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Case 2:09-cv-01914-JFW-CW Document 66 Filed 07/14/10 Page 1 of 10 Page ID #:820

1 Kevin M. McCormick CSBN 115973


BENTON, ORR, DUVAL & BUCKINGHAM
2 A PROFESSIONAL CORPORATION
39 North California Street
3 Post Office Box 1178
Ventura, California 93002
4 Telephone: (805) 648-5111
Facsimile: (805) 648-7218
5 E-mail: kmccormick@benotonorr.com
6 Attorneys for Respondents, Superior Court of
California, County of Los Angeles and the
7 Hon. David P. Yaffe, Judge of the Superior Court
of California, County of Los Angeles
8
9 UNITED STATES DISTRICT COURT
10 CENTRAL DISTRICT OF CALIFORNIA
11 WESTERN DIVISION
12
13 RICHARD I. FINE, CASE NO. CV 09-1914-JFW (CW)

14 Petitioner, OPPOSITION OF THE SUPERIOR


COURT OF CALIFORNIA,
15 v. COUNTY OF LOS ANGELES, ET
AL, TO MOTION TO VACATE
16 SHERIFF OF LOS ANGELES JUDGMENT; MEMORANDUM OF
COUNTY, POINTS AND AUTHORITIES IN
17 SUPPORT
Respondent.
18 [DECLARATION OF KEVIN M.
MCCORMICK IN SUPPORT FILED
19 CONCURRENTLY HEREWITH]

20 Date: Taken Under Submission


Time: N/A
21 Ctrm: 640
255 East Temple Street
22 Los Angeles, California

23 M. Judge: Hon. Carla M. Woehrle

24 COME NOW RESPONDENTS, the Superior Court of California, County of


25 Los Angeles (“Superior Court”), and the Hon. David P. Yaffe, Judge of the Superior
26 Court of California, County of Los Angeles and pursuant to this Court’s July 1, 2010
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OPPOSITION OF THE SUPERIOR COURT OF CALIFORNIA, COUNTY OF
LOS ANGELES, ET AL, TO MOTION TO VACATE JUDGMENT
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Case 2:09-cv-01914-JFW-CW Document 66 Filed 07/14/10 Page 2 of 10 Page ID #:821

1 Order submit their Opposition to the Motion to Vacate Judgment filed by petitioner
2 in pro se, Richard I. Fine (“Fine”).
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4 Dated: July 14, 2010 BENTON, ORR, DUVAL & BUCKINGHAM
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6 By: /s/ Kevin M. McCormick
Kevin M. McCormick
7 Attorneys for Respondents, Superior Court of
California, County of Los Angeles and the Hon.
8 David P Yaffe, Judge of the Superior Court of
California, County of Los Angeles
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OPPOSITION OF THE SUPERIOR COURT OF CALIFORNIA, COUNTY OF
LOS ANGELES, ET AL, TO MOTION TO VACATE JUDGMENT
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Case 2:09-cv-01914-JFW-CW Document 66 Filed 07/14/10 Page 3 of 10 Page ID #:822

1 MEMORANDUM OF POINTS AND AUTHORITIES


2 I. INTRODUCTION
3 On or about June 28, 2010, Fine filed this Motion to Vacate Judgment
4 regarding the denial of his Petition for a Writ of Habeas Corpus.1
5 Fine brings the instant motion on the basis that a fraud was committed upon
6 this Court based upon the “concealment” by Judge Yaffe of the payment of local
7 judicial benefits by the County of Los Angeles.2 Fine also contends that Respondents
8 herein, and their counsel, did not submit a copy of a February 19, 2008 motion and
9 declaration filed by Fine in the state court “Marina Strand litigation” in their response
10 to the Petition for a Writ of Habeas Corpus nor Fine’s purported California Code of
11 Civil Procedure, section 170.3 objection to Judge Yaffe.3
12 Fine further contends that the Respondents’ omission of these documents from
13 this Court’s record led to a miscarriage of justice. Fine does not demonstrate or
14 explain how this purported omission led to a miscarriage of justice (notwithstanding
15 that these documents were part of the record reviewed by the Ninth Circuit in
16 affirming the Order and Judgment denying the petition) or why Fine did not submit
17 the documentation himself.4
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19 See F.R.Civ.P., Rule 60(c)(1) (“A motion under Rule 60 must be made in a
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within a reasonable time-and for reasons (1), (2), and (3) no more than a year after the
entry of judgment or order or the date of the proceeding.”) The Judgment denying
21 Fine’s Petition was entered June 29, 2009 (Docket No. 31). Fine offers no
22 explanation as to why he waited 364 days to bring this motion.
2
23 See Motion to Vacate, 2:6-28.
24 3
Id., 3:1-4; 8:3-22.
25 4
Id., 10-11. Fine does not remind this Court that he initially contended that
26 he was not served with a copy of the March 27, 2008 Order Striking Notice of
27 Disqualification. A copy of the Order was attached as Exhibit B to the Response filed
by Respondents establishing that Fine had faxed that document on or about April 8,
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OPPOSITION OF THE SUPERIOR COURT OF CALIFORNIA, COUNTY OF
LOS ANGELES, ET AL, TO MOTION TO VACATE JUDGMENT
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1 Fine then concludes that the failure to provide the aforementioned


