P. 1
Fine's Reply in Support of Motion to Vacate - USDC - Fine v Sheriff (Habeas Corpus) - 09-cv-1914

Fine's Reply in Support of Motion to Vacate - USDC - Fine v Sheriff (Habeas Corpus) - 09-cv-1914

|Views: 65|Likes:
Published by Honor in Justice

More info:

Published by: Honor in Justice on Jul 20, 2010
Copyright:Attribution Non-commercial

Availability:

Read on Scribd mobile: iPhone, iPad and Android.
download as DOC, PDF, TXT or read online from Scribd
See more
See less

02/01/2013

pdf

text

original

RICHARD I.

FINE Prisoner ID # 1824367 c/o Men’s Central Jail 441 Bauchet Street Los Angeles, CA 90012

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION

RICHARD I. FINE, Petitioner, vs. SHERIFF OF LOS ANGELES COUNTY, Respondent.

Case No. CV-09-01914 JFW (CW) PETITIONER’S REPLY IN SUPPORT OF MOTION TO VACATE DATE: Vacated TIME: Vacated PLACE: Courtroom 640 255 East Temple Street Los Angeles, CA 90012

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

TABLE OF CONTENTS Page I. II. PREFATORY STATEMENT …….…………………………………….1 SHERIFF BACA, THE L.A. SUPERIOR COURT AND JUDGE YAFFE DO NOT CONTEST THAT L.A. COUNTY AND JUDGE YAFFE COMMITTED “FRAUD UPON THE COURT” IN THE MARINA STRAND CASE……………….…………………………………….….4

III. THE JULY 13, 2010 MINUTE ORDER DEMONSTRATES THAT L.A. COUNTY AND JUDGE YAFFE COMMITTED “FRAUD UPON THE COURT” IN THE MARINA STRAND CASE ………………8 IV. THE L.A. SUPERIOR COURT, JUDGE YAFFE AND MR. McCORMICK DELIBERATELY MISLED THIS COURT ………...11 CONCLUSION ………………………………………………………..…..6

-ii

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

TABLE OF AUTHORITIES Cases In Re Farr, 36 Cal.App.3d 577, 584 (1974) ……………………………….4 Los Angeles County Ass’n of Environmental Health Specialists v. Lewin et al., 215 F Supp. 2d 1071 (C.D. Cal. 2002) ………………….13, 14 Silva v. County of Los Angeles, et al., 215 F. Supp. 2d 1079 (C.D. Cal. 2002)……………………………………………………… 13, 14 Skilling v. United States, 561 U.S. __ (2010)……………………………...16 Sturgeon v. County of Los Angeles, 167 Cal. App. 4th, 630 (2008)…9, 13, 14 Statutes Code of Civil Procedure § 170.3 ……………..…1, 2, 4, 6, 9, 10, 11, 12, 18 Code of Civil Procedure § 170.3(c)(4) ……………………………….2, 11 Code of Civil Procedure § 170.1(a)(6)(A)(iii) …………………..…….…7 California Code of Judicial Ethics, Canons 4D(1) ………….………….…7 California Code of Judicial Ethics, Canon 3E(2) ………….…………..…7 California Code of Judicial Ethics, Canon 3E(1) ………….………….…..7 28 U.S.C. § 2243 ………………………………………….………….…..4 18 U.S.C. § 1346 - Intangible Right to Honest Services ….………….… 15 Other Authorities Article VI, Section 19 of the California Constitution ……………12, 13, 16 First Amendment to the U.S. Constitution ……………………………….13 Fifth Amendment to the U.S. Constitution ……………………………….13 Fourteenth Amendment to the U.S. Constitution ……………………… 13 Senate Bill SBx2-11 ……………………………………………..………16

-iii

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

REPLY I. PREFATORY STATEMENT. The Case of Marina Strand Colony II Homeowners Association v. County of Los Angeles, LASC Case No. BS 109420 (hereinafter referred to as the “Marina Strand” case) was filed on June 14, 2007. Three years and one month later, on July 13, 2010, after petitioner (“Fine”) has been unlawfully imprisoned in “coercive confinement” for nearly seventeen months, Judge Yaffe has admitted that he made a false order in the Marina Strand case. This admission of the false order of March 18, 2008 demonstrated that Judge Yaffe and Los Angeles County had committed “fraud upon the court” in the Marina Strand case by not disclosing the L.A. County payments to Judge Yaffe at the outset of such case and by Judge Yaffe not disqualifying himself. Judge Yaffe and L.A. County had concealed the L.A. County payments until a March 20, 2008 hearing, ten months after commencement of the case. At such hearing, Fine elicited the information about the L.A. County payments from Judge Yaffe for the first time in the case. (See CCP § 170.3 Objection, (SER 0090-0167).) At the same hearing, Judge Yaffe “struck” Fine’s February 19, 2008 Motion to Disqualify L.A. Superior Court Judges Receiving Money from L.A. County “pursuant to CCP § 170.3”. (SER 0087.)

