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

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) REQUEST FOR HEARING TO DETERMINE WHETHER TO IMMEDIATELY RELEASE FINE FROM “COERCIVE CONFINEMENT” IN WHICH HE IS BEING HELD IN VIOLATION OF DUE PROCESS; MEMORANDUM OF POINTS AND AUTHORITIES; AND DECLARATION OF RICHARD I. FINE FRCP RULE 60 (b)(2), (3), (5) and (6) DATE: TIME: PLACE: Courtroom 640 255 East Temple Street Los Angeles, CA 90012

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

-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

PLEASE TAKE NOTICE that Petitioner (hereinafter “Fine”) requests a hearing in Courtroom 640, located at 255 East Temple Street, Los Angeles, California, to determine whether to immediately release Fine from “coercive confinement” in which he is being unlawfully held in violation of due process. The reasons for the hearing are as follows: 1. On March 4, 2009, Los Angeles Superior Court Judge David P.

Yaffe held Fine guilty on two charges of contempt of court and ordered Fine into “coercive confinement” in the Los Angeles County Jail pursuant to C.C.P. § 1210(a) until Fine “provides all the information that he has been ordered to provide, or is hereafter ordered to provide by the Commissioner that is assigned by the presiding judge to preside over Department 1-A of the Central District of this court (Judgment and Order of Contempt, dated March 4, 2009, (Contempt Order), page 14, lines 4-6). 2. Such contempt order was void, as was every order and judgment

issued by Judge Yaffe in the case of Marina Strand Colony II Homeowners Association v. County of Los Angeles, LASC Case No. BS 109420 (the “Marina Strand” case) and its ancillary contempt proceeding against Fine. Judge Yaffe and Los Angeles County and its lawyers had committed “fraud upon the court” by not disclosing at the commencement of the Marina Strand case, or at any time until ten months after the commencement when the information was

-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

elicited by Fine from Judge Yaffe during a March 20, 2010 hearing that Judge Yaffe was receiving payments of over $46,000 per year from Los Angeles County in addition to his state salary of $178,800.00 and state benefits. United States Supreme Court cases have long held that since “fraud upon the court” vitiates the entire case, all orders of that court or any subsequent court are void, as none of the courts had subject matter jurisdiction. No court has the lawful authority to validate a void order. U.S. v. Throckmorton, 98 U.S. 61 (1878). A void order is void at all times, cannot be made valid by any judge, nor does it gain validity by the passage of time. The void order is void ab initio. Valley v. Northern Fire & Marine Co., 254 U.S. 348 (1920). 3. Judge Yaffe also violated the Code of Judicial Ethics, Canon 4D(1),

by taking the payments from Los Angeles County; violated Canon 3E(2) by not disclosing that he had taken the payments at the commencement of the Marina Strand case; violated Canon 3E(1) and CCP § 170.1(a)(b)(A)(iii) by not disqualifying himself at the outset of the case for having taken the Los Angeles County payments; and violated CCP § 170.3(c)(4) for not transferring the file to the presiding judge for “reassignment” after he was disqualified under CCP § 170.3(c)(4) for not responding to the March 25, 2008 CCP § 170.3 Objection based upon his March 20, 2008 admission of taking payments from Los Angeles County.

-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

4.

Los Angeles County and its attorneys committed further “fraud upon

the court” by not disclosing that the Los Angeles County payments to Judge Yaffe (as well as other Los Angeles Superior Court judges) were a misappropriation of funds in violation of California Penal Code § 242, subd. 1, parag. (1) and (3), as Judge Yaffe was a state-elected constitutional officer and not an employee of Los Angeles County, and that the Trial Court Operations Section of the Los Angeles County Budgets stated that the payments of “judicial benefits” to the Los Angeles Superior Court judges were required under the 1997 Lockyer-Isenberg Trial Court Funding Act, when the last three full paragraphs of the case of Sturgeon v. County of Los Angeles, 167 Cal.App.4th 639 (2008), rev. denied Dec. 23, 2008, held that Lockyer-Isenberg did not require or “prescribe” the payments of “judicial benefits”, that these were voluntary. 5. Los Angeles County and its attorneys and its co-applicant for the

Environmental Impact Report (“EIR”) (which was the subject of the Marina Strand case), Del Rey Shores Joint Venture and Del Rey Shores Joint Venture North (collectively “Del Rey Shores”) and its attorneys committed “fraud upon the court” by not disclosing that the EIR had a false certification. Jerry B. Epstein, the trustee of the Epstein Family Trust, which was the managing partner of Del Rey Shores, and his Chief of Staff, David O. Levine, each gave

