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v.
Plaintiffs-Appellants,
Defendants-Appellees.
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TABLE OF CONTENTS
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Introduction .................................................................................................... 1
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III.
IV.
A.
B.
2.
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A.
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c.
b.
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V.
B.
C.
Conclusion ................................................................................................... 37
Statement of Related Cases.......................................................................... 38
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Addendum .................................................................................................... 39
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TABLE OF AUTHORITIES
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CASES
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Cunningham v. Mahoney
C 10-03211 JSW (N.D. Cal. Dec. 7, 2010) ....................................... 17
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TABLE OF AUTHORITIES
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Harris v. McRae
448 U.S. 297 (1980)........................................................................... 21
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Hiramanek v. Clark
C-13-0228 EMC, 2013 WL 3803613 (N.D. Cal. July 19, 2013) ...... 33
Hoye v. City of Oakland
653 F.3d 835 (9th Cir. 2011) ............................................................. 18
In re Marriage of Brown & Yana
37 Cal. 4th 947 (2006) ....................................................................... 29
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In re Marriage of Lucio
161 Cal. App. 4th 1068 (2008) .......................................................... 29
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In re R.H.
170 Cal. App. 4th 678 (2009) ...................................................... 29, 35
Kobayashi v. Superior Court
175 Cal. App. 4th 536 (2009) ............................................................ 34
L.A. Branch NAACP v. L.A. Unified Sch. Dist.
714 F.2d 946 (9th Cir. 1983) ....................................................... 12, 14
L.A. County Bar Assn v. Eu
979 F.2d 697 (9th Cir. 1992) ........................................... 11, 13, 14, 15
Long v. Cnty. of Los Angeles
442 F.3d 1178 (9th Cir. 2006) ........................................................... 19
Long v. Van de Kamp
961 F.2d 151 (9th Cir. 1992) ............................................................. 11
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Luckett v. Panos
161 Cal. App. 4th 77 (2008) .............................................................. 34
M.L.B. v. S.L.J.
519 U.S. 102 (1996).................................................................... passim
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Ortwein v. Schwab
410 U.S. 656 (1973)..................................................................... 21, 22
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Papasan v. Allain
478 U.S. 265 (1986)........................................................................... 10
Pennhurst State Sch. & Hosp. v. Halderman
465 U.S. 89 (1984)....................................................................... 10, 11
Quan v. Computer Sciences Corp.
623 F.3d 870 (9th Cir. 2010) ............................................................. 36
Quern v. Jordan
440 U.S. 332 (1979)........................................................................... 10
Rodriguez v. Cook
169 F.3d 1176, 1178 (9th Cir. 1999) ................................................. 22
Sakamoto v. Duty Free Shoppers, Ltd.
764 F.2d 1285 (9th Cir.1985) ............................................................ 15
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Taylor v. Delatoore
281 F.3d 844 (9th Cir. 2002) ............................................................. 32
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Taylor v. Sturgell
553 U.S. 880 (2008)..................................................................... 16, 17
Thompson v. Paul
547 F.3d 1055 (9th Cir. 2008) ............................................................. 9
Troxel v. Granville
530 U.S. 57 (2000)............................................................................. 24
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CONSTITUTIONAL PROVISIONS
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Ninth Circuit
Rule 28-2.7 .......................................................................................... 3
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INTRODUCTION
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equal protection and due process rights. The VLS requires self-represented
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receive rational basis scrutiny. Heightened scrutiny would apply only if the
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previously applied rational basis review to find that the VLS does not violate
constitutional rights, because the VLS still allows vexatious litigants to
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access the courts. This Court should therefore affirm the dismissal of
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plaintiffs claims.
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JURISDICTIONAL STATEMENT
The district court had federal question jurisdiction over this case
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The district court entered the order granting the motion to dismiss and
the resulting judgment on August 13, 2013. ER-6. On August 19, 2013,
plaintiffs filed a motion to amend the judgment, ER-5, which the district
court denied on October 4, 2013, ER-2. Plaintiffs filed the notice of appeal
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on October 23, 2013. ER-1. This appeal is timely under Federal Rule of
ISSUES PRESENTED
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1. Does the Eleventh Amendment bar all claims, if the defendants, the
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claims, if he raised the same challenges in a previous action, and that matter
proceeded to a final judgment?
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equal protection and due process, if the VLS uses no suspect classification,
permits continued access to the courts, and does not prevent litigants from
filing for divorce or appealing parental status terminations?
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53 Cal. App. 4th 43, 48 (1997) (citation omitted). The statute allows a judge
permission of the presiding judge or justice before filing any new pro se
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391.7(a); McColm v. Westwood Park Assn, 62 Cal. App. 4th 1211, 1217
(1998) (the [Court of Appeal] will enforce the vexatious litigant statute by
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at least five litigations other than in a small claims court that have
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(id. 391(b)(4)).
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material change in the facts upon which the order was granted and that the
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under the VLS in the context of custody proceedings before various state
superior courts. They purport to represent a class of parents engaged in
custody disputes in the family law courts (and on appeal with appellate
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Litigant Statute and whose access to state courts, both trial courts and
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courts) who have been declared vexatious under the California Vexatious
Complaint 63. Defendants are the Chief Justice of the State of California,
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in her role as the Chair of the California Judicial Council, and the
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Clause, the First Amendment, the prohibition on Bills of Attainder, and the
Ex Post Facto Clause. SER at 5681, Complaint 66143.
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The district court dismissed all claims with prejudice, finding that the
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claims against the Administrative Director of the Courts were barred by the
Eleventh Amendment;2 that the claims raised by plaintiff Archibald
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The district court found that the claims against the Chief Justice
were not barred by sovereign immunity, relying on Wolfe v. Strankman, 392
F.3d 358 (9th Cir. 2004). ER-6 at 53.
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Cunningham were barred by issue and claim preclusion; and that plaintiffs
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adjudicated vexatious litigants to show that any new litigation they seek to
file has merit, and is not for the purpose of harassment or delay. Plaintiffs
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entirely blocks litigants from accessing the courts for the purpose of filing
for divorce or appealing the termination of parental rightsconditions not
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alleged here.
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the courts. The VLS thus receives, and satisfies, rational basis scrutiny.
Even if heightened scrutiny were to apply, the VLS is narrowly tailored to
meet a compelling governmental interest, because it still permits litigants to
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file new litigation, while guarding against frivolous litigation and the abuse
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any event, this Court has previously rejected these same claims. The district
court properly dismissed plaintiffs claims, and this Court should affirm.
ARGUMENT
I.
STANDARD OF REVIEW
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A claim has facial plausibility when the plaintiff pleads factual content that
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allows the court to draw the reasonable inference that the defendant is liable
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for the misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citations and internal quotation marks omitted). This Court may affirm on
any ground supported by the record. Thompson v. Paul, 547 F.3d 1055,
105859 (9th Cir. 2008).
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before reaching the merits, and such review is de novo. Coal. to Defend
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II.
Affirmative Action v. Brown, 674 F.3d 1128, 1133 (9th Cir. 2012).
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under Section 1983 in federal court. Atascadero State Hosp. v. Scanlon, 473
U.S. 234, 241 (1985).
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The Eleventh Amendment bars a suit against state officials when the
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state is the real, substantial party in interest. Pennhurst, 465 U.S. at 101
(citation and internal quotation marks omitted). The general rule is that
relief sought nominally against an officer is in fact against the sovereign if
the decree would operate against the latter. Id. (citation omitted). [A]s
when the State itself is named as the defendant, a suit against state officials
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relief against state officers in their official capacities for their alleged
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1992) (citing Long v. Van de Kamp, 961 F.2d 151, 152 (9th Cir. 1992)); see
also Assn des Eleveurs de Canards et dOies du Quebec v. Harris, 729 F.3d
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Here, Plaintiffs failed to allege facts showing that either defendant has
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the power to direct judges to refrain from applying the VLS. The Eleventh
Amendment thus prohibits this suit.
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991, 998 (9th Cir. 2012) (argument not raised in opening brief is waived).
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court correctly found that the Complaint lacks any specific factual
allegations tying the Administrative Director of the Courts to the
enforcement of the VLS. The Complaint alleges only that the
Administrative Directors duties include carrying out the goals of the
Judicial Council, and that he must interpret policies, allocate financial
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Second, the allegations fail to establish general supervisory power over the
judges who interpret and apply the VLS, who are the persons responsible
for enforcing the challenged provision, L.A. County Bar Assn, 979 F.2d at
704. Such supervisory power would still fall short of the fairly direct
connection to enforcement of the VLS required for the Ex parte Young
exception to apply. Id. The district court thus properly dismissed the claims
against the Administrative Director.
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that the Judicial Council is responsible for assuring that the law, statutes,
and court rules and procedures are consistent with constitutional
guarantees. SER at 38, Complaint 34. But the Chief Justice, as Chair of
the Judicial Council, cannot direct or influence judges as they make
individualized determinations of whether the VLS applies to a particular
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with the requirements of the VLS. Nor can the Chief Justice, as Chair of the
Judicial Council, instruct judges to apply the VLS or to refrain from
applying it. The Chief Justice does not have a fairly direct connection to
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enforcement of the VLS, L.A. County Bar Assn, 979 F.2d at 704, and lacks
the power to prevent judges from enforcing the VLS, L.A. Branch NAACP,
714 F.2d at 953.
For these reasons, the claims against the Chief Justice do not fall within
the Ex parte Young exception. The decision in Wolfe v. Strankman, 392
F.3d 358 (9th Cir. 2004), on which the district court relied in declining to
apply the Eleventh Amendment to the Chief Justice, is not controlling
authority to the contrary. In finding that a 42 U.S.C. 1983 challenge to the
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VLS against a previous chief justice fell within the Ex parte Young
exception, the Strankman panel simply cited the plaintiffs request for
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prospective injunctive and declaratory relief, and pointed out that the
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plaintiff did not seek damages. 392 F.3d at 365. The panel did not
consider whether the chief justice had any connection to enforcement of the
VLS, let alone whether that connection was fairly direct and went beyond
a generalized duty to enforce state law or general supervisory power over
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precedent. When a case assumes a point without discussion, the case does
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not bind future panels. Estate of Magnin v. C.I.R., 184 F.3d 1074, 1077
(9th Cir. 1999) (citations omitted). [I]ssues that are not raised or discussed
are unstated assumptions on non-litigated issues [and] are not precedential
holdings binding further decisions. Gonzales v. Dept of Homeland Sec.,
508 F.3d 1227, 1235 (9th Cir. 2007) (quoting Sakamoto v. Duty Free
Shoppers, Ltd., 764 F.2d 1285, 1288 (9th Cir.1985)); see also Guerrero v.
RJM Acquisitions LLC, 499 F.3d 926, 937 (9th Cir. 2007) (cases that do not
actually analyze the issue and cases that erroneously rely on those cases
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this litigation are precluded. Cunningham has waived this issue on appeal,
as the Opening Brief makes no mention of the dismissal of his claims. See
Cruz, 673 F.3d at 998 (argument not raised in opening brief is waived).
Even if Cunningham had preserved this issue, this Court should nevertheless
affirm the district courts dismissal. Cunningham has previously litigated
the constitutionality of the VLS as applied to family law litigants, and that
suit resulted in a final adverse judgment on the merits. His claims are barred
under principles of issue and claim preclusion.
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earlier suit. Taylor v. Sturgell, 553 U.S. 880, 892 (2008) (citation and
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that they have had a full and fair opportunity to litigate. Id. (citation and
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arguing that the VLS violated his due process right to access the courts and
interfered with his ability to vindicate his custodial rights. SER at 9091.
Cunningham also challenged the VLS under the Takings Clause and as an
invalid ex post facto law, and also alleged that it was vague and overbroad.
The district court rejected each of those claims, dismissed the action, and
entered final judgment. SER at 9094, 97. This Court dismissed
Cunninghams appeal when he failed to perfect it. Cunningham v. Mahoney,
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10-17863, Dkt No. 4 (9th Cir. Mar. 10, 2011). Cunningham thus had a full
and fair opportunity to litigate, and did so unsuccessfully. Taylor, 553 U.S.
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should have been, litigated in the prior suit. Claim preclusion precludes
relitigation of claims that were raised or should have been raised in earlier
litigation. San Remo Hotel, L.P. v. San Francisco City and County, 364
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F.3d 1088, 1094 (9th Cir. 2008) (citation omitted). This suit presents a
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brings claims in this suit that he did not raise in the prior suit, claim
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Services, 487 F.3d 684, 689 (9th Cir. 2007) (applying the transaction test
developed in the context of claim preclusion). Accordingly, the Court
should affirm the district courts dismissal of plaintiff Cunninghams claims.
IV. THE DISTRICT COURT PROPERLY DISMISSED PLAINTIFFS
EQUAL PROTECTION AND DUE PROCESS CLAIMS
This appeal raises as-applied constitutional challenges to the VLS,
based on due process and equal protection principles.3 Plaintiffs assert that
because the prefiling requirement of the VLS applies only to selfrepresented litigants, the VLS violates equal protection. Opening Brief at
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51. Plaintiffs also claim that the VLS invades parents rights of access to
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Plaintiffs allege that the VLS on its face and as applied infringes on
their fundamental custody rights. SER at 31, Complaint 1. This is the
only reference to a facial challenge. A facial challenge is a challenge to an
entire legislative enactment or provision, whereas an as-applied challenge
focuses on only one of the rules in a statute, a subset of the statutes
applications, or the application of the statute to a specific factual
circumstance. Hoye v. City of Oakland, 653 F.3d 835, 857 (9th Cir. 2011).
Plaintiffs raise as-applied challenges, because their objections to the VLS
relate specifically to family law custody proceedings. SER at 31,
Complaint 1; see also SER at 5679, Complaint 67, 77, 80, 81, 85, 91,
108, 113, 125, 135.
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The district court correctly found that plaintiffs failed to state a claim
for these constitutional violations,4 based on the application of rational basis
review. This is the appropriate level of scrutiny, because self-represented
litigants are not a suspect class, and because prefiling requirements
applicable to civil litigation generally receive rational basis scrutiny. The
Supreme Court has applied heightened scrutiny to prefiling requirements in
only two very limited circumstances that are not present here. In any event,
the VLS survives both rational basis and heightened scrutiny.
Rational Basis Review Applies to Plaintiffs Equal
Protection and Due Process Claims.
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termination of parental rights. M.L.B. v. S.L.J., 519 U.S. 102 (1996); Boddie
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proceeding along suspect lines ... cannot run afoul of the Equal Protection
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U.S. 312, 31920 (1993)). As this Court has previously found with respect
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scrutiny. Wolfe v. George, 486 F.3d 1120, 1126 (9th Cir. 2007).
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to the VLS, [f]requent pro se litigants are not a suspect class meriting strict
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Plaintiffs cite no authority for their contention that [i]n the context of
custody cases, unrepresented parents are a suspect class. Opening Brief at
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plaintiffs to access the courts, and does not prevent plaintiffs from filing for
a.
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ordinarily are examined only for rationality. M.L.B., 519 U.S. at 123
(citing Ortwein, 410 U.S. at 660). The Ninth Circuit has already held that
the VLSs prefiling requirement is subject to rational basis review. Wolfe v.
George, 486 F.3d at 1126 (we review the [VLS] for a rational basis).
And, the Supreme Court has applied rational basis review to uphold prefiling
requirements in a variety of contexts, including litigation regarding personal
bankruptcy, United States v. Kras, 409 U.S. 434 (1973), and welfare benefits,
Ortwein, 410 U.S. 656.
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Notably, the Ninth Circuit has applied rational basis review to another
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inmate is in danger of serious physical injury. 169 F.3d 1176, 1178 (9th
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Cir. 1999). The court recognized that without the ability to file in forma
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pauperis, some prisoners may be unable to prepay filing fees, and will
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prisoners face similar concerns. Id. at 1180. The court noted that the
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Like the Prison Litigation Reform Act, the VLS still provides
meaningful access to the courts. Id. Vexatious litigants can file new
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litigation deemed to have merit, Cal. Code Civ. Proc. 391.7(a), and the
state is permitted to require litigants to make decisions concerning the
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merits of their case, either before or after being declared a vexatious litigant.
fundamental right, and rational basis is the appropriate level of scrutiny for
plaintiffs claims.
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Rodriguez, 169 F.3d at 1180. The VLS therefore does not infringe upon a
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involve parents fundamental rights, and that the VLS deprives parents of
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visitation determinations. Under this theory, the state may never impose any
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This theory is incorrect. In the family law context, the Supreme Court
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permitted under the VLS. Because the VLS prefiling requirement does not
completely block access, these cases are inapposite here.
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paying court fees and costs for service of process before filing a judicial
action seeking a divorce. Boddie, 401 U.S. at 372. Recognizing that a cost
requirement may offend due process because it operates to foreclose a
particular partys opportunity to be heard, id. at 380, the Court focused on
the appellants complete lack of access to the courts, due to their inability to
pay the required fees and costs. The Court applied a form of heightened
scrutiny in finding that the states interest in preventing frivolous litigation
or its attempt at resource allocation or cost recoupment were not adequate
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justifications for preventing appellants from filing for divorce. Id. at 382.
Finding that access to the courts in this situation is the exclusive
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application of that holding: We do not decide that access for all individuals
to the courts is a right that is, in all circumstances, guaranteed by the Due
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Process Clause of the Fourteenth Amendment so that its exercise may not be
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M.L.B., 519 U.S. at 110. Finding that defendants without means to pay for
a transcript had no access to appellate review at all, Griffin had struck down
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Griffin in Mayer v. Chicago, 404 U.S. 189 (1971), applying the rule to
appeals of convictions in which defendants do not face incarceration, and
holding that access to judicial processes in cases criminal or quasi criminal
in nature cannot turn on ability to pay. M.L.B., 519 U.S. at 124 (quoting
Mayer, 404 U.S. at 196). The M.L.B. Court explained that its decisions
concerning access to judicial processes, commencing with Griffin and
running through Mayer, reflect both equal protection and due process
concerns, particularly because due process does not, standing alone,
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In striking down the record preparation fee, the M.L.B. Court found that
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systemthe Court departed from the general rule that fee requirements
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ordinarily are examined only for rationality. Id. at 123. The Court thereby
align[ed] M.L.B.s case and Mayerparental status termination decrees
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action, id. at 128, placing it in the same category as cases that are quasi
criminal in nature, id. at 124 (citation and internal quotation marks omitted).
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Unlike the fee requirements in Boddie and M.L.B., the VLSs prefiling
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requirement allows vexatious litigants to access the courts. Under the VLS,
a vexatious litigant may file potentially meritorious claims not intended
solely to harass or delay, so the courthouse doors are not closed to him.5
Wolfe v. George, 486 F.3d at 1125. [W]hile imposing limits on a vexatious
litigants future filings, [the VLS prefiling requirement] provides a workable
means by which a vexatious litigant may proceed with litigation. In re
R.H., 170 Cal. App. 4th 678, 691 (2009) (citing Forrest v. Dept of
Corporations, 150 Cal. App. 4th 183, 195 (2007)). See also Wolfgram, 53
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Under the VLS, any new filing seeking an order under the Family
Code constitutes new litigation subject to a prefiling order. Cal. Code Civ.
Proc. 391.7(d). A new filing seeking modification of a final judicial
determination of custody potentially has merit if there is a significant
change of circumstances indicating that a different custody arrangement
would be in the childs best interest. In re Marriage of Brown & Yana, 37
Cal. 4th 947, 956 (2006). Otherwise, requests for modifications of non-final
custody orders or of parenting or visitation schedules within a final custody
arrangement potentially have merit if they meet the best interests of the
child standard. In re Marriage of Lucio, 161 Cal. App. 4th 1068, 107680
(2008).
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does not deny the vexatious litigant access to the courts, but operates solely
to preclude the initiation of meritless lawsuits and their attendant
expenditures of time and costs. Bravo v. Ismaj, 99 Cal. App. 4th 211, 221
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The M.L.B. decision was based on the unique nature of parental status
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emphasis added). In response to the dissents fears that the decision would
open floodgates to application of Griffin to all non-criminal cases, the
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recognizing that parental termination decrees are among the most severe
forms of state action have not served as precedent in other areas. Id. at
128 (citations omitted). By grouping parental status terminations with
quasi-criminal actions and setting them apart from other domestic
relations matters, the M.L.B. decision recognized that these other domestic
relations matters do not warrant heightened scrutiny. Id. at 127.
This Court should draw the same conclusion and find that application
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of the VLS to custody disputes does not require heightened scrutiny. M.L.B.
applies only in the context of appeals of parental status terminations. As the
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dismiss hearing that none of the Plaintiffs has had their parental rights fully,
finally, and irrevocably terminated. ER-6 at 57. See also SER at 2122.
In addition, the VLS has no possible application to any appeals of
parental status terminations, because a court may not require a person who
has been determined to be a vexatious litigant in prior litigation to seek leave
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defendant. Mahdavi v. Superior Court, 166 Cal. App. 4th 32, 37 (2008).
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a direct right of appeal, regardless of any VLS prefiling order. There is thus
This Court has already found that the VLS prefiling requirement is
rationally related to a legitimate state purpose. Wolfe v. George, 486 F.3d
at 1126 (citation and internal quotation marks omitted). In George, the court
determined that vexatious litigants tie up a great deal of a courts time,
denying that time to litigants with substantial cases, and that the state has
an interest in protecting defendants from harassment by frivolous
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litigation .6 Id. The VLS does little more than require sua sponte
review of a vexatious litigants complaint to see whether it states a claim
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could move to dismiss for the same reason, so the statute is not a substantial
See also Taylor v. Delatoore, 281 F.3d 844, 84950 (9th Cir. 2002)
(finding that Prison Litigation Reform Acts goal of deterring meritless
prisoner filings in the federal courts is one of the governments legitimate
interests, and holding that filing fee provisions survive rational basis
scrutiny (citation and internal quotation marks omitted)).
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can rationally distinguish litigants who sue and lose often, sue the same
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or irrational bar to access. Id. at 112627. The court found that [a] state
people for the same thing after they have lost, and so on, from other
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Clark, C-13-0228 EMC, 2013 WL 3803613, at *3 (N.D. Cal. July 19, 2013)
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here, the VLS would survive such scrutiny. As California courts have
consistently found, the VLS is narrowly tailored. The VLS allow[s]
vexatious litigants to keep filing lawsuits, and is narrowly drawn so that
vexatious litigants simply must comply with reasonable limitations, such as
obtaining a prefiling order. Kobayashi v. Superior Court, 175 Cal. App.
4th 536, 541 (2009); see also Luckett v. Panos, 161 Cal. App. 4th 77, 80
(2008) (Being narrowly drawn, Californias vexatious litigant statutes allow
a vexatious litigant to continue to file lawsuits.). The VLS is akin to
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litigation. In re R.H., 170 Cal. App. 4th at 703. The state has a compelling
v. State of Louisiana, 379 U.S. 559, 562 (1965) (Since we are committed to
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a government of laws and not of men, it is of the utmost importance that the
administration of justice be absolutely fair and orderly.) As the district
court in Wolfe v. George found, the VLS is constitutional because it is
narrowly tailored to further the compelling interest in having a legal system
that is not needlessly disrupted by baseless and frivolous litigation. Wolfe v.
