There is No Time Limit for Objecting to the Subject

Appellant argues that somehow I waived my right to object to subject matter jurisdiction because I didn’t file a motion for reconsideration of Judge Darwin’s March 6 ex-parte temporary custody and visitation order within 10 days after service of the order on me. But, an exorbitant amount of California cases have held that subject matter jurisdiction can be raised at any stage of the proceeding and cannot be waived or created by stipulation or consent:

a. Subject matter jurisdiction relates to the court’s fundamental authority to hear and decide a particular case: Totten v. Hill (2007) 154 Cal.App.4th 40, 46 [64 Cal. Rptr. 3d 357, 361 ("Lack of jurisdiction in its most fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties”); Abelleira v. District

Court of Appeal (1941) 17 Cal. 2d 280, 288, 109 P.2d 942.) (“The lack of subject

matter jurisdiction in the fundamental sense argued by Guadalupe means an entire absence of power to hear or determine the case”); Dabney v. Dabney, 104 Cal. App.

4th 379, 127 Cal. Rptr. 2d 917(“Fundamental or "subject matter" jurisdiction

relates to the inherent authority of the court to decide the case or matter before it. (Conservatorship of O'Connor (1996) 48 Cal. App. 4th 1076, 1087, 56 Cal. Rptr. 2d 386; Barnick v. Longs Drug Stores, Inc., 203 Cal.App.3d 377, 379 (Cal. Ct. App. 1988) (“ Subject matter jurisdiction is the "power to hear or determine the case”);

b. Subject matter jurisdiction cannot be waived and may be raised at any time: West v. Super.Ct. (Lockrem) (1997) 59 CA4th 302, 309, 69 CR2d 160, 164)

(A judgment rendered on defective subject matter jurisdiction is void and of no force

or effect; it may be challenged by timely appeal or by collateral attack at any time, even though the issue was not raised at the trial court level); Keiffer v. Bechtel

Corp. (1998) 65 Cal. App. 4th 893, 896, 76 Cal. Rptr. 2d 827) ("The adequacy of

the court's subject matter jurisdiction must be addressed whenever that issue comes to the court's attention)"; In re Gloria A. (2013) 213 Cal.App.4th 476, 481 [152 Cal. Rptr. 3d 550] (“An alleged lack of subject matter jurisdiction must be addressed whenever it comes to a court's attention”; Consolidated Theatres, Inc. v

Theatrical Stage Employees Union (l968) 69 Cal.2d 713, 721 [73 Cal. Rptr. 213,

447 P.2d 325] (first raised on appeal); Saffer v. JP Morgan Chase Bank, N.A. (2014) 225 Cal. App. 4th 1239, 1246, 171 Cal. Rptr. 3d 111 (Subject matter jurisdiction may be raised for the first time on appeal); Russell v. Electrical Workers Local 569 (1966) 64 Cal.2d 22, 28, fn. 5 [48 Cal.Rptr. 702, 409 P.2d 926](Subject matter jurisdiction was not waived by not raising it at the trial court).; see Emery v. Pacific

Employers Ins. Co. (1937) 8 Cal.2d 663, 665-666 [67 P.2d 1046] (subject matter

jurisdiction may be raised for the first time on appeal); Costa v. Banta (1950) 98 Cal.App.2d 181, 182 [219 P.2d 478] (Although the jurisdiction of that court was not questioned during the trial, it is well established that questions of jurisdiction are never waived and may be raised for the first time on appeal. ( Hallock v. Jaudin, 34 Cal. 167, 173; Emery v. Pacific Employers Ins. Co., 8 Cal.2d 663, 665-666 [ 67 P.2d 1046]; Norager v. Mountain States L. Ins. Co., 10 Cal.App.2d 188, 192 [ 51 P.2d 443]; Schwartz, Inc. v. Burnett Pharmacy, 112 Cal.App. Supp. 781, 784-785 [295 P. 508]; Penaat v. Guasco, 84 Cal.App.2d 445, 453 [ 191 P.2d 564]; Berryman v. Quinlan, 29 Cal.App.2d 608, 613 [ 85 P.2d 202]; Meena v. Blau, CASE NUMBER: CV 19-01520-CJC (AGRx) (C.D. Cal. Mar. 8, 2019) (“It is elementary that the subject matter jurisdiction of the district court is not a waivable matter and may be raised at anytime by one of the parties, by motion or in the responsive pleadings, or sua sponte by the trial or reviewing court." Emrich v. Touche Ross &