-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

contributions of greater than $500.00 in April 2007 to Los Angeles County Supervisors Michael Antonovich and Don Knabe. These contributions made the votes of Antonovich and Knabe to certify the EIR on May 15, 2007 illegal under the California Public Resources Code and the case of BreakZone Billards v. City of Torrance, 81 Cal.App.4th 1205 (2000). Since four votes were cast, and three were needed to certify the EIR, the EIR was not certified. Los Angeles County “covered up” the illegality and stated in documents that the EIR was certified. Los Angeles County and its attorneys, and Del Rey Shores and its attorneys, did not disclose the truth to the Court. The truth was not uncovered until Fine obtained the Campaign Contribution Reports in 2008-9 after Los Angeles County published such on the Internet. 6. Judge Yaffe was aware that Fine had charged him with fraud. One

of the charges in the Order to Show Cause Re Contempt was “attacking the integrity of the Court.” In particular, Judge Yaffe was charged with fraud of taking payments from Los Angeles County and not disclosing such, thereby violating 18 U.S.C. § 1346 – the intangible right to honest services. Fine also repeated such charges throughout the contempt proceeding and at the March 4, 2009 sentencing hearing. Fine was found “not guilty” of contempt of court for charging Judge Yaffe with fraud for taking the Los Angeles County payments and not disclosing such. In the Judgment and Order of Contempt, at page 13,

-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

lines 13-23, Judge Yaffe specifically avoids his “fraud upon the court” for not disclosing the Los Angeles County payments to him at the commencement of the case and makes the false statement that Fine did not disqualify him at the earliest possible time after Fine became aware of the specific Los Angeles County payments to Judge Yaffe on March 20, 2008, ten months after the commencement of the case. This statement shows that Judge Yaffe was aware at all times that he had committed a “fraud upon the court” and that his orders and judgment were void. 7. In the contempt proceeding, as shown above, Judge Yaffe “judged

his own actions” of taking payments from Los Angeles County. This violated the rule set forth in In Re: Murchison, 349 U.S. 133, 136 (1955) – “No man can be a judge in his own case. . . no man is permitted to try cases where he has an interest in the outcome.” 8. The Los Angeles County payments to Judge Yaffe violated the long-

standing objective test for due process as recently set forth in Caperton, et al, v. A.T. Massey Coal Co., Inc., et al, 566 U.S. __ (2009), Slip Opinion at page 16: “Just as no man is allowed to judge his own case, similarly fears of bias arise when, without the consent of the other parties – a man chooses the judge of his own cause . . . We find that Blankenship’s significant and disproportionate influence – coupled with temporal relationship between the election and the

-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

pending case ‘offers a possible temptation to the average judge to . . . lead him not to hold the balance nice, clear, and true’. Lavoie, 475 U.S. at 825 (quoting Monroeville, 409 U.S. at 60, in turn quoting Tumey, 275 U.S. at 532.)” Judge Yaffe was receiving 27% of his state salary in additional payments from Los Angeles County, or almost $100,000 over the course of the Marina Strand case. 9. The Sturgeon case, supra, held that the Los Angeles County

payments to the Los Angeles Superior Court judges violated Article VI, Section 19, of the California Constitution on October 10, 2008, prior to the November 3, 2008 Order to Show Cause Re Contempt and the commencement of the contempt proceeding on December 22, 2008 in which Judge Yaffe again

admitted to taking the Los Angeles County payments and not disclosing such on his Form 700 Statement of Financial Interest. On February 20, 2009, California Senate Bill SBx2-11 was enacted, effective May 21, 2009. It recognized the criminality and illegality of the payments by giving limited retroactive immunity to a “governmental entity or officer or employee of a governmental entity” from criminal prosecution, civil liability and disciplinary action “because of benefits provided to a judge under the official action of a governmental entity prior to the effective date of this act on the ground that those benefits were not authorized under law.” The immunity did not extend to “fraud upon the court”, the

violations of the Canons of Judicial Ethics or CCP §§ 170.1(b)(6)(A)(iii) and

-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

170.4(c)(3), or Penal Code § 424, as such did not involve actual payment or “bribery” as the conduct surrounding the payment demonstrated a corrupt intent to induce action or opinion of a person in any public or official capacity (a judge). Senate Bill SBx2-11 also reinstated the payments effective May 21, 2009, as they existed on July 1, 2008, on the same “terms and conditions”. As shown above, those “terms and conditions” were held to violate Article II, Section 19, in Sturgeon supra. Thus, the “reinstitution” of the Los Angeles County payments was unconstitutional. 10. The U.S. District Court could not validate any of Judge Yaffe’s void

orders, nor could the Ninth Circuit, nor the U.S. Supreme Court without specifically addressing and overturning Throckmorton, supra and Valley, supra. No court did such. 11. On January 27, 2010, Fine filed a Demand for Immediate Release

from Los Angeles County Jail and for Other Relief” under the holding of the case In Re Farr, 36 Cal.App.3d 577 (1974), in which the court stated at 584-585: “A coercive incarceration to compel compliance with an order of court presents a social problem where disobedience of the order is based upon an established articulated moral principle. In such a situation, it is necessary to determine the point at which the commitment ceases to serve its coercive purpose and becomes punitive in character, when that point is reached so that the incarceration of the contemnor becomes penal, its duration is limited by the five-day maximum sentence provided in Code of Civil Procedure section 1218. [citation omitted] Analogy to an area in which a similar need exists to determine the distinction between