George, 385 F. Supp. 2d 1004, 1013 (N.D. Cal. 2005), affd, 486 F.3d 1120
(9th Cir. 2007). For the same reasons, this Court should find that the VLS
survives heightened scrutiny here.
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the opening brief mentions only the privileges and immunities, First
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Amendment, and procedural due process claims, and only in the section
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abandoned. U.S. ex rel. Meyer v. Horizon Health Corp., 565 F.3d 1195,
1201 (9th Cir. 2009); see also Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir.
1994) (We review only issues which are argued specifically and distinctly
in a partys opening brief. We will not manufacture arguments for an
appellant, and a bare assertion does not preserve a claim . (citations
omitted)). Nor can plaintiffs revive these claims in their reply brief, as the
Court deem[s] an argument waived if it is raised for the first time only in a
reply brief. Quan v. Computer Sciences Corp., 623 F.3d 870, 878 n.4 (9th
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Cir. 2010).
Even if plaintiffs had preserved their other claims, this Court has
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the VLS does not constitute a bill of attainder or an ex post facto law
(id. at 1127).
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Plaintiffs remaining claims would therefore still fail, even if plaintiffs had
properly preserved them.
CONCLUSION
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Respectfully submitted,
KAMALA D. HARRIS
Attorney General of California
DOUGLAS J. WOODS
Senior Assistant Attorney General
TAMAR PACHTER
Supervising Deputy Attorney General
/s/ P. Patty Li
P. PATTY LI
Deputy Attorney General
Attorneys for Defendants-Appellees
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Plaintiffs-Appellants,
Defendants-Appellees.
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Respectfully Submitted,
KAMALA D. HARRIS
Attorney General of California
DOUGLAS J. WOODS
Senior Assistant Attorney General
TAMAR PACHTER
Supervising Deputy Attorney General
/s/ P. Patty Li
P. PATTY LI
Deputy Attorney General
Attorneys for Defendants-Appellees
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Plaintiffs-Appellants,
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Defendants-Appellees.
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As used in this title, the following terms have the following meanings:
Currentness
(a) Litigation means any civil action or proceeding, commenced, maintained or pending in any state or federal court.
(b) Vexatious litigant means a person who does any of the following:
(1) In the immediately preceding seven-year period has commenced, prosecuted, or maintained in propria persona at least five
litigations other than in a small claims court that have been (i) finally determined adversely to the person or (ii) unjustifiably
permitted to remain pending at least two years without having been brought to trial or hearing.
(2) After a litigation has been finally determined against the person, repeatedly relitigates or attempts to relitigate, in propria
persona, either (i) the validity of the determination against the same defendant or defendants as to whom the litigation was
finally determined or (ii) the cause of action, claim, controversy, or any of the issues of fact or law, determined or concluded
by the final determination against the same defendant or defendants as to whom the litigation was finally determined.
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(3) In any litigation while acting in propria persona, repeatedly files unmeritorious motions, pleadings, or other papers, conducts
unnecessary discovery, or engages in other tactics that are frivolous or solely intended to cause unnecessary delay.
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(4) Has previously been declared to be a vexatious litigant by any state or federal court of record in any action or proceeding
based upon the same or substantially similar facts, transaction, or occurrence.
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(c) Security means an undertaking to assure payment, to the party for whose benefit the undertaking is required to be furnished,
of the party's reasonable expenses, including attorney's fees and not limited to taxable costs, incurred in or in connection with
a litigation instituted, caused to be instituted, or maintained or caused to be maintained by a vexatious litigant.
(d) Plaintiff means the person who commences, institutes or maintains a litigation or causes it to be commenced, instituted
or maintained, including an attorney at law acting in propria persona.
(e) Defendant means a person (including corporation, association, partnership and firm or governmental entity) against whom
a litigation is brought or maintained or sought to be brought or maintained.
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Credits
(Added by Stats.1963, c. 1471, p. 3088, 1. Amended by Stats.1982, c. 517, p. 2335, 98; Stats.1990, c. 621 (S.B.2675),
1; Stats.1994, c. 587 (A.B.3600), 3.5.)
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Editors' Notes
LAW REVISION COMMISSION COMMENTS
1982 Amendment
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Section 391 is amended to delete a provision duplicated in the Bond and Undertaking Law. See Section 995.710 (deposit in
lieu of undertaking). The other changes in Section 391 are technical. [16 Cal.L.Rev.Comm. Reports 501 (1982)].
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391.7.
Prefiling
order prohibiting
the filing of new litigation;...,
CA CIV DktEntry:
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391.7. Prefiling order prohibiting the filing of new litigation; contempt; conditions
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(a) In addition to any other relief provided in this title, the court may, on its own motion or the motion of any party, enter a
prefiling order which prohibits a vexatious litigant from filing any new litigation in the courts of this state in propria persona
without first obtaining leave of the presiding justice or presiding judge of the court where the litigation is proposed to be filed.
Disobedience of the order by a vexatious litigant may be punished as a contempt of court.
(b) The presiding justice or presiding judge shall permit the filing of that litigation only if it appears that the litigation has merit
and has not been filed for the purposes of harassment or delay. The presiding justice or presiding judge may condition the filing
of the litigation upon the furnishing of security for the benefit of the defendants as provided in Section 391.3.
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(c) The clerk may not file any litigation presented by a vexatious litigant subject to a prefiling order unless the vexatious litigant
first obtains an order from the presiding justice or presiding judge permitting the filing. If the clerk mistakenly files the litigation
without the order, any party may file with the clerk and serve, or the presiding justice or presiding judge may direct the clerk to
file and serve, on the plaintiff and other parties a notice stating that the plaintiff is a vexatious litigant subject to a prefiling order
as set forth in subdivision (a). The filing of the notice shall automatically stay the litigation. The litigation shall be automatically
dismissed unless the plaintiff within 10 days of the filing of that notice obtains an order from the presiding justice or presiding
judge permitting the filing of the litigation as set forth in subdivision (b). If the presiding justice or presiding judge issues an
order permitting the filing, the stay of the litigation shall remain in effect, and the defendants need not plead, until 10 days after
the defendants are served with a copy of the order.
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(d) For purposes of this section, litigation includes any petition, application, or motion other than a discovery motion, in a
proceeding under the Family Code or Probate Code, for any order.
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(e) The presiding justice or presiding judge of a court may designate a justice or judge of the same court to act on his or her
behalf in exercising the authority and responsibilities provided under subdivisions (a) to (c), inclusive.
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(f) The clerk of the court shall provide the Judicial Council a copy of any prefiling orders issued pursuant to subdivision (a). The
Judicial Council shall maintain a record of vexatious litigants subject to those prefiling orders and shall annually disseminate
a list of those persons to the clerks of the courts of this state.
Credits
(Added by Stats.1990, c. 621 (S.B.2675), 3. Amended by Stats.2002, c. 1118 (A.B.1938), 1; Stats.2011, c. 49 (S.B.731), 1.)
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Editors' Notes
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OFFICIAL FORMS
2004 Main Volume
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<Mandatory and optional Forms adopted and approved by the Judicial Council are set out in West's California Judicial
Council Forms Pamphlet.>
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391.8. Filing application to vacate prefiling order and remove name from Judicial Councils list
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(a) A vexatious litigant subject to a prefiling order under Section 391.7 may file an application to vacate the prefiling order and
remove his or her name from the Judicial Council's list of vexatious litigants subject to prefiling orders. The application shall be
filed in the court that entered the prefiling order, either in the action in which the prefiling order was entered or in conjunction
with a request to the presiding justice or presiding judge to file new litigation under Section 391.7. The application shall be
made before the justice or judge who entered the order, if that justice or judge is available. If that justice or judge who entered
the order is not available, the application shall be made before the presiding justice or presiding judge, or his or her designee.
(b) A vexatious litigant whose application under subdivision (a) was denied shall not be permitted to file another application
on or before 12 months has elapsed after the date of the denial of the previous application.
(c) A court may vacate a prefiling order and order removal of a vexatious litigant's name from the Judicial Council's list of
vexatious litigants subject to prefiling orders upon a showing of a material change in the facts upon which the order was granted
and that the ends of justice would be served by vacating the order.
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Credits
(Added by Stats.2011, c. 49 (S.B.731), 2.)
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Editors' Notes
OFFICIAL FORMS
2014 Electronic Update
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<Mandatory and optional Forms adopted and approved by the Judicial Council are set out in West's California Judicial
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CERTIFICATE OF COMPLIANCE
PURSUANT TO FED.R.APP.P 32(a)(7)(C) AND CIRCUIT RULE 32-1
FOR 13-17170
1. Pursuant to Fed.R.App.P. 32(a)(7)(C) and Ninth Circuit Rule 32-1, the attached
opening/answering/reply/cross-appeal brief is
Proportionately spaced, has a typeface of 14 points or more and contains 7,849 words (opening,
answering and the second and third briefs filed in cross-appeals must not exceed 14,000 words;
reply briefs must not exceed 7,000 words
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or is
Monospaced, has 10.5 or fewer characters per inch and contains ____ words or ___ lines of
text (opening, answering, and the second and third briefs filed in cross-appeals must not exceed
14,000 words or 1,300 lines of text; reply briefs must not exceed 7,000 words or 650 lines of
text).
March 5, 2014
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Dated
/s/ P. Patty Li
P. Patty Li
Deputy Attorney General
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Case Name:
Pierce v. Cantil-Sakauye
No.
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13-17170
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I hereby certify that on March 5, 2014, I electronically filed the following documents with the
Clerk of the Court by using the CM/ECF system:
I certify that all participants in the case are registered CM/ECF users and that service will be
accomplished by the CM/ECF system.
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I declare under penalty of perjury under the laws of the State of California the foregoing is true
and correct and that this declaration was executed on March 5, 2014, at San Francisco,
California.
P. Patty Li
Declarant
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SA2013113465
40862380.doc
/s/ P. Patty Li
Signature
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Plaintiffs-Appellants,
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INDEX
District Court
Dkt No.
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APPEARANCES:
For Plaintiffs:
BY:
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BY:
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For Defendants:
Reported By:
SER 1
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THE COURT:
Please be
THE CLERK:
seated.
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MS. KROGSENG:
THE COURT:
10
11
MR. CUNNINGHAM:
THE COURT:
All right.
Good morning.
It's
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the only thing on the docket this morning, and that is the only
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16
17
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And with
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And I
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questions that the Court has after reading your papers, and
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the plaintiffs.
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13
Good afternoon.
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And
SER 2
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the same rules will apply with respect to that, and the same
issues.
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brought claims under Section 1983, and asserted that the VLS
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was unconstitutional.
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And see also Wolfe versus George, 486 Fed. 3d. 1120, at
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THE COURT:
Pretty close.
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act.
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So those are the only two roles they have in this statutory
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All right.
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Yes, I do.
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enforcing something.
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to kind of expound upon that; but that case actually ruled that
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All right.
Thank you.
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A couple of things.
So just
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judicial immunity.
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But merely because this is the only way he can get around
judicial immunity in the Federal Court system does not mean
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outlet.
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jurisdiction.
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All right.
Continuing
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There is an
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cited by the attorney for the defendants, they said the simple
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litigants."
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issue a form.
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notoriously bitter.
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All right.
Thank you.
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Counsel?
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form.
What plaintiffs did here was challenge a statute.
All they
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statute that the Legislature has, you know, put into place over
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50 years ago.
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MR. CUNNINGHAM:
Yeah.
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disingenuous.
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issue.
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everything else.
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oranges.
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Steve Jahr.
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All right.
Mr. Cunningham?
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somehow insufficient.
The problem with that -- and as she mentions -- is that
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Let me --
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is in State Court.
One:
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these sorts of issues, and, for the most part, have ruled in
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because plaintiffs can't come before this Court and make these
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represented by an attorney.
defendants and all the attorneys for the defendants came and
I was
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Mm-hm.
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collateral estoppel.
understanding?
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All right.
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theory of the case was that the Vexatious Litigant Statute, "is
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proceedings."
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Western Radio Services Co. versus Glickman, 123 Fed. 3d. 1189,
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All right.
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argument that this case and his previous case do not share the
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But in any event, I would also add that in the three years
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since that ruling, there have been other pleadings and other
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I have filed again and again over the course of two years.
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visitation.
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Summarily denied.
No merit.
I, myself, have
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moment, I've been denied all access to the Family Law Court.
My position was --
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2010.
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That's
boilerplate language.
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reach the merits, and the matter has never been subject to
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appellate review?
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Okay.
Thank you.
Response?
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Rooker-Feldman.
All right.
MR. CUNNINGHAM:
THE COURT:
MR. CUNNINGHAM:
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in reply?
Beating
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MR. CUNNINGHAM:
the case of Kougasian versus TMSL, where, again, they say that
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under 28 USC Section 1257, only the U.S. Supreme Court has
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All right.
As to claims against
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system.
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rules.
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anything?
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All right.
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plaintiff.
that for some of them, the State Court rulings have resulted in
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parental rights.
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Excuse me.
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Court system is that there's Family Law Courts, and there are
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On the other hand, there are Family Law Courts, where the
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at a custody hearing.
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not just against Adil and his wife, but he threw in the three
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THE COURT:
MS. KROGSENG:
All right.
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have had their -- based upon State Court actions, have had
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Right.
Actually terminated.
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All right.
say?
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terminated.
Statute.
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Connecticut.
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Kerry Hicks, who hasn't seen her daughter in four years -- many
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Anything further?
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They just abused that access; and thus, they're now falling
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same way there was for Boddie, due to indigence, being not able
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their right to
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All right.
Anything else,
Mr. Cunningham?
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vilified them.
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Arch Cunningham
State Bar 210625
1489 McAllister St.
San Francisco, CA 94115
or
k
X)
archcunnghm@yahoo.com
(415) 563-1828
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e-)
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v.
c)
Plaintiffs,
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CaeNo. 1 3
IC4141
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Class Action
Complaint
for
Injunctive
and
Declaratory
Relief
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TABLE OF CONTENTS
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I. INTRODUCTION
II. JURISDICTION
III. VENUE
IV. INTRADISTRICT ASSIGNMENT
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V. PARTIES
Plaintiffs
Ron Pierce
Andrew Karres
Michele Fotinos
A dil Hiramenk
Lisa Hunt-Nocera
Nicole Ann
Ray
Cunningham
Richard Rifkin
8
9
10
19
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Facts Related to
Kerry Hicks,
if
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Parent H
Pierce, Parent P
al
Kerry Hicks
Archibald
Karres, Parent K
19
.21
22
22
23
24
Ray/Parent R
Cunningham/Parent C
Rifldn,
Parent RR
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25
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FIRST CLAIM FOR RELIEF
Claim under 42 U.S.C. 1983, Deprivation of Federal Constitution RightsThe Vexatious Litigant Statutes As Applied Violates the Equal Protection
Clause of the 14th Amendment
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SECOND CLAIM FOR RELIEF
Claim under 42 U.S.C. 1983, Deprivation of Federal Constitution Rights
Violation of 14th Amendment's Due Process Clause and 1st Amendment Right
to Petition
35
THIRD CLAIM FOR RELIEF
Claim under 42 U.S.C. 1983, Deprivation of Federal Constitution RightsViolation of 14th Amendment's Due Process Clause (Imposition of VLS To
Custody Cases On Its Face and As Applied Is Unconstitutionally
and
Overbroad
42
FOURTH CLAIM FOR RELIEF
Claim under 42 U.S.C. 1983,
of Federal Constitution RightsThe Vexatious Litigant Statutes As Appliell Here Creates a Prior Restraint
in Violation of the 1st Amendment Right td Petition
Deprivationi
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.48
Rights50
Rights-
53
54
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I. INTRODUCTION
Chief Justice
Vexatious
it
as
to
curtail
on
The Plaintiffs do not doubt that the state has rational and
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is
urgent reasons
it is
very
as
cases.
against
protracted custody battles. The Plaintiffs challenge the constitutionality of the VLS
action
in
civil litigant's
access
litigant
filing frivolous or vexatious claims.2 They recognize that state courts have found that civil
10
litigants' general right to petition grievances under the First Amendment does not entitle them to
11
"clog the court system and impair everyone else's right to seek justice."' However,
12
13
"parents,
14
"unclogging its
whom had
no
choice in being
filed
17
disputes.
18
19
same as
against them.
23
24
25
26
curtailing, restricting, or
at least half of
absolutely no choice
family law courts are the "only forum" that the state of California has provided for
Ju
The
civil
litigants the
affects
(1982) 455 U.S. 745; Stanley v. Illinois (1972) 405 U.S.645, 651; "A parent's interest in the
companionship, care, custody and management of his or her children rises to a constitutionally secured right, given
the centrality of family life as the focus of personal meaning and responsibility.")
2
"The constant suer for himself becomes a serious problem to others than the defendant he dogs. By clogging court
calendars, he causes real detriment to those who have legitimate controversies to be determined and to the taxpayers
who must provide the courts." (Taliaferro v. Hoogs (1965) 237 Cal. App. 2d 73, 74.)
Wolfgram v. Wells Fargo Bank (1993) 53 Cal. App. 4th 43, 56.
4
Lammers v. Superior Court (2000) 83 Cal.App.4th 1309, 1325: "[W]hen an enactment broadly and directly
impinges upon the fundamental constitutional rights of a substantial portion of those individuals to whom it applies,
it can be upheld only if, considering its general and normal application, its compelling justifications outweigh its
impingement upon constitutional rights and cannot be accomplished by less intrusive means."
Santosky v.
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litigants right to petition under the First Amendment, family law litigants suffer a double
civil
I
21
same
16
20
court
as
at the
denying them access to family law courts is not rationale and certainly not compelling.'
3. Unlike civil
15
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1.
Kramer
*See, Boddie v. Connecticut (1971) 401 U.S. 371, 376-377: "Thus, although they
2would-be
7
we
Class Action
Relief PAGE 2
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process
2
on a
situations,
some
one
case,
Parent
AH).
In the
access to
Parent
C).
In
12
13
seen
as
by King Solomon.
Parent
H).
There is
no
cause
order
irreparable harm.
These cases,
on
the other
was
sever a
can
on
obtained
these
Some of these
compensated them
child in two
was
demonstrated
failure of the
II. JURISDICTION
5. This is
an
action for
Clause and
19
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1983.
if
o
to
17
6. Jurisdiction is based
on
28 U.S.0
Court has
These civil
violation of the
1983.
1331, 1332, and 1343 for a violation of 42
U.S.C.
state claim
pursuant
to 28 U.S.C.
1367
and
11135.
III. VENUE
24
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27
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the
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only with his ex-spouse, but his three minor children until "midnight" in the year
22
access
10
20
terminating his parental right, though the father asserts the termination
16
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can
uncommon
order
15
father.
14
same
family law courts after their parental rights have been severely curtailed by family law judges.
8
9
In the
on
due process
et
w
blow. Not
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1391(b)
Sup. Ct (2007) 41 Cal. 4th 1337, 1353: In other words, court congestion and 'the press ofbusiness' will
depriving parties of fundamental rights and a full and fair opportunity to present all competent and
material evidence relevant to the matter to be adjudicated.% Boddie v. Connecticut (1971) 401 U.S. 371:
"We are thus left to evaluate the State's asserted interest in its fee and cost requirements as a mechanism of resource
allocation or cost recoupment. Such a justification was offered and rejected in Griffin v. Illinois, 351 U. S. 12
(1956)."
Elkins
v.
not justify
Class Action
PAGE 3
SER 32
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perform their officials duties therein and thus reside therein for
some
2
occur
in counties that
are
or
3-2(c) this
action should be
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
Plaintiffs
9
giving rise to the claims herein occur in counties in the Northern District oV. PARTIES
Kerry Hicks.
10
9.
Kerry Hicks
is
children,
11
She lives in Ventura, California. She filed for the dissolution of her
12
October 2, 2007.
13
April 30, 2008, at a hearing on a DVPA action, a visitation action and a vexatious litigant action,
the
14
(D323616). Initially,
she
was
Ms. Hicks
ganted legal
was
and physical
ordered to take
17
18
live
or
psychologically evaluated,
Ju
gifts
and
"inappropriately"
rn
i
21
conduct
if
o
22
was a
"red
parental
never
been
at the four
and distracted.
report, she
recommended both the "termination of supervised visits" and that "mom be evaluated and have
random
24
25
27
the
Hick's
Hicks had
23
26
on
many
custody. However,
July 10, 2008 hearing, the family law judge' terminated Ms.
rights, ruling that she posed a danger to her children. Although Ms.
20
on
16
19
Services.
County Family
15
al
California.
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"vexatious
as a
The judge
condition
agreed
"Quick Start"9
of her
filing several
ex
was a
issues.
Class Action
PAGE 4
SER 33
Ms. Hicks
hearing,
at the Ventura
showed
reactive to
and
was
her children in
over
di
ci
C al
JB B
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N nc
.c h
om N
ew
the
evidence of drug use in the last 12 months. The results noted that Ms. Hicks
self-represented.
"like
July 17, 2008, a week after she was ordered by the judge to be evaluated by the
was
was
et
w
12. On
At the
Hicks
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Ron Pierce
9
father of three children, ages 16, 13, and 8. Before his dissolution
10
proceeding upended his life, he worked as an engineering assistance for the local government.
11
12
13
regularly provided
His claim is
shelter by
family
and friend.
15. On
14
15
16
time,
17
Saturday.
18
court's contracted
19
he
20
Services. A year
half hours
on
Ju
was
to take
later,
in
At that
was
April 2010,
after
On
on
Family
Pierce was
dismissed, the family law court provided him visitation on every 1st, 3rd, and 5'h Saturday night.
16. On December 21, 2011, the Court of Appeals for the Fifth Circuit sent Mr. Pierce a
rn
i
21
al
if
o
22
23
24
25
appeals pending.
26
Pierce "vexation" in
27
After argument
an
on
own"
even
2012.
and ordered
The
Andrew Karres
17. On October
Class Action
to dissolve her
PAGE 5
SER 34
Karres in the
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12, 2012
related to
14 year old
Mr.
daughtei
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attorneys for both side, "successive evaluators submitting numerous reports, and "various
judicial officers."
palpable, characterizing him as a "martyr of injustice" who "vocalized his antipathy forjudicial
orders."' (Exhibit G, pg. 16, fn 57).
custody" but
9
19. On November
11
that the
denied
"50/50 shared
appealed. (C072936).
12
months."
only "repeatedly"
Karres is
14, 2012, the family law judge "vacated" the vexatious litigant hearin
10
13
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
In his 20 page
In his November
In the
12, 2012
transcript, it is noted
statement of decision, h
Michele Fotinos
14
January 24,
case
and
Ju
rn
i
if
o
al
R. F.
now
Superior Court,
dissolution, John Fotinos was granted sole physical and joint legal
Fotinos filed
custody of the children, which has resulted in an ongoing custody dispute since that time and
21
22
May 20,
on
20
on
18
19
son,
number F075139.
a
well
as
*See
22. On November
her attorney
declared vexatious
were
Ms. Fotinos
23
24
25
26
27
10
The judge faults Mr. Karres for expressing his view of Judge Peter McBrien's order but the judge fails to note th
Judge McBrien was censured twice by the CJP. (*See, http://www.metnews.com/articles/2010/mcbr010610.htm.)
