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Case No. 09-56073

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICHARD FINE,
Petitioner - Appellant,

vs.

SHERIFF OF LOS ANGELES COUNTY, et al.

Respondents - Appellees

Appeal From The United States District Court

For The Central District of California
Honorable John F. Walter
Lower Court Docket No. CV 096-01914 JFW (CWx)

APPELLEE’S ANSWERING BRIEF

PAUL B. BEACH, State Bar No. 166265

AARON M. FONTANA, State Bar No. 249540
LAWRENCE BEACH ALLEN & CHOI, PC
100 West Broadway, Suite 1200
Glendale, California 91210-1219
(818) 545-1925 Telephone / (818) 545-1937 Facsimile

Attorneys for Respondent /Appellee

SHERIFF LEROY D. BACA [erroneously
named as Sheriff of Los Angeles County]
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Case No. 09-56073

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICHARD FINE,
Petitioner - Appellant
vs.
SHERIFF OF LOS ANGELES COUNTY, et al.
Respondents - Appellees

Appeal From The United States District Court

For The Central District of California
Honorable John F. Walter
Lower Court Docket No. CV 096-01914 JFW (CWx)

APPELLEE’S ANSWERING BRIEF

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TABLE OF CONTENTS

Page(s)
INTRODUCTION .......................................................................................... 1

STATEMENT OF FACTS ............................................................................. 2

ARGUMENT.................................................................................................. 6

I. SHERIFF BACA IS NOT A REAL PARTY IN INTEREST

AND THUS HE CANNOT SUBSTANTIVELY RESPOND
TO APPELLANT’S HABEAS PETITION ......................................... 6

II. CONCLUSION .................................................................................... 9

STATEMENT OF RELATED CASES........................................................ 10

CERTIFICATE OF COMPLIANCE............................................................ 11

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TABLE OF AUTHORITIES

Page(s)

CASES
Coalition of Clergy v. Bush
189 F.Supp.2d 1036 (C.D. Cal. 2002)...................................................... 6

Diaz v. Lee Baca

203 Fed.Appx. 884 (9th Cir. 2006) .......................................................... 8

Karras v. Teleydyne Industries, Inc.

191 F.Supp.2d 1162 (S.D. Cal. 2002) ...................................................... 6

Streit v. County of Los Angeles

236 F.3d 552 (9th Cir. 2001) .................................................................... 7

U-Haul Int’l, Inc. v. Jartran, Inc.

793 F.2d 1034 (9th Cir. 1986) ................................................................. 6

Wilson v. U.S. Dist. Court for the Eastern Dist. of California

103 F.3d 828 (9th Cir. 1996) .................................................................... 6

STATUTES
California Goverment Code § 53069.8........................................................... 7

California Government Code § 811.9............................................................. 7

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INTRODUCTION

Appellant Richard I. Fine (“Appellant”), proceeding pro se, is

currently in custody of the Los Angeles County jail pursuant to a contempt

order issued by Judge David P. Yaffe (“Judge Yaffe”) of the Superior Court

of California, County of Los Angeles (“Superior Court”). The contempt

order and Appellant’s imprisonment stem from Appellant’s involvement as

an attorney in the Marina Strand Colony II, Homeowners Association v.

County of Los Angeles (“Marina Strand”) matter, over which Judge Yaffe

presided. After Appellant was imprisoned, he filed a Petition for Writ of

Habeas Corpus (“Petition”) in the Central District, which was denied. This

Court granted Appellant’s appeal, and, on August 27, 2009, Appellant filed

his Opening Brief (“Brief”). The Brief addresses the single issue of whether

Judge Yaffe should have recused himself from the Marina Strand matter.

While Appellant may have correctly named Sheriff Leroy D. Baca

(“Sheriff Baca”) as Respondent, and while Sheriff Baca does not contest that

he has been properly named, Sheriff Baca is not a real party in interest here.

This is because Sheriff Baca is only the custodian of Appellant and he has

no knowledge of, or involvement in, Appellant’s contempt proceedings in

the Superior Court, which led to Appellant’s incarceration. Nor does Sheriff

Baca possess first-hand knowledge of the Marina Strand matter, upon which

Appellant’s Brief is based.