-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

commitment for a proper civil purpose and incarceration to punish establishes that the test of the distinction lies in the presence or absence of a substantial likelihood that the continued commitment will accomplish the purpose of the order under which the commitment is based. (See In Re David, 8 Cal.3d 798, 801 [citation omitted]; imposing an implied ‘substantial likelihood’ limitation upon a commitment pursuant to Penal Code section 1367 for lack of capacity; see also Jackson v. Indiana, 406 U.S. 715.” [citation omitted]. ... “Thus we conclude: ... (2) Execution of the judgment of contempt should be stayed to permit petitioner to institute proceedings in the trial court for relief from the provisions of the judgment in an manner consistent with this opinion.1” 12. On February 3, 2010 Judge Yaffe filed a “Court’s Response to

Contemnor’s Demand for Immediate Release from Los Angeles County Jail and Other Relief”. Such document states at pages 1-2: “Fine stated to the court that he would not answer questions put to him in a judgment debtor examination until he exhausts his right to petition for habeas corpus. So far as this court knows, Fine is continuing to answer such rights in the federal courts, and Fine does not claim otherwise. When Fine notifies the court, by a declaration under penalty of perjury, that he has exhausted or abandoned his quest for a writ of habeas corpus, this court will set a hearing to determine whether Fine will answer the questions put to him and if not why not.” 13. On March 27, 2010, Fine filed a Declaration under penalty of

perjury stating why the “coercive confinement” was penal from the outset, that

The time for when Petitioner has already been incarcerated is, of course, relevant to the key ultimate fact.
1

-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 “coercive confinement” has not worked for 12 months and that there was no substantial likelihood that it would work with further confinement. 14. On May 21, 2010, Fine filed a “Notice of Farr Hearing” set for

May.26, 2010 in the event that the U.S. Supreme Court denied Fine’s Petition for Writ of Certiorari. Judge Yaffe refused to hold the hearing, even after the U.S. Supreme Court denied the Petition on May 24, 2010. This was conveyed to Fine in a telephone call on May 24, 2010, by Judge Yaffe’s Deputy Clerk, Connie L. Hudson. This refusal demonstrated that Judge Yaffe never intended to hold a “Farr Hearing” despite his statement on February 3, 2010, and further demonstrated that the March 4, 2009 order of “coercive confinement” was penal from the outset. 15. A hearing in Department 1-A of the Los Angeles Superior Court for

a debtor’s examination is on the “Case Summary” online for the Marina Strand case. Jeanette Isaacs called Department 1-A at the request of Fine after

Department 1-A refused three times to accept “prepaid” calls from Fine. Ms. Isaacs asked the clerk to arrange transportation with the Sheriff to transport Fine from the jail to the hearing. The clerk refused and referred Ms. Isaacs to the courtroom deputy, Mary Lewis. Deputy Lewis informed her that such could not be done as there were not any facilities for “prisoners” in the civil court. She then called Sheriff Baca and spoke to Commander Lopez, who informed her that

-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

Fine was in litigation with the Sheriff and that he would have to consult with the Sheriff’s legal counsel. The response of the Superior Court’s Department 1-A demonstrates that the Court does not intend to have any hearing as it is unwilling to arrange for transportation of Fine. 16. The refusal of both Judge Yaffe and Department 1-A to hold a

hearing or arrange to have Fine present at a hearing in which “he is ordered to answer questions” demonstrates that the Judgment and Order of Contempt was a sham when it stated at page 14, lines 10-12: “(2) Upon receipt of said declaration this court will set a date and time for the resumption of the judgment debtor proceeding, notify opposing counsel thereof, and authorize the sheriff to transport Mr. Fine to said proceeding.” Judge Yaffe knew that any order he would make was void, that he never was going to set a date and time for the resumption of the judgment debtor hearing, that he could not arrange for the Sheriff to transport Fine to the proceeding as the courthouse does not have facilities for “prisoners.” 17. At all times from March 4, 2009 onwards, Judge Yaffe intended to,

and did, deny Fine due process by incarcerating Fine without any relationship to the purpose for which he was committed, keeping him committed for over 15 months when it is clear that Fine will not be “coerced” into answering questions, and when there is no substantial likelihood that any further confinement will