He was "severally censured" for walking out of a family law trial, an act the Court of Appeal described as "unusua
and "perhaps unprecedented." (In Re Carlsson (2008) 163 Cal. App. 4th 281). Also, the judge fails to mention that
the lawyer in that case, Sharon Huddle, is now Mr. Karres' attorney. Finally, the judge fails to mention that, after
being censured, Judge McBrien was elevated to "presiding judge" of the Sacrament Family Law Division. In view
of this, it seems his eagerness to dump everything on Mr. Karres is not only suspect but self-serving. By elevating
Judge McBrien to presiding judge, one is reminded of that old adage about the "lunatics running the asylum."
Class Action
SER 35
she would file that. The judge also ruled that the "vexatious
2
contact" and
2062.
11
supervised visitation.
12
24. On March
hearing,
Mr. Hiramenk.
on
June
19
parents
Ju
18
were never
18 month
period
and then
only has
pleading entitled
case
Litigant
26. At
an
order
protracted
is filed in the
wrangling,
Ms. Hunt's
daughter since then and has been denied access under the
Statute.
the trial
24
judge, who had just only been assigned to the case for several weeks, ordered the parents
25
"mediation"
26
on
the
custody/visitation.
once a
no
no
holidays
In
Class Action
into
"vexatious
27
and
married, they never lived together, and they never accumulated community
rn
i
if
o
23
17
Vexatious
"one year
On October
Litigant." (RJN, Exhibit x). The judge set a hearing for a month later on April 22,
al
Lisa Hunt-Nocera.
22
16
21
see
20
"stay away" order against him and the children, effective until
He did not
14
15
12
County. (1-09-FL-149682). The parents have been in a custody dispute since then.
10
13
children,
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
are
apply to Ms.
Adil Hiramenk
statute would
litigant"
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or
physical custody,
and is
routinely
SER 36
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Case3:13-cv-01295-SI
law court
This order
$25
alleged
supervised visits at
vexatious
Hancock filed
an
The
judge,
11
"vexatious" for
12
condition to
13
stipulation or to have the "vexatious" label lifted have been denied. (RJN, Exhibit S).
Archibald
"trial
Her
she had
agreed to "therapy" as
to file any
challenge to the
by declaration." At a February 26, 2010 hearing, he was stripped of all his visitation rights
16
17
2010 until
18
19
family law judge denied him a hearing under the new "Case Resolution Program"
Ju
30.At
"vexatious
if
o
he had
On
February 26,
access
to the
litigant" action brought by a "nonparty" against Mr. Cunningham despite the fact that
24
either
25
pushed this
and
case.
The
Mr.
newly-appointed judge
ignored or did not know of the priority of scheduling given to the "contempt case" but he
action before the other actions,
Since
February 23, 2009 hearing, the "newly appointed" family law judge conducted a
on
(RJN, Exhibit V.
23
26
"void."
January 22, 2012, Mr. Cunningham and his attorneys were denied all
21
22
rn
i
20
Cunningham
29. Archibald
15
21, 2011 (RN, Exhibit R), ruled that Ms. Ray was
restoring visitation.
indigent
family law
10
access
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
to
14
al
She gets
and 10.
she has
28. On
and
was
to the
On
stripped Ms. Ray of any visitation rights with her three daughters, age 16, 14,
an
or
k
27. On
Ray
et
w
Nicole Ann
2
3
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27
$23, 000
at the first
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PAGE 8
SER 37
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Richard Rifkin
case was
Superior Court.
In
Rifkin has
et
w
but the
or
k
"throat cancer, but the judge dismissed Mr. Rifldn's contention that the issuance of the CLETS
10
represented by an attorney.
11
Defendants
13
"imputed" monthly
and
August 23, 2012, Mr. Rifkin appeared with his attorney to challenge Ms. Carty's
"move-away" request
At that
litigant" motion.
12
questioned his
and then
di
ci
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N nc
.c h
om N
ew
hearing, Mr.
Rifkin was
14
practice and procedure that are consistent with both statutes and constitutional mandates.
15
including the MC-700-704 forms used by "vexatious litigants" (and the parents in this case)
17
20
Ju
state agency
rn
i
agency director
21
22
if
o
procedures
35. Defendant
Cantil-Sakauye is
are
Cantil-Sakauye is a public
to
19
al
16
18
&
(B).
capacity.
23
Administrative Director of the Courts is accountable to the council and the Chief Justice for the
24
25
"to
the
goals
26
27
11
12
of the Judicial
and priorities."
Council, are
to
13
interpret policies,
charge is
allocate financial
resources
to achieve
"http://www.courts.ca.gov/policyadmin-aoc.htm
Class Action
PAGE 9
SER 38
Courts.)
capacity.
Statute
Litigant
(VLS),
et
w
1, p. 3038), has expanded its reach both by amendments from the California Legislature
1471,
and by "broad
The statute
an
As
order
di
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N nc
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om N
ew
security. (391.1).
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section 391.7
In
by adding
found
10
11
"prefiling orders" on self-represented vexatious litigants trying to file "new litigation." (Stats.
12
13
"on it
motion
or
the motion
ofany party,
own
"new
is authorized to
litigation,
impose
the vexatious
to include "an
37. In
1998, the first significant judicial expansion of the VLS occurred in the case of
16
McColm
17
18
under section
(1998)
62 Cal.
App. 4th
1211. In
Ju
petitions,
as
"vexatious
supra 1219-1220:
"Litigation" for purposes of vexatious litigant requirements encompasses civil trials and
special proceedings, but it is broader than that. It includes proceedings initiated in the
Courts of Appeal by notice of appeal or by writ petitions other than habeas corpus or
rn
i
19
20
v.
21
al
if
o
22
23
24
25
As
as
well
as
in
appellate
courts
occurred in the
case
v.
'4
26
27
'6
nn
new
litigation.(*See,
MC-701,
Class Action
10
SER 39
(1993)
between
at
14
15
attempts
cases are
are
In In
re
as a
basis for
cites the
R.
legislative
for
gagging
frivolous, that the trial judge made the right decision the first time, that custody
static and
Kramer
Ju
Santosky v.
immutable, and that custody matters don't involve fundamental rights. (*See,
(1982)
455 U.S.
20
trying to
rn
i
if
o
al
Statute
19
24
Implicit in her characterization of parent's attempt to "regain custody" is the belief that such
17
23
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
13
22
security requirement of
(Bill History of Assem. Bill 1938, (2000-2001 Reg. Sess.), (enacted as Stats. 2002. ch.
1118.) "Under existing law, parties to family law and probate law proceedings, as well as
the court, may already use the vexatious litigant statutes if they so desire. [11] The intent
of this bill, according to the author and the proponents, is to point the way to the
vexatious litigant statutes to the parties engaged in these proceedings and to the court, as
a tool to discourage repeated motions by parents to regain custody of their children when
there are no changed circumstances to justify a different result." (Sen. Com. on Judiciary
Analysis of Assem. Bill No. 1938 (2001-2002 Reg. Sess.)
12
21
on
11
18
proof
from the
845).
as
expand the reach of the VLS." In abrogating the distinction in the VLS
16
391.3. (supra,
App. 4th
12 Cal.
Court
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show
to
parent
rights terminated and then the trial courts have relied on the appellate
Factual
predicated on a
in this way is
In
no
as
as
"a tool to
discourage
25
17
26
27
supra at 8 43-844: A review of the 1990 amendments demonstrates the Legislature's intent to broad(
of
the
vexatious litigant statute....Nothing in these amendments suggests a legislative intent to overturn tl
the reach
decision in Muller v. Tanner, supra, 2 Cal.App.3d 438, or otherwise limit the reach of the vexatious litigant statute.
The expansive nature of the amendments suggests just the opposite.
Camerado,
Class Action
Relief
PAGE 11
SER 40
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41 Cal. 4th
declarations
rule
as
as
or
10
11
15
In
as was
or
k
Chief Justice
George
"shock, outrage, and anger." (Id., 1367). Chief Justice George also pointed out,
Ju
conmion
rn
i
al
if
o
27
theme in the appellate decisions invalidating local rules, and one that also
appears in the present case, is that a local court has advanced the goals of efficiency and
conservation of judicial resources by adopting procedures that deviated from those
established by statute, thereby impairing the countervailing interests of litigants as well a
the interest of the public in being afforded access to justice, resolution of a controversy
on the merits, and a fair proceeding.
21
26
In
19
25
hearsay violation.
riffing on due process of law, Chief Justice George pointed out the "common theme" of cases
18
24
the
1345:
16
23
on
Although we are sympathetic to the need of trial courts to process the heavy case load of
dissolution matters in a timely manner, a fair and full adjudication on the merits is at least
as important in family law trials as in other civil matters, in light of the importance of the
issues presented such as the custody and well-being of children and the disposition of a
family's entire net worth. Although respondent court evidently sought to improve the
administration of justice by adopting and enforcing its rule and order, in doing so it
improperly deviated from state law. (emphasis added)
14
22
cross
express their
13
20
right to testify,
applied was inconsistent with the guarantee of due process, Chief Justice George relied or
noted that
12
17
denied the
Ilsupra,
was
present evidence because he has failed to comply with a local rule requiring
et
w
(2007)
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
by declarations" in family law proceedings violated the "hearsay rules." (Elkins v. Sup.
examine witness,
6
"trials
Ct
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I I Although Chief Justice George points out the need for "access to justice" and mentions that his
I I decision provides "guidance to trial courts,
18
Elkins, supra 1357: The conclusion we reach also permits us to avoid the difficult question whether the local rule
and order violate petitioner's right to due process of law, "[m]indful [as we are] of the prudential rule of judicial
restraint that counsels against rendering a decision on constitutional grounds if a statutory basis for resolution
exists." (NBC Subsidiary (KIVBC-TV), Inc. v. Superior Court (1999) 20 Ca1.4th 1178, 1190.) [8] This rule directs
that "if reasonably possible, statutory provisions should be interpreted in a manner that avoids serious constitutional
questions." (Id.
at p.
1197.)
1346: In addition to providing guidance to the trial courts, our discussion highlights the unusual
burdens and restrictions that have been imposed upon family law litigants at the local level in response to increasing
case loads and limited judicial resources. We observe that this problem may merit consideration as a statewide
'Elkins, supra
Class Action
12
SER 41
(family law)
have at least
directed that
9
11
12
13
14
15
16
As noted
one
of the cases
In
(supra, 1369,
th
20):
Ju
to
above, for Judge Jane Cardoza and family law judges of her ilk, the "special care taken
and curtail
20
state
or
rationale of Elkins
many
"vexatious
litigants"
deny them access. Although Judge Cardoza's ruling was issued two years
Supreme
rn
i
if
o
al
statewide surveys
George referred to
(Emphasis added)
19
22
10
21
or
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
18
to
I and confidence" in the family law courts. (supra, 1368). That is on-going sentiment shared by
George.
17
access
"discourage"
are
"tool" to
as a
those parents
that
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or
how the
use
of the VLS in
after the
23
Justice
George's
cry for
more access
and
for less
access.
Judge Laurie D.
24
Zelon, the Chairperson of the Elkins Task Force, after a lengthy and "comprehensive review" of
25
family law courts, issued her final recommendations, which are cited here:2
26
27
policy matter,
13
SER 42
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Efficient and Effective Procedures to Help Ensure Justice, Fairness, Due Process, and
Safety
II. More Effective Child Custody Procedures for a Better Court Experience for Families
III.
IV.
Enhancing the Status of and Respect for, Family Law Litigants and the Family Law
Process Through Judicial Leadership
or
k
I.
4
5
et
w
and Children
V.
6
On
fails to
9
10
12
submitted
13
on
role in
to
18
Recom):,
27
In the final
for "vexatious
seems
to have
Ju
rn
i
al
if
o
26
some
has
590
[Feuer];
Stats.
2009, ch.
457), which became law and "was funded, commencing October 1, 2011, for several pilot projects
needs."
22
representation
to
low-income parties
on
Judge Zelon conceded in her fmal recommendations that most family law litigants would
remain unrepresented
even
if the Act
were
21
http://www.ca1iforniaprobono.org/news/artic1e.310603-Judicial_Council_Accepts_Elkins_Task_Force_Report
*See pg. 1: http://www.courts.ca.gov/documents/AB-590.pdf
23
*See pg. 79: http://www.courts.ca.gov/documents/20100423itemj.pdf
22
nc)
to
Cases in which one side has counsel and the other does not can pose a variety of potential
difficulties for the unrepresented litigant, the attorney, and the judicial officer.
Representation may be available in more of these cases if courts were to make early
needs-based attorney fee awards.
25
opinion as
totally outflanked by the interest Judge Cardoza was promoting. (*See fn 7, pg. 79, Final
21
24
no
19
23
for
22
she
April 23, 2010, family law judges throughout California were following the lead of
15
20
Judge Zelon's
recognize the battle being waged by Judge Cardoza for use of the VLS by "family law
16
While
repeated the lofty goals and gilded promises of Chief Justice George,
11
14
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
final recommendations
8
Council
Class Action
Relief
PAGE 14
SER 43
own
motions" under
42. The
391.7
The constitutional
VLS,
on
its face
or as
challenges
to
8
9
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
I I VLS, however, have always been brought by civil litigants, not family law litigants/parents who
assert that the
litigant"
actions
of "vexatious
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10
11
12
impermissively invade the right the right of access to the courts."24 (Shalant, supra, 556-557).
13
The
upheld on the grounds that they have been "narrowly drawn and thus do not
Supreme Court adopted the "plain reading" (strict construction) approach to the VLS,
distinction by the
15
absurd."
17
1177:
As the
(Shalant v.
16
Girardi
(2011)
51 Cal.
and "in
legislation,
supra at
"We
Ju
of judicial
of already
overburdened trial courts that are forced to contend with the abusive conduct of vexatious
litigants. But in their efforts to deal with the problem of vexatious litigants, courts must
observe the limits set by the applicable statutory scheme. If those limits are too confining
then it is the function of the Legislature, not the courts, to expand them."
18
rn
i
19
20
21
Judicial officers
al
if
o
22
this class.
(Evid.
are
Code
601, 604). The case here is rift with family law judge and appellate
23
24
24
supra at 556: "Taken as a purely descriptive claim, the statement is probably truesection 391.7 does
have been interpreted broadly. (See Forrest, supra, 150 Cal.App.4th at pp. 195-196 & fn. 4 [collecting
cases].) But taken as a normative claim--that section 391.7 should be interpreted broadly--the statement is incorrect,
because the Court of Appeal has repeatedly upheld the vexatious litigant statutes (including section 391.7) against
constitutional challenges on the ground that the statutes are narrowly drawn and thus do not impermissibly invade
the right of access to the courts. (See Wolfgram v. Wells Fargo Bank (1997) 53 Cal.App.4th 43, 55-57, 60; Luckett
v. Panos (2008) 161 Cal.App.4th 77, 81; In re R.H. (2009) 170 Cal.App.4th 678, 702; Kobayashi v. Superior Court
(2009) 175 Cal.App.4th 536, 541.) Given the important constitutional concerns that [183 Cal.App.4th 557] section
391.7 implicates, we conclude that the statute should not be broadly interpreted. Rather, it should be applied strictly
according to its terms."
Shalant,
appear to
25
26
27
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15
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have less
176 Cal.
11
shows."
12
(supra,
at
94).
too
He characterized "vexatious
costs to
themselves
"mental
In Luckett
(supra,
at
94).
He
much
day time
television full
"habit
at
very
who
likely had
some
sort of
18
"perfectly imaginable" that "vexatious litigants" could also be like Professor Moriarty, the
Ju
20
"criminal
rn
i
21
if
o
22
and the
"mental disorder"
or was
mastermind, he did rule that he should not be allowed to file any more actions for
Mr. Luckett
25
was a
"civil
action
can
24
27
Doyle's fiction,
too
23
26
sue
virtually no
17
19
v.
ofjudge
is
mental disorder, a fact that trial court staff around the state would appear to have first
hand knowledge.
16
al
and less
App. 4th, 535, a decision rendered after Elkins and during the "public
molesters)
10
15
fact,
Panos, (2008) 161 Cal. App. 4th 77, Judge Sills suggested that vexatious litigants have
14
In
phase of the Elkins Task Force, Judge Sills opined that "much vexatious litigation
the product
13
child
(murders, rapists,
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
comment"
access
(2009)
order that
judge's
Court
family law litigant "vexatious" in a custody dispute would achieve that goal.
et
w
"declares"
Girardi.
or
k
judges
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Filed03/22/13
"vexatious
25
Luckett, supra 92: "And it is perfectly imaginable that a very sane, if wrongfully-minded person Conan Doyle's
fictional Moriarty comes to mind who would be perfectly willing to pursue a course of vexatious litigation in the
course of some ulterior purpose."
Class Action
16
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litigant" works
2
on
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Fi1ed03122113
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an
either
or
k
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they suffer "mental disorders" or are "criminal masterminds." Third, it is not the family law
et
w
judge that must "earn the publics' trust" as Chief Justice George stated in Elkins, but the family
4
law "vexatious" parents who must show "remorse." The Elkins Task Force recommendation that
family law litigants should be shown "respect" is replaced with a requirement that they must
supporting declarations
points
some
Judge Sills
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
(supra, 92):
9
All Luckett's declaration shows is that, instead of devoting his life to something
productive, he has spent the last 16 years suing people. That fact only confirms the very
trait of character on which the determination of vexatious litigant was first based.
10
11
"trait
law courts
are
systemic.
16
scare
clear procedures,
(1993)
53 Cal.
rn
i
20
no
written
as
"vexatious"
as a
way of ending
recently added 391.8 to the VLS', this seems more a response to the
App. 4th 43
Wolfgram in Wolfgram
v.
branding." It also raise a question if a party that files a 391.8 request is entitled to
22
hearing.
23
this
if
o
21
24
25
26
27
stated,
an
evidentiary
FBA court
find it
19
Finally, after being labeled vexatious, the class members here have found that there
Ju
are no
hat the
and
15
18
al
more
17
are
112 Cal.
supra 976:
(a). A vexatious litigant subject to a prefiling order under Section 391.7 may file an application to
prefiling order and remove his or her name from the Judicial Council's list of vexatious litigants subject to
prefiling orders. The application shall be filed in the court that entered the prefiling order, either in the action in
which the prefiling order was entered or in conjunction with a request to the presiding justice or presiding judge to
file new litigation under Section 391.7. The application shall be made before the justice or judge who entered the
order, if that justice or judge is available. If that justice or judge who entered the order is not available, the
application shall be made before the presiding justice or presiding judge, or his or her designee.
Section 391.8
vacate the
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or
k
While there is much to recommend this reasoning, the conclusion section 391.7 is to be a
permanent, irrevocable restriction is troubling. Although section 391.7 does not
absolutely exclude the "pro per" litigant from the courts, we believe fundamental fairness
requires the "vexatious litigant" brand be erasable in appropriate circumstances.
This
5
ruling was predicated upon the language in Wolfgram, which stated that when a vexatious
litigant "knocks on
et
w
Judge Sills
Procedures
553, which could be lifted with a showing of "changed circumstances." (supra, 93).
In Luckett,
10
an
as
noted
spell
tantamount to
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
was
out the
as
his "remorse"
factor, which
"appropriate circumstances" for erasure, the class members here are faced with the
judge-created "factors" of "remorse" and "no less than four year" banishment from filing. Judge
11
12
severe even
for civil
litigants,
who want to
14
15
law, the Family Code, Title Five Rules, and the facts of a particular case. The class members
not treated with
16
"respect." Instead,
the
17
essence, any
19
Ju
make "vexatious
rn
i
21
if
o
22
23
24
25
26
27
For
to
are
In
attempt to "resolve" the custody dispute has been scuttled. In this rigged game, the
18
20
al
13
are
are
disparity in power and treatment between family law litigants and judges who
litigant rulings" that further undermines "confidence and trust" in the judiciary.
instance, Judge McBride, then the Presiding Judge of the San Francisco Superior Court, tried
deny one class member the right to appeal a "vexatious litigant" order issued by a family law
judge. (*See, RJN, Exhibit Z). Although the Administrative Presiding Judge of the Court
of
Plaintiffs notes, having been repeatedly denied the right to file anything, that the issue of what is a "colorable"
claim as applied in custody case is unconstitutionally vague because there is no clear standard (Grayned v. City of
Rockford, 408 U.S. 104, 108-109 (1972) quoted in Village ofHoffman Estates v. The Flipside, 455 U.S. 489, 498
(1982). Plaintiffs also notes that the presiding judges have applied the prefiling order in such a way as to deny them
and their attorneys access to the family law courts in violation of the Due Process Clause of the 14th Amendment and
his 1" Amendment right to petition (*See, Boddie v. Connecticut 401 U.S. 371 (1971).
impinges
on
fundamental
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Appeals for the First District would overrule Judge McBride (*See, RJN, Exhibit ZZ), the entire
judges' confusion over the right of litigants to "appeal"
4
litigant order.
vexatious
and
one
on
defendant's
the
he would remain
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
seated
"vexatious
litigant" order.
"wife-beater" and
10
11
Oddly, the judges of the San Francisco Superior Court elected Judge McBride,
12
13
14
at how
Judge
Sills
Judge,
15
In the
"crooked
"wife-beater,
indiscretions
(felony charges
trying to regain custody (and then deny them access after stripping them
"vexatious" for
of custody
rights).
The
tragedy is that the family law litigants have to bear the entire burden of this disparate treatment.
16
Facts Related to
18
48. At the
Ju
17
law judge
19
rn
i
substance abuse
if
o
22
23
24
25
26
July 10th,
Parent H.
2008
21
Kerry Hicks,
in
al
charges (against
spouse)
In
him.' While the CJP would eventually censor him for disrespecting public defenders and
20
about
was
Presiding Judge McBride was not publicly censored by the Commission on Judicial
that sense,
It
et
w
or
k
twist of events undermined the class member's "trust" in the judicial system. It was not just the
2
or
mental
Hick's
Gonzales
supervised visits
THE COURT: The last seven minutes you talked and you looked down the whole time.
You never looked up and made eye contact except one moment at the end.
THE WITNESS: I'm trying to concentrate so fiercely.
THE COURT: The problem is there's something going on, and it may be something
going on that can be treated with medication, it can be something else. I want to see you
28
http://www.sfweek1y.com/1999-05-12/calendar/cothran/full/
http://www. cjp. ca. gov/res/docs/Public Admon/McBride 130_11-18-08.pdf;
http://www.abajournal.comlnews/article/san_franciscojudge_reprimandedfor_putdowns_pd_dismissals
27
II
http://www.sanfranciscosentinel.com/?p=14185
Class Action
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or
k
et
w
3
4
THE COURT: They're going to be assessing whether or not there is a problem with
alcohol, with drugs, with some sort of mental health problem. I want to find out what's
going on because I don't want to see you in such pain, but right now I can't let you have
this visitation with your kids because I'm concerned.
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
10
18-2
(106 of 156)
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with your children. This is the most painful case I've ever had in here, but I don't know
what's happening here.
THE WITNESS: I can tell you if you give me time.
THE COURT: No. Somebody else is going to tell me.
THE WITNESS: I've got evidence.
THE COURT: This is called the Quick Start program, and I'm ordering you to go to the
Quick Start program for an assessment.
ID: 9003597
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seen
even
mental illness.
