A copy of the findings and order after hearing were purportedly served on respondent by mail on August 2, 2001. Thereafter, the district attorney's office added the court's reimbursement order for $10,405.10 to respondent's existing arrearages and wage assignment.

Vexatious Litigant Status

On January 4, 2000, Fresno County Superior Court Judge Stephen J. Kane adjudicated appellant a vexatious litigant in case No. 643310-6, an unrelated case, and declared she was subject to a prefiling order prohibiting the filing of any new litigation absent a court order. (See Sconiers v. Fresno Unified School District, supra, F038261.)

On March 30, 2001, the superior court filed an amended prefiling order in case Nos. 643310-6 and 01CECG00393, another unrelated case, prohibiting appellant from filing new litigation "either in propria persona or through an attorney without obtaining prior approval from the presiding judge." (See Sconiers v. Fresno Unified School District, supra, F038261.)

As we will discuss post, appellant continued to file pleadings and OSC's in the ongoing family law matter without being hindered by the vexatious litigant finding.

Respondent's Motion to Vacate

On February 1, 2002, respondent filed a motion, in pro. per, to vacate the court's ruling of March 5, 2001, and filed on July 20, 2001, in which the court ordered respondent to pay appellant $10,405.10 in unreimbursed medical expenses for Tiyeondrea's dental and chiropractic treatments. Respondent declared that appellant filed an OSC on January 30, 2001, for a hearing on March 5, 2001; appellant filed a proof of service on February 27, 2001, stating that he had been served at his residence on February 2, 2001; and she filed a proof of service as to filing the findings and order after hearing.

Respondent declared he was not served with any of these documents, he did not know about appellant's OSC for reimbursement of chiropractic expenses, he was denied notice and an opportunity to be heard, he did not appear at the hearing because he did not know about it, he did not know about the court's order, and the proofs of service had been fraudulently filed. Respondent further declared he did not become aware of the court's ruling against him until he received a letter from the family support division of the district attorney's office in December 2001, that he had been ordered to pay an additional $10,000.

Respondent further declared he would have defended against appellant's OSC if he had received notice, and the result of the hearing would have been different because Tiyeondrea had been covered by Kaiser health insurance since October 1, 1997; appellant knew about the Kaiser coverage because she had taken Tiyeondrea to Kaiser for other medical treatment; appellant chose not to take Tiyeondrea to Kaiser for the subject treatment; appellant incurred these bills by choice; and he was not legally responsible for any of these medical expenses since appellant failed to take Tiyeondrea to Kaiser.

In support of his motion, respondent attached bills and letters from Kaiser, reflecting Tiyeondrea had been covered by Kaiser since 1997, Tiyeondrea received treatment from Kaiser since that time, and that Tiyeondrea had been treated at Kaiser as recently as June 26, 2000.

Respondent also attached a proposed responsive declaration which he would have filed against appellant's OSC for medical expenses, that Tiyeondrea had medical insurance through Kaiser; appellant was aware of Kaiser's coverage because she previously took Tiyeondrea to Kaiser for other medical treatment; respondent always paid any outstanding Kaiser expenses; and appellant made the choice to take Tiyeondrea to another provider and should be responsible for those expenses.

The Court's Vacation of its Previous Order

On March 4, 2002, Commissioner Glenda Allen-Hill conducted a hearing on respondent's motion to vacate. The minute order states appellant and respondent were present, testimony was taken, and the matter was submitted.

On March 13, 2002, Commissioner Allen-Hill granted respondent's motion to set aside, and vacated the ruling she previously issued on March 5, 2001. In doing so, the court stated:

"... [A]lthough the Court finds no actual fraud in this matter, it is clear that [respondent's] failure to pursue this case was a result of inadvertence and excusable neglect."

The court found the outcome of that hearing could have been significantly altered based on respondent's proposed opposition. The court ordered a new hearing on appellant's original OSC for reimbursement of chiropractic and dental expenses, with the parties to file and serve each other with their responsive pleadings.

The Parties' Pleadings

On April 24, 2002, respondent filed a responsive declaration in opposition to appellant's original OSC for reimbursement of chiropractic expenses Tiyeondrea incurred from 1997 to 2000. Respondent declared Tiyeondrea had medical insurance under Kaiser, appellant knew of such coverage, respondent always paid Kaiser for Tiyeondrea's medical treatment, and appellant made the choice to take Tiyeondrea to another medical provider.

