I reappeared before Judge Mills at 8:30 a.m. on Tuesday, August 16. I was again sentenced
to serve 25 days in jail, penalized $25,000 in fines and sanctions, and immediately taken
into custody. My requests for a stay were again denied.
The sentencing order was filled out in part by Judge Millss clerk, Lori Bogdan, at the
conclusion of the hearing on August 16. Numerous witnesses can confirm this allegation.
The handwritten notes on the order, other than Judge Millss signature, appear to be those
of Ms. Bogdan. The order was signed by Judge Mills, stamped and filed by Ms. Bogdan, and
served at the conclusion of the hearing on August 16. Exhibit A. Numerous witnesses can
confirm this allegation.
On Thursday, August 18, while incarcerated at West County Detention Facility, I
submitted a request to the Operations department of the Contra Costa County Sheriffs
Office to be notified if/when statutory good time credits would be applied and to be
informed of my release date. I did not receive a response.
On Monday, August 22, I submitted another request and spoke with deputies about the
matter on August 22, 23, and 24. Finally, I received a response on Wednesday, August 24
from Civil Superisor, Mary Algandro, stating that good time credits did not apply to my
contempt sentence. Exhibit B.
On Thursday, August 25, my attorney, Jim Morrison (SBN 83772), contacted Ms. Algandro
and informed her that Penal Code 4019(a)(3) required that good time credits be applied to
a civil contempt. Exhibit C. Ms. Algandro informed Mr. Morrison that even if true, a
notation on the order stated:
no good time credits to be given (BCM) (Handwritten note on Page 2 of order)
Mr. Morrison requested a copy of the alleged notation. A copy of the page was faxed to Mr.
Morrison around 10:45 a.m. on August 25. Exhibit D. The copy of the order that Mr.
Morrison received included the notation described above. A timestamp on the order
indicates that it was received by fax by the Sheriffs office on August 17, a day after the
order was filed.
But while the copy of the order received by the Sheriff on August 17 includes the
handwritten notation described above, the filed stamped copy dated August 16
does not. Other than the added note, the copies are identical. Compare Page 2 of the order
in Exhibits C & D (pages 18 & 24 of this complaint).
Mr. Morrison hand-delivered correspondence to Judge Millss mailbox around 1:30 p.m. on
August 25 insisting that the good time credits be applied, wherein he stated that the law
mandated their application. He also noted the inexplicable discrepancy between the filed
order and the Sheriffs copy of the order. Exhibit E.
Within one-and-a-half hours, Judge Mills issued an order granting good time credits, a copy
of which was faxed to Mr. Morrisons office and also faxed to the Sheriff. Exhibit F. I was
informed by a Deputy at West County the same day that my release date would be
commuted to August 28, instead of the original release date of September 9.
The only plausible explanation of these events is that the handwritten note to revoke good
time credits was forged on the sentencing order after it was filed and served, and the
altered version was faxed to the Sheriffs office. As of September 12, the altered version is
still in the court file. No copy of the forged order was ever served on the parties.
It is apparent by inspection that the handwriting of the added note is that of Ms. Bogdan.
Unless Ms. Bogdan acted unilaterally, because the note includes in parentheses, (BCM),
Judge Millss initials, it appears that Judge Mills instructed Ms. Bogdan to add the note
after the order was filed and served on August 16, but before it was faxed to the Sheriff on
August 17.
Further Evidence of Misconduct
At the contempt hearing on Friday, August 12, Judge Mills stated on the record that good
time would be applied and, as such, even if I was sentenced to 25 days, I would only serve
12 or 13 days. Exhibit G. Such a statement indicates that Judge Mills was aware of the
statutory application of good time credits. Indeed, he has been a judge for more than 20
years. A subsequent instruction to revoke good time credits would be contrary to Judge
Millss own statement, and alteration of the order would suggest malicious intent.
Further, at the hearing on August 16, opposing counsel argued that good time credits did
not apply, and Judge Mills refused to accept their argument. At no point during the August
16 hearing did Judge Mills state on the record that he was revoking good time credits. I can
provide the August 16 hearing transcript. The minutes from the August 16 hearing also
provide no indication of such an order. Exhibit H.
After I was released from jail, I went to the Clerks office to obtain a photocopy of the filed
order. Exhibit I. I also took a color photograph of the order. Exhibit J. The filed order
includes the added note. However, it is readily apparent to any person that the note was
written with a different pen. The ink is a different color, and it is thinner than all other
handwriting on the page. The difference can even be observed on the photocopy provided to
me by the Clerk. These facts provide further support that the note was added subsequent to
the order being filed.
Petitioner even filed a motion on August 31, attaching as an exhibit the filed sentencing
order that was served on her, and it does not include the added note.
According to a Classifications Deputy at West County, I was the first person incarcerated at
West County on a civil commitment since the facility opened in 1991, 25 years ago.
It is also important to note that Judge Mills has an extensive history of judicial misconduct.
According to Annual Reports, he has been disciplined five times by the Commission on
Judicial Performance, most recently in 2013 for abusing his power by attempting to alter
the outcome of criminal charges brought against his son:
By communicating his desired resolution of his sons case to the courtroom clerk of the
assigned pro tempore judge through channels not available to the public, [Judge Mills]
created an appearance of impropriety that undermined public confidence in the impartiality
and integrity of the judiciary.
Moreover, the fact that both the courtroom clerk and the pro tempore judge were
subordinate to the judge heightened the appearance and reality of impropriety. In
aggravation, [Judge Mills] had been previously disciplined for using his judicial position to
bypass proper channels on behalf of his son. (Commission on Judicial Performance, 2013
Annual Report)
Witnesses and Additional Information
The primary witnesses are Judge Bruce Mills (925-608-1129), Clerk Lori Bogdan (925-6081129), Contra Costa County Sheriffs Office Civil Supervisor Mary Algandro (925-335-1500),
Bailiff of Department 29 (925-608-1129), Jim Morrison (my counsel, 925-432-4731), Staci
Lambright and Michelene Insalaco (counsels for Petitioner, 415-357-5050), and myself (510717-2567).
There were approximately 15 other witnesses present at the hearing on August 16,
including 3-4 other bailiffs, who can confirm that the original order was signed, stamped,
and filed at the conclusion of the hearing. I can provide you with contact information for
some of the other witnesses.
I believe there may also be audio and video recordings of the hearing. I request that your
office obtain and review these records.