She's
13
49.
a
"impaired"
and such
respect to the "vexatious litigant" motion brought against her. In that regard, the attorney for her
14
II ex-spouse noted, in a fit of condescension, that Ms. Hicks did not jump through her hoops and
15
respond to her demands for a response to the charge of being "vexatious, (Exhibit A, pg. 164):
MS. KARCZAG: She was supposed to file a response by July 8th.
This is what happened. The vexatious litigant that I bought stated to Miss Hicks
I'mmy intention to grant this unless you can give me a reason why I shouldn't and I
want a response filed by July 8th. There's no response and instead of written response she
noticed more ex-partes. I think she's like almost a poster child for vexatious litigants.
There's so many ex-partes and motions, meritless frankly your Honor. I'm exhausted
17
Ju
18
19
20
rn
i
Although an attorney's
21
22
if
o
al
was so
potential threat that she couldn't see her children, he let her proceed "in propria persona" with
16
Hicks
statements
are
family law judge apparently considered this evidence of "vexatious litigation." Further, the trial
court did not
even
23
24
Ms. Hicks'
25
31
26
27
Evidence is "testimony, writings, material objects, or other things presented to the senses that are offered to prove
the existence or nonexistence of a fact." (Evid. Code, 140.) "Testimony" refers to statements made under oath.
(People v. Belton (1979) 23 Cal. 3d 516, 524 [153 Cal.Rptr. 195, 591 P.2d 485].) Thus, attorneys' statements do not
constitute evidence. (Van de Kamp v. Bank of America (1988) 204 Cal. App. 3d 819, 843 [251 Cal.Rptr. 530].).
Again, he was not explained or offered any proof that the TICA is valid other than his bold allegations.
Class Action
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50. On December
21, 2011, the California Court of Appeals for the Fifth District send
six
determined
391(b)(1)).
even an
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
9
10
of section
the plain
13
(2011)
14
15
"plain language"
It also contradicts
no
nor
anyone else
can
no
"pending litigation,
then
the "condition
20
rn
i
precedent" to entering a prefiling order is a finding, presumably by the trial court, that a litigant
enter a
22
if
o
al
19
21
own
individual
4th 1164. The second problem with the appellate court's position is that it renders
51 Cal.
Ju
18
brief,
an
12
the
no
16
appellate
11
The
to him under
adversely"
51. In their
no
"pending" appeal.
appeals or writs (five of which were related to his family law case) which had been "finally
6
7
no
or
k
18-2
(107 of 156)
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Mr. Pierce
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"vexatious
24
25
26
27
providing Mr.
(Exhibit E).
Pierce
Pierce filed
MC-703 form
trial court.
on
the
On
23
motion.
litigant." In Mr.
This raises
32
391.1. In any litigation pending in any court of this state, at any time until fmal judgment is entered, a defendant
may move the court, upon notice and hearing, for an order requiring the plaintiff to furnish security or for an order
dismissing the litigation pursuant to subdivision (b) of Section 391.3. The motion for an order requiring the plaintiff
to furnish security shall be based upon the ground, and supported by a showing, that the plaintiff is a vexatious
litigant and that there is not a reasonable probabiliry that he or she will prevail in the litigation against the moving
defendant.
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Karres,
Parent K.
or
k
the
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Court of Sacramento
50/50 shared
54. On November
Karres
14, 2012, Sharon Huddle, the attorney for Mr. Karres, was present
family law judge "vacated" the scheduled hearing on the "vexatious litigant" motion.
12, 2012
et
w
when the
Although section 391.2 provides that a litigant is entitled to a "hearing" with the right to provide
"any" evidence, both "oral
and
the
by affidavit,
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
The
attorney for Mr. Karres has appealed the "vexatious litigant" ruling and has challenged the
9
11
how the
12
14
"gag-order" infringes
55. At
15
due process.
The
At the
17
18
was
19
Ju
not
rn
i
likely to "prevail."
apply to Ms.
21
if
o
as
as
It
seems
after
"vexatious
was
case as
At the
her attorney,
Fotinos
"reasonable likelihood
would also
22
Fotinos
well
16
was
is relevant and
she
order"
20
on
Karres'
al
10
13
on
evidence of "vexatiousness"
as
well
as
proof that
Fotinos' attorney and would extend to any motions the attorney filed
on
56. In the November 15, 2012 notice of order, the judge did not sanction Ms. Fotinos'
23
attorney under Code of Civil Procedure 128.7 but imposed the "vexatious litigant" order against
24
the attorney,
25
26
27
nr,
*See Exhibit x in which Mr. Karres' attorney explains why this matter is relevant to the arguments that she is
making in the custody case and how it related to statutory rights.
Implicit in the "gag-order" is the judge's own bias that if the husband refers to his ex-wife's sexuality, he is
"misogynistic" or discriminating on the basis of "sexual orientation." However, Ms. Huddle, the attorney and a
woman, is raising this issue. The judge just issues the "gag-order" without explaining the difficult if not absurd task
of how a female attorney might be "misogynistic" or "sexually discriminating" by raising the orientation issue.
35
The Conversatorship of Ester Boyles, San Mateo County Case No. 121437.
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Attorney Patricia Barry offered evidence at the hearing to the effect that she had been
guiding and facilitating the in propria persona flings by Ms. Michele Fontinos. This court
finds that Attorney Patricia Barry has acted as a mere conduit for unmeritorious filings
and therefore that the above order prohibiting Ms. Michele Fontinos from filing any
petition, application, or motion other than a discovery option, for any order in propria
persona without first obtaining leave of the presiding judge shall also prohibit Patricia
Barry from filing any petition, application, or motion other than a discovery motion, for
any order on behalf of Ms. Michele Fontinos without first obtaining leave of the
presiding judge. (See In re Shieh (1937) 17 Cal. App. 4th 1154, 1167).
or
k
1
2
4
5
et
w
Ms.
Fontinos in her
Apparently,
Barry to file out MC-701 "vexatious litigant" forms and get "permission" from the presiding
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
judge before being allowed to file. This is inconsistent with the Supreme Court's ruling in
9
v.
10
11
12
13
14
an
came
conference) and,
at a
18
on
line
13).
The
Ju
parental rights
are
not just
a
rn
i
if
o
al
23
24
25
26
27
(pg. 7,
line
7-8). Hence,
22
law
36
or
'a
the restraining order shall be for 50 years, and shall expire at midnight
Mr. Hiramanek's
restraining
deposition, allegedly sat near his ex-spouse and "stared at her with
enforcement purposes,
August 24,
17
21
179 F3d
apply to attorneys.'
20
Cal.)
16
19
Cir.
judge in the Santa Clara Superior Court extended a one year restraining order to a "permanent"
order when he
15
"Order RE Petitioner's
own
(1999, 9th Cir Cal) 179 F3d 1194. The court explained that the reason that
an attorney could not be declared a "vexatious litigant" was "because the vexatious litigant doctrine was never
intended to control attorney conduct and because an attorney appearing on behalfofa client could not by definition
be sanctioned as a "vexatious litigant, as he was acting as an attorney not a litigant." (supra, at 1999; emphasis
added). The court went on to explain: "Insofar as our research has uncovered, no court in this circuit has ever
imposed a vexatious litigant order on an attorney. We do not believe that the vexatious litigant doctrine was ever
intended to control attorney conduct and we do not propose to approve its application in this case as a means of
controlling attorney conduct. For example, the California vexatious litigant statute limits the definition of a
"vexatious litigant" to one who acts "in propria persona." Cal. Civ. Proc. Code 391.7. Similarly, the only district
court in this circuit to have adopted a vexatious litigant rule provides that the court may "proceed by reference to the
391 -391.7." Cent. Dist. of Calif.
Vexatious Litigants statute of the State of California, Cal. Code Civ. Proc.
of
a client cannot be sanctioned as a
behalf
on
Local R. 27A.4. We therefore conclude that an attorney appearing
a
as
not
and
as
an
he
she
is
or
vexatious litigant; by definition,
litigant.
attorney
acting
*See,
Weissman
v.
Quail Lodge,
Inc.
no
Class Action
Relief PAGE 23
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Case: 13-17170
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Case3:13-cv-01295-SI
were
denied.
58. On March
In this
Hiramanek's various "unmeritorious" motions and notes that the two motions to
for
ruling in Shalant v.
at
ignores these
filing of "new litigation" (in propria persona). Here, the family law judge
10
11
2010
12
under
13
are
Girardi that trial courts must "observe the statutory limits" of the VLS and
disqualify him
avoid "broad
Mr.
denied.' This motion was filed about 15 months before the state Supreme Courn
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
cause were
of Court's
Vexatious
or
k
VLS,
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motion
purports to "move
on
its
own
motion,
Of course, at the
not for
April 22,
hearing, the family law judge finds that Mr. Hiramanek has filed "unmeritorious motions"
391(b)(3).
likelihood" of his
surprisingly,
"reasonable
County,
16
Vexatious
17
18
19
rights was
20
picked up a pen,
Ju
on
"denied" without
and
if
o
al
The
placed his X in the "Denied" box. This present case raises the companion
22
Her
explanation.
rn
i
21
can
be
23
60. Ms.
Ray/Parent R.
"vexatious" by the
Sacramento
24
Superior Court but she has not been added to the official list maintained by Administrative
25
26
CCP
27
37
553 and to
serve
an
impoverished mother,
an
"injunction" under
she
can
only afford to
*Note: The fact that the family law judge initiated this "vexatious litigant" motion "on its own motion" shortly
after Mr. Miramanek's motion to disqualify for cause were denied certainly speaks to retaliation. In view of the 50
year restraining order, it would seem there is a compelling inference not just for bias but for retaliation.
Class Action
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k
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segments because the "nonprofit" firm that oversees supervised visitation only allows
visit with
one
child at
time.
Cunningham/Parent
to
C.
counsel's
request (MC-701) he filed for "emergency visitation." (RJN, Exhibit U). His attorney was forced
Exhibit
U).
10
denied
11
litigant order"
12
court to
13
14
no
Appeals
fewer than
of March 5, 2009
was
used
as
the basis to
as
overturned the
62. On
DVPA
Rifldn,
Ju
rn
i
pg 4-5). In
declaring Mr.
21
if
o
litigant order,
of
the Court of
The
September 14, 2012, the family law judge for the San Francisco Superior Court
"denied."
even
Parent R.
or
22
order). Finally,
appeal.
19
v.
for
18
20
deny his appeal of the second vexatious litigant order from the February 26, 2010
17
was
16
553
denied every
forms, which were denied by the presiding judges. (Exhibit U). His request to
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
file
fraud,
to file MC-701
al
parent
et
w
Allenby (2010)
190 Cal.
App. 4th
Rifkin
38
the many
motions, some
were
grind down" an opponent shows an "improper motive" that amounts to "vexatious litigation."391
23
24
38
25
26
27
v. Westwood Park Assn (1998) 62 Cal. App. 4th 1211, the Court of Appeals noted that the VLS
apply to "criminal matters" such as the criminal contempt case here where Mr. Rifkin's ex-spouse was
Under McColm
was
not to
comments at the hearing suggest that it reached the conclusion that the Golins
vexatious not because of individual unmeritorious filings but because of their litigation tactics--their regular
practice of revisiting issues and the volume of their supplemental and amended filings that cumulatively evidenced a
"level of vexatiousness." According to the trial court, together these spoke to an improper motive to "grind down the
other side" or to keep them from 'being able to move forward' in the litigation. This goes to the third, disjunctive
prong of section 391, subdivision (b)(3)--engaging in tactics that are frivolous or solely intended to cause
were
unnecessary
delay.
Class Action
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(supra, 639).
to
18-2
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of 55 57 of 101
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civil
the Plaintiffs
this action
on
law courts
California
Vexatious
64.
Numerosity:
Plaintiffs
11
impracticable.
bring
in the family
members would be
to state courts,
or
denied."
so numerous
and
so
list of
Duties
The Judicial Council maintains a record of vexatious litigants subject to such prefiling
orders and annually disseminates a list of such persons to the court clerks. (Code
13
Civ.
Proc.,
14
391.7(f).)
15
However, the Administrative Office of the Court lumps all vexatious litigants together, whether
16
they're civil or family law litigants." Upon information and belief there could be hundreds
17
parents in the class. Joinder of the class is impracticable because the list is not
evinced
there
are
cases
(*See,
fir.
40).
involve
custody disputes.
are
only because of the size and uncertainty of the class, but because class members
if
o
of
22
means
does
financial
name
impracticable because
21
23
of
complete list as
rn
i
20
Ju
19
18
al
similarly situated.
10
12
other persons
behalf of a class
Procedure,
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
et
w
applied
case
or
k
ID: 9003597
DktEntry:
Document1
Filed03/22/13
are
lack the
sate.
24
65.
25
Commonality.
There
are common
by individual
vexatious
litigant parents.
One
common
question among
26
40
27
41
http://www.courts.ca.gov/documents/Vexatious_Litigants.pdf
http://www.courts.ca.gov/documents/vexlit.pdf
Class Action
26
SER 55
Statute
"suspect
relationship,
"42
is
are
66. Plaintiffs
California,
Plaintiffs, parents in custody disputes in the family law courts throughout the state of
are
precondition
visitation
17
to
the
or
Ju
reasons
for
interest
not
Kramer
custody rights
(1982) 455,
24
25
moves
to
"an exclusive
are
fundament
are
rights
compelling
and management
23
26
that
which the state cannot interfere with without providing due process of law and
rn
i
al
if
o
22
Litigant Statue as
rights.
21
of the Vexatious
20
Rights-
reallege and incorporate herein by reference each and every allegation and
19
their
13
18
as
10
16
to
parents
the
15
on
14
question of law is
of
II right to due process of law. There is also the question of law whether the imposition of the VLS
12
common
family law courts, the only forum provided by the state for "the adjustment of a
to
fundamental
11
creates a
as
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
Litigant
access
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or
k
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or
liberty
custody of
vital
procedures.").
69. Defendants know
or
27
42
Boddie,
43
Boddie
nn
supra, at 383.
v.
PAGE 27
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state has
18-2
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here, which is "effectively empowered to settle" their custody disputes. (Boddie, supra,
376).
70. Defendants know
or
should know
as
Chief Justice
393,
et
w
at
or
k
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They know or should know that the Elkins Task Force stated in its Final Recommendations
"[F] ar too
steps
are
self-represented. (Elkins,
Californians are unable to afford counsel." and that the state "needs
take
that the Elkins Task Force, in its initial recommendations, found that
10
Defendants know
11
Council
12
http://www.courts.ca.gov/documents/20100423itemj.pdf, pg 60-69.)
or
Finally,
should know that the Elkins Task Force recommended that the Judicial
provide statewide rules regarding award of attorney fees for family law litigants. (*See,
13
14
15
16
17
Ju
18
help "erase"
20
to
that
(*See Final Recommendations, pg. 59). Further, Defendants know or should know
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
their cases."
19
1368).
provide litigants with the appropriate levels of assistance they need to proceed with
to
8
9
supra, at
many
"vexatious
rn
i
as
are
designed to
as
21
al
if
o
22
23
24
25
26
27
44
n n
Class Action
Complaint
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45
(under 391.7)
court to have
as
well
as
the
or
the VLS.
before
after their
some
to
10
or
creates several
11
12
13
an
as
applied to
or
"in propria
persona."
on
access.
full-evidentiary hearing under Family Code 217 on their "orders to show cause." They are
16
also denied the immediate right to call witnesses under Title Five Rule 5.113 and denied the rig]
17
to call their own children under Title Five Rule 5.250 to voice an
19
rn
i
as a
20
21
if
o
22
23
24
25
26
27
preferences. They are subject to the screening process of "prefiling orders" under 391.7,
including the requirement of obtaining "permission" from a presiding judge or posting "security
Ju
18
al
of
they may be allowed to file any "new litigation" under 391.7). The Defendants know or
Allegations
391.1
(These parents may have prefiling orders imposed against them as well as security
the
8
"vexatious" under
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
to
opposing attorney for the other parent may "move" the family law
on
or
k
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litigants with "colorable claim" will be allowed access" to courts may pass constitutional muster
courts and
appellate
courts
and
motions
or
I I know that some class members here have been denied permission to file for "emergency
Gov. Code section 68511: The Judicial Council may prescribe by rule the form and content of forms used in the
of this state. When any such form has been so prescribed by the Judicial Council, no court may use a different
form which has as its aim the same function as that for which the Judicial Council's prescribed form is designed. Tht
Judicial Council shall report periodically to the Legislature any statutory changes needed to achieve uniformity in
the forms used in the courts of this state.
In Wolfgram, supra 53 Cal. App, 4th 43, 60: The Court of Appeals stated that when a vexatious litigant "knocks on
the courtroom door with a colorable claim, he may enter."
courts
Class Action
SER 58
law courts
3
access
18-2
(116 of 156)
of 55 61 of 101
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are
Factual
Allegations Parent
access
to
solely on the "insidious basis of wealth" while the represented and affluent spouse's
(Boddie,
supra
under the
Equal
Protection Clause for determining who must remain married and who shall be allowed to
separate.").
Parents Denied Need-Based Fees Under
74. Defendants know
or
Code
2030
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
should that
Family
family
et
w
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or
k
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represented but the indigent parent is unable to pay for an attorney.' The Defendants know or
9
or
parents occasion other unfair, unequal, unconstitutional treatment, and a second suspect class.
11
12
14
the
15
169 Cal.
App.
court to
17
Parents
Ju
a
creates
or
One
or
Both
rn
i
if
o
an
to the VLS
parents such
in their
as
cannot afford
can
on
custody disputes
23
one
Subject to VLS v.
19
22
18
21
attorney but the other couldn't.). For instance, here class members have sought to be relieved of
16
20
family law court has refused to relieve them of the burden self-representation. (*See, In re
abuse of discretion
al
10
13
on
representation).
hire
For
subject
instance, wealthy
custody dispute and dissolution proceeding, which can last for years
and which
they can
24
47
25
26
27
In re Marriage of Tharp (2010) 188 Cal. App. LIth 1295, 1315: The public policy purpose behind sections 2030
and 2032 is "leveling the playing field' and permitting the lower-earning spouse to pay counsel and experts to
litigate the issues in the same marmer as the spouse with higher earnings." The appellate court remanded the case,
ordering that need-based fees be made available to the indigent spouse before the "conclusion of the case." Id., at
1316. The appellate court also directed the trial court to make a "needs-based analysis."
48
*See Exhibit VV, the family law judge berated Parent C for requesting "need-based fees" for the "eighth time"
and then turned around and declared the parent "vexatious" for the second time for having no money to hire an
attorney to be relieved of the burden of self-representation and subject to the VLS.
Class Action
30
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18-2
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not
or
k
wealthy, but not so for poor or impoverished parents. (*See Factual Allegations, Parent N,
unclogging its
courts of frivolous
unmeritorious claims may stand up in civil cases, but in the context of family law
know that the state's rationale for the VLS, at least with respect to matters
are
thus
mechanism
Illinois, 351
U.S. 12
11
U.S.
12
equal
Constitution, by,
access
to the
among other
Members of rights,
14
Such
requirements
as
(1956)".
Equal Protection
13
and federal
rejected in Griffin
10
touching on
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
382: "We
8
has been
rights,
custody cases,
fundamental
or
et
w
privileges
or
immunities
16
17
Ju
18
79. Plaintiffs
19
and
II
14th Amendment
rn
i
20
reallege
Rights-
21
al
if
o
22
80. The Plaintiffs have the right under the Due Process Clause of the 14th Amendment to
II
I I a "meaningful opportunity" to be heard in their custody cases. (Boddie, supra, 377).
23
24
25
26
http://www.people.com/people/article/0%2C%2C20228302%2C00.html:
of Bronstein v. Stone is not "available to the public." Apparently,
hearts contend and "seal their records" from the general public.:
http://webaccess.sftc.org/Scripts/Magic94/mgrqispi94.d11?
and
27
51
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in their
custody disputes.
parental fundamental
7
8
(1972)
405 U.S.
645; Santosky v.
"society's hierarchy
Kramer
(1982)
are
455 U.S.
745).
denied full
lst Amendment-Right to
of values" that
access
and, often,
11
12
14
Illinois
should
Section 11 of
the mode
ofappellate review,
it may do
10 Cal.
so
only to
the extent
or
parent's
any access, if
or
lawy
Appeal/Writ
10
13
to hire
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
statements in
constitutional
or
k
George's
et
w
as
custody dispute and denial of "full access" to that forum raises "grave"
to resolve their
parents
2
18-2
(118 of 156)
of 55 63 of 101
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to
Const. Art.
16
call for
17
Similarly, the Legislature substitutes a vexatious parent's right to appellate review by a "three
18
19
(Cal.
Ju
Const. Art.
rn
i
(Cal.
I, Sec.
file.
(*See,
of two judges...for
20
Exhibit
C).
judgment"
the prefiling
14)53 and the right to oral argumentm (CRC 8.256) with a "presiding
21
al
if
o
22
23
24
25
52
at 375-376: Thus, this Court has seldom been asked to view access to the courts as an element of
The
due process.
legitimacy of the State's monopoly over techniques of fmal dispute settlement, even where somc
are denied access to its use, stands unimpaired where recognized, effective alternatives for the adjustment of
differences remain. But the successful invocation of this governmental power by plaintiffs has often created serious
problems for defendants' rights. For at that point, the judicial proceeding becomes the only effective means of
resolving the dispute at hand, and denial of a defendant's full access to that process raises grave problems for its
legitimacy.
53
26
27
Boddie, supra
I, Sec 14: Sec. 14. The Legislature shall provide for the prompt publication
of
opinions the Supreme Court and courts of appeal as the Supreme Court deems appropriate, and those
opinions shall be available for publication by any person.
Decisions of the Supreme Court and courts of appeal that determine causes shall be in writing with reasons stated.
Cal. Rules of Court, Rule 8.256(a)(1): Each Court of Appeal and division must hold a session at least once each
Cat Cong. Art
of such
quarter.
Class Action
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judge's"
or
as
the
effectively deprived Plaintiffs of any appellate review as is their right under the 1St Amendment
55
applied here,
or
"vexatious parents"
are
Defendants know
the "orders"
11
12
14
Cal.
App. 616,
App.
on
is not
18
security. (Horton
Allenby (2010)
v.
v.
190
some
rn
i
86.
Plaintiffs
an
appeal
can
be taken. Roston
Ju
to
127 Cal.
of Civil Procedure
if
o
regarding
8.821(a)(2) to rule that a declared "vexatious litigant" is not appealing from the nonappealable
(1982)
22
see, Golin
17
21
of mandate
directly appealable."
20
16
19
routinely and
15
261 Cal.
or
10
13
are
regularly denied "permission" under the VLS by presiding judges to file motions in their custody
disputes. (*See Factual Allegation, Parent H, P, N, C).
Legislature has
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
cases
85. As
al
or
k
et
w
18-2
(119 of 156)
of 55 64 of 101
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appeal has "has merit." (*See fn 65; Appellate judges provide no reasons and merely spit
that the
2
3
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Fi1ed03122113
(prefiling) injunction..
appeal to
at
be from
v.
Edwards
an
order refusing
904.1(a)(6)).
or
deny
"permission" to file custody motions and then the appellate courts deny attempts to
"appeal" the denial of permission from the trial court, creating a procedural loop where all
23
24
25
26
1,7
55
Powers, supra at 110: "...If it could be demonstrated in a given case, or class of cases, that, for whatever reason,
the Courts of Appeal or this court could not effectively exercise the constitutionally granted power of appellate
review by an extraordinary writ proceeding, then such a proceeding could not constitutionally be made the exclusiv
mode of appellate review."