On June 5, 2002, appellant filed a declaration in support of her OSC for reimbursement of Tiyeondrea's chiropractic expenses. The declaration was from "Clara Rossi," who declared she was the president of Rossi Mobile Chiropractic Services. The declaration was on pleading paper with appellant's address in the upper left corner, and did not include any contact information for Clara Rossi, such as her address or telephone number, or state the current status of Rossi Mobile Chiropractic Services. Clara Rossi declared she was custodian of the business records, that she submitted documents which were true copies of Rossi's records of Tiyeondrea's treatment and expenses, that Rossi entered into an agreement with appellant on January 3, 1997, to provide treatment to Tiyeondrea, such treatment was not provided by Kaiser, and Rossi treated Tiyeondrea from January 1997 to June 2000.

Attached to Clara Rossi's declaration were the same "ledger card" statements from Rossi Mobile Chiropractic Services, which were identical to those submitted by appellant with her OSC originally filed on September 29, 2000. These "ledger card" statements were again on the same Rossi stationary with the distinctive letter, reflecting Tiyeondrea received chiropractic treatment every week from 1997 to 2000.

On June 7, 2002, Commissioner Allen-Hill recused herself from the matter.

Also on June 7, 2002, Commissioner Feinberg conducted a hearing on appellant's OSC. The minute order states appellant was present, along with a deputy district attorney; respondent was present without counsel. The court reviewed Clara Rossi's declaration and supporting exhibits. The court ordered respondent to reimburse appellant for orthodontia expenses of $1,830.70, and further ordered respondent not to pay "any monies due for any chiropractic services rendered."

Thus, as of June 2002, respondent was ordered to pay appellant only for dental expenses incurred for Tiyeondrea, and was not ordered to pay any chiropractic expenses incurred from Rossi Mobile Chiropractic Services.

PART III

APPELLANT'S SECOND ATTEMPT FOR REIMBURSEMENT FOR CHIROPRACTIC EXPENSES INCURRED FROM 1997 to 2000

On June 10, 2002, appellant filed a motion for "new trial," and for the court to vacate the order of June 7, 2002, which denied her OSC for reimbursement for Tiyeondrea's chiropractic expenses. Appellant acknowledged that Commissioner Allen-Hill recused herself from the case, but accused Commissioner Allen-Hill of issuing the ruling in this case.

Appellant further asserted respondent advised her in December 1996 that Tiyeondrea was covered by Kaiser, but she determined Tiyeondrea was not covered by Kaiser. Appellant admitted, however, that she incurred charges from Kaiser on December 30, 1998.

Appellant filed a declaration from Tiyeondrea in support of her new trial motion. Tiyeondrea declared she had very limited contact with respondent when she was a child. In November 1997, she advised respondent about her headaches and back problems, that appellant said she was not covered by respondent's Kaiser insurance and she had to see Dr. Rossi, Tiyeondrea asked respondent to help her get a doctor at Kaiser, and respondent refused. Tiyeondrea further declared she was treated by Dr. Rossi from 1997 to 2000, respondent refused to pay the expenses, and appellant paid for the treatments. Tiyeondrea declared she contacted Kaiser in June 2002 and asked why Kaiser refused to provide her with chiropractic treatments in January 1997, and Kaiser informed her that respondent's insurance was not effective until October 1997. Tiyeondrea also declared that appellant paid for her dental treatment in 1999.

Appellant also filed her own declaration, that she tried to obtain treatment for Tiyeondrea from Kaiser in January 1997 but was unsuccessful, respondent's employer never advised her of the Kaiser coverage, she provided chiropractic bills to respondent for 1997, 1998, 1999, and 2000, respondent never paid the bills, and she did not learn about Kaiser's chiropractic coverage until June 7, 2002. Appellant also filed a motion to disqualify Commissioner Feinberg.

On June 10, 2002, Commissioner Feinberg denied the setting of a hearing on appellant's motion for reconsideration.

On July 26, 2002, Commissioner Feinberg took the matter off calendar without prejudice per stipulation.

Appellant's Renewed Motion to Reconsider

On August 9, 2002, appellant filed another motion to reconsider the court's order of June 7, 2002, and for the court to order respondent to pay half of Tiyeondrea's unreimbursed expenses for chiropractic treatments from 1997 to 2000. Appellant declared she did not learn that Kaiser provided Tiyeondrea with chiropractic coverage until the court's hearing of June 7, 2002. Appellant's motion was supported by the same medical bills she previously submitted from Rossi Mobile Chiropractic Services, and various bills from Kaiser. Appellant also filed numerous discovery requests against respondent.