-1

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

On March 25, 2008, Fine filed two documents:

(1) Notice of

Disqualification of Judge David P. Yaffe for Failure to Strike “CCP § 170.3 Objection” set forth in March 21, 2008 Notice of Ruling within ten days of filing (SER 0083-0089); and (2) Objection and Verified Statement to Disqualify Judge David P. Yaffe and all L.A. Superior Court Judges who are Presently Receiving Monies or Contributions from L.A. County, etc. (SER 0090-0167.) On March 27, 2008 Judge Yaffe filed an Order striking only the March 25, 2008 Notice of Disqualification (Docket No. 16-3) based solely upon a purported March 18, 2008 Strike Order allegedly striking the February 19, 2008 Motion and quoted extensively in the March 27, 2008 Strike Order. Judge Yaffe never responded to the March 25, 2008 CCP § 170.3 Objection and Verified Statement and was thereby disqualified pursuant to CCP § 170.3(c)(4) after ten days. A Notice of Disqualification was filed on April 11, 2008. The Notice was not required to be served on Judge Yaffe, but was personally handed to him at an April 10, 2008 hearing. On July 13, 2010, Judge Yaffe entered a Minute Order in response to the instant Motion to Vacate. In such Minute Order, he admitted that the March 18, 2008 Strike Order was a draft and had not been filed. This removed Judge Yaffe’s action against the February 19, 2008 Motion until March 20, 2008, which was the same day that Judge Yaffe admitted, first the first time, that he

-2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

was taking payments from L.A. County. This admission occurred at the same hearing in which he “struck” the February 19, 2008 Motion. The “simultaneous” admission to taking the payments from L.A. County and striking the February 19, 2008 Motion made the striking of the February 19, 2008 Motion a sham. In the July 13, 2010 Minute Order, Judge Yaffe stated that the March 27, 2008 Strike Order “refers to a March 18, 2008 draft Order that was not filed, rather than as intended to the final Order that was filed March 20, 2008”. This statement is incredulous as Judge Yaffe had admitted on March 20, 2008 that he was taking payments from L.A. County, a party to the Marina Strand case. He also knew that the March 20, 2008 Minute Order was never served. He knew this after March 25, 2008, two days before filing the March 27, 2008 Strike Order. Further, the March 27, 2008 Strike Order was never served. It did not have any Certificate of Service. (See Docket No. 16-3.) The effect of the admission in the July 13, 2010 Minute Order is that it demonstrates that Judge Yaffe and L.A. County had committed a “fraud upon the court” in the Marina Strand case in that the L.A. Superior Court, Judge Yaffe and Mr. McCormick had been misleading and defrauding the U.S. District Court, Ninth Circuit, and the U.S. Supreme Court in this case.

-3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

At all times, all of them knew that Judge Yaffe and L.A. County had concealed the L.A. County payments to Judge Yaffe in the Marina Strand case. At all times all of them had “covered up” the concealment through false orders and other artifices, including falsely imprisoning Fine in “coercive confinement” through the present time. On July 13, 2010, Judge Yaffe released a second Minute Order, which was previously entered on June 18, 2010. (See Exhibit “1” attached hereto.) In such Minute Order, Judge Yaffe falsely stated that he “struck” Fine’s CCP § 170.3 “Verified Statement of Disqualification”, at page 4 of the Minute Order. Judge Yaffe also admitted at page 5 of the Minute Order that he refused to set a hearing for Fine’s release from coercive confinement when Fine filed the May 17, 2010 Application for such release, citing the case of In Re Farr, 36 Cal.App.3d 577, 584 (1974). The L.A. Superior Court, Judge Yaffe and Mr. McCormick concealed the June 18, 2010 Minute Order released with the July 13, 2010 Minute Order from this Court. As shown by the later July 13, 2010 Minute Order, Judge Yaffe never struck any “Verified Statement of Disqualification” and Judge Yaffe himself has been disqualified by the March 25, 2008 CCP § 170.3 Objection to which he did not respond, in addition to Judge Yaffe and L.A. County having committed “fraud upon the court.”