Additionally, I was found in contempt of court for putting information on a website, which
was allegedly in violation of an order restraining data on cell phones used by my ex-wife
and me during our marriage. However, none of the information on the webite was actual
data or reproductions of data from the phones. The information on the website had been
previously disclosed in our voluminous public court file by my ex-wife herself.
In order for Judge Mills to find me in contempt, he had to declare that information placed
in a public court file or presented in oral testminony in open court is not actually public
information. Below is an example of an exchange on August 12 between Judge Mills and my
counsel regarding the issue:
THE COURT: Yeah, I don't know why it would be relevant, because it doesn't
constitute a waiver.
MR. MORRISON: I think it goes to whether it's public or private information.
THE COURT: I understand your position. Matters that are put into court pleadings
and brought up in oral argument before the court do not become public thereby.
MR. MORRISON: I -- okay, I believe that that's directly contrary to the law. And I
have a case -THE COURT: I understand your position.
It is a basic legal principle that information placed in a court file or presented in open court
becomes public. This is one example of absurd legal conclusions that Judge Mills used to
hold me in contempt. I can provide more examples. It is untenable for Judge Mills to claim
that he did not understand such fundamental principles of law. His actions further support
malicious intent.
I can provide full transcripts of the August 12 and August 16 hearings, further testimony
and/or a copy of my Petition for Writ of Habeas Corpus, which further details due process
violations of the August 12 hearing. My attorney and I will also provide additional
important information regarding these matters.
Possible Crimes
Government Code 6200 states that alteration of court recordby a public officer is a felony:
Every officer having the custody of any record, map, or book, or of any paper or
proceeding of any court, filed or deposited in any public office, or placed in his or her
hands for any purpose, is punishable by imprisonment pursuant to subdivision (h) of
Section 1170 of the Penal Code for two, three, or four years if, as to the whole or any
part of the record, map, book, paper, or proceeding, the officer willfully does or
permits any other person to do any of the following:
(a) Steal, remove, or secrete.
(b) Destroy, mutilate, or deface.
(c) Alter or falsify.
Penal Code 470(c) states that alteration of a court judgment constitutes forgery:
(c) Every person who, with the intent to defraud, alters, corrupts, or falsifies any
record of any will, codicil, conveyance, or other instrument, the record of which is by
law evidence, or any record of any judgment of a court or the return of any officer to
any process of any court, is guilty of forgery.
Because Judge Mills and Clerk Bogdan appear to have conspired to alter the order, Penal
Code 182(a)(1) and (5) may also apply:
(a) If two or more person conspire:
(1) To commit any crime.
(5) To commit any act injurious to the public health, to public morals, or to
pervert or obstruct justice, or the due administration of the laws
Conclusion
It is clear that Judge Mills, with and through his Clerk, Lori Bogdan, illegally and
maliciously altered a filed sentencing judgment in an attempt to double the amount of time
that I would spend in jail. This is a black and white case of alteration of a court record by
public officials.
Illegal incarceration is the most serious of offenses. The record supports that Judge Mills
knew revoking good time credits was illegal, which would indicate that he acted
maliciously, and he operated under color of law as a public officer, both aggravating factors.
Likewise, Ms. Bogdan would appear to have commited the forgery while acting as a public
officer.
I have provided copies of this complaint and additional information to other agencies,
organizations, and officials, some of whom are awaiting a response from your office. I hope
this matter will be dealt with appropriately.
Respectfully submitted,
Joseph Sweeney
cc: Steve Moawad, Senior Deputy District Attorney, Government Corruption Division (via
Hand-Delivery and Certified Mail)
Exhibit A
FL415
AITORNEY OR PARTY WITHOUT AlTORNEY (name, state bar number, and sddiass) or
Michelene Insalaco
161711
Sucherman Insalaco LLP
101 Mission Street, Suite 1640
San Francisco, CA 94105
TEl.EPHONENO.(Op!lona.I): (415).357-5050
FAXNO.(Opl/ona/}: (415) 357-50!>1 .
E-MAILAD0Ress(op11onaJJ:
mr@sucherman-insalaco.com
ATTORNEYFOR(NsmeJ:
Keri Evilsizor
.
AUG 16 2016
BRANCH NAME:
RESPONDENTIDEFENDANT:loseph
James Sweeney
OTHER PARENT:
.CASE NUMBER:
013-01648
- -. .
2.
3.
CJ
Petttioner/.Plaintiff -
" . -.
W .Re$pt:mdent/Defendant
,, _
b.
Cl
W requested
!XI requested
W requested
W requested
CJ
Q
requested
requested
D
D
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waived right
waived right
waived right
waived right
W
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waived right
waived right
5.
6.
c.
W
W
W
d.
e.
f.
CJ
CJ
Cl
Citee has freely and voluntarily admitted to the defaults/violations specified in item 6.
There is a factual basis for the plea entered.
Other (specify):
' . ~
a.
b.
See attachment.
Citee is guilty of contempt of court for the following counts (defaults/violations) alleged in the Order to Show Cause imd
Affids..vitforcontempt(j{)rm FL-410l (s.P.eclfY): Counts 1, 2, 3, 4 and 5. (See exhibit D Of OSC filed 12/14/15
'hcla.~ o-\-
tQi Martillllam~
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Paget of3
Farnlly Code, 17400, 17402, 17404
CCP, 1209, 121e
www.coutlilfo.ca.gov
'
PETmONER/PLAINTIFF:
~ESPONDENT1oeFENDANT:
l\en cViJSIZOr
.
Joseph James Sweeney
CASE NUMBER;
013-01648
OTHER PARENT:
a.
7.
Citee is not guilty of contempt of c~urt for thefollowing C:oums (defaults/violations) alleged
8.
CJ
9.
1o.
CJ
11.
, . .
THE COURT ORDERS
12. a.
That the following counts alleged In the Order to Show Cause and Affidavit tor Contempt(form FL-41 O) (specify):
~
CJ
13.
Cl
are dismissed
with prejudice
CJ without prejudice.
.
.
That the request to dismiss. the following counts alleged in the Order to Show Cause and Affidavit tor Contempt{form
FL-410) (specify):
i~ denied.
b.
-- ""''"'"'" "
on (date):
at (time):
14.
W To commence on (date):
on (date) :
15.
a.
b.
16. a.
b.
C:.O t\.~C.U.hu..Q...
at (time) :
"
17.