On October 21, 2002, Judge Petrucelli granted appellant's motion for reconsideration of the court's previous denial of her OSC for reimbursement of chiropractic expenses.

On December 9, 2002, appellant substituted Ralston Courtney as her counsel.

On February 11, 2003, Judge Petrucelli conducted a hearing on appellant's pending motion, and ordered the parties to submit all declarations and accountings by March 14, 2003, at which time the court would take the matter under submission.

"Lopez & Rodriguez Medical Profession"

As set forth ante, appellant's original OSC for reimbursement, filed on September 29, 2000, sought reimbursement for Tiyeondrea's chiropractic treatment administered by Edwin Rossi of Rossi Mobile Chiropractic Services from 1997 to 2000, and submitted documentary exhibits allegedly demonstrated that Tiyeondrea was treated by Rossi Chiropractic Services during that time. Commissioner Allen-Hill initially granted the OSC. Respondent moved to vacate the order and alleged he never received notice of the OSC, the hearing, or the court's order, and that appellant submitted fraudulent proofs of service to the court. Commissioner Allen-Hill vacated the order but declined to make any findings on respondent's allegations of fraud. Respondent filed opposition to appellant's OSC and argued she knew Tiyeondrea was covered by Kaiser insurance, failed to take Tiyeondrea to Kaiser, and he was not responsible for these bills. Appellant filed a declaration from "Clara Rossi" attesting to the validity of bills and expense statements. Commissioner Feinberg granted appellant's OSC for reimbursement for Tiyeondrea's medical expenses, but ordered respondent not to pay appellant for any chiropractic expenses. Appellant moved for reconsideration, Judge Petrucelli granted the motion for reconsideration, and ordered the parties to file the supporting documents.

On March 14, 2003, appellant filed further points and authorities and documentary exhibits, as requested by Judge Petrucelli, and again asked the court to order respondent to pay half of Tiyeondrea's unreimbursed expenses for the chiropractic treatments from January 1997 to June 2000. Appellant further requested an award of attorney's fees. Appellant again declared she was unable to obtain coverage from Kaiser for Tiyeondrea's chiropractic treatments, and she was unaware that Kaiser provided chiropractic coverage until June 2002.

Appellant's documentary exhibits mark the first appearance of the "Lopez & Rodriguez Medical Profession" (Lopez & Rodriguez) in this case. The exhibits included four medical statements printed on the following letterhead:

"LOPEZ & RODRIGUEZ MEDICAL PROFESSION

"Paul M. Lopez, M.D.--Abelordo Rodriguez, M.D.

"209 N. Maple

"Fresno, CA 93702

"559-217-4350"

The first statement was dated January 3, 1997, and stated:

"TO: EDWIN ROSSI, PHYSICIAN'S ASSISTANT & ROSSI MOBILE CHIROPRACTIC SERVICES

"RE: TREATMENT ORDER FOR PATIENT #1523 Tiyeondrea ...." (Italics added.)^[5]

According to the statement, Tiyeondrea received muscle stimulation, hot/cold, manipulation, and ultrasound treatment on that date, and it was signed by an indecipherable name. It did not state a dollar amount.

The other three statements were on the identical Lopez & Rodriguez letterhead, directed to Edwin Rossi, stated the treatment for Tiyeondrea without dollar amounts, and were dated, respectively, January 2, 1998, January 4, 1999, and January 5, 2000. These statements appeared to represent the treatment administered on that particular day, and did not reflect a summary of services or costs for more than that visit.

Appellant's exhibits also included receipts for payments she made for Tiyeondrea's treatments in 1997, 1998, 1999 and 2000. All the receipts were on the following letterhead:

"LOPEZ & RODRIGUEZ MEDICAL PROFESSION

"Paul M. Lopez, M.D. – Abelordo Rodriguez, M.D.

"209 N. Maple

"Fresno, CA 93702

"559-217-4350"

All the receipts contained the identical language, that a specific amount was received from appellant on a certain date "for examination and for physical therapy services rendered to Tiyeondrea … by Paul Lopez, M.D. and Edwin Rossi, Physician's Assistant." An indecipherable signature is at the bottom of each receipt.