2 documentation resulted in the district court wrongfully denying his Petition for a Writ
3 of Habeas Corpus as Judge Yaffe should have been disqualified on the basis of his
4 receipt of local judicial benefits and not allowed to preside over Fine’s contempt
5 proceedings.5
6 Fine’s contentions are specious. Fine fails to concede that he lacked standing
7 at the time of his multiple purported attempts to disqualify Judge Yaffe as he was
8 neither a party nor counsel of record to the Marina Strand litigation, (see, e.g.,
9 Avelara v. Superior Court, 7 Cal.App.4th 1270 (1992)) nor could he make a
10 wholesale challenge against all of the judicial officers of the Superior Court based
11 upon the receipt of local judicial benefits (see Grant v. Superior Court, 90
12 Cal.App.4th 518 (2001)).
13 By way reason of this motion, and upon Fine raising the issue of the lack of a
14 docket entry regarding the March 18, 2008 Order Striking Notice of Disqualification
15 (as referenced in the March 27, 2008 Order Striking Notice of Disqualification), the
16 Superior Court conducted an exhaustive review of its records and files in the Marina
17 Strand litigation regarding the cited March 18, 2008 Order.
18 Upon completion of that review, it was determined that the March 18, 2008
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20 2008, clearly evidencing that he had received the March 27, 2008 Order. Fine’s sole
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remedy at that point was to timely seek a writ of mandamus from the California Court
of Appeal, which he failed to do, thereby making the March 27, 2008 Order striking
22 the purported challenge final. Even if Fine had timely sought relief, given that Fine
23 lacked standing to attempt to disqualify Judge Yaffe in the Marina Strand litigation
due to his removal as counsel of record (only a party or counsel for a party may move
24 to disqualify a presiding judicial officer), it is unlikely that he would have obtained
25 any relief from the Court of Appeal.
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Fine again proclaims that the receipt of local judicial benefits is a
27 disqualifying event. This contention simply has no basis in law or fact as found by
both the District Court and the Ninth Circuit Court of Appeals.
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OPPOSITION OF THE SUPERIOR COURT OF CALIFORNIA, COUNTY OF
LOS ANGELES, ET AL, TO MOTION TO VACATE JUDGMENT
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1 Strike Order was a draft order that was not signed by Judge Yaffe. Instead, Judge
2 Yaffe issued a March 20, 2008 Strike Order finding that the purported Statement of
3 Disqualification contained within Fine’s February 19, 2008 Notice of Motion and
4 Motion to Disqualify LA Superior Court Judges Receiving Money From LA County
5 and Dismiss Sanctions, etc.: 1) Was improperly directed against all of the judges of
6 [the LA Superior Court]; 2) was not presented at the earliest practicable opportunity
7 as required by California Code of Civil Procedure, section 170.3(c)(1); 3) was an
8 improper attempt to obtain another judge to hear a motion for reconsideration
9 regarding the previous sanction order; and 4) the purported statement of
10 disqualification was improperly contained in a motion filed with the court and not
11 personally served on the judge or his clerk as required by California Code of Civil
12 Procedure, section 170.3.6
13 By way of the March 20, 2008 Strike Order, Judge Yaffe did not intend to
14 make any finding as to whether Mr. Fine, by way of his February 19, 2008 motion,
15 had standing to file a verified statement of disqualification pursuant to Code of Civil
16 Procedure, section 170.3.7 As a result of the discovery of the foregoing regarding
17 the content of the March 27, 2008 Order, Judge Yaffe issued a July 10, 2010 Order
18 clarifying the March 27, 2008 Order Striking Notice of Disqualification.8 The
19 previous inclusion of language from the draft March 18, 2008 Order into the March
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See Declaration of Kevin M. McCormick, Exhibit “A.” The March 20, 2008
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Order was included in Respondents’ Supplemental Excerpts of Record on Appeal at
23 SER0077-0078.
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Fine received notice of the order striking his Motion to Disqualify by way of
25 a March 25, 2008 Notice of Ruling. See Declaration of Kevin M. McCormick,
Exhibit “B.” The March 25, 2008 Notice of Ruling was included in Respondents’
26 Supplemental Excerpts of Record on Appeal at SER0079-0082.
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See Declaration of Kevin M. McCormick, Exhibit “C.”
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OPPOSITION OF THE SUPERIOR COURT OF CALIFORNIA, COUNTY OF
LOS ANGELES, ET AL, TO MOTION TO VACATE JUDGMENT
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1 27, 2008 Order does not alter the fact that Fine did not have standing to attempt to
2 disqualify Judge Yaffe and, further, that the receipt of local judicial benefits by Judge
3 Yaffe was not a disqualifying event. Moreover, Fine was placed on notice by way of
4 the citation contained in the March 27, 2008 Order that California Code of Civil
5 Procedure, section 170.3(d) provided the exclusive means by which Fine could seek
6 review of the determination of the question of disqualification. Fine failed to do so
7 making the denial of the multiple attempts to disqualify Judge Yaffe final.
8 Fine’s continued campaign against judicial officers who receive local judicial
9 benefits is without merit and has been rejected time and time again. Fine’s Motion
10 to Vacate the Order and Judgment denying his Petition for a Writ of Habeas Corpus
11 should be denied.
12 II. THE PREMISE UPON WHICH FINE CLAIMS THAT RESPONDENTS
13 COMMITTED A FRAUD UPON THE COURT IS BASED ON THE
14 CLAIMED “CONCEALMENT” BY JUDGE YAFFE OF THE RECEIPT
15 OF LOCAL JUDICIAL BENEFITS FROM THE COUNTY OF LOS
16 ANGELES
17 Fine claims that Judge Yaffe concealed the receipt of local judicial benefits.
18 Fine premises this contention on the averment that he was unaware of Judge Yaffe’s
19 receipt of local judicial benefits from the County of Los Angeles until March 20,
20 2008, long after he filed the Marina Strand litigation.9 Fine further contends that this
21 lack of knowledge excused his not having brought a timely challenge to Judge
22 Yaffe.10 Notwithstanding his lack of standing to attempt to disqualify Judge Yaffe,
23 Fine’s claimed ignorance of Judge Yaffe’s receipt of local judicial benefits is a blatant
24 misrepresentation.
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Motion to Vacate, 2-3.
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Motion to Vacate, 5:2-17.
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OPPOSITION OF THE SUPERIOR COURT OF CALIFORNIA, COUNTY OF
LOS ANGELES, ET AL, TO MOTION TO VACATE JUDGMENT
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1 Fine has long been arguing that the payment of local judicial benefits to
2 judicial officers by the County of Los Angeles is a disqualifying event and cannot
3 now claim that he was ignorant of Judge Yaffe’s receipt of local judicial benefits until
4 March 20, 2008.11 In denying the Petition for a Writ of Habeas Corpus, this Court
5 found that “[t]here is no basis in law for [Fine’s] contention that all judges who have
6 received these county-provided benefits must be precluded, as necessarily biased,
7 from participating in cases in which the county in question is a party.”12
8 Moreover, the Ninth Circuit, in affirming the Order and Judgment denying the
9 Petition for a Writ of Habeas Corpus, specifically found that Fine’s claim that the
10 receipt of local judicial benefits was criminal was “belied by a California statute
11 expressly providing that judges ‘shall continue to receive supplemental benefits from
12 the county or court then paying the benefits.’ See Cal. Govt. Code § 68220, see also
13 Sturgeon v. County of LA, 84 Cal.Rptr. 3d (2008) (rejecting taxpayer’s contention that
14 judicial compensation was an unconstitutional waste or gift of public funds, but
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18 See, e.g., Silva v. County of Los Angeles, 215 F.Supp.2d 1079 (C.D.Cal.
2002) (“the Court is constrained to note that this is the second time that Mr. Fine has
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used his “local judicial benefits” theory to file an ill-conceived and meritless
20 complaint against state judges who have ruled against his client or him in state court
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proceedings. Although the complaint styles the suit as a defendant class action, the
particular state judges or judicial officers who are singled out and named in the
22 caption all issued rulings that are unfavorable to Mr. Fine. This suggests to the Court
23 that the purpose of the complaint is not to vindicate Mr. Fine's client's interests, but
rather to punish judges who have ruled against him”). See also Los Angeles County
24 Ass'n of Environmental Health Specialists v. Lewin, 215 F.Supp.2d 1071 (C.D.Cal.
25 2002). Additionally, Fine’s contention that he was ignorant of Judge Yaffe’s receipt
of local judicial benefits is contradicted by his own February 19, 2008 attempt to
26 disqualify all judges in Los Angeles County receiving such benefits.
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See June 12, 2009 Report and Recommendation (Docket No. 25-2) at 18:1-5.
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OPPOSITION OF THE SUPERIOR COURT OF CALIFORNIA, COUNTY OF
LOS ANGELES, ET AL, TO MOTION TO VACATE JUDGMENT
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1 finding that judicial compensation required statutory prescription.)’”13