8 16/16
Sucherman. Insalaco LLP, 101 Mission Stre~t, Suite 1640, San Francisco, CA 94105
[Dfines in the total amount of$
5,000 P~o.bltc!. ~ .0-L4-\.7
Cl The contempt proceedings are suspended on condition that citee comply with all terms and conditions of this order.
CJ Imposition of sentence is suspended on condition that citee comply with all terms and conditions of this order.
CJ Execution of sentence tor CJ
hours of community service
D
hours in county jail
CJ
CJ
CJ
CJ
18.
CJ Citee must seek and maintain employment and must keep written records, copies of which must be forwarded by the 5th day
of each month as follows to the
D Local Child Support Agency CJ court
0 other (specify):
a.
b.
Records of efforts to gain employment must include the name, address, and telephone numbers of Individuals a_n d
firms contacted regarding employment,, the dates of such contact and the anticipated results.
Records of all actual employment must in9h.~e the name of the employer, dates, and hours worked and the gross
and net amounts of income from each employer.
...
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Page2 af3
.'---'
. . PETITIONER/PLAINTIFF:
jREsPoNoENTtoEFENDANT:
l{en Evilsizor
CASE NUMBER:
013-01648
OTHER PARENT:
19. Orders for payments required to be made as conditions of probation or suspension of sentence in this order do not modify a court
ordered support obligation.
20. Citee must provide written notification to the superior court clerk of any change in residence and to
the local child support agency
th'e other party
of any change of residence, Income, or employment within 1o days of the change.
21.
22.
Cl
at (speafy time):
in court department (specify):
room (specify) :
of this court for
compliance review. Citee is ordered to personally appear In court on that date ar_d time.
Cl further hearing
WARNING: Failure to appaar may rMult in i~~uanea of a bMeh warrant for eitaa'~ arr~~
23.
A Warrant of Attachmentwlll issue for citee's arrest Bail is set in the sum of: $
Execution of the Warrant of Attachmentis stayed until (date) :
Other (specify):
.,, . ' ( ..
~ .;.
l.
Date:
CJ
(SIGNATURE OF CITEE)
~BSNmi"roeMs
10
Page3of3
The Order to Show Cause for Contempt related to violations by the citee, Joseph
Sweeney, of a Domestic Violence Restraining Order issued on May 6, 2014 (hereafter
"restraining order"). The restraining order prohibits Mr. Sweeney from "using, delivering,
copying, printing or disclosing the messages or content of Petitioner's test messages or email
messages or notes, or anything else downloaded from her phone or from what has been called the
family computer except as otherwise authorized by the court.''
Mr. Sweeney admitted in prior sworn.testimony and at trial that he is the owner or only
partner of the LLC that owns the website at issue; that he created and posted the content on the
website; and that he had knowledge of the restraining order (and in fact he represented himself ll;t
the appeal of the order and his petition for review of the appellate comt opinion made to the
California Supreme Court).
It is clear beyond any reasonable doubt that the information laid out in Counts. 1-5 of the
. Order to.Show Cause did originate from M.s. Evilsizor's phone~ and computers. This is clear
from the website itself, where Mr. Sweeney, in his own words, admits this information originated
from the phone (see Exhibit B to the OSC and especially the sections cited in Exhibit D and read
into the record at trial). Ms. Evilsizor's testimony also supports this finding.
Mr. Sweeney asserts that because the material at iSS1Ue has been disseminated elsewhere
since the time that he first viewed and downloaded it from Ms. Evilsizor's phones and
computers, for instance when Ms. Evils~r filed her DVPA request for restraining orders, and in
his appeal of the order that was granted, that this is a waiver and he can no longer be required to
comply with the restraining order. The Court does not agree with this position, and finds it
untenable, for a variety of reasons, as laid out in the Court's oral decision as stated on the record..
11
-...,
-.
The information published in relation to Counts 1-5 was without doubt eXtremely
personal and sensitive in nature, a~.d very clearly cove:r:ed by the restraining order:
The information published in each of Counts 1-5 is of a different nature, and each count
lays out a separate and specific violation of the restraining order.
The evidence shows, beyond a reasonable doubt, that a lawful order was made; Mr.
Sweeney had knowledge of the order; Mr. Sweeney had the ability to comply
with. the order; and .
.
:Mr. Sweeney willfully, and indeed maliciously, disobeyed the order.
In the 20 months that this Court has been hearing family law contempt OSCs, during
which it has heard more than 100 such cases, the Court has never incarcerated a citee, until this
case.
Mr. Sweeney's violations of the family court's order are so blatant, and so clearly
malicious and for pmposes of haia.ssing, humiliating, and embarrassing Ms.-.Evilsizor, that there
must be accountability to the full extent permitted by law.
12
Exhibit B
13
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DETENTION FACILITY
(X) INMATE REQUEST FOR INFORMATION
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Request0
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Exhibit C
15
JAMES D. MORRISON
Dear Mary:
Enclosed is a copy of the Court's Order. Mr. Sweeney received 5 days for each
violation for a total of 25 days. Nowhere do I see any provisions that PC 4019 does not
apply. In fact, the Judge reluctantly stated that Mr. Sweeney would be getting half-time.
Penal Code 4019(a)(3) states that Mr. Sweeney is entitled to 4019 credits
(attached). Please correct immediately and contact me. If the Sheriff does not agree,
please contact me immediately so I may take the next step.
Very truly yours,
~\
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If,!
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\HI
JameS,'D. Morrin .
;
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Encls.
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16
. i
FL-415
. FOlf COURT USE ONLY
ATTORNEY OR PARTY WITHOUT ATTORNEY (nams, slats bar number, and addifis) or
GOVERNMENTAL AGENCY (putsuant to FBITIHy Code, "17400, 17404):
Michelene Insalaco
161711
Sucherman . Insalaco LLP
101 Mission Street, Suite 1640
San Francisco, CA 94105
_
TEt.EPHONENO.(Opllona/): (415) 357-5050
FAXNO.(OptlDnBI}; (415) 35750~1
E-MA1LADoREssrop11onav:
mi@sucherman-insalaco.com
ATTORNEY FOR (NsmeJ:
Keri Evilsizor
AUG 1 6 2016
BRANCH NAME:
PETITIONER/PLAINTIFF:
RESPONDENTIDEFENDANT:loseph James
Sweeney
OTHER PARENT:
FINDINGS AND ORDER REGARDING CONTE_MPT
CASE NUMBER:
013-01648
Famil Law
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fXI
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IX]
ll] .Respc;mdent/Defendant.
appointed counsel
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continuance to obtain counsel
a hearing/trial (to cross-examine, call, and compel the attendance of
witnesses)
privilege against self-incrimination
other (specify) :
IXI
W
W
requested
requested
requested
requested
0
i:J
r:::J
0
waived right
waived right waived right
waived right
requested
requested
IXI
waived right
waived right
r:::J
a.
b.
c.
d.
e.
f.