-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

accomplish “the purpose of the order on which the confinement was based.” Further, since the duration of penal contempt is five days, a denial of due process exists as the Court must exercise “(t)he least possible power adequate to the end proposed.” Anderson v. Dunn, 6 Wheat 322 U.S. 224, 227 (1945). The hearing will be based upon this Notice, the Memorandum of Points and Authorities filed herewith, the Declaration of Richard I. Fine, the files in the case, the testimony of Richard I. Fine, and such other witnesses as may be necessary and such other documents as may be provided at the hearing. Dated this ___ day of June, 2010 Respectfully submitted, BY: ____________________________ RICHARD I. FINE, In Pro Per

-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

MEMORANDUM OF POINTS AND AUTHORITIES TABLE OF CONTENTS Page Memorandum of Points and Authorities ………………………………….……12 I. II. III. IV. Prefatory Statement ………………………………………………….. 12

“Fraud on the Court” Voids All Orders Ab Initio ……………………... 12 The Maximum Confinement was Five Days, Which was the “Penal” Limitation in CCP Section 1218 ………………………………………13 The 15-Month Confinement Demonstrates that the Coercion has Failed and There is No “Substantial Likelihood” that Continued Confinement Will Accomplish the Purpose of the Order on Which the Confinement was Based …………………..……………………………………………..14 The Duration of the “Coercive Confinement” Violates Due Process …15

V. VI.

Judge Yaffe Never Intended to Have a “Farr Hearing” and Always Intended Penal Confinement …………………………………………….16

Conclusion ……………………………………………………………………17 Declaration of Richard I. Fine ………………………………………………..18

-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

TABLE OF AUTHORITIES
Cases Anderson v. Dunn, 6 Wheat 322 U.S. 224, 227 (1945) …………………………11 BreakZone Billards v. City of Torrance, 81 Cal.App. 4th 1205 (2000) ……...6,19 In Re Farr, 36 Cal.App.3d 577, 111 Cal.Rptr. 649, 653 (1974) ……….…. Passim Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed. 2d 435 (1972) ..9, 12 Lambert v. State of Montana, 545 F. 2d 87 (9th Cir. 1976) ……………12, 13, 15 McNeil v. Director, Patuxent Institution, 407 U.S. 245, 92 S.Ct. 2083, 32 L.d. 2d 719 (1972) …………………………………………………………12 Sturgeon v. County of Los Angeles, 167 Cal.App. 4th 639 (2008) U.S. v. Throckmorton, 95 U.S. 61 (1878) Valley v. Northern Fire & Marine Co., 254 U.S. 348 (1920) Statutes CCP § 1218 CCP § 1219(a) CCP § 170.3 ……………..……………………………………..8, 13, 14, 23, 25 ………………………………………………………………..18 ………………………………………………………………..5, 18 ………………………………………………………….5,18 ……6, 7, 8, 20 …………………………………5, 13 ………..…5, 8, 14

CCP § 170.3(c)(4)

CCP § 170(1)(a)(b)(A)(iii) …………………………………………………..5, 9 CCP § 170 (b)(6)(A)(iii) ……………………………………………………..…8 California Code of Judicial Ethics …………………………………………….22 …………………………………….…5, 19 ………………………………….……5, 19 ………………………………………5, 19 California Public Resources Code ………………………………………………6 Code of Judicial Ethics Canon 3E(1) Code of Judicial Ethics Canon 3E(2) Code of Judicial Ethics Canon 4D(1) Penal Code § 424 Penal Code § 1316 Other Authorities Lockyer-Isenberg Trial Court Funding Act Senate Bill SBx2-11 ………………………………..6,20 …………………………………………………………...8

……………………………………………………………….8 ……… ……………………………………………………9

-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

I.

PREFATORY STATEMENT. Petitioner (“Fine”) has been under “coercive confinement” in the Los

Angeles County Jail since March 4, 2009, over fifteen (15) months. This hearing seeks to determine whether Fine should be immediately released because “there may exist substantial likelihood that petitioner’s confinement is no longer coercive, but may now be punitive. If this is true, his continued confinement denies him due process and he should be released, since to be constitutional, his confinement must bear some reasonable relationship to the purpose for which he was confined”. Lambert v. State of Montana, 545 F. 2d 87 (9th Cir. 1976), parg. 28. In Lambert, supra, the Ninth Circuit affirmed the denial of a writ of habeas corpus challenging an order of coercive confinement to require Lambert to testify before a state judicial proceeding under immunity from prosecution on the grounds that the petition presented no substantial federal constitutional questions and that the federal court would not review an order of a state court on matters of Montana law, but remanded the case for further proceedings under the jurisdiction of the federal court. Where it is alleged that the duration of an individual’s confinement no longer bears a reasonable relationship to the purpose for which he is committed, a substantial federal constitutional claim relating to denial of due process is present. Jackson v. Indiana, 406 U.S. 715, 92 S.Ct.