-4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

II.

SHERIFF BACA, THE L.A. SUPERIOR COURT AND JUDGE YAFFE DO NOT CONTEST THAT L.A. COUNTY AND JUDGE YAFFE COMMITTED “FRAUD UPON THE COURT” IN THE MARINA STRAND CASE. The Response of Sheriff Baca did not contest any of the factual statements

or arguments in the Motion to Vacate. Sheriff Baca continued to maintain his unlawful position of violating 28 U.S.C. § 2243 by refusing to state any reason why the Writ of Habeas Corpus should not be granted. The Response of the L.A. Superior Court and Judge Yaffe also did not contest any factual statement or arguments in the Motion to Vacate. Further, the L. A. Superior Court and Judge Yaffe’s response emphasized the newly created July 13, 2010 L.A. Superior Court Minute Order by Judge Yaffe admittedly made in response to the Motion to Vacate. Such July 13, 2010 Minute Order admitted that the crucial March 18, 2008 Strike Order, upon which Judge Yaffe justified all of his actions in the Marina Strand case, was a “draft order that was not filed.” In other words, the March 18, 2008 Strike Order was a false order and a sham. This admission, when applied to the substance to the March 27, 2008 Strike Order, shows that the March 27, 2008 Strike Order is a nullity and also a sham as it relied solely on the false March 18, 2008 Strike Order.

-5

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Further, the March 27, 2008 Strike Order was never served on anyone, as shown by the lack of a certificate of service or order for a party to serve. (Docket No. 16-3.) The March 27, 2008 Strike Order was directed only at Fine’s March 25, 2008 Notice of Disqualification. Fine’s March 25, 2008 Notice of

Disqualification refers to, and incorporated, a Notice of Ruling dated March 21, 2008 of Judge Yaffe’s March 20, 2008 hearing. Such March 21, 2008 Notice of Ruling, sent by the attorneys for the Real Parties in Interest on March 21, 2008, did not include a March 20, 2008 Minute Order or even refer to such. (See SER 0079-0082 – Notice of Ruling; SER 0083-0089 Notice of Disqualification.) In the July 13, 2010 Minute Order, Judge Yaffe stated that the “intended Order” to have been referenced in the March 27, 2008 Strike Order was the March 20, 2008 Minute Order, which was never served. Judge Yaffe knew, as of March 25, 2008, that the March 20, 2008 Minute Order was never served, as both the Notice of Ruling and the Notice of Disqualification were filed on March 25, 2008, two days before the March 27, 2008 Strike Order was filed. Each of these documents show on their face that the March 20, 2008 Minute Order had not been served. Judge Yaffe is now deliberately misleading this Court through the July 13, 2010 Minute Order by referring to a March 20, 2008 Minute Order he knows

-6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

was never served. The March 21, 2008 Notice of Ruling only stated: “The court struck the challenge pursuant to CCP § 170.3 by Richard I. Fine to the Judges of the Superior Court of the County of Los Angeles” (SER 0080). As of March 27, 2008, based upon the documents, it was impossible for Judge Yaffe to issue the March 27, 2008 Strike Order in good faith as the March 18, 2008 Strike Order was false and the March 20, 2008 Minute Order was unserved. Judge Yaffe also could not issue the March 27, 2008 Strike Order based upon the March 21, 2008 Notice of Ruling, as ten days had not passed to file a writ challenging such action as of March 27, 2008. More troubling, the L.A. Superior Court and Judge Yaffe’s Response does not contest that the Superior Court, Judge Yaffe and Mr. McCormick deliberately withheld from this Court the February 19, 2008 Motion which was part of the Judgment and Order of Contempt which they produced to this court as Exhibit A to the McCormick Declaration, Docket No. 16-2. At page 8, footnote 14, the L.A. Superior Court and Judge Yaffe’s Response states that the February 19, 2008 Motion was before this Court as Docket No. 1, Document 12, pages 23-50. This was part of the Judgment and Order of Contempt and should have been produced to this Court by Mr. McCormick when he also produced the Judgment and Order of Contempt as part of his initial Declaration,