6.
W
W
IX]
0
D
.See attachment.
Citee has freely and voluntarily admitted to the defaults/violations specified In item 6.
There is a factual basis for the plea entered.
Other (specify}:
' .Ji ~
Citee Is guilty of contempt of court for the following counts (defaults/violations) alleged in the Order to Show Cause "and
V,o\a.~~ o-\-
~ BmffiAL fnRMf"
~a:\
Uniform Parentage-Governmental)
17
.-
Page 1 of 3
'.
:-
'
PETITIONER/PLAINTIFF: Ken cVITSIZOr
jRESPONDENT/DEFENDANT: Joseph James
OTHER PARENT:
7.
a.
013-01648
1XJ Citee is not guilty of contempt of c~urt for thefollowing coun~s (defaults/violations) alleged in the oi~e~ to Show Cause ind.
b.
i:::J
..
are dismissed
0 with prejudice
0 without prejudice.
That the request to dismiss. the following counts alleged in ~he Order to Show Cause and Affidavit for Contempt{form
FL-410) (specify):
i~ denied.
14.
at (time) :
".
16. a.
b.
a.
w attorney fees in 'the total amount of$ \ q oao .00 (.-) payable to (specify name):
b.
0
0
The contempt proceedings are suspended on condition that citee comply with all terms and conditions of this order.
Imposition of sentence is suspended on condition that citee comply with all terms and conditions of this order.
17.
0
D. as determined by the community service agency
.
15.
Sucherman. Insalaco LLP, 101 Mission StreSlt, Suite 1640, San Francisco, CA 94105
5,000 ~~o.'olra. ~ ~ -L~ -\.7
D
hours in county jail
hours of community service
will be suspended for a period of
and citee is placed on court probation on condition that citee
comply with all terms and conditions of this order, and
a. D Comply with current support order.
Pay at least$
b.
per month on current support order, payable to (specify name):
commencing (date) :
c. Cl Pay at least $
per mpnth on arrears commencing (date) :
d.
SeNe any remaining hours not suspended as specified in items 13 and 14.
CJ
18.
Citee must seek and maintain employment and must keep written records, copies of which must be forwarded by the 5th day
of each month as follows to the
Local Child Support Agency
court
D other (specify) :
a. Records of efforts to gain employment must include the name, address, and telephone numbers of individuals a_nd
firms contacted regarding employment, the dates of such c0ntact and the anticipated results.
b. Records of all actual employment must ingl~e the name of the employer, dates, and hours worked and the gross
and net amounts of income from each employer.
..._: ...~'. . j.
FL-415 [Rev. July 1, 2003]
(Q) ManinDmu
~ EsSEHilAi FtiRMS"'
18
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CASE NUMBER;
Sweeney
8.
9.
1O.
11.
. ,,
Page2 of3
'----"'.
PETmoNERIPLAINTIFF:
~esPoNoENTtoEFENDANT:
Ken Evifs1zor
Joseph James Sweeney
CASE NUMBER:
013-01648
OTHER PARENT:
19. Orders for payments required to be made as conditions of probation or suspension of sentence in this order do not modify a court
ordered support obligation.
20. Citee must provide written notification to the superior court clerk of any change in residence and to
D the local child support agency D the other party
of any change of residence, income, or employment within 1O days of tne change.
D
D
21.
22.
23.
D
CJ
A Wanant of Attachmentwill issue for citee's arrest Bail is set In the sum of: $
Execution of the Warrant of Attachment is stayed until {date):
at (specify court name):
24.
CJ
Other (specify):
'
further hearing
......... .
CJ
(SIGNATURE OF CITEE)
~ fmNTIAJ. FORMS"'
19
Pege3of3
..
The Order to Show Cause for Contempt related to violations by the citee, Joseph
Sweeney, of a Domestic Violence Restraining Order is~ued on May 6, 2014 (hereafter
"restraining order"). The restraining order prohibits Mr. Sweeney from "using, delivering,
copying, printing or disclosing the messages or content of Petitioner's test messages or email
messages or notes, or anything else downloaded from her phone or from what has been called the
family computer except as otherwise authorized by the court."
Mr. Sweeney asserts that because the material at is~ue has been disseminated elsewhere
since the time that he first viewed and downloaded it from Ms. Evilsizor' s phones and
computers, for instance when Ms. Evils~r filed her DVPA request for restraining orders, and in
his appeal of the order that was granted, that this is a waiver and he can no longer be required to
comply with the restraining order. The Court does not agree with this position, and finds it
untenable, for a variety of reasons, as laid out i,n the Court's oral decision as stated on the record.
Mr. Sweeney further argues thatih~ restraining order is void or unconstitutional.
However, the appellate court has heard his appeal and affirmed the order.
1
20
The information published in relation to Counts 1-5 was without doubt eXtremely
personal and sensitive in nature, all.d very clearly cove~ed by the restraining order:
The information published in each of Counts 1-5 is
21
Page 1of11
4019. Application of section to certain prisoners; w:irkperformance and good behal.ior tirre credit I 11\/estlaw
WEST LAW
NOTES OF DECISIONS (248)
Validity
Equal protection
PenalC.Ode(Refs &Annas)
T'\
~ .....
r'\CT-...
Due process
--!------.i.. __ .J ....1__
- -'
4019. Application of section to certain prisoners; work performance and good behavior time credit
West's Annotated Galifornia Codes
Penal Code
(Approx. 3pages)
Relroactiw application
Preemption
Legislative intent
Proposed Legislation
Purpose
Actual cus tody
Presentence
Effective:January1,2015
custody
Nonpenal institutions
Drug treatment programs
Parole
Probation
-- ""~ ' ~-
..