-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

1845, 32 L.Ed. 2d 435 (1972); McNeil v. Director, Patuxent Institution, 407 U.S. 245, 92 S.Ct. 2083, 32 L.d. 2d 719 (1972). In Jackson, supra, Jackson was charged in state court with robbery and was committed to the Indiana Department of Mental Health until “such time as the Department shall certify to the court that ‘the Defendant is sane’”. The Supreme Court concluded that “Indiana (could not) constitutionally commit the petitioner for an indefinite period simply on account of his incompetency to stand trial on the charges filed against him”. 406 U.S. at 720, 92 S. Ct. at 1949. The Court observed: “due process requires that the nature and duration of confinement bear some reasonable relation to the purpose for which the individual is committed” Id. at 738 92 S. Ct. at 1858. In McNeil, supra, the petitioner was given a five-year criminal sentence and subsequently referred under an ex parte order for psychological examination. Petitioner refused to cooperate with his examiners, was held beyond the five-year sentence and was to be held indefinitely until he cooperated. The Court found, “In this case it is sufficient to note that petitioner has been confined for six years, and there is no basis for anticipating that he will be easier to examine than he is today. It is a denial of due process to continue to hold him on the basis of an ex parte order committing him for observation”. 407 U.S. at 250, 92 S. Ct. at 2087. Justice Blackmun wrote he could not be held for a time longer than necessary to

-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

determine his capacity. If he will not attain such, civil proceedings must be instituted or he must be released. Lambert, supra, also cited to In Re Farr, 36 Cal.App.3d 577, 111 Cal.Rptr. 649, 653 (1974), stating the California courts have also adopted a “no substantial likelihood” test to determine the distinction between commitment for a proper civil purpose and incarceration to punish, quoting: “A coercive incarceration to compel compliance with an order of court presents a special problem when disobedience of the order is based upon an established articulated moral principle. In such a situation, it is necessary to determine the point at which the commitment ceases to serve its coercive purpose and becomes punitive in character. When that point is reached so that the incarceration of the contemnor becomes penal, its duration is limited by the five-day maximum sentence provided in the Code of Civil Procedure section 1218.” II. “FRAUD ON THE COURT” VOIDS ALL ORDERS AB INITIO. The facts in this case show that Fine should not have served any time as no “purpose” existed. Judge Yaffe, LA County and its lawyers, and the “real party in interest” Del Rey Shores Joint Venture and Del Rey Shores Joint Venture North (collectively “Del Rey Shores”) had each committed “fraud upon the court” in the underlying case of Marina Strand Colony II Homeowners Association v. County of Los Angeles, LASC Case No. BS 109420. (“Marina Strand HOA”).

-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

Those “frauds” rendered all orders and judgments in the Marina Strand case and the ancillary contempt proceedings void. United States Supreme Court cases have long held that since “fraud upon the court” vitiates the entire case, all orders of that court or any subsequent court are void, as none of the courts had subject matter jurisdiction. No court has the lawful authority to validate a void order. U.S. v. Throckmorton, 95 U.S. 61 (1878). A void order is void at all times, cannot be made valid by any judge, nor does it gain validity by the passage of time. The order is void ab initio. Valley v. Northern Fire & Marine Co., 254 U.S. 348 (1920). Since Judge Yaffe was not the lawful judge in the Marina Strand case and the ancillary contempt proceeding, and his orders were void ab initio and could not be made valid, no “purpose” existed for the Judgment and Order of Contempt which ordered Fine into “coercive confinement”. Such Judgment and Order of Contempt, itself, was void, as was the order for “coercive confinement” contained therein.

III. THE MAXIMUM CONFINEMENT WAS FIVE DAYS, WHICH WAS THE “PENAL” LIMITATION IN CCP SECTION 1218. Even if the orders were not void ab initio, Judge Yaffe knew that Fine was not answering any questions from March 4, 2009 onwards while the writ was proceeding. From the outset there was no “substantial likelihood” that the

-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

coercive confinement would accomplish the purpose of the order on which the commitment is based and that the commitment had lost its coercive power. Fine was adamant that he was not answering any questions. He had told Judge Yaffe that he, Judge Yaffe, had committed fraud. The Order of

Confinement was “penal” as of March 4, 2009, and Judge Yaffe knew it as he had admitted in the Court’s February 3, 2010 response. Thus, given such admission, the confinement should not have occurred at all, or should have been limited to five days as set forth in CCP § 1218.

IV.