Appellant also submitted exhibits consisting of monthly letters she purportedly sent to respondent, from 1997 to 2000, requesting him to pay certain amounts to "Lopez & Rodriguez Medical Profession" and "Rossi Mobile Chiropractic Services" for Tiyeondrea's medical expenses.

Appellant's final exhibits are web pages from the Medical Board of California, stating that as of January 2003, the medical license of Abelardo Rodriguez of Long Beach was "delinquent," and the medical license of Paul M. Lopez of Colton was "denied."

Appellant did not file any documents from Rossi Mobile Chiropractic Services, and did not offer any explanations for the sudden appearance of Lopez & Rodriguez bills in this case.

The Court's Order of June 9, 2003

On June 9, 2003, Judge Petrucelli filed a statement of decision on appellant's pending claims for reimbursement for Tiyeondrea's chiropractic expenses incurred from 1997 to 2000. The court granted appellant's pending motion, but only for expenses incurred in 1997 and 1998. The court found appellant was aware of Kaiser's coverage for such expenses as of December 30, 1998:

"… With regard to the issue of uninsured medical expenses incurred on behalf of the minor child, Tiyeondrea …, the court's decision is that respondent … shall pay the sum of $6,693.88 to [appellant], as and for his one-half share.

"The court bases its decisions on the following facts: [¶] The child's physician prescribed 52 chiropractic treatments per year. The total charges for 52 visits in 1997 were $4,691.76. The total charges for 52 visits in 1998 were $4,701.32. The non-chiropractic health care expenses totaled $3,994.68, for a grand total of $13,387.76. Respondent's one-half share is $6,693.88. Receipts submitted by both [appellant and respondent] show that the child was seen at Kaiser for a medical appointment on 12/30/98. Therefore, [appellant] was aware of the Kaiser insurance as of that time."

The court noted respondent's employer provided Kaiser health insurance as of October 1, 1997, and appellant was aware of that insurance "at least by" December 30, 1998, based on the Kaiser receipts submitted as exhibits. Family Code section 4063, subdivision (f)(1), (2), states that the preferred provider shall be used at all times, and if parent uses another health care provider, that parent shall bear the sole responsibility for any nonreimburseable health care costs in excess of the costs that would have been incurred under the preferred provider.

"… Here, [appellant] obtained care for the minor child outside the care provider specified by the insurance provided by respondent's employer pursuant to a court order. There has been no evidence presented that the services provided to the child were not available through the preferred provider in this geographical area, nor was there any demonstrated emergency. Therefore, [appellant] must bear the sole cost for services provided outside the Kaiser health plan after 12/30/98."

The court declined to order attorney's fees or costs to either party.

The court's order of June 9, 2003, thus granted appellant's motion for reimbursement of Tiyeondrea's chiropractic expenses in 1997 and 1998, presumably provided by Rossi Mobile Chiropractic Service, and Lopez & Rodriguez.

PART IV

APPELLANT'S REQUEST FOR PHYSICAL THERAPY EXPENSES

INCURRED IN 1995 AND 1996

As explained ante, appellant's OSC sought reimbursement for Tiyeondrea's chiropractic treatment from 1997 to 2000, based on bills submitted from both Rossi Mobile Chiropractic Services and Lopez & Rodriguez Medical Profession. On June 9, 2003, Judge Petrucelli partially granted the OSC and ordered respondent to pay expenses from 1997 to 1998, found appellant was aware that Tiyeondrea was covered by Kaiser insurance as of December 30, 1998, and denied appellant's OSC for any chiropractic expenses incurred after December 30, 1998.

On January 6, 2004, appellant filed another OSC for modification, in pro. per., based on an entirely different set of medical expenses: for respondent to pay half of Tiyeondrea's unreimbursed medical expenses for physical therapy treatments received in 1995 and 1996. Appellant declared Tiyeondrea's physician prescribed 48 physical therapy treatments in 1995, which cost $13,600; and 144 treatments in 1996, for $40,800, for a total of $54,400, with interest charges of $28,623.43, for a "grand total" of $83,023.43. Appellant requested the court to order respondent to pay her $41,511.72, representing half of Tiyeondrea's unreimbursed physical therapy expenses.