- - --- -- -Currentness
Electronic monitoring
Weekend sentencing
Private work program
Discretion of court
Mminlstrative determination
-- - -- --
Computation of credit
(a) The provisions of this section shall apply in all of the following cases:
(1) When a prisoner is confined in or committed to a county jail, industrial farm, or road
camp, or any city jail, irdustrial farm, or road camp, including all days of custody from the
date of arrest to the date on which the serving of the sentence commences, urder a
judgment of imprisorment, or a fine and imprisonment until the fine is paid in a criminal
action or proceeding.
Forfeiture of credit
Limitation of custody credits
Ban on credits
Correction of sentence
Youthful offenders
Waiver of credits
Counsel , ineffectiw assistance of
Jneffectiw ass istance of couns el
Abstract of judgment
Judgment, abstract of
(2) When a prisoner is confined in or committed to the county jail, industrial farm, or road
camp or any city jail, industrial farm, or road camp as a condition of probation after
suspension of imposition of a sentence or suspension of execution of sentence, in a
Evidence , sufficiency of
Sufficiency of evidence
Remand
22
Exhibit D
23
r".VV..:1fUU"t
0812512016 10:45
0811712016 16:30
P.0021003
p, 2
No. 0989
,'
PitmONERIPWNTlf'l't
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013-0.1648
s.
11.
Othar~;
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. are 011ml!itd
b.
FL.~10) (IJPff:lr/):
1a.
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to
lade~
. ho~~ OfcommUrufy:nfor'IXl~'(f'.Wal&J:
CJ ciree mustperfMn
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ag ,.o_O<imrne1:10e_on (dJ.:. . 16/1~
eltlia m~ raperHc (sp:Hy}: .. .
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. Md.dtea la"ptl(Cjid '1ccuttp.robatfon:.au~ndlfion that ollt&
campry .With .a11 11i!nilnn~ !=on~ lill''tl'iis ordr. ~nci .-. ...
a. CJeo.mplY.Y.o'fth ~UP.II~~-~
b.
" ,. . . .' .. .
,. . . ' : per .month o!l ci;.ir~nt W?Pgrt ~nisr. pf!~~ to(sp.i;lfy ~;:
.. . . .
c. Cl P!lYatleut$
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and netiamouniti.oflni:omstrom ~h emJi'r. '
: ._. : :
'
l'L-ll'' 11\WV.iuJy 1. ~
(g)BiftW .
F1~DlNG6
.AND
ORDER
ReGAADING
GOl'fteMP'F"
.
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.
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. .
. .
. . . '!.
,,,_:......... ..
... (f.a.,..i1y i.aw.oom-.rc..Viol~.~ ~t'IWftr,itir;i.,~- .
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Plriinta~~t;t) .
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24
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Exhibit E
25
JAMES D. MORRISON
Re:
Evilsizor v. Sweeney
Contra Costa Superior Case No. 013-01648
1JI1
1
Ja1 /.
'Merri
cc:
26
;-
FL-415
FOR COURT USE ONLY
ATTORNEY OR PARTY WITHOUT ATTORNEY (name, state bar number, and addmss} or
Michelene Insalaco
Sucherman . Insalaco LLP
101 Mission Street, Suite 1640
San Francisco, CA 94105
TELEPHONE NO.(Optlonal): ( 415) 357-5050
161711
FAX NO.(Optlonal): (
mi@sucherman-insalaco.com
AnoRNev FOR rrvame;.
Keri Evilsizor
415)
357-50~ 1 .
E-MAILAD0Ressrop11anal):
AUG 1 6 2016
RESPONDENTIDEFENDANTJoseph
James Sweeney
OTHER PARENT:
FINDINGS AND ORDER REGARDING CONTE.MPT
CASE NUMBER:
013-01648
Famil Law
W
W
W
W
0
: ~.
By stipulation
Contested
This matter proceeded as follows: D Uncontested
a. Date;. August 12, 2016
Dept.: _ 29
Judicial officer: Hon. Edward,G.-Mills
Attorney present (name): Michelene Insalaco
b.
Petitioner/Plaintiff present
Attorney present (name): James Morrison
c.
Respondent/Defendant present
Other parent present
d.
D Attom~y
present (nfMT1e): . ~ ..
~
. . ,.a.
,.. . " ~
.
. _ e. . Gove111mental ;liQ_~ncy by (name) :
. . {. 0. 'Odier appearances {specifjr):
..
_
g: Ori'"the' brder to Show Cause and Affidavit tor Contempt(iorm Ft41 O)~ '
Filed by Keri Evilsizor
on (date) : ,December 14, 2015
1.
2.
3.
l.:J
PeiitioAer/Plaintiff
, , . ,
W .Respc:indent/Defendant
'
"
''~
W
W
I.XI
I.XI
W
W
W
W
requested
requested
requested
requested
W
D
0
D
requested
requested
,.~
'
D
I:]
D
0
waived right
waived right
waived right
waived right
waived right
waived right
5.
6.
a.
b.
c.
W
W
d.
e.
f.
0
D
0
Citee has freely and voluntarily admitted to the defaults/violations specified in item 6.
There is a factual basis for the plea entered.
Other (specify):
' Ji ;f
See attachment.
Citee is guilty of contempt of cou"rt for the following counts (defaults/violations) alleged in the Order to Show Cause imd
V'cla."TI.OI" ~ oT-
lC)o=t,
FINDINGS AND ORDER REGARDING CONTEMPT
~ MartiJlDi:an~
~ fSSOOIAl FORMS"'
Page 1 of3
Family Code, 17400, 17402, 11404
~~~~t~1~1
'
,-;
'
'
PETITIONER/PLAINTIFF:
["-REsPONDENT10EFENDANT:
Ken cVITSIZOr
<
CASE NUMBER:
013-01648
OTHER PARENT:
a. [XI
7.
Citee is not guilty of contempt of court for thefollowing coun~s (defaults/violations) alleged in the Or~e~ to Show Cause gind .
AffidavitforContempt(form FL-410) (specify): Counts 6, 7/.8, 9, 10 and 11. (See exhtbtt D of
b.
CJ
8.
9.
D
W
1O.
11 .
,.
..
.~
osc
b.
13.
are dismissed
0 with prejudice
D without prejudice.
That the request to dismiss. the following counts alleged in ~he Order to Show Cause and Affidavit tor Contempt{form
FL-410) (specify):
is denied.
L~~O~(BG""')
14.
at (time) :
r \
....,,:>-
a.
IXl attorney fees in "the total amount of$ \ q 066 00 {fl;- Jpayable to (specify name):
b.