THE 15-MONTH CONFINEMENT DEMONSTRATES THAT THE COERCION HAS FAILED AND THERE IS NO “SUBSTANTIAL LIKELIHOOD” THAT CONTINUED CONFINEMENT WILL NOT ACCOMPLISH THE PURPOSE OF THE ORDER ON WHICH THE CONFINEMENT WAS BASED. Fine has been in solitary “coercive confinement” for over 15 months. He

has not “cracked”.

There is no “substantial likelihood” that continued

confinement will accomplish the purpose of the Order on which the confinement was based. V. THE DURATION OF THE VIOLATES DUE PROCESS. “COERCIVE CONFINEMENT”

Lambert, supra, states at paragraphs 27-28: “Although we agree that originally civil contempt was the proper measure undertaken by the state court in the instant case, the duration of this commitment, in view of the possible maximum

-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

penalty under the Montana criminal contempt statute raises constitutional concern. We conclude there may exist substantial likelihood that petitioner’s confinement is no longer coercive, but may now be punitive. If this be true, his continued confinement denies him due process and he should be released, since, to be constitutional, his confinement must bear some reasonable relationship to the purpose for which he was committed.” Here, no reasonable relationship exists. As shown above, no purpose exists. Even if it did exist originally, Fine’s moral reasons for refusing have long since overcome the “coercion” and “purpose”. Fine has shown that he will not “give in.” This is a battle of principle. It is a battle between corrupt judges, such as Judge Yaffe, who violate the law and desecrate the judicial system, versus those such as Fine who are fighting to restore an honest judicial system composed of judges who are fair and who have integrity. These are the underlying moral principles. Judge Yaffe and his fellow Los Angeles Superior Court judges have abused their power to their self-advantages and the advantages of those who have paid them, to the detriment of those expecting fair decisions from the judiciary. Fine is determined to stop the corruption and restore integrity and respect to the judicial system.

-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

The Supreme Court precedents are clear with respect to ”fraud upon the court”, a judge judging his own actions and a judge taking money from a party appearing in a case before him. No amount of “legalese” or “judicial sophistry” will change these prohibitions, irrespective of how hard Judge Yaffe and his cohorts and judicial protectors may try to make it seem. It is this moral battle that is being waged in this case. Fifteen months has violated due process.

VI.

JUDGE YAFFE NEVER INTENDED TO HAVE A “FARR HEARING” AND ALWAYS INTENDED PENAL CONFINEMENT. The facts show that Judge Yaffe never intended to have a “Farr Hearing”.

His February 3, 2010 Response, combined with his refusal to hold the May 26, 2010 Farr Hearing demonstrate that he never intended to have a Farr Hearing. Further, the fact that it is impossible for the Sheriff to transport Fine to the civil courthouse due to a lack of facilities to keep prisoners indicates that Judge Yaffe never intended to have either a Farr Hearing or even a debtor’s examination. It now appears that the entire “coercive confinement” Order was a sham, as there was never a likelihood that Fine would have a hearing in which he would be allowed to be physically present.

-21-

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

This was Judge Yaffe’s final “fraud upon the court”. He withheld the information that no hearing would occur. By doing this, he violated due process by keeping Fine in jail “for life” and violating Fine’s First Amendment right to petition the court to redress a grievance. Fine is now 70 years old. A fifteen-month-plus sentence for a 70-year-old man is courting a death sentence. This was clearly Judge Yaffe’s intention and retribution for Fine having exposed his “fraud upon the court” and exchange of favorable rulings for Los Angeles County for Los Angeles County payments. On December 22, 2008, Judge Yaffe testified in the contempt proceeding that he received payments from Los Angeles County, that he did not disclose such on his Form 700 Statement of Financial Interests, that he did not deposit the monies in his campaign account, that he did not have an employment agreement with Los Angeles County or an agreement to provide services to Los Angeles County, and that he could not remember any case in the last three years that he decided against Los Angeles County other than recirculating the same part of the EIR related to moving dirt in the Marina Strand case. He also did not invalidate the EIR when it was shown that the EIR had an illegal certification. Thus, the “true purpose” of the order of “coercive confinement” was not to answer questions, but to “kill” Fine for exposing the Los Angeles County/Yaffe

-22-

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

“payoff scheme” under which Los Angeles County won all its cases before Judge Yaffe. CONCLUSION For the reasons stated herein, the execution of the Order for “coercive confinement” should be stayed, the Judgment and Order of Contempt voided and annulled and Fine immediately released. Dated this ___ day of June, 2010 Respectfully submitted, BY: ____________________________ RICHARD I. FINE, In Pro Per

DECLARATION OF RICHARD I. FINE State of California County of Los Angeles I, RICHARD I. FINE, declare: The following facts are within my personal knowledge and belief and if called as a witness, I could and would competently testify thereto as follows: 1. I have been incarcerated in solitary confinement in the Los Angeles