-7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Exhibit A, Docket No. 16-2. Mr. McCormick deliberately omitted the February 19, 2008 Motion. The Declaration of Richard I. Fine in Support of the Motion (the “Fine Declaration”) showed in paragraph 12 that Judge Yaffe did not disclose that he was receiving money from L.A. County. These facts have not been contested and establish a “fraud upon the court”, in violation of Canons 4D(1), 3E(2) and 3E(1) of the California Code of Judicial Ethics and a violation of CCP § 170.1(a)(6)(A)(iii), as set forth in the Motion to Vacate. The refusal of Sheriff Baca and the failure of the L.A. Superior Court and Judge Yaffe to contest the facts and arguments in the Motion to Vacate mandate the vacating of the Judgment and the granting of the Writ of Habeas Corpus.

III. THE JULY 13, 2010 MINUTE ORDER DEMONSTRATES THAT L.A. COUNTY AND JUDGE YAFFE COMMITTED “FRAUD UPON THE COURT” IN THE MARINA STRAND CASE. On July 13, 2010, in response to the Motion to Vacate, Judge Yaffe filed a Minute Order admitting that the March 18, 2008 Order Striking Fine’s July 19, 2008 Motion to Disqualify L.A. Superior Court Judges Receiving Money from L.A. County was a draft that was never filed. The false March 18, 2008 Strike

-8

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Order was Judge Yaffe’s justification for his later actions in the Marina Strand case. By admitting that the March 18, 2008 Strike Order did not exist, the July.13, 2010 Minute Order vitiated the March 27, 2008 Strike Order which was solely based on the false March 18, 2008 Strike Order. The March 27, 2008 Strike Order stated at page 3, (SER 0170, lines 4-6): “Accordingly, the court’s March 18, 2008 Order determining the question of disqualification is final. Mr. Fine’s March 25, 2008 Notice of Disqualification is incorrect and stricken. With cause appearing therefore, it is so ordered.” The result of the July 13, 2010 Minute Order’s admission that the March.18, 2008 Strike Order was a draft and not entered was that the February.19, 2008 Motion was not stricken and that the March 25, 2008 Notice of Disqualification also was not stricken. Prior to the July 13, 2010 Minute Order’s admission, a handwritten note on the March 25, 2008 Notice of Disqualification by Deputy Clerk Connie L. Hudson stated that such was stricken by the March 27, 2008 Order. (SER 0083.) However, such striking was vitiated by the July 13, 2010 Minute Order which removed the March 18, 2008 false Strike Order as the sole reason for the March.27, 2008 Strike Order.

-9

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

The July 13, 2010 Minute Order also stated that the “final order” striking the February 19, 2008 Motion now was the March 20, 2008 Minute Order. (Exhibit A to the McCormick Declaration (SER 0077-0078). Such March 20, 2008 Minute Order had entirely different reasons than the March 18, 2008 Strike Order. These reasons related to CCP § 170.3, which is a disqualification of an individual judge, with the exception of the first reason. The first reason wrongly stated that the February 19, 2008 Motion “is directed at all of the judges of this court as a class, and not any particular judge”. The February.19, 2008 Motion clearly stated that it was only “to Disqualify L.A. Superior Court Judges Receiving Money from L.A. County.” The Motion

would not disqualify an L.A. Superior Court judge who was not receiving money from L.A. County. Paragraph 12 of the Fine Declaration in support of the Motion clearly stated that Judge Yaffe had not disclosed whether he was receiving money from L.A. County as follows: “In the instant case Los Angeles County is a party. The court [Judge Yaffe] has not disclosed if it is presently receiving money from Los Angeles County”. Paragraph 13 of the Fine Declaration stated: “In the case of Sturgeon v. L.A. County, et al., Case No. BC 351286, in which plaintiff brought suit to enjoin L.A. County from making payments to L.A. Superior Court judges, the