56
Roston, supra 846: Notices of appeal should be liberally construed in favor of their sufficiency. (Rule 1(a), Cal.
Rules of Court.) It is apparent plaintiffs intended to appeal from the fmal judgments of dismissal of their respective
nonappealable interlocutory orders. No one has been misled and defendants have not been
prejudiced. Consequently, we treat these appeals as being from the appealable judgments of dismissal. (Collins v.
City & Co. of S. F. (1952) 112 Cal.App.2d 719, 722-723 [247 P.2d 362].)
actions and not from the
Class Action
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appellate review is denied.' The Defendants know or should know, particularly after amending
on
January 1,
2013 and
"vexatious" label,
"vexatious."
(*See,
Factual
Allegations,
10
11
12
14
access
and the
as
"vexatious"
an
"vexatious"
"essential precondition" if
They should know that this contradicts the ruling in Boddie v. Connecticut,
right to petition,
rights
are
on
violated when
state constitution.
appellate level,
appellate courts) under the VLS solely because they cannot afford to hire an attorney to relieve
Having money to pay for an attorney or
having the good fortune to find a "pro bono" attorney then becomes, as
16
17
custody orders
Ju
18
19
as
should
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
or
or
an
not
Parent
as
13
right to
et
w
status
denied the
are
appeal the trial court's refusal to even allow for a hearing on the issue of "erasing" or lifting their
or
k
the VLS
2
3
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Members of rights,
consequence
or a
direct
57
*See A130206: After all his parental rights were terminated, the trial court denied Parent C's request for an ex
parte hearing on "emergency visitation" and then the Court of Appeals summarily determined that Appellant, who
had been denied any contact with his daughter for over 9 months, had "no merit."
rn
i
20
21
22
if
o
al
http://appellatecases.courtinfo.ca.gov/searchicase/dockets.cfin?dist=l&doc_id=1960835&doc_noA130206
23
24
25
26
27
11/24/2010 Other involuntary dismissal BY THE COURT: Archibald Cunningham has previously been found to be a vexatious
litigant and is subject to a prefiling order. On November 8, 2010, Mr. Cunningham filed an application for permission to appeal
the trial court's October 18, 2010 orders denying his requests for permission to file a document entitled "Ex Parte Hearing for
Emergency Visitation and Appointment of Minor's Council [sic]." The application for permission to appeal is denied. Mr.
Cunningham has failed to show a reasonable possibility that his appeal has merit. (See Code Civ. Proc., 391.7.)
58
Boddie, supra, 400: We do not decide that access for all individuals to the courts is a right that is, in al
circumstances, guaranteed by the Due Process Clause of the Fourteenth Amendment so that its exercise may not b(
placed beyond the reach of any individual, for, as we have already noted, in the case before us, this right is th(
resort to the
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18-2
(121 of 156)
of 55 66 of 101
Page37Page:
realleges
and
II
et
w
10
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
and
as
391(b)(1) that a person can be declared "vexatious" if the person has suffered
term
a seven
year
period.
face
five
"final adverse
13
17
18
19
21
if
o
22
23
matter of common
between "colorable claims" and "meritorious" claims. Yet, nowhere in the express
rn
i
20
supra 58:
Ju
16
As
15
al
For
12
14
the VLS is
proceedings,
determinations" in
11
Rights-
or
k
the VLS
can
distinction
language
these distinctions be found. Instead, the VLS leaves trial courts to their
to construe this
In
own
of this
of
devises
phrase was
24
predicated on the assumption that the "suits" are civil rather than family law custody motions.
The Wolfgram's view that "most people never sue anybody" may apply in civil suits, but in
25
26
the
27
seven
to
hire
Wolfgram
court that
SER 64
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know
creates immediate
court may
ambiguities
on
for instance,
one
Although the family law court did not comply with the requirement to
dismiss the
11
12
13
Defendants cannot
of the
case
that it would
reasonably argue
if they fail to
51 Cal.
(2011)
Mandated
4th 1164,
Supreme
17
18
Ju
rejected "broad readings"' of the VLS in favor of "plain language reading." (1173,
of the Legislature,
not
rn
i
not absurd."
(supra,
at
the courts to
94. In
"represented" litigants
fn 4). It also
It also stated
persona"
1176).
21
Court
if
o
cannot
By Shalant
16
22
or
post security.
Plain
20
Defendants
10
19
have
exclusively in custody disputed was ordered to post $5000 in security. (*See, RJN,
15
Motions in
Custody Disputes
custody disputes, after Shalant v. Girardi, must the "moving defendant" (parent)
to have the
23
al
self-represented.
14
for being
are
require the declared "vexatious litigant" to post security and 391.4 provides that a
involved
who
are
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
or
should know,
or
or
k
lose "five
et
w
custody disputes,
18-2
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25
26
59
391.7(d) defmes "litigations" as motions. Hence, a parent could lose a pretrial motion for a 730
evaluator, a pretrial motion for minor's counsel, a motion for need-based fees under Family Code 2030, a motion tc
modify visitation, a motion to recuse for cause, and with one more lost motion to increase child support the parent
would be sunk.
CCP 391.4: When
dismissed
61
27
Section
as to
In Shalant
v.
is not furnished
ordered furnished.
was
as
Girardi, (2010), 183 Cal. App. 545, the Court of Appeals cautioned against "broad interpretations"
of the VLS, supra, 557:"Given the important constitutional concerns that section 391.7 implicates, we conclude that
the statute should not be broadly interpreted. Rather, it should be applied strictly according to its terms." (emphasis
added).
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suffice in such
391.3
any parent
motion in
found
custody dispute?
12
the VLS,
how does
If,
one
an
as
the
for
18
context of a
19
parent,
Ju
not in the
26
2,7
as
and
that there
one
for "new
are
against a
(*See, Factual
represented?
"new"
Does
custody dispute?
being declared
Or is
this, in the
Is there any
reason
to believe that
"represented" parent
recognize these facially ambiguous provisions as applied by family law courts in custody
disputes.
Represented Parents
24
25
motion
hopes of resolving the custody dispute, but in simply ending the litigation in
rn
i
if
o
23
ongoing custody dispute morph into or transform into "new litigation" for which the
"vexatious"
should
the vexatious
17
22
on
6`defendant/vexatious/ parent" is
21
"defendant"
16
is
bring a 391.1
11
14
al
an on
prefiling order"
"a
20
language of
"vexatious, does the custody dispute then mysteriously become "new litigation" under
13
motion but
10
15
can
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
to resolve any
et
w
prevailing,
without
custody dispute?
Or does
no
18-2
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Shalant v. Girardi (2011) 51 Cal. 4'11164, 1171: To summarize, our vexatious litigant statutes provide courts anc
nonvexatious litigants with two distinct and complementary sets of remedies. In pending litigation, a defendant may
have the plaintiff declared a vexatious litigant and, if the plaintiff has no reasonable probability of prevailing,
391.1-391.6.
ordered to furnish security. If the plaintiff fails to furnish the security, the action will be dismissed.
In addition, a potential defendant may prevent the vexatious litigant plaintiff from filing any new litigation in propri
persona by obtaining a prefiling order and, if any new litigation is inadvertently permitted to be filed in propria
391.7.)
persona without the presiding judge's permission, may then obtain its dismissal.
Class Action
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ID: 9003597
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to
F,
Parent
C).
If a parent is
et
w
Parent
"vexatious" in
parent in the family law courts? Can the court impose the prefiling order against the represented
probate proceeding,
case as
(Factual Allegations,
F). Faced with a 391.1 motion, may a parent hire or obtain a "pro-bono attorney" and
391.1
no
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
"moot" the
97. Would
9
can
Parent
63
10
11
VLS
12
during the 391.1 hearing and while trying to defend her client was found to be a puppet and had
a
13
was a
court be
acting in excess
In
16
Parent F's
found to
practice law? Would the judge be denying the client the right to have an
attorney?'
17
Permanent
98. As noted by
Ju
18
of the "vexatious
19
Wolfgram
20
to
"mere
14
v.
rn
i
21
I (2003)
if
o
22
23
24
25
Judge Sills
litigant" label.
Branding of Parents
As Vexatious.
This issue
was
an
by John E. Wolfgram in
Wells Fargo Bank and then addressed by the Court of Appeals for the Second
al
to
impose provisions of the VLS against parents who are represented? (*See Factual Allegations,
18-2
(124 of 156)
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112 Cal.
"troubled" by this
stated, supra:
While there is much to recommend this reasoning, the conclusion section 391.7 is to be a
permanent, irrevocable restriction is troubling. Although section 391.7 does not
absolutely exclude the "pro per" litigant from the courts, we believe fundamental fairness
requires the "vexatious litigant" brand be erasable in appropriate circumstances.
on
January 1,
26
63
27
n
an
judge "vacated" the hearing, denying the parent the right to present any evidence, "written or oral" or "by witness or
affidavit" and ruled the parent was a "vexatious litigant" in his statement of decision.
64
*See, fn 23, Weissman v. Quail Lodge, Inc. (1999 9th Cir. Cal.) 179 F3d 1194.
Class Action
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703, this does not resolve the issue but just begs more questions. Why did it
years"
to refuse to dissolve
Sills
8
as
to
Is the
"branding"
injunction under
pondered in
lichen?
how Luckett,
succeed in
(supra, 89-90).
Is
or
any other
person
and his
12
have
13
Is that
and the
error
scores
of unanswered
inability to present
Impromptu
17
or
Cal. Procedure
error
is reversible per
at
se.
Fewel
431, 433.).
can a
Court of Appeals,
conduct
on
its
own
motion under
there is
19
appeals of family law decisions? (*See Factual Allegation, Parent P). Would the party called to
Ju
no
rn
i
become the
21
court's
22
if
o
al
evidence
18
20
can
Denying a party the right to testify or to offer evidence is reversible per se. (Fewel v.
16
roadmap
implicitly suspect after the strict constructionist view taken in Shalant? Does
evidentiary hearing,
23 Cal. 2d
11
(1943)
order
legislating?
15
an
10
14
an
an
as
parent"
allow
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
as
"vexatious
when
or
k
have the
18-2
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ID: 9003597
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"moving defendant" as those terms are defined by the statute? Would the appellate
need for
or
"summons and
23
under the Code of Civil Procedure? Would the Court of Appeals then be
24
issuing a "vexatious litigant order" or would it remain an appellate court issuing an "appellate
25
opinion"? Would the vexatious litigant parent-plaintiff-appellee then be allowed to appeal this
26
an
"order/opinion"? And to whom? The Supreme Court? How would this impact the RookerFeldman doctrine if the "vexatious
27
Class Action
parent" was
denied
access
are
not rhetorical
sought to
39
SER 68
considerations
as
Parent C
Fee Award.
motion
grounds and then sanction him multiple times? Would this application of the VLS be supported
by a "plain reading"
appeal
second vexatious
litigant hearing?
11
judge,
12
13
14
on
the
same
multiple
estoppel? Would
Did the
litigant order?
Or did the
to
igant
Are
16
101. In Powers
17
the
18
v.
Ju
"direct
of Permission to
10 Cal.
Appeal,
litigant did not have a right to appeal with a decision on the merits, oral
argument, and that the Legislature could "regulate the mode ofappellate review, the Supreme
rn
i
21
same
permission to appeal the second vexatious litigant order violate the l' or 14th Amendments?
15
20
father
other
19
same
the
10
in
Supreme
on
mandated by the
father
as
of the VLS
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
Legislature
could not
an
appellate
courts'
22
if
o
al
by an impromptu 391.1
by an appellate court.
18-2
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on
"vexatious
parents" begs
23
65
24
25
26
27
Powers, supra 110: This does not mean, however, that the "appellate jurisdiction" provision imposes no
restrictions on the Legislature's authority to allocate appellate review as between direct appeals and extraordinary
writ petitions. As we have seen, the plain language of the provision reveals that it is a grant of judicial authority and
this form of grant has been interpreted to mean that, although the Legislature may regulate the mode of appellate
review, it may do so only to the extent that it does not thereby 'substantially impair the constitutional powers of the
courts, or practically defeat their exercise.' (In re Jessup, supra, 81 Cal. 408, 470, italics omitted; see also Haight,
supra, 8 Cal. 297, 300.) If it could be demonstrated in a given case, or class of cases, that, for whatever reason, the
Courts of Appeal or this court could not effectively exercise the constitutionally granted power of appellate review
by an extraordinary writ proceeding, then such a proceeding could not constitutionally be made the exclusive mode
of appellate review.
(emphasis added).
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support and visitation'', which often tie in with restraining orders. Do the forms used by the
(*See, MC-700,
701
constitution? Can it
forms demanded by
10
13
14
parental rights
for
102. In the
same
(such as
Parent
P) is declared
Can it reasonably be
the
Ju
almost
Can it
reasonably
Legislature has created a facially vague statute and has improperly delegated to
appellate judges the job of ferreting out the meaning of each and every sentence in
almost every
provision.
contradictory.
rn
i
procedural
17
103. The
an
infringed upon because the "vexatious parents" have the right to hire a lawyer?
18
"vexatious" by
21
after the
be
20
16
19
appellate
right to petition?
to
15
sufficient
appellate court refuse to review the 30 page writ filed by the represented parent/appellant on the
grounds that the writ does not contain "sufficient documentation"? Does that offend the parent's
11
12
or
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
review? If a
termination of all
8
The
The branding
are
uncertain. The
procedures to
courts the
right to fill in
22
if
o
al
file
or
et
w
or
k
constitutional
23
24
25
66
11/24/2010 diher involuntary dismissal BY THE COURT: Archibald Cunningham has previously been found to be a vexatious
litigant and is subject to a prefiling order. On November 8, 2010, Mr. Cunningham filed an application for permission to appeal
the trial court's October 18, 2010 orders denying his requests for permission to file a document entitled "Ex Parte Hearing for
Emergency Visitation and Appointment of Minor's Council [sic]." The application for permission to appeal is denied. Mr.
Cunningham has failed to show a reasonable possibility that his appeal has merit. (See Code Civ. Proc., 391.7.)
67
26
27
11/23/2010 &der denying petitiorfiled. Petitioner, a vexatious litigant who is now represented by counsel, has filed a petition
for writ of mandate challenging the trial court's requirement that petitioner post a bond to have an order to show cause placed on
calendar. Without commenting on the merits of the petition or whether petitioner is allowed to file such a petition without
posting a bond we deny the petition without prejudice because it does not contain sufficient documentation for the court to
consider the merits of the claim. (See Serna v. Superior Court (1985) 40 Ca1.3d 239, 246.)
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an
(1972)
and
reallege
Rights-
and
fundamental
right
protected by the
14
State of California.
(Art. I,
107. As noted
15
"tool
to
16
are no
of grievances is
1st Amendment and of the United States Constitution and the Constitution of the
13
2, 3. ).68
to
to
use
the VLS
changed circumstances to justib; a different result." to "(In re R.H., supra 700). The
requirement for a "prefiling order" and/or security before being allowed to file motions in a
19
enjoining any "speech" (argument, contentions, etc.) related to the custody dispute.
20
Ju
as a
rn
i
if
o
26
27
The VLS, in
custody
cases, is directed at
This use of
or
curtailing
VLS
on
23
25
as a
18
24
or
12
al
105. Plaintiffs
22
on
10
21
vague law
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
policemen, judges,
17
1983.
11
ad hoc and
to
on an
or
k
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any relevant
state
purports
to allow
evidence, including evidentiary hearing (Family Code 217), live testimony (Family
68
The right of petition, like the other rights contained in the First Amendment and in the California constitutional
Declaration of Rights, is accorded "a paramount and preferred place in our democratic system." (American Civil
Liberties Union v. Board of Education (1961) 55 Ca1.2d 167, 178; The Supreme Court has stated that "the rights to
assemble peaceably and to petition for a redress of grievances are among the most precious of the liberties
safeguarded by the Bill of Rights. These rights, moreover, are intimately connected, both in origin and in purpose,
with the other First Amendment rights of free speech and free press." (Mine Workers v. Illinois Bar Assn. (1967)
389 U.S. 217, 222 [19 L.Ed.2d 426, 430, 88 S.Ct. 353]; see also Thomas v. Collins (1945) 323 U.S. 516, 530 [89
L.Ed. 430, 440, 65 S.Ct. 315]; De Jonge v. Oregon (1937) 299 U.S. 353, 364 [81 L.Ed. 278, 283, 57 S.Ct. 255].)
Class Action
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Rule 5.113,
speech
analyzed,
it does contain
activities
13
16
right ofpetition
is
ofparallel importance
Constitution.
Although
to
the
ofgovernmental authorities
to
v.
right offree
been
seek redress
impinges
on
or
through
to
be
independently
aggrieved by the
fundamental
custody rights.
to
deny access,
as
live
an
14
15
of
government
11
12
an
or
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
10
v.
on a
tool to muzzle
et
w
as a
or
k
gag
or
18-2
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5.250),
ID: 9003597
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The
on access
to
family
and the
"vexatious
of law is the
mandatory
17
presumption that any challenge to a final custody order is without merit. The imposition of thc
VLS in custody disputes is hopelessly circular both procedurally and substantively. (Vexatious
18
parents
Ju
case.). Here,
to
present
69
Bozek, fri 4: The legislative history of California Constitution article I, section 3, reveals an intent to make the
California provision at least as broad as the First Amendment right of petition. Article I, section 10 of the California
Constitution, originally enacted in 1849, stated: "The people shall have the right to freely assemble together to
consult for the common good, to instruct their representatives, and to petition the Legislature for redress of
grievances." (Italics added.) On November 5, 1974, the voters of this state adopted the following amended and
renumbered provision: "The people have the right to instruct their representatives, petition government for redress
grievances, and assemble freely to consult for the common good." (Italics added.) (Cal. Const., art. I, 3.) The
amendment was clearly intended to broaden the right of petition to make it extend to petitions to all branches of
government, not merely to the Legislature. (See Proposed Revision of the California Constitution, Articles I, XX,
rn
i
20
their
19
cannot show
21
al
if
o
22
23
24
25
26
27
George noted that any presumption that a custody order was fmal depended on a there
hearing." A postjudgment motion for modification of a fmal child custody order, for
"fully-litigated
having
example, requires the moving party to demonstrate a significant change of circumstances warranting departure fron
the judgment. (Montenegro v. Diaz, supra, 26 Cal.4th at p. 256.) A presumption exists that the judgment is correct
and should not be disturbed a presumption that would not be well founded were the judgment to be based upon
hearsay (unless admitted into evidence upon stipulation of the parties).
In Elkins, Chief Justice
been
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being given having a "fully litigated hearing" as noted by Chief Justice George in Elkins.
petition under
by,
among other
prior restraint.
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
as a
et
w
or
k
every
and
10
or
Supreme
12
371, 377-378).
13
In
opportunity
16
to
abstract words
17
Connecticut
(1970)
401 U.S.
v.
countervailing state
interest
at
ofright and duty through the judicial process must be given a meaningful
be heard...
'there
can
be
no
they
require that deprivation of life, liberty or property by adjudication be preceded by notice and
Ju
18
opportunity for hearing appropriate to the nature of the case.' (Boddie, supra,
19
20
rn
i
Elkins
v.
Sup.
Ct.
of Conta
or
at
377-378).
Costa Co.
(41
21
rules
procedures that are inconsistent with statute, rules of the Judicial Council, case
law
or
22
if
o
al
or
constitutional law!'
23
24
25
26
27
71
Elkins, supra, at 1351-53. The scope of a court's inherent rulemaking authority has been discussed in various
decisions (see, e.g., Rutheiford, supra, 16 Cal.4th at pp. 967-968), and the outer limits of such authority are clear. A
trial court is without authority to adopt local r rules or procedures that conflict with statutes or with rules of court
adopted by the Judicial Council, or that are inconsistent with the Constitution or case law. (Rutheiford, supra, at pp.
967-968; see also Hall v. Superior Court (2005) 133 Cal.App.4th 908, 916-918.) As provided in Government Code
section 68070, subdivision (a): "Every court may make rules for its own government and the government of its
officers not inconsistent with law or with the rules adopted and prescribed by the Judicial Council." (Italics added;
see also 2 Witkin, Cal. Procedure (4th ed. 1996) Courts,
204, p. 272; id. (2006 supp.) 204, pp. 87-88.).
"C)
Class Action
PAGE 44
SER 73
State shall
or
or
may
being filed to "harass" or cause "delay." They also know that Judicial Council
provides an informal procedure which the presiding judge uses to decide if the party's
of any evidence,
filed." Further, the VLS does not indicate whether the presiding judge's "merit" determination
should involve
11
name
12
13
three boxes
14
pages
15
to
factors to
consider,
or
are no
instructions
on
the form
as
to whether the
order; Number of
17
ruling should be made or whether the Plaintiff has a right to "appeal" the order. However,
merit
Ju
Constitutions, which
they are sworn to uphold. (Evid. Code, 664 [presumption that official duty "regularly
20
performed"];
19
if
o
22
23
24
25
Civ.
Code,
3548
completely an opaque process without written reasons or explanations is beyond scrutiny and
rn
i
21
action has
10
18
form MC 701
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
or
al
or
no
16
18-2
(131 of 156)
of 55 76 of 101
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k
1
2
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w
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devoid of any
Feiock
(1988) 485
requires
379
to their full
(1971),
improper mandatory
624).
U.S.
an
fees for
litigants a "meaningful
v.
S.L. J. 519
26
27
72
See
73
In
also, Cal.
Const. Art.
1, 7.
R.H., 170 Cal. App. 4th 678 (2009). The standard used by a presiding judge after a prefiling order has been
imposed is, "the simple showing of an arguable issue." (Id, at 705).
re
Class Action
PAGE 45
SER 74
due process in
one
to
10
determine
or
unwritten rules
case.
to
try a felony
charge."
change to
without
rules
14
The unwritten
The
"vexatious
Exhibit
U).
procedures involve allowing the presiding judge to make the merit determination
written decision
or
of any
right to appeal
or
review
or
reconsideration. Whik
is different.'
16
or
17
as
18
Ju
the
or
The
same
due process
such
by the Court of
concerns
associated
form
rn
i
20
every
12
19
on
15
custody or visitation orders will be decided using form MC 701 and by the unwritten procedures
11
13
and
397 U.S. at
and rules
9
535, 541-542:
(1963)").74
7
8
402 U.S.
"'meaningful'
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
clause must be
proceeding). The
(1996), the
18-2
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21
al
if
o
22
23
24
25
26
74
Bell v Burson, supra, at 539: "Once licenses are issued, as in petitioner's case, their continued possession may
become essential in the pursuit of a livelihood. Suspension of issued licenses thus involves state action that
adjudicates important interests of the licensees. In such cases, the licenses are not to be taken away without that
procedural due process required by the Fourteenth Amendment. Sniadach v. Family Finance Corp., 395 U. S. 337
(1969); Goldberg v. Kelly, 397 U. S. 254 (1970). This is but an application of the general proposition that relevant
constitutional restraints limit state power to terminate an entitlement whether the entitlement is denominated a
"right" or a "privilege." Sherbert v. Verner, 374 U. S. 398 (1963) (disqualification for unemployment
compensation); Slochower v. Board ofEducation, 350 U. S. 551 (1956) (discharge from public employment);
Speiser v. Randall, 357 U. S. 513 (1958) (denial of a tax exemption); Goldberg v. Kelly, supra (withdrawal of
welfare benefits). See also Londoner v. Denver, 210 U. S. 373, 210 U. S. 385-386 (1908); Goldsmith v. Board of
Tax Appeals, 270 U. S. 117 (1926); Opp Cotton Mills v. Administrator, 312 U. S. 126 (1941)."