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The real parties in interest here are Appellant, Judge Yaffe and the

Superior Court, and, indeed, these parties have submitted papers addressing

the relative merits of the appeal. Because Sheriff Baca, on the other hand, is

only the custodian of Appellant, he respectfully requests that this Court

order that Sheriff Baca not be bound to substantively respond to Appellant’s

Brief. Further, Sheriff Baca respectfully requests that this Court rule on the

real parties’ Brief-related papers as appropriate. Sheriff Baca will obviously

abide by any Court order as to the release or the continuing detainment of

Appellant.

STATEMENT OF FACTS

The underlying matter in this case is Marina Strand Colony II,

Homeowners Association v. County of Los Angeles, Los Angeles Superior

Court of California, Case No. BS 109420. (See, generally, Appellee Sheriff

Baca’s Excerpts of Record (“Excerpts”)1, pp. 3-16.) Judge Yaffe presided

over the Marina Strand matter. (Id.) Appellant was the counsel of record

for Marina Strand in that matter. (Excerpts, p. 7, ¶¶ 1-3.) Also involved in

the matter were Del Rey Joint Venture and Del Rey Joint Venture North

1
Appellant did not provide a record in this matter. Appellee’s Excerpts of
Record contains the following three documents: (1) Exhibit “C” of
Appellant’s original Habeas Petition in the Central District, case number
2:09-cv-01914-JFW-CW; (2) Sheriff Baca’s Motion to Dismiss Appellant’s
Petition in the Central District; and (3) the Central District docket related to
Appellant’s Petition.
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(“Del Rey”), represented by attorney Joshua L. Rosen. (Excerpts, pp. 3, 20,

26.)

While the Marina Strand proceedings were ongoing, the State Bar of

California issued an order recommending the disbarment of Appellant. (Id.

at 7, ¶ 4.) The Bar also involuntary classified Appellant as inactive. (Id.)

Soon after, Appellant was removed as counsel in the Marina Strand matter.

(Id.)

On December 15, 2008, Judge Yaffe dismissed the Marina Strand

matter and ordered Appellant to pay reasonable compensatory legal fees of

$46,329.01 to Del Rey. (Excerpts, pp. 7-8.) After Judge Yaffe’s ruling,

Appellant failed to submit to several judgment debtor examinations

pertaining to the award of fees against him. (Id. at 8-9.) Judge Yaffe thus

found Appellant in contempt of court and, on March 4, 2009, he ordered

Appellant sentenced to confinement in the Los Angeles County jail until

Appellant agreed to submit to a judgment debtor examination. (Id. at 16.)

Prior to his incarceration, Appellant filed habeas petitions with the

California Court of Appeals and the California Supreme Court (Excerpts,

pp. 27-28.) Appellant’s state habeas petitions named the Superior Court of

California as Respondent. (Id.) Sheriff Baca, however, was neither a party,

nor a respondent to these state court habeas filings.

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On March 20, 2009, Appellant filed his Central District Petition,

which named Sheriff Baca as Respondent. (Excerpts, p. 59.) Among other

things, the Petition argued that Judge Yaffe should have recused himself

from the Marina Strand matter. As Appellant’s Petition named Sheriff

Baca, representatives for Sheriff Baca were served and, through County

Counsel for the County of Los Angeles, the law firm of Lawrence Beach

Allen & Choi, PC, was retained to represent Sheriff Baca. (Excerpts, pp. 25-

26.) Subsequently, attorneys for Sheriff Baca contacted representatives for

the Superior Court of California and Judge Yaffe, as well as for Del Rey.

(Id.) The counsel for all of these parties informed Sheriff Baca’s attorneys

that they would be prepared to respond to Appellant’s Petition if the Court

required it. (Id.)

On April 21, 2009, Sheriff Baca filed a Motion to Dismiss Appellant’s

Petition (“Motion to Dismiss”). (Excerpts, pp. 17-26 and 60.) The Motion

to Dismiss argued that while Appellant may have correctly named Sheriff

Baca as a respondent, Sheriff Baca was not the real party in interest in the

matter. (Excerpts, pp. 17-26.) This is because Sheriff Baca is only the

custodian of Appellant and he has no knowledge of Appellant’s contempt

proceedings in Marina Strand. (Id.) Accordingly, Sheriff Baca urged the

court to dismiss the Petition to the extent the Appellant expected Sheriff

Baca to substantively respond to Appellant’s Petition. (Id.) Alternatively,

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Sheriff Baca respectfully requested that the Court enter an order asking the

real parties in interest to respond to Appellant’s Petition. (Id.)