-10

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

case was transferred out of the jurisdiction of the L.A. Court.” (See February 19, 2008 Motion, Docket No 1, documents 1-2, pages 23-50; paragraphs 12-13; see SER 0062.) At the time of the March 20, 2008 Minute Order, Judge Yaffe knew: (1) that Judge Yaffe had concealed L.A. County payments to him from the outset of the case and committed “fraud upon the court”; (2) the February 19, 2008 Motion was not addressed to the L.A. Superior Court judges as a class; and (3) the February 19, 2008 Motion would only encompass Judge Yaffe if he had disclosed receiving L.A. County payments as he was interpreting such motion as a personal CCP § 170.3 Objection to him personally. The March 27, 2008 Strike Order did not independently refer to a ten-day time period to challenge a Strike Order distinct and separate from the “advisement” in the false March 18, 2008 Strike Order as alleged in the July 13, 2010 Minute Order. Nor did the March 27, 2008 Strike Order mention or refer to the March 20, 2008 Minute Order as a basis to strike the March 25, 2008 Notice of Disqualification. As stated above, the March 25, 2008 Notice of Disqualification only referenced the March 20, 2008 Notice of Ruling, which did not include the March 20, 2008 Minute Order. (SER 0083-0089.) Further, as shown above, the March 20, 2008 Minute Order was never served. (SER 0083-0089.)

-11

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

The July 13, 2010 Minute Order placed Judge Yaffe in a position that he could not have entered any Strike Order on March 27, 2008 striking the February.19, 2008 Motion and striking the March 25, 2008 Notice of Disqualification. Further, the July 13, 2010 Minute Order did not address the March 25, 2008 CCP § 170.3 Objection served and filed on Judge Yaffe on March 26, 2008. (SER 0090-0167.) Such “Objection” was served and filed after Judge Yaffe admitted to receiving L.A. County payments at the March 20, 2008 hearing. Judge Yaffe did not respond to the Objection and was

disqualified under CCP § 170.3(c)(4). The Notice of Disqualification was given to Judge Yaffe at the April 10, 2008 hearing and filed on April 11, 2008. Additionally, the July 13, 2010 Minute Order did not contest the fact that the March 27, 2008 Strike Order did not have a clerk’s certificate of service nor instruction for service by a party and was not served on anyone. (See original Order, Docket No. 16-3, SER 0168-0170.) On its face, the July 13, 2010 Minute Order demonstrates that L.A. County and Judge Yaffe committed “fraud upon the court” in the Marina Strand case. IV. THE L.A. SUPERIOR COURT, JUDGE YAFFE AND MR. McCORMICK DELIBERATELY MISLED THIS COURT. The L.A. Superior Court and Judge Yaffe’s Response does not deny that the L.A. Superior Court, Judge Yaffe and Mr. McCormick deliberately withheld

-12

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

documents from the U.S. District Court which they later produced to the Ninth Circuit. This deliberate withholding violated this Court’s original Order to Sheriff Baca to respond to the Petition and produce all pertinent documents. The L.A. Superior Court, Judge Yaffe and Mr. McCormick continue this unlawful conduct at page 3, footnote 4 of the current Response where they contend that a copy of the March 27, 2008 Strike Order was faxed by Fine on April 8, 2008 as shown by Exhibit B of their original Response to the Petition, (Docket 16-3). A review of such document does not show any evidence of Fine faxing the document. Nor does it show Fine being served. More interesting, the document, which is stamped “Original”, shows a date stamp on the left margin of April 11, 2008, the same day that the second Notice of Disqualification of Judge Yaffe was filed. The second Notice of Disqualification related to Judge Yaffe’s failure to respond to the March 25, 2008 CCP § 170.3 Objection. At page 5, line 16, page 6, line 7, the L.A. Superior Court and Judge Yaffe’s Response mischaracterizes the July 13, 2010 Minute Order as “verifying” the March 27, 2008 Strike Order, when such Minute Order was an admission of a false March 18, 2008 Strike Order. At page 6, lines 22-24, the L.A. Superior Court and Judge Yaffe’s Response falsely argued that Fine did not have standing to disqualify Judge

-13

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Yaffe. The truth was that Judge Yaffe had rejected such argument in the July 13, 2010 Minute Order. Further, such argument was not part of the case and cannot now be raised. The L.A. Superior Court and Judge Yaffe’s Response also argued that “Fine’s claimed ignorance of Judge Yaffe’s receipt of local judicial benefits is a blatant misrepresentation”. (Id.) The truth was that Judge Yaffe did not disclose such payments until March 20, 2008, ten months after the June 14, 2007 filing of the Marina Strand case, and had not disclosed such as of February 19, 2008 when the February 19, 2008 Motion was filed. The reference to the case Silva v. County of Los Angeles, et al., 215 F. Supp. 2d 1079 (C.D. Cal. 2002) and Los Angeles County Ass’n of Environmental Health Specialists v. Lewin, et al., 215 F. Supp. 2d 1071 (C.D. Cal. 2002) at page 7, footnote 11, of the L.A. Superior Court and Judge Yaffe’s Response did not disclose that in each of those cases documents showing the monies received from L.A. County by the defendant judicial officers were attached to the respective complaints, that the respective complaints alleged violations of Article VI, Section 19, of the California Constitution and various Canons of the California Code of Judicial Ethics (all of which were not contested), and violations of the First, Fifth and Fourteenth Amendments.

