Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for writ of mandate. Robert J. Lemkau, Judge. Petition granted., Super.Ct. No. FAMVS1000021.
Wilmert Law Group, LLP, Larisa Wilmert and Darin Wilmert for Petitioner.
No appearance for Respondent.
No appearance for Real Party in Interest.
MILLER J.
The court has read and considered the petition, as well as the record in this proceeding. Real party in interest has been invited to file an informal response but has declined to do so. We have concluded that an alternative writ would add nothing to the presentation already made and would cause undue delay in resolving this matter. We therefore issue a peremptory writ in the first instance. (Code Civ. Proc., § 1088; Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178-179; Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1222-1223, disapproved on another ground in Hassan v. Mercy American River Hospital (2003) 31 Cal.4th 709, 724, fn. 4.)
The Servicemembers Civil Relief Act (SCRA) (50 U.S.C. Appx. §§ 501–596) applies to any judicial proceeding in state court, except criminal proceedings (50 U.S.C. Appx. § 512(a), (b)).
Upon application, a military servicemember who is a party to a civil action is entitled to a stay of the proceedings for at least 90 days. The application must include a letter setting forth facts that show how current military duty requirements materially affect the servicemember’s ability to appear and stating a date when the servicemember will be available to appear, and a letter from the commanding officer stating that the servicemember’s current military duty prevents appearance and that military leave is not authorized at the time of the letter. (In re A.R. (2009) 170 Cal.App.4th 733, 742 [SCRA applies to juvenile dependency proceedings].)
The court must stay the proceeding for not less than 90 days upon such an application. Any additional stay is discretionary. (George P. v. Superior Court (2005) 127 Cal.App.4th 216.)
Petitioner’s written motion to vacate the February 8, 2010 orders did refer to the SCRA and did include the required statements. The trial court was made aware that petitioner had been deployed to Afghanistan, and it was obligated to issue a stay. Instead, it proceeded to enter orders regarding jurisdiction, paternity and custody. It even authorized real party in interest to bring back petitioner’s minor child from Wisconsin.
Consequently, the trial court’s orders must be vacated as they were entered in violation of the mandatory stay authorized under the SCRA. Vacation of these orders would entail returning the minor child to Wisconsin. However, we believe that mediation of these matters would be appropriate and in the best interests of the minor. Such mediation can only occur if petitioner agrees. Thus, when we return this case to the superior court, we encourage the parties to agree to mediation of these matters.
DISPOSITION
Let a peremptory writ of mandate issue directing the Superior Court of San Bernardino County to set aside all orders previously made. However, if petitioner agrees, the trial court may refer the case to mediation and enter orders pending further proceedings upon petitioner’s return from deployment.
Petitioner is directed to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties.
Petitioner is awarded her costs on appeal.
We concur: RAMIREZ P. J., HOLLENHORST J.