Appellant declared that in August 1995, Tiyeondrea fell off a flight of stairs and was also involved in an automobile accident, and appellant was advised Tiyeondrea had cervical, lumbar, and thoracic strain and would need physical therapy. Appellant asserted the services rendered to Tiyeondrea in 1995 and 1996 were an "emergency," that appellant served respondent with quarterly demands for payment and copies of bills, respondent did not pay such bills, and respondent did not provide notice about a health care provider until after December 30, 1998.

Appellant further declared the court's previous order of June 9, 2003, did not address medical expenses incurred in 1995 and 1996, and did not bar the current OSC for reimbursement.

"… I did not move the Court for reimbursement of these physical therapy bills, which covers September 1995 through December 1996, with my previous Application because the physical therapy services were not paid in full and the physician was charging interest on the unpaid balance."

Appellant declared she could not provide proof of payment or file a petition for reimbursement "until the physical therapy bills were paid in full."

Appellant again submitted documentary exhibits in support of her OSC, primarily consisting of "true and correct" copies of the physical therapy orders for Tiyeondrea. These "orders" are printed on a small spreadsheet, about a quarter-page, with the following letterhead in the top lines of the spreadsheet.

"LOPEZ & RODRIGUEZ MEDICAL PROFESSION

"PAUL M. LOPEZ, M.D.--ABELORDO RODRIGUEZ, M.D.

"209 N. Maple

"Fresno, CA 93552

"559-5550"^[6] (Italics added.)

Each "order" is dated and states that physical therapy treatment was ordered for Tiyeondrea, with a diagnosis of cervical, thoracic, and lumbar strain. Each order lists the treatment service administered on a particular day, along with charges for each treatment service, with the note that full payment was due at the time services were rendered, with a 1 percent interest charge assessed monthly to all unpaid balances. The orders are for individual dates in September 1995, January 1996, May 1996, and September 1996.

Appellant also submitted payment statements, on the same Lopez & Rodriguez letterhead, reflecting the monthly accumulation of balances and interest due on Tiyeondrea's account from September 1995 to December 2003. Appellant also prepared her own "Master Sheet Reflecting Breakdown Of Totals Paid" and an account statement of the debt she had incurred for these expenses. Appellant also submitted copies of letters she allegedly sent respondent, advising him of the treatments and requesting payment of his share.

The instant record does not contain a proof of service for the documents filed on January 6, 2004.

On February 19, 2004, appellant filed a "rebuttal reply," and declared respondent was served on January 15, 2004, that respondent verbally stated these issues were decided in the previous hearing, and that respondent had not served appellant with a response. Appellant asserted the court's previous adjudication of Tiyeondrea's medical expenses were silent as to whether that order was a final judgment on the merits of other medical bills, and the pending motion was based on different medical expenses and it was not barred by the court's previous order. This reply contains a proof of service by "Nora Bixley."

Respondent did not file any responsive declaration or opposition.

The Court's Hearing

On February 23, 2004, Judge Petrucelli conducted a hearing on appellant's pending motion. The minute order states appellant was present but respondent did not appear. The instant appellate record does not contain a reporter's transcript of this hearing. However, Judge Petrucelli summarized the events of this hearing in his order of December 10, 2004, as follows:

"… There were no proofs of service in the court file, although one was entered in the court records system, Banner. The Court asked [appellant] if she had served the County of Fresno DCSS and [respondent]. [Appellant] responded that she had not served the County of Fresno DCSS, but she had served [respondent]. [Appellant] presented to the Court a Proof of Service. The Proof of Service, filed on February 19, 2004, shows that [respondent] was served at 3376 West Browning Avenue, Fresno, CA, on January 15, 2004, at 6:00 a.m. The person claiming to have served [respondent] is Phyllis Thompson. The stated address of Ms. Thompson is 2150 S. Holly Avenue, Fresno, CA 93702. The listed telephone number is 559-255-1406. The hand-printed name on the document is 'Phyllis Thopson', but the signature represents 'Phyllis Thompson.' Due to this anomaly and the Respondent's lack of appearance in court, the Court directed a Family Law Examiner, Ron Nijmeddin, to contact Ms. Thompson for a clarification. When the examiner called 559-255-1406 at approximately 9:30 a.m. on February 23, 2004, an unidentified male answered. The examiner requested to speak to 'Phyllis.' The voice on the phone stated that there was no such person at that number. The examiner confirmed the number with the man and asked him specifically if there was a Phyllis Thompson there. The man confirmed that the number was the correct one and stated there was no such person by that name at that phone number."

The court found appellant failed to serve Fresno County, took the matter off calendar, and ordered appellant to again serve all parties and re-notice the matter.