Sucherman. Insalaco LLP, 101 Mission Stre~t, Suite 1640, San Francisco, CA 94105
5,000 P~o.'olc2.. ~ ~ -~ 4.-\.7
D The contempt proceedings are suspended on condition that citee comply with all terms and conditions of this order.
CJ Imposition of sentence is suspended on condition that citee comply with all terms and conditions of this order.
CJ Execution of sentence for Cl
hours of community service
CJ
hours in county jail
16. a.
b.
17.
CJ
18.
Citee must seek and maintain employment and must keep written records, copies of which must be forwarded by the 5th day
of each month as follows to the
D Local Child Support Agency
court
D other (specify):
a. Records of efforts to gain employment must include the name, address, and telephone numbers of individuals a_nd
firms contacted regarding employment, the dates of such contact and the anticipated results.
b. Records of all actual employment must ingh.Jlle the name of the employer, dates, and hours worked and the gross
and net amounts of income from each employer.
CJ
.. .
(Q) llfaninDraiU
~ EsSENTIAt RIRMf"
. .-
28
. j. 'i. ... ~
.~
"'
..
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Page2 af3
.'--"
'--..,/'
PETITIONER/PLAINTIFF:
~esPoNDENTJDEFENDANT:
Keri Evils1zor
Joseph James Sweeney
CASE NUMBER:
013-01648
OTHER PARENT:
19. Orders for payments required to be made as conditions of probation or suspension of sentence in this order do not modify a court
ordered support obligation.
20. Citee must provide written notification to the superior court clerk of any change in residence and to
21.
22.
at (specify.time):
in court department (specify):
room (specify):
of this court for
compliance review. Citee is ordered to personally appear In court on that date aP_d time.
WARNING~ l=ailure to appear may result in issuanes of a bench warran! for citee's arrest.
CJ further hearing
CJ
23.
0
D
A Wanant of Attachmentwlll issue for citee's arrest. Bail is set in the sum
Execution of the Wammt of Attachment is stayed until (date):
at (specify court name) :
24.
Cl
Other (specify):
ot $
' ?(,_),: :
. ~i'' :: .: . . ;, .
~
Date:
CJ
(SIGNATURE OF CITEE)
29
Page3 of3
The Order to Show Cause for Contempt related to violations by the citee, Joseph
Sweeney, of a Domestic Violence Restraining Order issued on May 6, 2014 (hereafter
"restraining order"). The restraining order prohibits Mr. Sweeney from "using, delivering,
copying, printing or disclosing the messages or content of Petitioner's test messages or email
messages or notes, or anything else downloaded from her phone or from what has been called the
family computer except as otherwise authorized by the court."
Mr. Sweeney admitted in prior sworn testimony and at trial that he is the owner or only
partner of the LLC that owns the website at issue; that he created and posted the content on the
website; and that he had knowledge of the restraining order (and in fact he represented himself iI;i.
the appeal of the order and his petition for review of the appellate court opinion made to the
California Supreme Court).
It is clear beyond any reasonable doubt that the information laid out in Counts 1-5 of the
. Order to .Show Cause did originate from ~s. Evilsizor's phone~ and computers. This is clear
from the website itself, where Mr. Sweeney, in his own words, ~ts this information originated
.
from the phone (see Exhibit B to the OSC and especially the sections cited in Exhibit D and read
into the record at trial). Ms. Evilsizor's testimony also supports this finding.
Mr. Sweeney asserts that because the material at is~ue has been disseminated elsewhere
since the time that he first viewed and downloaded it from Ms. Evilsizor' s phones and
computers, for instance when Ms. Evils~r filed her DVPA request for restraining orders, and in
his appeal of the order that was granted, that this is a waiver and he can no longer be required to
comply with the restraining order. The Court does not agree with this position, and finds it
untenable, for a variety of reasons, as laid out j,n the Court's oral decision as stated on the record.
30
-.
The information published in r~lation to Counts 1-5 was without doubt eXtremely
personal and sensitive in nature, and very clearly covez:ed by the restraining order:
The information published in each of Counts 1-5 is of a different nature, and each count
lays out a separate and specific violation of the restraining order.
The evidence shows, beyond a reasonable doubt, that a lawful order was made; Mr.
Sweeney had knowledge of the order; Mr. Sweeney had the ability to c~mply with the order; and .
''
2
31
Page 1 of11
4019. Application of section to certain prisoners: 'M)J'k performance and good beha'.ior tirre credit I Westlaw
WEST LAW
> .,,
,.,, --'-,...
Equal protection
Due process
,-,..CT----!-------.&. .. - . l ..1..1 __
~--.1..L
n ___
,i..__ rn_.1:_
4019. Application of section to certain prisoners; work performance and good behavior time credit
West's Annotated California Codes
Penal Code
Retroactiw application
Preemption
Legislatiw intent
Proposed Legislation
Purpose
Actual custody
Presentence custody
Effective:January1,2015
Nonpenal institutions
Drug treatment programs
Parole
Probation
Electronic monitoring
Weekend sentencing
Private work program
.. . . . . ,, h ' "
Discretion of court
- - - -- -- - - __ Currentness _ _ __ _._ __ _
Administratiw determination
Computation of credit
(a) The provisions of this section shall apply in all of the following cases:
(1) \f\lhen a prisoner is confined in or committed to a county jail, industrial farm, or road
camp, or any city jail, irdustrial farm, or road camp, including all days of custody from the
date of arrest to the date on which the serving of the sentence commences, urder a
judgment of imprisonment, or a fine and imprisonment until the fine is paid in a criminal
action or proceeding.
Forfeiture of credit
Limitation of custody credits
Ban on credits
Correction of sentence
Youthful offenders
Waiwr of credits
Counsel, ineffectiw assistance of
lneffectiw assistance of counsel
Abstract of judgment
Judgment. abstract of
(2) V\lllen a prisoner is confined in or committed to the county jail, industrial farm, or road
camp or any city jail, industrial farm, or road camp as a condition of probation after
suspension of imposition of a sentence or suspension of execution of sentence, in a
criminal action or proceeding.
E-.idence, sufficiency of
Sufficiency of e>Adence
Remand
(3) \M1en a prisoner is confined in or committed to the county jail, industrial farm, or road
camp or any city jail, industrial farm, or road camp for a definite period of time for
contempt pursuant to a proceeding, other than a criminal action or proceeding.
(4) V\lllen a prisoner is confined in a cotrlty jail, industrial farm, or road camp, or a city
jail, industrial farm, or road camp following arrest and prior to the imposition of sentence
for a felony conviction.