75
27
[section 391.7] keeps vexatious litigants from clogging courts, it is closer to 'licensing or permit
administered pursuant to narrowly drawn, reasonable and defmite standards' which represent
'government's only practical means of managing competing uses of public facilities[T (Wolfgram v. Wells Fargo
Bank (1997) 53 Cal. App. 4th 43, 60.
"To the extent
systems which
are
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18-2
(133 of 156)
of 55 78 of 101
Page49Page:
appellate forms may be "narrowly drawn" and satisfy due process requirements
for baby
strollers,
2
summary
stake, it
rights
10
to
15
124. Plaintiffs
16
as
Ju
19
Bill of Attainder
rn
i
23
the VLS has been used to lock parents out of court after
if
o
and
provides
22
27
allegation
126. As
or ex
become
26
and every
21
25
Rights-
bill of attainder prohibited by the U.S. Constitution Article I, Section 9; Clause, which
"[N]o
24
1983.
17
al
12
20
not justify an
actions, orders and rulings, taken under color of law individually and in
14
explained
123. Defendants'
13
As
11
18
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
is
curbing "vexatious"
at
et
w
procedure used here by Defendants satisfies due process in the context of "merit"
decision
in the
or
k
and
ID: 9003597
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parents'
their
parental rights.).
76
Boddie, supra, at 401. We are thus left to evaluate the State's asserted interest in its fee and cost requirements
mechanism of resource allocation or cost recoupment. Such a justification was offered and rejected in Griffin v.
as a
Illinois, 351 U.S. 12 (1956). *See also, Elkins v. Sup.Ct. of Contra Costa Co., 41 Cal. 4th 1337 (2007), "In other
words, court congestion and 'the press of business' will not justify depriving parties of fundamental rights and a full
and fair opportunity to present all competent and material evidence relevant to the matter to be adjudicated."
Class Action
ex
or
law
PAGE 47
of
SER 76
restricts
disputes creates
3
access
and the
18-2
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"change of circumstance."
termination orders"
to prove, as noted
as a
result of being
termination of all
to
custodial
11
them of custodial
rights
are
thus altered
by the VLS
that
negate
be
parent's right
or
should know,
as
R., H., that the VLS is specifically applied to the class of parents in custody disputes. They know
or
14
custody disputes involve fundamental rights and parents have the right to "evidentiary
16
17
Their
18
19
requirements of 391.7)
live
Ju
"blameworthy conduct" is nothing more than trying to "regain custody" as Judge Cardoza
process of law
20
to
can
12
15
serve
10
13
terminated under
9
It
child?).
The de facto
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
as
of custody
access), change parental rights under the Family Code and Title Five Rules.
five years
custody
depriving parents
above,
or
k
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as
and
of due
Adm'r
of Gen.
Nixon
v.
rn
i
Servs., 433 U.S. 425, 468, 97 S.Ct. 2777, 2802, 53 L.Ed.2d 867 (1977).
21
al
if
o
22
23
24
25
26
27
nn
"if it
and
v.
clause
FCC, 162
II F.3d 678, 683 (D.C. Cir. 1998). The element of specificity may be satisfied if the statute singles
out
person
States
v.
or
class
United
Lovett, 328 U.S. 303, 315, 66 S.Ct. 1073, 1078-79, 90 L.Ed. 1252 (1946). The Supreme
was
shown by
78
The U.S. Supreme Court noted that the question of a statute imposes punishment, a court should pursue a
three-prong analysis:(1) whether the challenged statute falls within the historical meaning of legislative punishment;
(2) whether the statute, "viewed in terms of the type and severity of burdens imposed, reasonably can be said to
Class Action
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father's
al.
et
v.
(D.C.App. 2003)."
or
k
resulted in
18-2
(135 of 156)
of 55 80 of 101
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contempt and ignominy for "vexatious litigants, including "vexatious parents, is personified b)
digital
&
forms, MC-703
our
petition to remove themselves from the "lists" does not diminish the
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
public shaming.
9
130. Nor
can
10
11
12
13
14
can
rights. (*See,
15
16
access.
Ju
18
"need-based" fees
rn
i
S. Ct. at
21
if
o
al
24
25
26
27
"10
as
to "civil cases"
as
and has, in
some
cases, resulted in
as
alternative
recommended
on
"vexatious
parents" simply by
supra
or
433 U.S. at
482, 97
2810).
22
23
20
legitimate interest in
perpetually while impoverished parents who have been declared "vexatious" are often denied all
17
19
can
Allegations).
applied to parents in
cases, but in
Factual
as
privileges
as a
on
bill of attainder.
or
immunities
further nonpunitive legislative purposes"; and (3) whether the legislative record "evinces a congressional intent to
punish." Selective Serv. Sys. v. Minn. Pub. Interest Research Group, 468 U.S. 841, 852, 104 S.Ct. 3348, 3355, 82
L.Ed.2d 632 (1984) (quoting Nixon, 433 U.S. at 473, 475-76, 478, 97 S.Ct. at 2805, 2806-2807, 2808).
79
Foretich, supra: In this case, the legislative history is replete with evidence that the statutory purpose of the
Elizabeth Morgan Act was to "correct an injustice" and take sides in a notorious custody dispute. Hearing at 8, J.A.
41 (statement of Rep. Molinari). The focus of the Act and the unusual committee hearing in consideration of the bill
demonstrate that the legislative process in this case amounted to precisely that which the Bill of Attainder Clause
was designed to prevent: a congressional determination of blameworthiness and infliction of punishment."
Class Action
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reallege and incorporate herein by reference each and every allegation and
II
as
(U.S.
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
9, Clause 3).
"litigations
amounts to
Const. Article
an
1, Section
ex
et
w
134. Plaintiffs
Rights-
1983.
18-2
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(*See, 391(b)(1)
&
10
However, the VLS does not define the term "finally determined adversely' and has relied
11
137. In McColm
v.
and petitions.
14
later
15
those
16
17
expanded the
appellate courts have retrenched, refusing to define "littation" under the VLS
as
including
petitions and writs that are "summarily denied" without ever reaching the "merits". These
"adverse determination"
on
the merits of a
'final determination,
case.
Ju
18
on
"litigation."
as
12
13
(2).
(Fink v.
Shemtov
that
"vexatious
litigation"
(2010)
180 Cal.
was no
App. 48'
1160).8' (In Leone v. Medical Board (2000) 22 Cal. 481660, 669, the California Supreme Court
the
21
or
22
23
intent."
if
o
al
24
25
26
27
n
on a
case.").
rn
i
20
explained,
19
(Kaiser Aluminum
& Chemical
clearly made
Corp.
v.
to appear
Bonjorno,
that such
494 U.S.
was
not to be
are
the
legislative
80
In Wolfgram, supra at 58, the Court of Appeals riffed that "[1] et, loss offive suits in but seven years is
remarkable. Most people never sue anybody. most people don't sue anyone." The fact that statistic show that 50% o
married couples, many with children, end up in dissolution proceedings seems to be have been lost on the court. In
making this observation, Plaintiff illustrate the fact that most courts construe and consider the language of the VLS
in terms of "civil, not "family law" litigations.
81
Fink, supra at 1172: Although a writ proceeding generally qualifies as a litigation within the meaning of section
391, subdivision (a) (see McColm v. Westwood Park Assn., supra, 62 Cal.App.4th at p. 1216), for the reasons we
next explain, we hold the summary denial of a writ petition does not necessarily constitute a litigation that has been
determined adversely to the person" within the meaning of section 391, subdivision (b)(1).
""fmally
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&
3
(g);
transactions
new
Law
or
or
considerations
already past,
attaches
or
must
a new
no
391(a)
is to include
express
to
USI
or
is to
that
10
not
11
or
12
petitions
13
14
or
should know that the VLS does not contain any plain
There is
respect
Landgraf v.
be deemed retrospective.
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
express
or
in
disability,
takes away
is
or
k
v.
et
w
Co.
Surety
&
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or
as a
person
no
as
"finally adverse
to
appeals, writs,
and
to
appeals,
writs and
17
appeal.
18
litigant loses their "sixth litigation" in seven years. (Wolfgram, supra 58; "Only those citizens
Ju
As noted by the
rn
i
if
o
22
as
24
Clause protect
25
may not be
27
lauyers,
litigants'
kicks in under
seven
391.7(d) defines
of the VLS,
"motions" that
23
26
on
may file
21
20
al
16
19
or
or even ex
Supreme
for
Court has held that the Due Process Clause and the
Taking
that
compromised by retroactive legislation. The Supreme Court has noted that a state
as the
may have "sufficient justifications" in giving prospective application to a statute (such
Uveges, 34 Cal. 4th 915, 928 (2004). CCP 391-391.7, by changing "the future legal consequences of
past transactions, so-called secondary retroactivity, a form of retroactivity, has engaged in improper conduct
unless there is clear intent shown to give the statute retroactive effect.) (emphasis added).
82
Elsner v.
Class Action
PAGE 51
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Vexatious
(Landgraf v.
USI Film
because
142.
at
application" under
retroactive effect is
that
one
"impairs rights a
By declaring various Class Member "vexatious" on the basis of their writs, appeals,
or
clauses
conduct in
so
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filing
and 14th
writs and motions and other pleadings. At the time the various Class Members filed their writs,
appeals, or petitions related to custody judgment/orders, they were acting legally and within his
rights
di
ci
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N ra
N nc
.c h
om N
ew
to seek
143. Defendants'
actions, orders and rulings, taken under color of law individually and in
10
11
12
15
Issue
2).
violates
17
apply
3).
Issue
Ju
14th Amendment.
as
applied to
4).
Issue
20
to
19
Issue
1).
14
18
WHEREFORE, Plaintiffs pray that the Court order the following relief and remedies:
13
16
privileges or immunities
rn
i
parents in custody disputes in California family law courts, violates the Equal Protection Clause
21
22
if
o
al
5).
Issue
judicial declaration that California's Vexatious Litigant Statute, on its face and
23
as
24
applied to parents in custody disputes in California family law courts, is void for vagueness
6. Issue
25
Statute
as
applied to
83
26
27
Defendants may argue that the VLS's prefiling order is not unconstitutional because it only purports to affect
filings. However, the determination of "vexatiousness" is based on past conduct, such as the filing of writs,
appeals, or petitions. At the time of those filings, the Class Members were acting well within their rights.
"future
84
/1 CI
pronounced, the
"courts
Class Action
states
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Issue
or
k
7).
expenses,
1988;
di
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om N
ew
et
w
8).
10
38(b),
6(a), Plaintiffs hereby demand a jury trial on all issues triable by a jury.
11
Iiysubu tea,
esp
12
13
14
toad
"ngham,
Plaintiffs
for
Attorney
Dated:
15
16
17
zz__
o.
Ju
18
rn
i
19
20
an
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al
if
o
22
23
24
25
26
27
Class Action
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ARCHIBALD CUNNINGHAM,
Plaintiff,
v.
12
13
Defendants.
14
15
INTRODUCTION
16
Now before the Court for consideration are: (1) the Motion to Dismiss, filed by Judge
Patrick J. Mahoney (Judge Mahoney), in which Chief Justice Ronald M. George (Chief
18
19
Judge James McBride (Judge McBride), Maria Schopp, Esq. (Ms. Schopp), and Mary
20
Wang (Ms. Wang), have joined; and (2) the Motion for a Preliminary Injunction, filed by
21
Ju
17
rn
i
10
11
22
al
if
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23
24
25
26
27
28
Judge Mahoney originally filed his motion to dismiss on August 11, 2010, and
filed a request for judicial notice on that date as well. (Docket Nos. 7, 8.) On August 20,
2010, Judge Mahoney re-filed the motion, with some minor changes. (Docket No. 16.) The
Court shall consider the arguments presented in the later filed motion.
1
Ms. Schopp and Ms. Wang filed a notice of joinder to Judge Mahoneys motion on
August 17, 2010, and filed a further notice of joiner on August 24, 2010. (See Docket Nos.
16 and 24.)
Mr. Cunningham filed an opposition to Judge Mahoneys motion on August 19,
2010, and an opposition to the joinder filed by Ms. Schopp and Ms. Wang on August 24,
2010. (Docket Nos. 17. 22.)
When the matter was reassigned to the undersigned, the Court issued a briefing
schedule on Judge Mahoneys re-noticed motion, because the Court inadvertently overlooked
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Having considered the parties papers, relevant legal authority, the record in this case,
and having had the benefit of oral argument, the Court HEREBY GRANTS the motion to
dismiss and the joinders therein, and DENIES AS MOOT, the motion for a preliminary
injunction.
BACKGROUND
Mr. Cunningham brings this action for declaratory and injunctive relief pursuant to the
Civil Rights Act, 42 U.S.C. 1983, asserting a constitutional challenge to the California
Vexatious Litigant Statute, Cal. Code Civ. P. 391, et seq., in the context of family law
proceedings. (Compl., 1, 10.) The instant action arises because, during the course of a
10
custody dispute between him and his ex-wife, Ms. Wang, Mr. Cunningham was declared a
11
vexatious litigant and has been required to post security and ordered to pay attorneys fees in
12
di
ci
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ew
Based on the allegations in the Complaint, Mr. Cunningham brings the following claims
14
for relief: (1) Unconstitutional Denial of Access, Imposition of $5,000 Bond; (2) Fee Sanctions
15
for Vexatious Litigation Violation Are an Unconstitutional Taking; (3) Fee Sanctions for
16
Vexatious Litigation Violation Amounts to Prohibited Ex Post Facto Law; (4) the Vexatious
17
18
Rights; (5) Multiple Vexatious Litigant Actions Violates Due Process; (6) the Vexatious
19
Litigant Statute Violates Due Process by Denying Right to Appeal; and (7) the Vexatious
20
rn
i
21
Ju
13
22
23
if
o
al
et
w
or
k
24
A.
ANALYSIS
Applicable Legal Standards.
When a defendant moves to dismiss a complaint or claim for lack of subject matter
25
jurisdiction, the plaintiff bears the burden of proving that the court has jurisdiction to decide the
26
claim. Thornhill Publn Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979).
27
28
the fact that the matter had been fully briefed. Accordingly, Mr. Cunningham filed further
opposition briefs on November 4, 2010, and November 5, 2010. (Docket Nos. 48, 49.) In
the interests of justice, the Court shall consider each of Mr. Cunninghams opposition briefs.
2
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Federal courts can only adjudicate cases which the Constitution or Congress authorize them to
adjudicate: cases involving diversity of citizenship, or those cases involving a federal question,
or where the United States is a party. See e.g., Kokkonen v. Guardian Life Ins. Co. of Am., 511
Where an attack on jurisdiction is a facial attack on the allegations of the complaint, as is the
case here, the factual allegations of the complaint are taken as true and the non-moving party is
entitled to have those facts construed in the light most favorable to him or her. Fedn of African
di
ci
C al
JB B
N ra
N nc
.c h
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ew
facial or factual. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).
Am. Contractors v. City of Oakland, 96 F.3d 1204, 1207 (9th Cir. 1996).
A motion to dismiss is proper under Federal Rule of Civil Procedure 12(b)(6) where the
12
pleadings fail to state a claim upon which relief can be granted. The Courts inquiry is limited
13
to the allegations in the complaint, which are accepted as true and construed in the light most
14
favorable to the plaintiff. Lazy Y Ranch LTD v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008).
15
Even under the liberal pleading standard of Federal Rule of Civil Procedure 8(a)(2), a
16
plaintiffs obligation to provide the grounds of his entitle[ment] to relief requires more than
17
labels and conclusions, and a formulaic recitation of the elements of a cause of action will not
18
do. Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 555 (2007) (citing Papasan v. Allain,
19
20
Pursuant to Twombly, a plaintiff must not merely allege conduct that is conceivable but
must instead allege enough facts to state a claim to relief that is plausible on its face. Id. at
rn
i
21
Ju
11
A motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) may be
10
et
w
or
k
570. A claim has facial plausibility when the plaintiff pleads factual content that allows the
23
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.
24
Ashcroft v. Iqbal, 556 U.S. __, 129 S. Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 556).
25
If the allegations are insufficient to state a claim, a court should grant leave to amend, unless
26
amendment would be futile. See, e.g., Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th Cir.
27
1990); Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv., Inc., 911 F.2d 242, 246-47 (9th
28
Cir. 1990).
al
if
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22
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As a general rule, a district court may not consider any material beyond the pleadings
in ruling on a Rule 12(b)(6) motion. Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994),
overruled on other grounds, Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002)
motion to dismiss. In doing so, the Court does not convert a motion to dismiss to one for
summary judgment. See Mack v. South Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir.1986),
overruled on other grounds by Astoria Fed. Sav. & Loan Assn v. Solimino, 501 U.S. 104
(1991).2
B.
di
ci
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JB B
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N nc
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ew
10
Each of Mr. Cunninghams claims are brought pursuant to Section 1983. In order to
11
state a claim under Section 1983, a plaintiff must allege two essential elements: (1) that a right
12
secured by the Constitution or laws of the United States was violated and (2) that the alleged
13
violation was committed by a person acting under the color of state law. West v. Atkins, 487
14
U.S. 42, 48 (1988); see also Ketchum v. Alameda County, 811 F.2d 1243, 1245 (9th Cir. 1987).
15
A.
The Claims Against Judge Mahoney, Presiding Judge McBride, Presiding Justice
Kline, and Presiding Justice McGuiness Are Dismissed, With Prejudice.
16
17
The Ninth Circuit has concluded that judicial defendants who are sued in their judicial
capacity are improper defendants in a Section 1983 action, in a situation where, as here, a party
19
challenges the constitutionality of a state statute.3 See Wolfe v. Strankman, 392 F.3d 358, 366
20
Mr. Cunningham filed a request for judicial notice in conjunction with his
complaint, by which he seeks judicial notice of state court records (Plaintiffs RJN).
(Docket No. 4.) Judge Mahoney filed a request for judicial notice in conjunction with his
motion to dismiss (Defendants RJN), by which he seeks judicial notice of records filed in
Cunningham v. Mahoney, 10-CV-1182-JSW and Cunningham v. Superior Court, No. CGC09-485501. The requests for judicial notice are GRANTED.
2
rn
i
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18
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or
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22
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25
26
27
28
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66 of 101
(146 of 156)
(9th Cir. 2004) (Strankman); Rupert v. Jones, 2010 WL 3833982, at *5 (N.D. Cal. Sept. 29,
2010). In Strankman, the Ninth Circuit reasoned that a court should not enjoin judges from
applying statutes when complete relief can be afforded by enjoining other parties, because it is
ordinarily presumed that judges will comply with a declaration of a statutes unconstitutionality
without further compulsion. Strankman, 392 F.3d at 366 (quoting In re the Justices of the
Supreme Court of Puerto Rico, 695 F.2d 17, 23 (1st Cir. 1982)). The court, therefore, dismissed
et
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or
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Cunninghams theory is that the Vexatious Litigant Statute is facially unconstitutional in the
10
context of family law proceedings and as it has been applied to him by the judicial defendants.
11
However, Mr. Cunningham also has named Chief Justice George as a defendant, in his capacity
12
as Chair of the Judicial Council. Thus, if he could prevail on the merits, Mr. Cunningham could
13
obtain complete relief from Chief Justice George in that capacity. Strankman, 392 F.3d at 358;
14
15
state statutes against judicial defendants where plaintiffs claims against them pertained solely to
16
17
Accordingly, the Court grants, in part, the motion to dismiss, and each of the claims
against Judge Mahoney, Presiding Judge McBride, Presiding Justice McGuiness, and Presiding
19
Justice Kline are dismissed on this basis. Moreover, because it appears that granting leave to
20
amend the Section 1983 claims against these defendants would be futile, the claims are
21
Ju
18
rn
i
22
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23
24
25
Judicial immunity applies however erroneous the act may have been, and however
injurious in its consequences it may have proved to the plaintiff. Id. (quoting Cleavinger v.
Saxner, 474 U.S. 193 (1985)).
The Wolfe court concluded, however, that because the plaintiff also had sued
Chief Justice George in his administrative capacity as Chair of the Judicial Council,
dismissal on the basis of judicial immunity was not warranted. Id. At the hearing on the
motion, Mr. Cunningham also explained that he brought his claims against Justice Zelon in
her administrative capacity as Chair of the Elkins Family Law Task force. Although Justice
Zelon has not yet been served, for the reasons set forth in the remainder of this Order, all
claims against her are dismissed with prejudice.
4
26
27
28
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B.
In his first claim for relief, Mr. Cunningham contends that Judge Mahoneys decision in
the custody dispute to impose a $5,000 bond to cover any future costs Petitioner [Ms. Wang]
may be enforced [sic] to incur in this litigation, pursuant to Cal. Code Civ. P. 391.7(a), denies
him access to the courts and violated his due process rights by interfering with his ability to
vindicate his custodial rights. (See Compl. 77-87; Plaintiffs RJN, Ex. G (Order dated April
12, 2010).) In his fourth claim for relief, Mr. Cunningham similarly contends that the
Vexatious Litigant Statute impairs [his] access to all courts, and in the context of family law
10
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sixth claim for relief, Mr. Cunningham argues that application of the Vexatious Litigant Statute
12
violates his due process rights by impairing his ability to appeal decisions made in the custody
13
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First, the fact that the Vexatious Litigant statute permits a court to impose a security
requirement or pre-filing requirement does not render the statute unconstitutional on its face.
16
See Wolfe v. George, 486 F.3d 1120, 1126-27 (9th Cir. 2007) (George). As the Ninth Circuit
17
noted in George, before a court can require a person deemed to be a vexatious litigant to post
18
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security. Id. at 1127; cf. Wolfgram v. Wells Fargo Bank, 53 Cal. App. 4th 43, 60-61 (1997)
20
(noting that judge reviewing a pre-filing request presumably will take the nature of the action
21
into consideration).
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The Court also finds Mr. Cunninghams facial challenges to the Vexatious Litigant
23
Statute in the context of family law proceedings to lack merit. See In re R.H., 170 Cal. App. 4th
24
678, 704-705 (2009) (rejecting constitutional challenges where proceedings did not terminate
25
parental rights). Moreover, even when the Court liberally construes Mr. Cunninghams
26
allegations, the import of these claims pertain to the actual application of the Vexatious Litigant
27
Statute as it applies to Mr. Cunninghams case. Any such claims are precluded under the
28
Rooker-Feldman doctrine, which provides that district courts lack jurisdiction to review the
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final determinations of a state court in judicial proceedings. See, e.g., District of Columbia
Court of Appeals v. Feldman, 460 U.S. 462, 487-87 (1983); Rooker v. Fidelity Trust Co., 263
U.S. 413, 415 (1923); Branson v. Nott, 62 F.3d 287, 291 (9th Cir. 1995). For each of these
reasons, Mr. Cunninghams first, fourth, and sixth claims for relief are dismissed with
prejudice.