Appellant's Refiled OSC

On April 23, 2004, appellant refiled her OSC of January 6, 2004, supported by the same exhibits as previously filed, for the court to order respondent to reimburse appellant for his half of physical therapy expenses in 1995 and 1996, of $41,511.72, based on the documentary exhibits from Lopez & Rodriguez. The instant appellate record does not contain any proofs of service.

On June 23, 2004, Judge Petrucelli continued the matter. The minute order states the court would provide notice to all parties. The instant appellate record contains proofs of service of notice of the hearing to Fresno County and respondent.

Respondent's Opposition

On August 11, 2004, respondent, in pro. per., filed opposition to appellant's pending motion, and alleged the Lopez & Rodriguez physical therapy bills were fraudulent, appellant never informed him that he owed these bills, and the court's previous order of June 9, 2003, barred the pending OSC.

First, respondent asserted the medical bills submitted by appellant in her pending motion were suspect. Respondent noted that in appellant's first OSC for reimbursement of chiropractic expenses incurred from 1997 to 2000, she submitted bills and statements from Rossi Mobile Chiropractic Services, located at 209 N. Maple in Fresno. Respondent further noted that appellant's current motion was based on bills and statements dated from 1995 to 2003, from Lopez & Rodriguez Medical Profession, at 209 N. Maple in Fresno, with a Zip code of 93552, and the telephone number of 559-5550.

Respondent asserted that neither Rossi nor the Lopez & Rodriguez groups existed. In support of this assertion, respondent submitted a declaration from Dotty Warkentine, dated July 23, 2004, and she declared:

"We have been the owners of 209 N. Maple, Fresno 93702, for 26 years. In that time we have never rented or leased space or any property to Edwin Rossi DC, Rossi Mobile Chiropractic Services, Lopez & Rodriguez Medical Profession, or Paul M. Lopez or Abelordo Rodriguez. Their claim to have conducted business or practiced medicine on my property is entirely false.

"Please also note the incorrect zip code on the Lopez & Rodriguez statement, and the apparently incorrect phone number."

Respondent noted the telephone number Lopez & Rodiguez, printed on the letterhead, had the prefix of "559." Respondent argued such a prefix in Fresno was clearly incorrect, that all the Lopez & Rodriguez bills submitted by appellant from 1995 to 2003 had an incorrect telephone number, and it was "humorous to believe that a doctor's office would not pick up on the wrong phone number in all that time. It would be impossible to think that not one patient in all of that time had a question regarding their medical bill and attempted to call the number stated on the bill."

Respondent also noted the Lopez & Rodriguez bills stated the building's Zip code was 93552, and submitted a documentary exhibit from the United States Postal Service website, that the Zip code for 209 N. Maple in Fresno was 93702-2401. Respondent argued: "If the zip code was wrong, how did the doctor's office obtain payments through the mail? Again, it is impossible to believe that not one patient would bring the discrepancy to the office's attention." Respondent asserted it was "evident from these two obvious discrepancies [the telephone prefix and zip code] that these bills are fraudulent."

Next, respondent declared that medical license searches revealed that Abelordo Rodriguez, M.D., did not exist, and Paul Lopez, M.D., practiced in San Bernadino. "Therefore, it is reasonable to conclude that these were fictitious entities conjured up by [appellant] to commit fraud upon the court and the respondent."

Respondent also raised the issue of the court's order of June 9, 2003, to pay Tiyeondrea's chiropractic expenses incurred from Edwin Rossi and Rossi Mobile Chiropractic Services:

"While the prior claim involving Edwin Rossi, D.C. has been resolved, it is important to point out for purposes of disclosing [appellant's] motives that according to the chiropractic board, Edwin Rossi is also non-existent in their database as well."

Respondent submitted an e-mail exchange which indicated that neither Edwin Rossi, Paul Lopez, nor Abelordo Rodriguez were licensed by the State Chiropractic Board.