County Men’s Central Jail since March 4, 2009 under a “Remand Order” without

-23-

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

a court date or bail amount, citing CCP § 1219(a) (“coercive confinement”) in Case No. BS 109420, pursuant to a Judgment and Order of Contempt signed by Judge David P. Yaffe, dated March 4, 2009 in the same case entitled Marina Strand Colony II Homeowners Association v. County of Los Angeles (“Marina Strand” case), filed June 14, 2007. 2. At no time during the Marina Strand case, prior to March 20, 2008,

when I elicited the information from Judge Yaffe during a court hearing, did Judge Yaffe or Los Angeles County disclose that Judge Yaffe was or had been receiving payments known as “judicial benefits” from Los Angeles County. Until March 20, 2008, I personally did not know that Judge Yaffe was or had been receiving such benefits. I knew that such benefits were being paid as they were mentioned in the Trial Court Operations section of the Los Angeles County budget. However, the Budget did not identify the individual recipients. None of the judges or court commissioners reported such payments on their Form 700 Statement of Economic Interests, even though they were required to do such as they were not employees of Los Angeles County or contracted to perform services for Los Angeles County. In previous cases where I had challenged a judge or commissioner for having taken payments from Los Angeles County, I either had a record of the Los Angeles County payments to them supplied by the Los Angeles County Controller/Auditor or the judge had admitted to the

-24-

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

payments prior to the filing of the CCP § 170.3 Objection. Five days after Judge Yaffe admitted to the payments, I filed and served the CCP § 170.3 Objection. Judge Yaffe never responded to the Objection and was disqualified under CCP § 170.3(c)(4). He violated such Section by refusing to leave the case on April, 8, 2008 and refusing to have his clerk send the file to the presiding judge for “reassignment.”

3. From

the outset of the Marina Strand case, Judge Yaffe and Los

Angeles County and its attorneys committed “fraud upon the court” by not disclosing the Los Angeles County payments to Judge Yaffe. Judge Yaffe

violated Code of Judicial Ethics Canon 4 D(1) by taking the payments from Los Angeles County; violated 3E(2) by not disclosing such payment at the outset of the case; and violated Canon 3E(1) and CCP § 170.(1)(a)(b)(A)(iii) by not disqualifying himself at the commencement of the case. 4. The Marina Strand case was a Petition for Writ of Mandate to

invalidate the Los Angeles County certification of an Environmental Impact Report (“EIR”) approving the “re-development” of the Del Rey Shores apartment complex in Marina del Rey, California, from 200-plus apartments to 500-plus apartments, and 200-plus parking spaces to 1,000-plus parking spaces. The EIR was “certified” by a 4-0 vote of the Los Angeles County Supervisors on May 15, 2007. Los Angeles County and its lawyers and its co-applicant for the EIR, Del

-25-

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

Rey Shores Joint Venture and Del Rey Shores Joint Venture North (collectively “Del Rey Shores”) and its lawyers committed “fraud upon the court” in the Marina Strand case by not disclosing that the “certification” was false and illegal. Jerry B. Epstein, the Trustee of the Epstein Family Trust, which was the managing partner of Del Rey Shores, and his “Chief of Staff,” David O. Levin, each had contributed greater than $500 to Los Angeles County Supervisors Michael Antonovich and Don Knabe in April, 2007, six weeks before the vote to certify the EIR. These contributions made their votes illegal under the California Resources Act and the case of BreakZone Billards v. City of Torrance, 81 Cal.App.4th 1205 (2000). This reduced the four votes to only two legal votes for the EIR. Three were needed for certification. Los Angeles County “covered up” the illegality and stated that the EIR was certified. I did not discover the illegality until 2008-09 when Los Angeles County published the campaign contributions on the Internet. I exposed the illegality in the contempt proceeding. Judge Yaffe, knowing of the illegality, did not invalidate the EIR This refusal to invalidate

the EIR while knowing that it was illegal, combined with the Los Angeles County payments to Judge Yaffe, demonstrated that the Los Angeles County payments were a “ bribe” as they influenced him to act in favor of Los Angeles County while knowing that such action was illegal.

-26-

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

5. Los

Angeles County and its attorneys committed a “fraud upon the

court” by not disclosing that the Los Angeles County payments or “judicial benefits” to Los Angeles Superior Court judges who were state-elected constitutional officers and not Los Angeles County employees, were a misappropriation of funds in violation of California Penal Code § 242, Subd. 1, par (1) and (3). The Trial Court Operations section of the Los Angeles County Budget stated that the payment of judicial benefits was required by the 1997 Lockyer–Isenberg Trial Court Funding Act. The last three full paragraphs of the case of Sturgeon v. County of Los Angeles, 167 Cal.App.4th 630 (2008), rev. denied Dec. 23, 2008, held that Lockyer-Isenberg did not require or “prescribe” the payment of “judicial benefits”; that these were voluntary.