In his second claim for relief, Mr. Cunningham asserts that Judge Mahoneys decision to
award attorneys fees and costs in connection with the vexatious litigant proceedings amounts
to an unconstitutional taking. (See Compl., 90-99.) The Takings Clause of the Fifth
Amendment prohibits the government from taking private property for public use without just
10
compensation. This right is applicable to the states through the Due Process Clause of the
11
Fourteenth Amendment. Ward v. Ryan, 623 F.3d 807, 810 (9th Cir. 2010) (citing Webbs
12
13
To the extent Mr. Cunningham alleges only that the ability to impose security or award
attorneys fees in connection with Vexatious Litigant Proceeding amounts to a taking, the
15
facial challenge to the statute fails because the fees imposed are not for public use. As set
16
forth above in note 3, Judge Mahoney would be entitled to judicial immunity on such a claim
17
and dismissal is warranted on that basis as well. Finally, even when the Court liberally
18
construes the Complaint, Mr. Cunningham is arguing that the decision to impose the fees in his
19
case amounts to legal error. Such claims are barred by the Rooker-Feldman doctrine.
For each of these reasons, Mr. Cunninghams second claim for relief is dismissed with
prejudice.
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3.
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In his third claim for relief, Mr. Cunningham alleges that the Vexatious Litigant Statute
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is akin to an ex post facto law, although he acknowledges that this is not a criminal case. (See
25
Compl., 103.) Mr. Cunninghams facial challenge to the Vexatious Litigant Statute on this
26
basis fails. See George, 486 F.3d at 1127 (The Double Jeopardy and Ex Post Facto Clauses do
27
not apply because the vexatious litigant statute does not impose criminal penalties.) With
28
respect to his as applied challenge, as set forth above in note 3, Judge Mahoney would be
7
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entitled to judicial immunity on such a claim and dismissal is warranted on that basis as well.
Finally, even when the Court liberally construes the Complaint, Mr. Cunningham is arguing that
the application of the statute in his case amounts to legal error. Such claims are barred by the
Rooker-Feldman doctrine.
For each of these reasons, the third claim for relief is dismissed with prejudice.
4.
In his fifth claim for relief, Mr. Cunningham argues that Judge Mahoneys decisions to
declare him a vexatious litigant more than once during the course of the family law proceedings
amounts to a violation of his due process rights. (Compl. 123-128.) As set forth above in
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note 3, Judge Mahoney would be entitled to judicial immunity on such a claim and dismissal is
11
warranted on that basis as well. Finally, even when the Court liberally construes the Complaint,
12
Mr. Cunningham is arguing that the application of the statute in his case amounts to legal error.
13
14
For each of these reasons, the fifth claim for relief is dismissed with prejudice.
15
5.
16
In his seventh claim for relief, Mr. Cunningham argues that the Vexatious Litigant
Statute is void for vagueness and overbreadth. (Compl. 149-159.) Mr. Cunninghams facial
18
challenges to the Vexatious Litigant Statute on these grounds fail. See George, 486 F.3d at
19
1125 (rejecting vagueness and overbreadth challenges). Moreover, even when the Court
20
liberally construes the Complaint, Mr. Cunningham is arguing that the application of the statute
21
in his case amounts to legal error. Such claims are barred by the Rooker-Feldman doctrine.
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C.
For each of these reasons, the seventh claim for relief is dismissed with prejudice.
Mr. Cunninghams Claims Against Ms. Schopp and Ms. Wang Fail Because He
Fails to Allege Facts to Show They Are State Actors.
24
25
In their joinder to Judge Mahoneys motion, Ms. Schopp and Ms. Wang move to dismiss
26
on the additional basis that they are not state actors, an essential element of Mr. Cunninghams
27
claims under Section 1983. Generally, private parties do not act under color of state law. Price
28
v. Hawaii, 939 F.2d 702, 707-08 (9th Cir. 1991). The complaint, therefore, must allege facts
8
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tending to show that the private parties conduct has caused a deprivation of federal rights that
may be fairly attributable to the State. Id. at 708 (holding that conclusionary allegations of
action under color of state law, unsupported by facts, will be rejected as insufficient to state a
claim (quoting Jones v. Community Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984)
(internal quotations and brackets omitted). A two-part test exists to determine whether private-
party action causes a deprivation that occurs under color of state law. Lugar v. Edmonson Oil
Co., 457 U.S. 922, 937 (1982). First, the deprivation must be caused by the exercise of some
right or privilege created by the State; by a rule of conduct imposed by the state; or by a person
for whom the State is responsible. Id. Second, the party charged with the deprivation must be a
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state actor. Id. A person may become a state actor by performing a public function or being
11
regulated to the point that the conduct in question is practically compelled by the State. Vincent
12
v. Trend Western Technical Corp., 828 F.2d 563, 569 (9th Cir. 1987).
All of the allegations in the Complaint against Ms. Schopp and Ms. Wang relate to their
14
conduct in litigating the custody dispute, as well as contempt and vexatious litigant proceedings
15
that arose out of the custody dispute. (See, e.g., Compl., 20-27, 55-56, 76-161; see also
16
Docket No. 22 (Plaintiffs Opp. Br. at 2:27-4:20); 24 (Supp. Opp. Br. at 2:12-13:5); 48 (Second
17
Supp. Opp. at 2:14-16:4).) Notwithstanding Mr. Cunninghams arguments to the contrary, the
18
allegations in the Complaint are insufficient to allege that Ms. Schopp and Ms. Wang are state
19
actors. Further, based on those allegations, the exhibits submitted in support of his opposition,
20
and his arguments in his brief and at the hearing, the Court concludes that it would be futile to
21
grant him leave to amend the claims against Ms. Schopp and Ms. Wang.
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as well.
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Accordingly, the claims asserted against them are dismissed with prejudice on this basis
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CONCLUSION
For the foregoing reasons, the motion to dismiss and the joinders therein are
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GRANTED, without leave to amend. Mr. Cunninghams motion for a preliminary injunction is
DENIED AS MOOT. This case is dismissed with prejudice, a separate judgment shall issue,
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JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE
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FOR THE
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CERTIFICATE OF SERVICE
v.
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15
That on December 7, 2010, I SERVED a true and correct copy(ies) of the attached, by
placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter
listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an
inter-office delivery receptacle located in the Clerk's office.
16
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Archibald Cunningham
1489 McAllister St.
San Francisco, CA 94115
18
I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.
Defendant.
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ARCHIBALD CUNNINGHAM,
Plaintiff,
v.
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Defendants.
JUDGMENT
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For the reasons set forth in this Courts Order granting the motion to dismissand the
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Plaintiff.
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FOR THE
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CERTIFICATE OF SERVICE
v.
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That on December 7, 2010, I SERVED a true and correct copy(ies) of the attached, by
placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter
listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an
inter-office delivery receptacle located in the Clerk's office.
16
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Archibald Cunningham
1489 McAllister St.
San Francisco, CA 94115
18
I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.
Defendant.
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CERTIFICATE OF SERVICE
I hereby certify that on March 5, 2014, I electronically filed the following documents
with the Clerk of the Court by using the CM/ECF system:
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I certify that all participants in the case are registered CM/ECF users and that service will
be accomplished by the CM/ECF system.
I declare under penalty of perjury under the laws of the State of California the foregoing
is true and correct and that this declaration was executed on March 5, 2014, at San
Francisco, California.
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P. Patty Li
Declarant
/s/ P. Patty Li
Signature
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23 March 2013
SHORTCUTS TO POPULAR
SUBJECTS AND POSTS
JUDICIAL MISCONDUCT
(72)
ATTORNEY MISCONDUCT
(37)
MATTHEW J. GARY
(34)
KICKBACKS
(33)
FLEC
(28)
PETER J. McBRIEN
(26)
ARTS & CULTURE
(23)
CHILD CUSTODY
(23)
ROBERT SAUNDERS
(22)
SCBA
(22)
CJP
(21)
JAMES M. MIZE
(21)
CHARLOTTE KEELEY
(19)
Supreme Court Chief Justice Tani Cantil-Sakauye is named as a defendant in this federal court litigation stemming from a vexatious
litigant court order issued by Sacramento Family Court Judge Jaime Roman for Judge Pro Tem Charlotte Keeley.
EMPLOYEE MISCONDUCT
(19)
WATCHDOGS
(19)
PRO PERS
(18)
The order blacklisted [pdf] Karres as a vexatious litigant [pdf] and raised eyebrows in the legal community
because Roman issued the ruling without providing Karres the court hearing required under state law and the due
process provisions of the state and federal Constitutions.
ROBERT HIGHT
(14)
The vexatious litigant designation severely restricts a litigants access to the courts by requiring them to get preapproval from a presiding judge before they are permitted to file pleadings in any court in the state.Sacramento
Family Court News in Nov. 2012 reported exclusively on Judge Roman's unorthodox order, which also is
pending review by the Third District Court of Appeal in Sacramento. Taxpayers likely will now get two substantial
CARLSSON CASE
(12)
DIVORCE CORP
(17)
DOCUMENTS
(17)
PAULA SALINGER
(15)
SACRAMENTO SUPERIOR
COURT
(13)
RAPTON-KARRES
(12)
APPEALS
(11)
The state court appeal will cost the public between $8,500 and $25,500, according to recent appellate court
decisions. The public cost of defending the federal case could be significantly higher. For several years, court
watchdogs and whistleblowers have asserted that full-time judges give preferential treatment to judge pro tem
attorneys. They charge that the Rapton-Karres case is one of several cases emblematic of judge-attorney
cronyism and its effects, including the unnecessary use of scarce court resources and the financial burden on
taxpayers.
(11)
CONFLICT OF INTEREST
(11)
SATIRE
(11)
WHISTLEBLOWERS
(11)
WOODRUFF O'HAIR
POSNER and SALINGER
(11)
JAIME R. ROMAN
(10)
LAURIE M. EARL
(10)
NO CONTACT ORDERS
(10)
SHARON A. LUERAS
(10)
FERRIS CASE
(9)
JESSICA HERNANDEZ
(8)
ROBERT O'HAIR
(8)
CANTIL-SAKAUYE
(7)
JULIE SETZER
(7)
Justice Cantil-Sakauye is a former Sacramento
County Superior Court Judge.
Click here to read the complete lawsuit filed March 22. Sacramento Family Court News will provide continuing
coverage of the case.
MATTHEW HERNANDEZ
(7)
YOUTUBE
(7)
3rd DISTRICT COA
(6)
CIVIL RIGHTS
(6)
CHRISTINA ARCURI
(5)
CONTEMPT
(5)
MIKE NEWDOW
(5)
THADD BLIZZARD
(5)
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CHARLOTTE KEELEY,
CHILD CUSTODY,
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FEDERAL LAWSUITS,
JAIME R. ROMAN,
JUDGE PRO TEM,
JUDICIAL MISCONDUCT,
NEWS EXCLUSIVE,
RAPTON-KARRES,
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(4)
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Location:
US District Court Clerk Northern District Of California, 450 Golden Gate Avenue #36060, San Francisco, CA 94102,
MALPRACTICE
(4)
USA
THOMAS M. CECIL
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CHILD ABDUCTION
(3)
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VANCE W. RAYE
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SHORTCUTS TO POPULAR
SUBJECTS AND POSTS
JUDICIAL MISCONDUCT
(72)
JUDGE PRO TEM
(51)
ATTORNEY MISCONDUCT
(37)
MATTHEW J. GARY
(34)
KICKBACKS
(33)
FLEC
(28)
PETER J. McBRIEN
(26)
CHILD CUSTODY
(23)
ROBERT SAUNDERS
(22)
material.
SCBA
(22)
CJP
(21)
JAMES M. MIZE
(21)
CHARLOTTE KEELEY
(19)
EMPLOYEE MISCONDUCT
(19)
WATCHDOGS
(19)
PRO PERS
(18)
DIVORCE CORP
(17)
DOCUMENTS
(17)
PAULA SALINGER
(15)
ROBERT HIGHT
(14)
SACRAMENTO SUPERIOR
COURT
(13)
Sacramento Superior Court reform advocates assert that collusion
between judges and local attorneys deprives pro per court users of
their parental rights, community assets, and due process and access
to the court constitutional rights.
CARLSSON CASE
(12)
RAPTON-KARRES
(12)
APPEALS
(11)
Scheme Primarily Targets Divorce Cases Where Only One Side Has a Lawyer
Most of the demonstrablyillegal orders are issued against indigent, or financially disadvantaged "pro per"
parties without an attorney. Manypro per litigants-who make up over 70 percent of court users -also are
disabled.
In most cases, pro pers - who have little or no knowledge of family law - are unaware that the orders issued against
them are illegal. In addition, court clerks and employees are trained or encouraged tointentionally, and illegally
mislead unrepresented parties about their appeal rights. Pro pers who do attempt to file an appeal are forced to
navigate a gauntlet of unlawful obstructionserected by court employees andtrial court judges,and most
eventually give up.
Further handicapping pro pers, when representing clients in court judge pro tem lawyers are allowed to obstruct an
opposing parties' court access and ability to file documents through the court-sanctioned misuse ofvexatious
litigant lawand Family Codecase management law,according to whistleblowers andcourt records.The illegal
litigation tactic effectively deprives pro per litigants of their constitutional right of access to the courts, a violation of
federal law.
In exchange for acting as sworn temporary judges, operating the settlement program and reducing the caseload
and workload of judges and court employees, the attorneys also receive preferential trial scheduling, an
unlawful "emolument, gratuity or reward" prohibited by Penal Code 94.
The ultimate consequences of the systemic divorce court corruption include one-sided divisions of community
property, illegal child custody arrangements and the deprivation of parental rights, and unlawful child and
spousal support terms.
Court reform advocates also assert that the racketeering enterprise enables rampant fee churningandunjust
enrichmentby judge pro tem divorce lawyers, results in pro per financial devastation,homelessness, and
imprisonment, and hascaused, or contributed to at least two child deaths.
Years of illegal, pay-to-play child custody orders have resulted in the formation of several Sacramento-based court
reform and oversight organizations, including Fathers 4 Justice, California Protective Parents Association, and
the Family Court Accountability Coalition. The same family court watchdog group phenomenon has not
occurred in any other county in the state.
(11)
CONFLICT OF INTEREST
(11)
SATIRE
(11)
WHISTLEBLOWERS
(11)
WOODRUFF O'HAIR
POSNER and SALINGER
(11)
JAIME R. ROMAN
(10)
LAURIE M. EARL
(10)
NO CONTACT ORDERS
(10)
SHARON A. LUERAS
(10)
FERRIS CASE
(9)
JESSICA HERNANDEZ
(8)
ROBERT O'HAIR
(8)
CANTIL-SAKAUYE
(7)
JULIE SETZER
(7)
MATTHEW HERNANDEZ
(7)
YOUTUBE
(7)
3rd DISTRICT COA
(6)
CIVIL RIGHTS
(6)
CHRISTINA ARCURI
(5)
CONTEMPT
(5)
MIKE NEWDOW
(5)
THADD BLIZZARD
(5)
FAMILY LAW FACILITATOR
(4)
During three days of sworn testimony at his Commission on Judicial Performance misconduct prosecution, Judge Peter McBrien
inadvertently revealed aspects of an alleged RICO racketeering enterprise operating in the Sacramento County family court system.
LUAN CASE
(4)
MALPRACTICE
(4)
The alleged criminal conduct also deprives victims of their state and federal constitutional rights, including due
process, equal protection of law, access to the courts, and the fundamental liberty interest in the care,
management and companionship of their own children, according to several "outsider" attorneys.
Court watchdogs charge that the settlement conference kickback arrangement between the public court and private
sector attorneys constitutes aracketeering enterprisewhich also deprives the public of thefederally
protectedright tohonest government services.
THOMAS M. CECIL
(4)
CHILD ABDUCTION
(3)
VANCE W. RAYE
(3)
VEXATIOUS LITIGANT
(3)
The alleged federal crimes also include thetheft, misuse, or conversion of federal fundsreceived by the court,
predicate acts ofmail or wire fraud,andpredicate state law crimes, including obstruction of justice,child
abduction, and receipt of an illegal emolument, gratuity, or reward by a judicial officer(Penal Code 94).
RACKETEERING
(2)
With the help of court employeewhistleblowers, Sacramento Family Court News has partially reconstructed the
framework of the alleged criminal enterprise that, in scale and scope, rivals theKids for Cashcourt scandal in
Luzerne County, Pennsylvania, and the Orange County Superior Court case-fixing corruption scheme recently
exposed by the FBI.
WE SUPPORT
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Californians Aware
Kafkaesq
Above the Law
The Divorce Artist
In 2012,troubled Sacramento County Judge James Mize, - a personal friend of McBrien - further privatized
family court services and expanded the ability of ostensibly "volunteer" temporary judge lawyers to earn kickbacks
and other preferential treatment with his so-called "One Day Divorce Program."
Court watchdogs charge that the system was designed to, and does servethe needs and financial interests of
family law lawyers at the expense of the 70 percent of family court users who cannot afford representation.
Reducing the Caseload and Workload of Judges and Court Staff in Exchange for
Kickbacks
CALIFORNIA JUDICIAL
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Reciprocal benefits include the issuance ofdemonstrably illegal court orders that have ignored, and even
authorized criminal conduct by judge pro tem attorneys and their clients, including criminal child abduction.
In one case, a judge ordered the illegal arrest and assault of a disabled pro per to benefit the opposing, part-time
judge attorney. A court employee whistleblower leaked a courtroom security video of the incident. The judge pro
tem lawyer subsequently was caught on court reporter transcript defending the judge andlying about the arrest
and assault, portraying the disabled victim as being at fault.
The consistent, statistically impossible in-court success rate of judge pro tem attorneys has provided
themprominence, client referrals, wealth, and a substantial monopoly on the Sacramento County divorce and
family law business. Whistleblowers point out that this benefit of the alleged criminal organization also implicates
consumer protection andantitrust laws, including the CaliforniaUnfair Business Practices Act.
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Whistleblowers claim that Sacramento Family Court corruption results in the misuse of federal funds, deprives the public of the federally
protected right to honest government services, and deprives unrepresented, disabled, and financially disadvantaged court users of their
civil rights.
182
The quid pro quo arrangement also involves what whistleblowers assert is a reciprocal protection racket that
conceals the organization from discovery by law enforcement agencies and state oversight authorities, including
the Commission on Judicial Performance, responsible for judge misconduct, and the State Bar Association,
responsible for attorney accountability and discipline.
Case audits conducted by SFCN show that judge pro tem attorneys routinely violate state law, court rules, and
attorney ethics rules, but are never reported to the State Bar, or assessed fines, penalties or "sanctions" by fulltime judges as required by state law.
Pro pers who attempt to report judge pro tem attorney misconduct to the State Bar are told they need a court
order from a judge before a disciplinary investigation against an opposing attorney can take place. There are no
known instances where a judge issued such an order.
Court records leaked by whistleblowers also indicate that the under quid pro quo agreement, judges effectively
shield attorneys from criminal investigation and prosecution for alleged crimes, including witness intimidation,
childabduction,filing counterfeit documents, and violations of state and federal civil rights laws.
On the other hand, at the request of cartel attorneys, pro per litigants are routinely punished by judges with illegal
fines, draconian financial sanctions, and other types of punishment to discourage them from returning to
court, and to coerce them to accept settlement terms dictated by the opposing judge pro tem lawyers.
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2011 SACRAMENTO/MARIN
AUDITS
(2)
3rd DISTRICT
COA
(6)
AB
1102
(1)
AB 590
(1)
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(1)
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(1)
ADA
(11)
ADMINISTRATORS
(4)
AGGREGATED NEWS
(15)
AL SALMEN
(1)
ANALYSIS
(38)
FURILLO
(2)
ANDY
AOC
(1)
Attorneys provide judges reciprocal protection by not reporting the judicial misconduct, Code of Judicial Ethics
violations, and criminal conduct committed by full-time judge cartel members. And the lawyers do more.
To help conceal and ensure the continuity of the enterprise, on the rare occasion when full-time judges doface
investigation by the Commission on Judicial Performance, members of the cartel provide false, misleading, or
otherwise gratuitous character witness testimony and other forms of support for the offending judge. The
testimony and support is designed to, and does reduce or eliminate potential punishment by the CJP, ensuring
judge members remain on the bench.
APPEALS
(11)
ARCHIBALD
CUNNINGHAM
(1)
ARTHUR G.
SCOTLAND
(5)
ARTS &
CULTURE
DISCIPLINE
(4)
ATTORNEY
ATTORNEY
MISCONDUCT
(37)
ETHICS
(2)
ATTORNEYS
(11)
BAR
ASSOCIATION
(11)
BARACK
OBAMA
(1)
BARTHOLOMEW
and WASZNICKY
(3)
BUNMI
Racketeering Conduct of Court Clerks, Supervisors and the Family Law Facilitator
AWONIYI
The racketeering activity includes startling coordination, kickbacks, andpattern and practice misconductby court
clerks, supervisors, and theFamily Law Facilitatoroffice. Court clerks routinelyrefuse to filelegallysufficient
paperworkfor pro per parties, while at the same timefilinglegallyinsufficient, andeven counterfeitpaperwork which they arerequired by lawto reject for filing - for judge pro tem attorneys.
In some cases, judges and court clerks
work in tandem toprevent pro per
partiesfrom filing documentsat court
hearingsfor the benefit of judge pro
tems, deliberately creating an
incomplete and inaccurate trial court
record in the event the pro per files an
appeal.
Court records showthat clerks also
deliberately withhold and delay the
filing of time sensitive pro per
documents until after filing deadlines
have expired.
CALIFORNIA
(1)
CALIFORNIA
LAWYER
(1)
CALIFORNIANS AWARE
(1)
CAMILLE HEMMER
(3)
CANTIL-SAKAUYE
(7)
CARLSSON CASE
(12)
(4)
CHARLOTTE
KEELEY
(19)
CHILD
ABDUCTION
(3)
CHILD
CUSTODY
(23)
CHILD
SUPPORT
(4)
CHRISTINA
ARCURI
(5)
CHRISTINA
VOLKERS
(7)
CIVICS
(1)
CIVIL LIABILITY
(1)
CIVIL
RIGHTS
(6)
CJA
(3)
CJE
(2)
In this case, a court clerk illegally "unfiled" a notice of appeal filed by an indigent,
disabled pro per litigant. Click here for details.
Court reform and accountability advocates assert that the local family law bar- through the Family Law
ExecutiveCommitteeor FLEC - continues to control for the financial gain of members virtually all aspects of court
operations, and have catalogued documented examples of judge pro tem attorney preferential treatment and
bias against unrepresented litigants and"outsider" attorneys,including:
(1)
Family Law Facilitatorstaff provide pro per litigantswith false informationdesigned to concealstate law
violationsby court clerks and supervisors. Judges regularly provide attorneys withlegal advice and "bench
tips."When pro pers ask facilitator staff for similar information, they are told that facilitator employees are
prohibited from giving legal advice.