-14

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

None of the judicial officer defendants had disclosed the L.A. County payments to them during the underlying cases. The case of Sturgeon v. County of Los Angeles, 167 Cal. App. 4th, 630 (2008), review denied 12/23/08, held that the L.A. County payments to the L.A. Superior Court judges violated Article VI, Section 19, of the California Constitution. Given the Sturgeon decision, the comments of U.S. District Court Judge Matz (who was the judge in the Silva and Lewin cases) quoted in footnote 11 of the L.A. Superior Court and Judge Yaffe’s Response, were biased, ill-tempered, legally wrong and reeked of “cronyism”. Such comments were clearly intended to intimidate Fine from pursuing a valid course of litigation which was proven to be correct in the later Sturgeon case. Mr. McCormick was the attorney for the defendant judicial officers in the Silva and Lewin cases. In such cases, Mr. McCormick did not produce to the U.S. District Court the November 10, 1988 letter of Roger M. Whitby, Senior L.A. County Counsel, approved by De Witt W. Clinton, L. A. County Counsel to Frank Zolin, County Clerk/Executive Officer Superior Court, which was later produced by L.A. County in the Sturgeon case.

-15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Such letter showed that only the State Legislature could “prescribe” compensation for judges under Article VI, Section 19, of the California Constitution, that such duty could not be delegated, that the L.A. County payments were “compensation” according to an Opinion issued by the California Attorney General, and that the judges were state constitutional officers. The L.A. Superior Courts had possession of this letter at the time of the Silva and Lewin cases. The court in the Silva and Lewin cases did not address the issue of “fraud upon the court” by the judges in the underlying cases. At page 8, lines 15-18, the L.A. Superior Court and Judge Yaffe’s Response falsely claimed that Fine did not apprise the U.S. District Court of the March 20, 2008 Minute Order. As shown above, such March 20, 2008 Minute Order was never served on Fine, or anyone. Further, the Superior Court, Judge Yaffe and Mr. McCormick knew this as they produced the March 21, 2008 Notice of Ruling (SER 0079-0082) which showed on its face that the March 20, 2008 Minute Order was not served. Due to the concealments and misrepresentation of the L.A. Superior Court, Judge Yaffe and Mr. McCormick, the U.S. District Court was misled and prevented from being presented with the true facts in this case. Judge Yaffe’s sudden review of his actions, in response to the Motion to Vacate, two and onequarter years after the non-existent March 18, 2008 Strike Order to now reverse

-16

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

his course of action and admit that the March 18, 2008 Strike Order did not exist, to remove his arguments about Fine not being able to challenge Judge Yaffe and to not impose any new striking of the February 19, 2008 Motion or the March 25, 2008 Notice of Disqualification, demonstrates the truth of the “fraud upon the court.” These actions, combined with Judge Yaffe’s testimony that he took payments from L.A. County at the March 20, 2008 hearing, and later in his December 22, 2008 testimony during the contempt proceeding, in which he “judged his own actions”, further demonstrate “fraud upon the court”. In particular, in his December 22, 2008 testimony, Judge Yaffe testified that he received payments from L.A. County, that he did not disclose such in his Form 700 Statement of Economic Interest, and that he could not remember deciding any case against L.A. County within the previous three years other than that part of the Marina Strand case suggested by Mr. Fine. (See Transcript of December 22, 2008 testimony attached hereto as Exhibit “2”.) This testimony indicates “bribery” and a violation of the intangible right to honest services, 18 U.S.C. § 1346, as recently set forth in Skilling v. United States, 561 U.S. __ (2010).