2 Fine’s claim that Judge Yaffe committed a fraud upon the district court by
3 concealing his receipt of local judicial benefits is without merit and this motion
4 should be denied.
5 III. NOTWITHSTANDING FINE’S CLAIM THAT RESPONDENTS
6 CONCEALED DOCUMENTS, HE SUBMITTED HIS FEBRUARY 18,
7 2008 MOTION AND DECLARATION AS AN ATTACHMENT TO THE
8 PETITION FOR A WRIT OF HABEAS CORPUS
9 Although Fine claims that Respondents “concealed” his February 19, 2008
10 Motion to Disqualify and Declaration from this Court, a review of Fine’s Petition for
11 a Writ of Habeas Corpus, and the attachments submitted in support, reflect that Fine
12 himself submitted this motion and declaration.14 Fine’s contention that these
13 documents were concealed from the District Court is without merit and this motion
14 should be denied.
15 Moreover, and notwithstanding the mistake made by the Superior Court and
16 Judge Yaffe regarding the March 18, 2008 Order, Fine failed to advise this Court of
17 the existence of the March 20, 2008 Order dealing specifically with his February 19,
18 2008 Motion.
19 IV. CONCLUSION
20 Based upon the foregoing, it is respectfully submitted that Fine’s Motion to
21 Vacate Judgment be denied as he has failed to demonstrate any ground for relief
22 pursuant to F.R.Civ.P., Rule 60.
23 \\\\\
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25 As noted by this Court previously, the California Legislature reaffirmed the
practice of providing local judicial benefits by enactment of S.B. 11.
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See Docket No. 1, Document 1-2, pp.23-50, filed by Fine on March 20,
2009.
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OPPOSITION OF THE SUPERIOR COURT OF CALIFORNIA, COUNTY OF
LOS ANGELES, ET AL, TO MOTION TO VACATE JUDGMENT
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1 Dated: July 14, 2010 BENTON, ORR, DUVAL & BUCKINGHAM