On April 24, 2009, Appellant filed an Opposition to Sheriff Baca’s

Motion to Dismiss Appellant’s Petition. (Excerpts, p. 61.) On May 1, 2009,

meanwhile, Judge Yaffe, represented by Kevin M. McCormick, filed an

Answer to Appellant’s Petition. (Id.) On May 8, 2009, Del Rey Shores filed

an Ex Parte Application to Intervene as to Appellant’s Petition. (Excerpts,

pp. 61-62.)

On June 12, 2009, the magistrate issued a Report and

Recommendation recommending dismissal of Appellant’s Petition. (Id. at

62.) Pertinent to this matter, the Magistrate held that Appellant’s contention

that Judge Yaffe should have recused himself was without merit. On June

29, 2009, the Court adopted the Report and Recommendation. (Id.)

Accordingly, the Court also held that Sheriff Baca’s Motion to Dismiss the

Petition was moot, as was Del Rey Shores Application to Intervene. (Id.)

On August 12, 2009, this Court granted Appellant’s certificate of

appealability on the sole issue of whether Judge Yaffe should have recused

himself in the Marina Strand matter.

Obviously, Sheriff Baca was not a party to the Marina Strand

proceedings and is only the current custodian of Appellant. He is thus not in

the position to defendant Judge Yaffe’s decision not to recuse himself from
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that matter. Therefore, Sheriff Baca respectfully requests that this Court

order that Sheriff Baca is not bound to substantively respond to Appellant’s

Petition. Sheriff Baca respectfully requests that this Court rule on the real

parties’ Brief-related papers as appropriate. Based on the ruling, Sheriff

Baca will continue to detain Appellant or release him, as is required.

ARGUMENT

I. SHERIFF BACA IS NOT A REAL PARTY IN INTEREST

AND THUS HE CANNOT SUBSTANTIVELY RESPOND TO

APPELLANT’S HABEAS PETITION.

Sheriff Baca does not dispute that he is properly named here;

however, because Sheriff Baca is not a real party in interest, he is not in the

position to address the merits of Appellant’s Brief. Real parties in interest

are those persons or entities possessing the right or interest sought to be

enforced through the litigation. Karras v. Teleydyne Industries, Inc., 191

F.Supp.2d 1162 (S.D. Cal. 2002). Real parties in interest are expected to

litigate their own matters. Coalition of Clergy v. Bush, 189 F.Supp.2d 1036,

1040-41 (C.D. Cal. 2002); see also, Wilson v. U.S. Dist. Court for the

Eastern Dist. of California, 103 F.3d 828 (9th Cir. 1996) (in which the real

parties submitted briefs and there was no appearance as to the named

respondent); U-Haul Int’l, Inc. v. Jartran, Inc., 793 F.2d 1034, 1038 (9th

Cir. 1986) (the real party in interest is the person who has the right to sue
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under substantive law, rather than others who may merely be interested in or

benefit from the litigation).

The real parties in interest here are: (1) Appellant; (2) the Superior

Court of California; and (3) Judge Yaffe. This is because these parties are

those who would seek to enforce or overturn the District Court’s holding

that Judge Yaffe was not bound to have recused himself from the Marina

Strand matter. Said another way, Appellant does not actually seek his

redress from Sheriff Baca. Rather, so that he may be allowed release from

jail, Appellant seeks redress from the Superior Court and Judge Yaffe

regarding Judge Yaffe’s involvement in the underlying matter.

Moreover, it should be noted that Judge Yaffe is an officer of the State

of California, and the Superior Court is administered by the State of

California. See, Cal. Gov’t Code § 811.9. Sheriff Baca, on the other hand,

is contracted by the County of Los Angeles, not the State of California. Cal.