(5) \f\lhen a prisoner is confined in a county jail, industrial farm, or road camp, or a city
jail, industrial farm, or road camp as part of custodial sanction imposed following a
violation of postrelease community supervision or parole.
(6) V\lllen a prisoner is confined in a .county jail, industrial faITTl, or road camp, or a city
32
t' .UU,j1UU4
0812512016
0811712016
17,
Aug.
10:45
P.0021003
15:30
201~
P. 2 , '
Mo. 0989
3:17PM
..
PetmONiR!Pt.AINTll'~
.er
'
('
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'
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013-0.1648
Orf-leR PARENT:
a'""
walVed ~for eentendng.
ID Citee \Wived tTme for tl'IEIL
.
8.
9,
1O.
11.
;(
ord,ered,
...
are olaml!Hd .
1!,
C ~ ~udlo~
:.
Cl Wrth~ul ~~JUdJi;,~ .
Fl."410) (~~):
...
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. ftdt!'l!ed.
Clte:e rnustperfoon
. hou~ Qf~gmmUmiva~Torco~(IPWQfM:
.
a. l;;J To cormMl'tet on (4Bta)i . ._ . ": : ...... to be ~lt.tff t1Y(dlf>.~
b. :J ~~:'m~Patin adrTilrir~~ in
14.
: . , "
CJ Tliat thtl 1'9Cp~Ug ~i~-lt\~ .fi111Qwi):llj oOunm lllllged Itt\heOrderto 6)'low OIU# and Al'l'ldaVlt tot Cotlltmpf(fOfm
b.
.-r~
c;S
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on (data).
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1s. tXl Cttea mustpai. ~~
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\ct.oeo -~_{Gv-)j~abltO(~namit):
Sucherman. -I~laco .LLP~ .101 Mrssloo :~_et ~~1~ .~$~,. sanFranc1sco, CA 94105
a. .!latt~l!'ltt:itotil'amoLi1td.fi
18. l.
b.
11.
b. Wiina.lnttie~amc;i~m~: :
.
s,ooa P~o.'Ola..~~-tq!"F:\.7
Q ThtWftml)t proc.adlng.- era fUIPffl~{ln.eondltl~. that oi..:~plywbttaO ~and OOl'ldlfona of this ord8r.
D 1mpmltlol'.\. ch1~mence l5 sl,lspended ori OOl'!d~ion th~ ~-~pmply 'With a!'! fermii.uc! <:Ol"I~ of thfs OJ$r~
Cl ~ot.~enoet(,,. .er
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t\ourl:~~. .~
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~ahY~aln~Q' h~.ri~ st.1aplll'I.~ ~.SP.t'$!S Jr\~:~3..a,:,d f.4..
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Exhibit F
34
AU.
'l
t).
11
Lu11\', l)(
2
3
6
7
:..1
Keri Evilsizer,
l .2
Case No.Dl3-01648
Petitioner
14
VS.
:s
., Joseph SweeneY,i
16
R espondent
17
18
The Court modifies t.he sentence imposed on August 16~ 201 as follows:
20
::n
The Respondent Joseph Sweeney having been ordered to serve 25 days county jail is
23
24
25
August 2 5~ 2016
Bruce C. :Mills
JLTIGE OF TIIE SUPERIOR COURT
- 1-
35
No. : 01 G P.
- - -- - - 1
Exhibit G
36
MR. MORRISON:
THE COURT:
community service.
6
7
MR. MORRISON:
service.
8
9
THE COURT:
I don't find it
10
appropriate.
11
12
13
MS. INSALACO:
14
Mr. Sweeney has acted as if he's above the law and the
15
Court's orders.
16
17
18
19
20
21
sorry, I don't know the right term you used, but the --
22
THE COURT:
23
24
he's also going to get one day good time for each day
25
26
or 13?
27
THE BAILIFF:
28
THE COURT:
But
Yes.
So the reality is he'll only serve
86
37
2
3
MS. INSALACO:
THE COURT:
MS. INSALACO:
6
7
8
9
times.
Right.
THE COURT:
as of now?
MR. MORRISON:
THE COURT:
11
MS. INSALACO:
12
THE COURT:
14
10
13
18,000.
Even?
Let's see.
15
16
17
18
19
THE COURT:
I think I misspoke.
20
21
22
23
24
THE COURT:
I think this
Prior to
25
26
27
28
THE COURT:
Exhibit H
39
REPORTER: REBOLLINI
CLERK: S. TIGUE
KERI EVILSIZOR
PLAINTIFF(S)
vs.
citee must pay the Petitioners court costs and fee's in the amount of
$930.00, along with Attorney fee's in the sum of $19,080.00. The
total amount owed is $20,010.00 payable to Scherman Insalaco LLP.
citee is remanded to the custody of the sheriff.
Date:
08/16/16
BY
Deputy clerk
40
Exhibit I
41
FL-415
FOR COURT USE ONLY
ATTORNEY OR PARTY WITHOUT ATTORNEY (name, state bar number, and address) or
GOVERNMENTAL AGENCY (pursuantto Family Code, 17400, 17404):
Michelene Insalaco
161711
Sucherman . Insalaco LLP
101 Mission Street, Suite 1640
San Francisco, CA 94105
TELEPHONENO.(Opffona/): (415) 357-5050
FAXNO .(Optional): (415) 357-5051
E-MA1LAooREss1op/iona1J:
mi@sucherman-insalaco.com
ATTORNEY FOR INameJ:
Keri Evilsizor
: i
i f.'"""'-- .f ~
MAILINGAooREss:
BRANCH NAME:
1.
g:
3.
013-01648
W
D
2.
CASE NUMBER:
' ~
'
D .
Petitioner/Plaintiff
Re$pondent/Defendant
'
"'.
' '
,. ~
W
W
W
W
W
W
W
W
requested
requested
requested
requested
D
D
D
D
waived
waived
waived
waived
W
D
D
D
requested
requested
waived right
waived right
right
right
right
right
5.
6.
a.
b.
c.
W
W
W
d.
e.
t.
Citee has freely and voluntarily admitted to the defaults/violations specified in item 6.
There is a factual basis tor the plea entered.
Other (specify) :
See attachment.