(23)
ATTORNEY
(4)
ATTORNEY
CJEO
CJP
(21)
(1)
ClientTickler
(2)
CNN
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COLLEEN
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CONFLICT OF INTEREST
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CONSTITUTIONAL
RIGHTS
(3)
CONTEMPT
(5)
CORRUPTION
(1)
COURT
CONDITIONS
(2)
COURT
EMPLOYEE
(1)
COURT EMPLOYEE
CODE OF ETHICS
(1)
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POLICIES
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(4)
COURTS
(1)
CPG FAMILY LAW
(1)
CRIMINAL CONDUCT
(13)
CRIMINAL LAW
(3)
CRONYISM
(2)
DAVID
KAZZIE
(4)
DEMOTION
(1)
RICHARDS
(1)
DIANE
WASZNICKY
(2)
DISQUALIFICATION
(2)
DENISE
DIVORCE
(7)
DIVORCE
ATTORNEY
(5)
DIVORCE
CORP
(17)
DIVORCE
LAWYER
(5)
DOCUMENTS
(17)
DONALD TENN
(3)
DONNA
GARY
(2)
DSM-301.7
(1)
EDITORIAL
(1)
EDWARD
FREIDBERG
(2)
EFF
(2)
EFFICIENCY
IN
GOVERNMENT
ELAINE VAN
BEVEREN
(13)
ELECTIONS
(1)
AWARD
(1)
EMILY
GALLUP
(3)
(4)
EMPLOYEE
MISCONDUCT
(19)
EQUAL
PROTECTION
(2)
(2)
EX PARTE
(1)
F4J
(4)
FAMILY COURT
(9)
FAMILY
Judge Thadd Blizzard issued a rubber-stamped, kickback order in November, 2013 for judge pro tem
attorney Richard Sokol authorizing an illegal out-of-state move away and child abduction by Sokol's
client, April Berger. The opposing counsel is an "outsider" attorney from San Francisco who was
dumbfounded by the order. Click here for our exclusive report, which includes the complete court
reporter transcript from the hearing. Click here for our earlier report on the unethical practice of
"hometowning" and the prejudicial treatment of outsider attorneys.
Whistleblower leaked court records indicate that Sacramento Bar Association Family Law
Executive Committee officer and judge pro tem attorney Paula Salinger engaged in obstruction of
justice crimes against an indigent, unrepresented domestic violence victim. The victim was a witness in
a criminal contempt case against a Salinger client. The circumstances surrounding the obstruction of
justice incident also infer collusion between Salinger and controversial Judge Matthew J. Gary. For
our complete investigative report,click here.
Two "standing orders" still in effect after being issued by Judge Roland Candee in 2006 override a
California Rule of Court prohibiting temporary judges from serving in family law cases where one party
is self-represented and the other party is represented by an attorney or is an attorney. The orders were
renewed by Presiding Judge Laurie M. Earl in February, 2013.Click here for details.
Sacramento Family Court judges ignore state conflict of interest laws requiring them to disclose to
opposing parties when a judge pro tem working as a private attorney represents a client in family
court. Click here for our exclusive investigative report. Click here for a list of other conflict of interest
posts.
Family court policies and procedures, including local court rules, are dictated by the SCBA Family Law
Executive Committeefor the financial benefit of private sector attorneys, and often disadvantage the
70 percent of court users without lawyers, according to family court watchdogs and whistleblowers.
For example, in sworn testimony by Judge Peter McBrien before the Commission on Judicial
Performance,McBrien described seeking and obtaining permission from FLEC to change a local rule.
Click here and here.
COURT
COURT
AUDITS
(1)
FAMILY
CONDITIONS
(2)
FAMILY COURT
MEDIA COVERAGE
(1)
FAMILY COURT PROCEDURE
(1)
FAMILY
COURT
SACRAMENTO
(2)
FAMILY
COURTHOUSE
(1)
FAMILY
(9)
LAW
FAMILY
LAW
COUNSELOR
(4)
FAMILY
LAW
FACILITATOR
(4)
FEDERAL LAW
(2)
FEDERAL
LAWSUITS
(2)
FEE WAIVERS
(2)
FERRIS CASE
(9)
FIRST
AMENDMENT
(2)
FIRST
AMENDMENT COALITION
(2)
FLEC
(28)
FOIA
(2)
FOX
(1)
FREDRICK COHEN
(4)
GANGNAM STYLE
(1)
GARY E.
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(1)
GARY
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APPELBLATT
(2)
GEORGE
NICHOLSON
(1)
GERALD UELMEN
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GREGORY DWYER
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HAL
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HATCHET
DEATH
(1)
HAZART SANKER
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HONEST SERVICES
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INDIGENT
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INFIGHTING
(1)
J.
STRONG
(2)
JACQUELINE
ESTON
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JAIME R.
ROMAN
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JAMES
BROSNAHAN
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JAMES
M. MIZE
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EUGENE L. BALONON
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(1)
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JERRY BROWN
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TEM
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JUDICIAL
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JUDY HOLZER
Divorce attorney Charlotte Keeley (R) and her client Katina Rapton of
Mel Rapton Honda leave a court hearing. Keeley reportedly has billed
Rapton more than $1 million in connection with a child custody dispute.
An unrepresented, disabled 52-year-old single mother was made homeless by an illegal child support
order issued by Judge Matthew Gary for SCBA Family Law Section attorney Tim Zeff, the partner of
temporary judge Scott Buchanan. The rubber-stamped, kickback child supportorder, and other
proceedings in the case were so outrageous that the pro per is now represented on appeal by a team
of attorneys led by legendary trial attorney James Brosnahan of global law firm Morrison & Foerster.
For our exclusive, ongoing reports on the case, click here.
Judge pro tem attorneys Richard Sokol and Elaine Van Beverenhelped conceal judge misconduct
and failed to comply with Canon 3D(1) of the Code of Judicial Ethics when they were eyewitnesses to
HERSHER
(1)
JULIE SETZER
(7)
KICKBACKS
(33)
(1)
LAW
LAWYER
(1)
LAWYERS
(7)
LEON KOZIOL
(1)
LINCOLN
(1)
LISTS
(4)
LOLLIE ROBERTS
(5)
LOUIS MAURO
(1)
LUAN
CASE
(4)
MALPRACTICE
(4)
MARTIN HOSHINO
(2)
MARY
MOLINARO
(1)
MATTHEW
HERNANDEZ
(7)
MATTHEW J. GARY
an unlawful contempt of court and resisting arrest incident in Department 121. Both Sokol and Van
Beveren failed to report the misconduct of Judge Matthew Gary as required by state law.Van
Beveren isan officer of the SCBA Family Law Executive Committee.Click here for our exclusive
report...
...Four years later, Sokol and Van Beveren in open court disseminated demonstrably false and
misleading information about the unlawful contempt of court and resisting arrest incident. The
apparent objective of the judge pro tem attorneys was to discredit the victim of Gary's misconduct,
trivialize the incident, and cover up their own misconduct in failing to report the judge. For our follow-up
reports, click here. In 2014, a video of the illegal arrest and assault was leaked by a government
whistleblower. Click here for details.Watch the exclusive Sacramento Family Court News video
below:
(34)
MCGEORGE
SOL
(2)
MEDIA
(1)
MICHAEL T. GARCIA
(1)
MIKE NEWDOW
(5)
NANCY GRACE
(1)
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PERKOVICH
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NEW YORK
NEWS
(32)
NEWS EXCLUSIVE
(24)
NEWS YOU CAN USE
TIMES
(2)
(3)
News10
(1)
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ORDERS
(10)
OPEN
GOVERNMENT
(2)
OPINION
(12)
PARENTAL
PAULA
ALIENATION
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SALINGER
(15)
PERJURY
(1)
PETER
J. McBRIEN
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PHILLIP HERNANDEZ
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PRESIDING JUDGE
(2)
PRO
PERS
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PROTEST
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PSY
(1)
PUBLIC RECORDS
(1)
RACKETEERING
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RAOUL M.
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(1)
RAPTONKARRES
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RECOGNITION/AWARDS
(4)
REVISIONISM SERIES
(2)
RICHARD SOKOL
(12)
RICO
(2)
ROBERT HIGHT
(14)
ROBERT O'HAIR
(8)
ROBERT SAUNDERS
(22)
ROLAND
In 2008controversial family courtJudge Peter J. McBriendeprived a family court litigant of a fair trial
in a case where the winning party was represented by judge protemattorney Charlotte Keeley. In a
scathing, published opinion, the 3rd District Court of Appealreversed in full and ordered a new
trial. 6th District Court of Appeal Presiding Justice Conrad Rushing characterized McBrien's
conduct in thecase as a "judicial reign of terror."McBrien subsequently was disciplined by the
Commission on Judicial Performance for multiple acts of misconduct in 2009.Click here to read the
court of appeal decision. Click here to read the disciplinary decision issued by the CJP.
Judge pro tem attorneysCamille Hemmer,Robert O'Hair,Jerry GuthrieandRussell Carlsoneach
testified in support ofJudge Peter J. McBrienwhen thecontroversialjudge was facing removal from
the bench by theCommission on Judicial Performancein 2009.As a sworn temporary judges aware
of McBrien's misconduct, each wasrequired byCanon 3D(1)of theCode of Judicial Ethicsto take or
initiate appropriate corrective action to address McBrien's misconduct. Instead, each testified as a
character witnessin supportof the judge. In theCJP'sfinal disciplinary decision allowing McBrien to
remain on the bench, theCJPreferred specifically to the testimony as a mitigating factor that reduced
McBrien's punishment.Click here. Court records indicate thatJudge McBrienhas not disclosed the
potentialconflict of interestto opposing attorneys and litigants in subsequent appearances by the
attorneys in cases before the judge.Click hereforSFCNcoverage of conflict issues.
Judge pro temattorneysTerri Newman,CamilleHemmer,Diane WasznickyandDonna
Reedwereinvolved in a proposedscheme to rig a recall electionofcontroversialJudgePeter J.
ROBIE
(1)
RUSSELL CARLSON
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RUSSELL L. HOM
(1)
RYDER
SALMEN
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S. HINMAN
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SACRAMENTO BEE
(4)
SACRAMENTO
COUNTY
SUPERIOR
COURT
(2)
SACRAMENTO
FAMILY
COURT
(14)
SACRAMENTO
SUPERIOR COURT
(13)
SANCTIONS
(2)
SANTA
CLARA
LAW SCHOOL
(1)
SARAH ANN
STEPHENS
(1)
SATIRE
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SCBA
(22)
SCHWARZENEGGER
(1)
SCOTT
BUCHANAN
(5)
SCOTT
KENDALL
(1)
SCSD
(1)
SEATON
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(1)
SELF-HELP
(1)
SETTLEMENT CONFERENCE
(2)
SFCN READERSHIP DATA
(4)
SHARON A. LUERAS
(10)
SHARON HUDDLE
(6)
SO YOU WANT TO GO TO
LAW
SCHOOL
(4)
SOCIOECONOMIC BIAS
(5)
STATE AUDITOR
(6)
STATE BAR
(5)
STEPHEN
WAGNER
McBrienin 2008. The plan involved helping McBrien defeat the recall by electing him "Judge of the
Year" before the November election.Click herefor theSacramento News and Reviewreport.
Judge pro tem attorney
Robert J. O'Hair testified
as a character witness for
controversial Judge Peter
J. McBrien at the judge's
second CJP disciplinary
proceeding in 2009.Paula
Salinger, an attorney at
O'Hair's firm,Woodruff,
O'Hair Posner &
L. CANDEE
(1)
RON BURGUNDY
(1)
RONALD
(2)
STEUART
STEVE
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(2)
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LEAVENWORTH
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STEVEN
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SPIELBERG
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SUNDAY FUNNIES
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SUNSHINE WEEK
(2)
SUPERIOR COURT
(2)
SUPREME COURT
(3)
TAMI
BOGERT
(1)
TAXPAYERS
(1)
TERRY FRANCKE
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BLIZZARD
(5)
THADD
THADDEUS
STEVENS
(1)
THE RUTTER GROUP
(1)
THOMAS M. CECIL
(4)
THOMAS WOODRUFF
(5)
TIMOTHY ZEFF
(6)
TOMMY
ULF
LEE
JONES
(1)
CARLSSON
(7)
UNITED
NATIONS
(1)
UPDATE
(2)
VANCE W. RAYE
(3)
VEXATIOUS LITIGANT
(3)
VICTORIA HENLEY
(1)
VICTORY
Court records show that Judge Jaime Roman (L) and Judge Matthew Gary
routinely issued demonstrably illegal court orders for the benefit oflocal
attorneyswho also work as part-time judges in family court. Both judges
have been reassigned out of the family courthouse.
OUTREACH
CHURCH
(1)
VL-
CLASS-ACTION
(1)
WALL STREET
JOURNAL
(1)
WASTE
(1)
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ACT
(2)
WHISTLEBLOWERS
(11)
WHITE HOUSE
(1)
WOODRUFF
O'HAIR POSNER and
SALINGER
(11)
XAPURI B.
VILLAPUDUA
(3)
YOLO
COUNTY
(1)
YOUTUBE
(7)
attorneys constitutes
unfair, fraudulent, and
unlawful business
practices, all of which are
prohibited under California
unfair competition laws,
including Business and
Professions Code
17200, reform advocates
claim.
Unfair competition and the collusion between judges and judge pro tem attorneys ultimately results in
unnecessary appeals burdening the appellate court system, and other, related litigation that wastes
public funds, exposes taxpayers to civil liability, and squanders scarce court resources.
Watchdogs point out that the court operates what amounts to a two-track system of justice. One for
judge pro tem attorneys and another for unrepresented, financially disadvantaged litigants and
"outsider attorneys." Two-track systems are prohibited by the Code of Judicial Ethics, according to
the Commission on Judicial Performance and the California Judicial Conduct Handbook, the gold
standard reference on judge misconduct.Click here for articles about the preferential treatment given
judge pro tem attorneys. Click here for examples of how pro pers are treated.
After representing a client in Sacramento Family Court, San Francisco attorney Stephen R. Gianelli
wrote "this is a 'juice court' in which outside counsel have little chance of prevailing...[the] court has now
abandoned even a pretense of being fair to outside counsel." Click here to read Gianelli's complete,
scathing account.
The Sacramento County Bar Association Family Law Section is led by an "Executive Committee"
("FLEC") of judge pro tem attorneys composed ofChair Russell Carlson, Vice Chair Elaine Van
Beveren, Treasurer Fredrick Cohen and Secretary Paula Salinger. Three of the four have been
involved in legal malpractice litigation, violations of the Code of Judicial Ethics, or as a defendant in
federal civil rights litigation. Click here to read SFCN profiles of the Executive Committee members.
Click here for otherarticles about FLEC.
Judge pro tem attorneys are by law required to take or initiate corrective action if they learn that
another judge has violated any provision of the Code of Judicial Ethics, or if a lawyer has violated any
provision of the California Rules of Professional Conduct. Family court watchdogs assert that
temporary judges regularly observe unethical and unlawful conduct by family court judges and attorneys
but have never taken or initiated appropriate corrective action, a violation of the judge pro tem oath of
office. To view the applicable Code of Judicial Ethics Canons,Click here. For a Judicial Council
directive about the obligation to address judicial misconduct, a critical self-policing component of the
Code of Judicial Ethics, click here.
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17 April 2013
SHORTCUTS TO POPULAR
SUBJECTS AND POSTS
JUDICIAL MISCONDUCT
(72)
ATTORNEY MISCONDUCT
(37)
MATTHEW J. GARY
(34)
KICKBACKS
(33)
FLEC
(28)
PETER J. McBRIEN
(26)
ARTS & CULTURE
(23)
CHILD CUSTODY
(23)
ROBERT SAUNDERS
(22)
SCBA
(22)
CJP
(21)
JAMES M. MIZE
(21)
CHARLOTTE KEELEY
(19)
EMPLOYEE MISCONDUCT
(19)
WATCHDOGS
(19)
PRO PERS
(18)
Judge Jaime R. Roman denied a family courtlitigant the right
to a court hearing and oraltestimony - fundamental components
of the right to dueprocess of law.
DIVORCE CORP
(17)
DOCUMENTS
(17)
PAULA SALINGER
(15)
In another pointless appeal caused by judicial misconduct,Judge Matthew J. Gary unsuccessfully attempted a
similar rewrite of putative spouse law and in 2011 was reversed in full by the Third District Court of Appeal. Our
analysis indicates that Judge Roman's order likely is headed for the same fate.
ROBERT HIGHT
(14)
CARLSSON CASE
(12)
SACRAMENTO SUPERIOR
COURT
(13)
RAPTON-KARRES
(12)
APPEALS
(11)
(11)
CONFLICT OF INTEREST
(11)
SATIRE
(11)
WHISTLEBLOWERS
(11)
WOODRUFF O'HAIR
POSNER and SALINGER
(11)
JAIME R. ROMAN
(10)
LAURIE M. EARL
(10)
NO CONTACT ORDERS
(10)
SHARON A. LUERAS
(10)
FERRIS CASE
(9)
JESSICA HERNANDEZ
(8)
ROBERT O'HAIR
(8)
CANTIL-SAKAUYE
(7)
The confusing legal rationale of Judge Roman's 20-page decision is constructed from a series of allegedly
consistent conjunctions conjoining components of the Family Code, Code of Civil Procedure, and court rules.
For example, Roman writes at page six:
"Sacramento Superior Court Rule 14.02(C), consistent with Code of Civil Procedure
section 2009, in conjunction with Family Code section 210.." and
"Code of Civil Procedure section 1008(a), inconjunctionwith Family Code section 210..."
at page eight, and
"California Code of Civil Procedure section 2009 in conjunction with Family Code section
210...California Rules of Court rule 3.1306(a), in conjunction with California Rules of
Court, rule 5.21...See Family Code section 217(c); California Rules of Court, rule
3.1306(b), in conjunction with rule 5.21 and rule 5.119," at page 19.
Judge Roman's statute and court rule references, and calculated omission of contrary authority suggest an intent to
cherry-pick law - including law not applicable to a vexatious litigant proceeding - to reach a predetermined result for
the benefit of Judge Pro Tem attorney Charlotte Keeley. In our first report on the decision, veteran court
watchdog Robert Saundersastutely observed that the judge used reverse engineering. "In other words, he
knew how he wanted to rule and from there worked backwards to try and justify an unjustifiable ruling," Saunders
said in 2012.
Saunders' analysis appears to be substantially accurate, according to the family and civil law reference books
used by judges, attorneys and Sacramento Family Court News. The logically inferred intent of Roman's risible,
convoluted conjunctions is to enable himself to designate a family court party a vexatious litigantandissue a
$2,500 sanctions assessment and 13 additional orders against the same party - all without a court hearing and oral
argument. ButJudge Roman is off-the-rails at conjunction junction.
JULIE SETZER
(7)
MATTHEW HERNANDEZ
(7)
YOUTUBE
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California Practice Guide:Civil Procedure Before Trial, the gold standard civil law reference work used by
judges and attorneys, indicates that Judge Roman attempted to create the illusion that his order was grounded
inlegitimatelaw by misstating and misapplying Code of Civil Procedure 2009,Family Code 210, and217,
andCalifornia Rules of Court rules 3.1306 and 5.21.The perplexing rationale Roman cobbled together from
parts of each is preempted and effectivelynullified by the vexatious litigant statute and decisional law,
according to the Guide.
Court watchdogs and whistleblowerscharge that Judge Roman's prejudgment, unlawfully vacated hearing and
erroneous statement of decision are more examples of Chris Volkers, Julie Setzer and other
courtadministratorsfailing to adequatelytrain, supervise, and discipline family court judges. They point out that
Judge Roman, the supervising family law, probate and ADA judge has limited family court experience, and often
confuses civil law with family law. At the end of her own two-year stint in family court, Judge Sharon Lueras
confessed to the family law bar that, at the beginning of her family court assignment, she knew nothing about
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family law. The consequences of inadequate training andsupervisioncan be tragic. Unrepresented litigant
Jessica Hernandez blames Lueras for the death of her son at the hands of her ex-husband. Click here for our
coverage of the Hernandez case.
Conjunction Malfunction
The relationship between family law, civil law and the court rules applicable to each can be confusing. But the family
law procedure manual used by judges and attorneys, California Practice Guide: Family Law neatly sorts it all
out in just two pages, which,apparently, is news to Judge Roman who clumsily cut, conjoined, and pasted
conflicting laws and rules to justify his vexatious litigant order.
An assessment of the legality of Roman's order blacklisting Andrew Karres as a vexatious litigantbegins with the
law itself.California's vexatious litigant law is codified at Code of Civil Procedure391-391.8. Wikipedia
explains how the law works at this link. The law was intended to limit frivolous litigation by unrepresented, pro per
parties in civil courts. When a judge issues an order designating a self-represented litigant as a vexatious litigant,
the Constitutional rights of access to the courts, due process of law, equal protection of law and the right to
petition the government for redress are severely restricted. Due to the harsh consequences of the vexatious
litigant label, California law requires full due process before the order can be issued, including notice and a court
hearing where written or oral evidence is presented. The notice and hearing requirements of the vexatious litigant
statute are difficult to misconstrue:
"At the hearing upon the motion the court shall consider any evidence, written or oral, by
witnesses or affidavit, as may be material to the ground of the motion," reads the law at section
391.2.
At 391.3, the vexatious litigant law specifies, twice, that a decision is made "after hearing the evidence on the
motion." The California Practice Guide for civil law recites the procedure for a vexatious litigant determination,
including the required court hearing. Based on the 2002 appellate court caseBravo v. Ismaj,"[a] party may not be
declared to be a 'vexatious litigant' without a noticed motion and hearing which includes the right to oral argument
and the presentation of evidence," according to the Guide.
Google Scholar-Includes
Unpublished Case Law
California Statutes
CALIFORNIA JUDICIAL
BRANCH
California Courts
Homepage
California Courts YouTube
Page
Judicial Council
Commission on Judicial
Performance
Sacramento County Family
Court
3rd District Court of Appeal
State Bar of California
State Bar Court
Sacramento County Bar
Association
Local & National Family CourtFamily Law Sites & Blogs (may
be gender-specific)
ABA Family Law Blawg
Directory
Judge Roman gives his reasons for blacklisting Karres statewide as a vexatious litigant at pages 15-18 of his 20page statement of decision. Absent from the ruling is the boilerplate recital that "The Court has considered the
moving and responding papers, the evidence and argument presented at the hearing, and the files herein,"
which appears on page one of this vexatious litigant order from a family court case in Santa Clara County.
Judge Roman's unlawful order declaring Karres a vexatious litigant is now the subject of both a costly appeal and
federal civil rights litigation against Judicial Branch officials. The appeal and federal case will cost the parties
and taxpayers significant sums. The current cost to taxpayers for a single appeal is between $8,500 and $25,000,
according to recent appellate court decisions. Ironically, vexatious litigants are routinely accused of, and punished
for wasting scarce appellate court resources with frivolous litigation.
"Other appellate parties, many of whom wait years for a resolution of bona fide disputes, are
prejudiced by the useless diversion of this court's attention. [Citation.] In the same vein, the appellate
system and the taxpayers are damaged by what amounts to a waste of this court's time and
resources," reads a line of cases from 1988 to 2012, beginning with Finnie v. Town of Tiburon.
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The same should be said about the unnecessary appeal and federal litigation against the government compelled by
Judge Roman's order.
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ANALYSIS,
CHARLOTTE KEELEY,
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JAIME R. ROMAN,
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Location:
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95814, USA
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