Respondent also asserted appellant's pending motion was barred by res judicata, based on the court's order of June 9, 2003, in which it ordered respondent to pay half of Tiyeondrea's chiropractic treatments for scoliosis in 1997 and 1998. Respondent noted that in support of that earlier motion, appellant submitted bills from Rossi, which reflected Tiyeondrea received the identical chiropractic treatment for scoliosis during each visit. Respondent further pointed out appellant's current claim was based on Tiyeondrea's physical therapy treatments for back strain from falling down stairs and an automobile accident in August 1995, the Lopez & Rodriguez bills reflected that Tiyeondrea received the same exact treatment for every visit from September 1995 to December 1996, and she also received an X-ray at the beginning of every month. Respondent queried why Tiyeondrea's scoliosis was not discovered by Lopez & Rodriguez in 1995 or 1996, even though Tiyeondrea allegedly received X-rays, but that Edwin Rossi, the alleged chiropractor, discovered the problem in 1997 and treated her for scoliosis. "This is highly improbable considering the fact that scoliosis involves a curvature of the spine and would be easily diagnosed by a knowledgeable doctor and most certainly diagnosed by a simple x-ray."

Respondent also speculated that Tiyeondrea's injuries in August 1995 "probably resulted or exacerbated the scoliosis that was diagnosed two years later" by Edwin Rossi, such that the two claims were directly related, and the pending motion was barred by res judicata. In the alternative, respondent asserted that appellant should have joined the 1995 and 1996 claims to her earlier OSC for reimbursement for the chiropractic expenses, because both claims were based on ongoing therapy for back injuries.

In addition, respondent asserted that appellant never notified him about the 1995 and 1996 bills, she never sent him the demand letters which she had attached as exhibits to her motion, and he never knew about any of these claims until appellant filed the pending OSC.

Respondent also attacked appellant's claim that she did not previously request repayment for the 1995 and 1996 bills because Family Code section 4063 barred such claims without proof of payment in full, and she was still paying off the balance and interest was accruing. Respondent asserted such a claim was "outlandish," and that section 4063 did not require payment in full before a parent could request another parent to pay such a bill. Respondent also asserted that section 4063 required a parent to request payment within a reasonable time, but not more than 30 days after accruing the costs, and appellant's OSC was not timely because it sought payment of expenses incurred in 1995 and 1996.

Respondent concluded by requesting the court to deny appellant's pending OSC for reimbursement of physical therapy expenses incurred in 1995 and 1996, because it was barred by res judicata, it was fraudulent, and appellant never gave him actual notice of the alleged bills until the pending OSC was filed in January 2004.

Appellant's Reply

On August 12, 2004, appellant filed a reply to respondent's opposition, and asserted her pending OSC was not barred by the court's previous order of June 9, 2003, the court never addressed the 1995 and 1996 claims in that order, and her request for reimbursement of physical therapy expenses was not barred by res judicata or collateral estoppel. Appellant did not address any of respondent's fraud allegations.

The Court's Hearing

On August 25, 2004, Judge Petrucelli held a hearing on appellant's pending motion. Both appellant and respondent were present. The minute order states the court ordered appellant to file the original medical bills at issue prior to September 27, 2004, at which time the matter would be submitted. Again, the instant appellate record does not contain a reporter's transcript. However, the court's subsequent ruling of December 10, 2004, contains the following account of this hearing.

At the hearing, appellant stated "she had just received [respondent's opposition] on or about August 21, 2004, and requested a continuance so that she may respond to his pleadings. A quick review of the court file shows that [appellant] had in fact submitted a response on August 12, 2004. Thus, [appellant's] request was denied and the Court had found that she had lied to the Court by saying she had not responded to [respondent's] responsive declaration. [Appellant] then testified that she had responded to [respondent's] pleadings prematurely based on her belief of how he may respond to her documents."

"The Court asked [appellant] a series of questions. First, the Court asked [appellant] to explain why most of the bills, for in excess of eight years ... had the wrong phone number (559-5550) listed on all the receipts of the alleged clinic where her daughter had been treated for approximately eight years. [Appellant] could not answer that question. The Court asked her if she had ever called the clinic. [Appellant] stated that in her relationship with the chiropractic office, in excess of eight years, [she] had never once called the office by phone--not to make an appointment, cancel an appointment, not to discuss billing, or to discuss her child's condition, or medical insurance coverage."

"[Appellant] stated that she did not prepare the receipts and, therefore, had no explanation for the discrepancy of the phone number. The Court gave [appellant] an opportunity to submit the original receipts, which she claims she had previously photocopied and submitted to the Court, and an explanation for the deficiency in the phone number listed on the receipts. The Court instructed [appellant] that the matter would not be taken under submission until she had complied with the Court's order.…"

"The Court next requested an explanation [for] the wrong zip code (93552) listed on all the bills submitted for the time period for which she now requests reimbursement. Again, [appellant] stated that she could not answer that question because she only photocopied the documents and did not prepare the receipts. The Court admonished [appellant] of the consequences of filing a fraudulent claim, and gave [appellant] the opportunity to withdraw her motion. [Appellant] stated that she was not committing perjury or fraud; thus, she would not withdraw her motion."