Citee is guilty of contempt of court for the following counts (defaults/violations) alleged in the Order to Show Cause and
AffidavittorContempt~irm FL-410) (~pecify): Counts 1, 2, 3, 4 and 5. (See exhibit D of OSC filed 12/14/15
V,cla.~
ot-
l,;)o:\
Page 1 of 3
42
www.cou rrlnfo.c;u.9ov
:~'.
PET1T10NERJPLAINTIFF:
esPONDENT/DEFENDANT:
OTHER PARENT:
7.
a.
Ken Evilsizor
Joseph James Sweeney
osc
9.
0
W
10.
11.
013-01648
Citee is not guilty of contempt of court for the following counts (defaults/violations) alleged in the Order to Show Cause and
AffidavitforContempt(form FL-410) (specify): Counts 6, 7,8, 9, 10 and 11. (See exhibit D of
b.
8.
CASE NUMBER:
13.
14.
15.
-r ~
0 ~ (BG Ill\)
0 ,
-'6r\..hu:>
Cout\-\'
Lol\.~c.u.h.u'_o_.
. .\.- .
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('\o %~
-+o
The contempt proceedings are suspended on condition that citee comply with all terms and conditions of this order.
Imposition of sentence is suspended on condition that citee comply with all terms and conditions of this order.
18.
Q.QQ.\.D~
1
{fJCA'(,
~ r{) .'.'Sc""-)
006 00 {IP--) payable to (specify name):
Sucherman . Insalaco LLP, 101 Mission Stre~t, Suite 1640, San Francisco, CA 94105
W fines in the total amount of$
5,000 l-'~o.'olG.. ~ Q -l 4.-\.7
b.
16. a.
b.
d5
17.
are dismissed
0 with prejudice
D without prejudice.
That the request to dismiss the following counts alleged in the Order to Show Cause and Affidavit tor Contempt(form
FL-410) (specify):
is denied.
b.
Citee must seek and maintain employment and must keep written records, copies of which must be forwarded by the 5th day
of each month as follows to the
Local Child Support Agency
court
other (specify) :
a. Records of efforts to gain employment must include the name, address, and telephone numbers of individuals and
firms contacted regarding employment, the dates of such contact and the anticipated results.
b. Records of all actual employment must include the name of the employer, dates, and hours worked and the gross
and net amounts of income from each employer.
,
FL-415 [Rev. July 1, 2003)
~ BS~N~Al.FDRM)
43
..
Page 2 of 3
.J
PETITIONER/PLAINTIFF: -Ken Evilsizor
jREsPONDENTtDEFENDANT: Joseph James
CASE NUMBER:
013-01648
Sweeney
OTHER PARENT:
19. Orders for payments required to be made as conditions of probation or suspension of sentence in this order do not modify a court
ordered support obligation.
20. Citee must provide written notification to the superior court clerk of any change in residence and to
the local child support agency
the other party
of any change of residence, income, or employment within 10 days of the change.
21.
22.
D
23.
A Warrant of Attachmentwill issue for citee's arrest. Bail is set in the sum of: $
Execution of the Warrant of Attachment is stayed until (date) :
at (specify court name):
24.
Other (specify):
;l.
Date:
a-
I,,
further hearing
l1t-
r-
2tfl
(SIGNATURE OF CITEE)
~ ~SE~AtFORMS-
44
Page 3 of 3
l
The Order to Show Cause for Contempt related to violations by the citee, Joseph
Sweeney, of a Domestic Violence Restraining Order issued on May 6, 2014 (hereafter
"restraining order"). The restraining order prohibits Mr. Sweeney from "using, delivering,
copying, printing or disclosing the messages or content of Petitioner's test messages or email
messages or notes, or anything else downloaded from her phone or from what has been called the
family computer except as otherwise authorized by the court."
45
The information published in relation to Counts 1-5 was without doubt extremely
personal and sensitive in nature, and very clearly covered by the restraining order.
The information published in each of Counts 1-5 is of a different nature, and each count
lays out a separate and specific violation of the restraining order.
The evidence shows, beyond a reasonable doubt, that a lawful order was made; Mr.
Sweeney had knowledge of the order; Mr. Sweeney had the ability to comply with the order; and
46
Exhibit J
47
0
W
D
D
8.
9.
10.
11.
T
HE a.
COURT ORDERS
12.
That the following counts alleged in the Order to Show Cause and Affidavit for Contempt(form FL-410) (specify) :
are dismissed
with prejudice
without prejudice.
That the request to dismiss the following counts alleged in the Order to Show Cause and Affidavit for Contempt(lorm
b.
FL-410) (specify):
13.
is denied.
b.
-rq~O
~ (BC."'-) 0
14.
at (time):
on (date):
Citee must pay an administrative lee
of$
as determined by the community service agency
C~2ft-~ ~ ~
4<J\3() .<:C {il~
q cfB6 <::O {ES-)
at (time):
17.
(\o
+o
~ -\--
~
' rr&.,
f'\ n n ,
~e,o() /Be....... )
Sucherman. Insalaco LLP, 101 Mission Stre~t, Suite 1640, San Francisco, CA 94105
..5,000 P~o.'ol'2.. ~.0-~4-\.7
The contempt proceedings are suspended on condition that c1tee comply with all terms and conditions of this order.
Imposition of sentence is suspended on condition that citee comply with all terms and conditions of this order.
Cl
18.
Cl
Cl
Cl Pay at least$
per month on arrears commencing (date):
Cl Serve any remaining hours not suspended as specified in items 13 and 14.
Cl Citee must seek and maintain employment and must keep written records, copies of which must be forwarded by the 5th day
of each month as follows to the
Cl Local Child Support Agency D court
Cl
(specify):
a. other
Records
of efforts to gain employment must include the name, address, and telephone numbers of individuals and
b.
firms contacted regarding employment, the dates of such contact and the anticipated results.
Records of all actual employment must include the name of the employer, dates, and hours worked and the gross
and net amounts of income from each employer.
Page 2 of 3
1191HX3
~ J.181HX3
48
8 .ll81HX3
_L..
V"...,..,_. rt:>
IX) tinesinthetotala~ountof$
b.
16. a.
b.
5~ ~ch
.in the county jaillor xounts (specify): 1, 2, 3, 4 and 5.Cov.'\;8 16/16 +'or\.hu.> ~o be completed by (date):
Cs> n.~c.u.h0-A.- 11 .
'I 1181HX3
is denied.
ify name):
Francisco, CA 94105
-\4.--\1
and conditions of this order.
conditions of this order.
49