Gov’t Code § 53069.8; and Streit v. County of Los Angeles, 236 F.3d 552,

562 (9th Cir. 2001). Also, Sheriff Baca is represented by Lawrence, Beach,

Allen & Choi, through the County of Los Angeles county Counsel; whereas

Judge Yaffe and the Superior Court has different representation. Thus, in

addition to the fact that Sheriff Baca had nothing to do with the decision to

actually incarcerate Appellant save carrying out a lawful court order, (See,

Excerpts, pp. 1-16), neither Sheriff Baca nor his counsel are in the position
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to defend Judge Yaffe’s failure to recuse himself or, for that matter,

Appellant’s incarceration by the Superior Court of California. At most,

Sheriff Baca is only in a position to continue to detain Appellant should this

Court find that Appellant is rightly incarcerated, or release Appellant should

this Court find that Appellant is wrongfully incarcerated.

This matter is similar to Diaz v. Lee Baca, 203 Fed.Appx. 884 (9th

Cir. 2006), in which an attorney was held in contempt by the Superior Court

of California and he filed a habeas petition, naming Sheriff Baca as the

respondent. (Id.; and, see, Excerpts, pp. 30-49.) The attorneys representing

the Superior Court of California, and not attorney for Sheriff Baca, filed the

responsive brief in that matter. Additionally, while the docket reflected that

the respondent was Sheriff Baca, the only real party in interest to actually

respond to the Appellant’s habeas petition was “Superior Court of Los

Angeles County California.” (Id.)

Here, likewise, while Sheriff Baca may be properly named as

Respondent, he is not the proper party to address the merits of Appellant’s

Brief. Sheriff Baca simply was not and is not privy to the facts underlying

the Marina Strand matter or the reasons why Judge Yaffe did not recuse

himself. Judge Yaffe and the Superior Court of California have such

information. Sheriff Baca thus respectfully requests that this Court rule on

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the real parties’ papers as appropriate. Based on the ruling, Sheriff Baca will

continue to detain Appellant or release him, as is required.

II. CONCLUSION.

Sheriff Baca respectfully requests that this Court order that Sheriff

Baca not be bound to address the merits of Appellant’s Brief regarding

whether Judge Yaffe should have recused himself from the Marina Strand

matter.

Dated: October 9, 2009 LAWRENCE BEACH ALLEN &

CHOI, PC

s/___________________________
Aaron M. Fontana
Attorneys for Respondent-Appellee
SHERIFF LEROY D. BACA

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STATEMENT OF RELATED CASES

(9th Circuit Rule 28-2.6)

In accordance with Ninth Circuit Local Rule 28-2.6, Appellee hereby

advises the Court that he is presently unaware of any related case to the

instant appeal.

Dated: October 9, 2009 LAWRENCE BEACH ALLEN &

CHOI, PC

s/
Aaron M. Fontana
Attorneys for Respondent-Appellee
SHERIFF LEROY D. BACA

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CERTIFICATE OF COMPLIANCE

Pursuant to Ninth Circuit Rule 32(a)(7)(c), I certify that the

Answering Brief is double spaced, proportionately spaced (Times New

Roman), has a typeface of 14 points and contains 1,854 words.

Dated: October 9, 2009 LAWRENCE BEACH ALLEN &

CHOI, PC

s/
Aaron M. Fontana
Attorneys for Respondent-Appellee
SHERIFF LEROY D. BACA

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CERTIFICATE OF SERVICE

STATE OF CALIFORNIA; COUNTY OF LOS ANGELES

I hereby certify that on October 9, 2009, I electronically filed the

foregoing APPELLEE’S ANSWERING BRIEF with the Clerk of the
Court for the United States Court of Appeals for the Ninth Circuit by using
the appellate CM/ECF system.

Participants in the case who are registered CM/ECF users will be

served by the appellate CM/ECF system.

I further certify that some of the participants in the case are not
registered CM/ECF users. I have mailed the foregoing document by First-
Class Mail, postage prepaid, or have dispatched it to a third party
commercial carrier for delivery within three (3) calendar days, to the
following non-CM/ECF participants:

Richard I. Fine In Pro Per

Booking No. 1824367 Petitioner/Appellant
c/o Men’s Central Jail
441 Bauchet Street
Los Angeles, CA 90012

Kevin Michael McCormick Attorneys for Respondents-

Benton Orr Duval & Buckingham Appellees Superior Court of
39 N. California Street California, etc., et al.
Ventura, CA 93001-2620

s/________________________
Aaron M. Fontana

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