Co., 846 F.2d 1190, 1194 n.2 (9th Cir. 1988; Schlumpf v. Superior Court of Trinity County (145 Cal.Rptr. 190, 79 Cal.App.3d 892 (1978) (Husband did not waive his

right to challenge jurisdiction of California court under statute by waiting to raise the issue until after he had made his appearance; that objection is not waived by the failure to raise it at the earliest possible time); People v. Lara (2010) 48 Cal.4th 216, 225 [106 Cal. Rptr. 3d 208, 226 P.3d 322] (It may be considered for the first time on appeal); Great Western Casinos, Inc. v. Morongo Band of Mission

Indians (1999) 74 Cal.App.4th 1407, 1417–1418 [88 Cal. Rptr. 2d 828] (Objecting

to subject matter jurisdiction requires no particular procedural vehicle); Lack of jurisdiction is not subject to waiver and may be raised at any stage of the

proceedings (Sampsell v. Superior Court, 32 Cal. 2d 763, 773

[197 P.2d 739]; People v. Coit Ranch, Inc., 204 Cal. App. 2d 52, 57 [21 Cal. Rptr. 875]). Harding v. Harding (2002) 99 CA4th 626, 636, 121 CR2d 450, 458, cert.den. (2003) 537 US 1234 (A party’s general appearance cannot cure defective subject matter jurisdiction).

Appellant argues that based on an e-mail sent by me to Appellant’s attorney on December 28, 2018 (8 AA 1572) and the Attorney’s e-mail to me on December 29, (5 AA 997) that I consented to proceed with this case in California or that I am estopped to deny that California has subject matter jurisdiction in this child custody case. At that time I was willing to litigate in California (consent to personal jurisdiction) since the only issue was child support. Up to that time I had sole custody of the child, he father had refused to communicate with me, and the father had shown no interest in having custody of the child. When the father illegally took my child from me four months later by filing a Request for a Domestic Violence Order and custody and child visitation became issues, I was not willing to litigate that in the California court—far from where I lived in Utah--because Utah was the home state of the child). The courts have been unanimous that the e-mails cannot create subject matter jurisdiction for this court:

c. Subject matter jurisdiction cannot be created by consent, waiver or estoppel. Appellant himself states in his Opening Brief, “Subject matter jurisdiction is determined as of the time the petition is filed and cannot be conferred by stipulation, consent, waiver or estoppel” (AOB p. 31). Appellant cites: In re A.M. (2014) 224 Cal. App.4th 593, 598; Brewer v. Carter (2013) 218

Cal.App.4th 1312, 1316-17). See also: In re Nurie, 176 Cal.App.4th 478, 491 (2009); In re Marriage of Sareen, 153 Cal.App.4th 371, 376; In re Marriage of Newsome, 68 Cal.App.4th 949, 955-56) (1998). In the Ocegueda v. Perreira case (attached as

Exhibit B) the court said: “Subject matter jurisdiction cannot be created by the stipulation or consent of the parties or by waiver or estoppel.” (p. 1083); Accord:

In re A.C. (2005), 130 Cal.App.4th 854, 860; In re Marriage of Ben-Yehoushua (1979), 91 Cal.App.3d 259, 263, 154 Cal Rptr 80. Subject matter jurisdiction may not be “conferred by consent, waiver, agreement, acquiescence, or estoppel” (Totten, supra, 154 Cal.App.4th at p. 47.); Marriage of Jensen (2003) 114 Cal.App.4th 587, 592; 7 Cal. Rptr. 3d 701, 705 ("Jurisdiction in any proceeding is conferred by law; that is, by the Constitution or by statute. Jurisdiction of the subject-matter cannot be given, enlarged, or waived by the parties." ( Harrington v.

Superior Court (1924) 194 Cal. 185, 188 [ 228 P. 15];) The parties cannot by their

consent confer jurisdiction. (Norager v. Mountain States Life Ins. Co., 10 Cal. App.2d 188 [ 51 P.2d 443]; Adolph M. Schwartz, Inc., v. Burnett Pharmacy, 112 Cal.App. (Supp.) 781, 784 [295 P. 508]; Maguire v. Cunningham, 64 Cal.App. 536, 540 [222 P. 838]; Summers v. Superior Court (1959) 53 Cal.2d 295, 298 [1 Cal. Rptr. 324, 347 P.2d 668] (Jurisdiction over the subject matter cannot be created by consent, waiver, or estoppel). Friedman v. Eighth Judic. Dist. Ct, 264 P.3d 1161 (Nev. 22011) (“A court that lacks subject matter jurisdiction under the UCCJEA does not acquire it by estoppel”).

8. Judge Darwin Had Inherent Authority to Modify His Own Interim