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3 By: /s/ Kevin M. McCormick
Kevin M. McCormick
4 Attorneys for Respondents, Superior Court of
California, County of Los Angeles and the Hon.
5 David P Yaffe, Judge of the Superior Court of
California, County of Los Angeles
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OPPOSITION OF THE SUPERIOR COURT OF CALIFORNIA, COUNTY OF
LOS ANGELES, ET AL, TO MOTION TO VACATE JUDGMENT
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PROOF OF SERVICE
Fine v. Sheriff of Los Angeles County
Case No.: CV09-1914-JFW (CW)
STATE OF CALIFORNIA, COUNTY OF VENTURA
I am employed in the County of Ventura, State of California. I am over the age
of 18 and not a party to the within action.
On July 14, 2010, I served the foregoing document(s) described as:
OPPOSITION OF THE SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS
ANGELES, ET AL, TO MOTION TO VACATE JUDGMENT on the interested
parties in this action by placing ____ an original XXX a copy thereof enclosed in a
sealed envelope addressed as follows:
Richard I. Fine, BK # 1824367
Twin Towers Correctional Facility
450 Bauchet Street
Los Angeles, CA 90012
Aaron Fontana, Esq.
Lawrence, Beach, Allen & Choi
100 West Broadway, Suite 1200
Glendale, CA 91210

XXX BY FIRST CLASS MAIL) ____ (BY EXPRESS MAIL) I caused such
envelope with postage thereon fully prepared to be placed in the United States mail
at Ventura, California. I am “readily familiar” with the firm’s practice of collection
and processing correspondence for mailing. It is deposited with the U.S. Postal
Service on that same day in the ordinary course of business. I am aware that on
motion of the party served, service is presumed invalid if postal cancellation date or
postage meter date is more than one day after date of deposit for mailing in affidavit.
(BY PERSONAL SERVICE) I delivered such envelope by hand to the office
of the addressee.
XXX (Federal) I declare that I am employed in the office of a member of the bar
of this court at whose direction the service was made. I declare under penalty of
perjury that the foregoing is true and correct.

Executed on July 14, 2010, at Ventura, California

/s/ Jacqueline D. Mora


Jacqueline D. Mora