-17

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

CONCLUSION The facts are now clear that Judge Yaffe and L.A. County defrauded the Court. The L.A. Superior Court, Judge Yaffe and Mr. McCormick misled and withheld documents from this Court. Sheriff Baca and his attorneys have

violated the law by refusing to respond to the Petition for Writ of Habeas Corpus. The payments from L.A. County to L.A. Superior Court judges have been held to be illegal as a violation of Article VI, Section 19, of the California Constitution. These were the payments that Judge Yaffe received from L.A. County and did not disclose in the Marina Strand case. Any later payments commencing after May 21, 2009 were after the Marina Strand case and not at issue in this case. The legality of those later payments is currently before the California Court of Appeals. Senate Bill SBx2-11, enacted February 20, 2009, gave retroactive immunity to “governmental entities, officials and employees of governmental entities” including judges, effective May 21, 2009 from criminal prosecution, civil liability and disciplinary action because of the payments to judges from counties. However, such immunity did not extend to the acts of judges presiding over cases in which the county who made payments to the judge was a party

-18

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

before the judge who received the payments. The immunity also did not extend to the judges and the counties having committed “fraud upon the court”. Due process mandates that this Court vacate its judgment and grant the Writ of Habeas Corpus based upon the “fraud upon the court” committed by L.A. County and Judge Yaffe. Further based upon (1) the admission in the July 13, 2010 Minute Order that the March 18, 2008 Strike Order was false; (2) that the March 20, 2008 Minute Order was not served; (3) that Judge Yaffe concealed his taking of the L.A. County payments until March 20, 2008, when he admitted such at the March 20, 2008 hearing, and later reconfirmed such on December 22, 2008 at the contempt proceeding over which he presided and “judged his own actions,” the judgment must be vacated based upon the fraud upon the L.A. Superior Court and the U.S. District Court in this case. The actions of concealment of the L.A. Superior Court, Judge Yaffe and Mr. McCormick were deliberate. At all times the L.A. Superior Court, Judge Yaffe and Mr. McCormick knew (1) that there was not any March 18, 2008 Strike Order; (2) that Judge Yaffe had not effectively stricken the February 19, 2008 Motion; (3) that Fine had standing to disqualify Judge Yaffe; (4) that the March 20, 2008 Minute Order was not served; (5) that Judge Yaffe had not stricken the March 25, 2008 Notice of Disqualification; (6) that Judge Yaffe

-19

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

was disqualified for not having responded to the March 25, 2008 CCP § 170.3 Objection; and (7) that Judge Yaffe and L.A. County had committed “fraud upon the court” by having concealed the L.A. County payments to Judge Yaffe from the commencement of the Marina Strand case on June 14, 2007 until March 20, 2008, when Fine elicited the payment information from Judge Yaffe at the March.20, 2008 court hearing and later elicited such information at the December.22, 2008 contempt proceeding. The L.A. Superior Court, Judge Yaffe and Mr. McCormick concealed such facts from this Court, the Ninth Circuit and the U.S. Supreme Court. These actions mandate the vacating of the judgment, the granting of the Writ of Habeas Corpus and the disbarment of Mr. McCormick from all of these courts.

Dated this 20th day of July, 2010

Respectfully submitted, BY: ____________________________ RICHARD I. FINE, In Pro Per

-20

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am Fred Sottile. My address is 2601 E. Victoria Street, # 108, Rancho Dominguez, CA 90220. I am over the age of eighteen years and am not a party to the above-entitled action. On July 20, 2010, I served the foregoing document described as PETITIONER’S REPLY IN SUPPORT OF MOTION TO VACATE on interested parties in this action by depositing a true copy thereof, which was enclosed in a sealed envelope, with postage fully prepaid, in the United States Mail, addressed as follows:
Aaron Mitchell Fontana Paul B. Beach LAWRENCE BEACH ALLEN & CHOI, PC 100 West Broadway, Ste. 1200 Glendale, CA 91210-1219 Kevin M. McCormick BENTON, ORR, DUVAL & BUCKINGHAM 39 N. California Street P.O. Box 1178 Ventura, CA 93002

I certify and declare, under penalty of perjury under the laws of the United States of America and the State of California, that the foregoing is true and correct. Executed on this 20th day of July, 2009, at Rancho Dominguez, California.

_____________________________ FRED SOTTILE

-21

You're Reading a Free Preview

Download
scribd
/*********** DO NOT ALTER ANYTHING BELOW THIS LINE ! ************/ var s_code=s.t();if(s_code)document.write(s_code)//-->