"[Respondent] testified that he believes this claim to be without merit and requested the Court to dismiss this action. [Respondent] also claimed this action to be malicious and an abuse of legal proceedings."

The court thus advised appellant about its concerns regarding the validity of the telephone number and Zip code on Lopez & Rodriguez's bill from 1995 and 1996, appellant said she just photocopied the documents and did not prepare the receipts, and the court ordered her to file the original receipts of the copies she had already submitted.

Appellant's Amended Reply

On September 27, 2004, appellant filed an amended rebuttal reply. Appellant claimed she filed her reply of August 12, 2004, without having received or read respondent's opposition. Appellant again asserted her pending OSC for reimbursement of physical therapy expenses incurred in 1995 and 1996 was not barred by res judicata or collateral estoppel, her previous motion was for chiropractic expenses incurred from 1997 to 2000, the court's previous order of June 9, 2003, did not address any expenses for 1995 and 1996, and she did not know about respondent's Kaiser coverage prior to December 30, 1998.

Appellant further declared that Lopez & Rodriguez only accepted cash payments, she did not previously request reimbursement for the 1995 and 1996 bills because she had not yet paid Lopez & Rodriguez in full so the claims were not ripe, she signed promissory notes to Lopez & Rodriguez to cover the balances due, and she notified respondent about these accruing bills but he never paid her. Appellant also noted that respondent's opposition never challenged the reasonableness of the physical therapy expenses for 1995 and 1996.

Appellant again declared that in August 1995, Tiyeondrea fell down a flight of stairs and was in an automobile accident. Appellant declared respondent failed to provide health insurance information to her, and she took Tiyeondrea to Lopez & Rodriguez because it was located in their neighborhood. Appellant declared she was told that treatment was strongly recommended and should commence immediately, and the office would treat Tiyeondrea on credit. She was subsequently informed the office would only accept cash, and she agreed to sign promissory notes.

As to the validity of the bills and statements, appellant declared she did not learn these documents had the wrong telephone number and Zip code until the court asked her about these facts at the hearing on August 25, 2004.

"Since I had seen so many documents bearing the name of LOPEZ & RODRIGUEZ MEDICAL PROFESSION, I was primarily interested in the amount of money paid, the amount due, and the amount of interest being charged."

Appellant further declared that in January 1997, Tiyeondrea was transferred from Dr. Rodriguez to Dr. Lopez for chiropractic treatment, "because the fee for chiropractic services was cheaper than that charged for physical therapy services."^[7]

Appellant declared she provided respondent with monthly bills and receipts for the physical therapy costs, and attached a set of these documents as exhibit A. These documents consist of an entirely different set of billing statements than those filed with appellant's OSC of January 6, 2004. These documents are dated from September 1995 to January 1996, and have the following letterhead, with another telephone number and Zip code than contained in the statements previous filed by appellant:

"LOPEZ & RODRIGUEZ MEDICAL PROFESSION

"PAUL M. LOPEZ, M.D. – ABELORDO RODRIGUEZ, M.D.

"209 N. Maple

"Fresno, CA 93702

"559-449-5550"

These documents thus have the Zip code which Dotty Warkentine declared was the correct Zip code for 209 N. Maple, and a telephone number with "559" as the area code instead of the prefix.

Appellant also filed promissory notes appellant allegedly signed with Lopez & Rodriguez; the promissory notes have the letterhead with the "93702" Zip code and "559-449-5550" telephone number, and are dated from 1996 to 2003.

Appellant also refiled the Lopez & Rodriguez billing statements she originally filed with her January 6, 2004, OSC, which contain the "93552" Zip code and "559-5550" telephone number in the letterhead.

Ashton Moorefield's Declaration

Appellant responded to respondent's allegations of fraud by filing a declaration from "Ashton Moorefield," who claimed to be the "Center Administrator" and "dully-authorized [sic] custodian" of records for Lopez & Rodriguez. Ashton Moorefield's (Moorefield) declaration does not contain any contact information, such as an address or telephone number. The declaration is on pleading paper with a