6. Judge

Yaffe was aware that I had charged him with fraud.

The

November 3, 2007 Order to Show Cause charged me with attacking the integrity of the Court for charging Judge Yaffe with taking payments from Los Angeles County and not disclosing such on his Form 700 Statement of Economic Interests, and violating 18 U.S.C. 1346 – “the intangible right to honest services” because of such fraud. Judge Yaffe tried to evade such charges by avoiding his obligation to disclose the payments and blame me for not disqualifying him earlier, at page 13, lines 13-23 of the Judgment and Order of Contempt, when he was the one hiding the payments.

-27-

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

7. On January 27, 2010, I filed a Demand for Immediate Release from Los
Angeles County Jail and Other Relief, citing the case of In Re Farr, 36 Cal. App.3rd 567 (1974) and giving reasons why the confinement was penal from the outset.

8. On

February 3, 2010, Judge Yaffe filed a “Court’s Response to

Contemnor’s Demand for Immediate Release from Los Angeles County Jail and Other Relief.” Such document “rejected” that the incarceration was penal from the onset “because it is not supported by any evidence that it is true.” Once again, Judge Yaffe was “judging his own actions,” in violation of In Re Murchison, 349 U.S. 133, 136 (1955) – “No man can judge his own cases . . . no man is permitted to try cases where he has an interest in the outcome”. On March 27, 2010, I filed a declaration stating why the incarceration was penal.

9. Additionally, in his February 3, 2010 Response,

Judge Yaffe admitted

that I had informed him that I would not answer any questions, which were the basis of the “coercive confinement”, while I was pursuing the appeals. He knew that the “coercive confinement” would not serve its purpose while the appeals progressed. He acknowledges such by stating at pages 1-2: “Fine stated to the court that he would not answer questions put to him at a judgment debtor examination until he exhausts his right to petition for habeas corpus.” “So far as this court knows, Fine is continuing to assert such rights in federal courts and Fine does not claim otherwise. When Fine

-28-

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

notifies the court, by a declaration under penalty of perjury, that he has exhausted or abandoned his quest for a writ of habeas corpus, this court will set a hearing to determine whether Fine will answer the questions put to him and if not, why not.”

10.

On May 21, 2010, I filed a “Notice of Farr Hearing” set for May 26,

2010 in the event the U.S. Supreme Court denied my Petition for Writ of Certiorari on May 24, 2010. On May 24, 2010, after the Petition was denied, I spoke to Connie Hudson, Deputy Clerk to Judge Yaffe, who informed me that there would not be any “Farr hearing” … ever. 11. I began preparing a Petition for Rehearing in the U.S. Supreme Court, which has not yet been filed.

12.

I checked the “Case Summary” for the Marina Strand case and found

that a hearing for a debtor examination is scheduled for June 14, 2010 in Department 1-A, which is the Department where I am required to answer questions under the Judgment and Order of Contempt if the “coercive confinement” were successful. On June 3, 2010, using my jail phone card, I called Department 1-A three times. Each time the clerk did not accept the “prepaid” call. I then asked Jeanette Isaacs, one of the co-chairpersons of “Free Richard Fine” to call Department 1-A and ask them to order the Sheriff to transport me to the hearing on June 14, 2010 at 9:00 a.m. in Department 1-A. When I spoke with Jeanette later in the day, she stated that the clerk of

-29-

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

Department 1-A refused to order the Sheriff to provide the transportation and referred her to Deputy Marty Lewis. Deputy Lewis told her that prisoners are no longer transported to the civil courthouse as they do not have facilities for them and therefore no transportation will occur. She then told me that she called Sheriff Baca, who was not available and spoke to his executive officer, Cmdr. Lopez. She stated that Cmdr. Lopez told her that Mr. Fine is in litigation with the Sheriff, and he would have to consult with his attorneys.

13.

The result of Judge Yaffe’s actions was that he knew from the outset

of the Marina Strand case that he was committing a “fraud on the court” in conjunction with Los Angeles County and its attorneys by not disclosing the Los Angeles County payments, that he knew that his actions were void because of the fraud upon the court, that he knew that he was violating the California Code of Judicial Ethics, the California Code of Civil Procedure, the California Penal Code, that he later learned that Los Angeles County and Del Rey Shores had committed a “fraud upon the court,” that he knew he was “judging his own actions” and had violated due process by having taken the Los Angeles County payments and had become “embroiled” with me; that he knew that the real underlying purpose of the Judgment and Order of Contempt was “penal” as all of orders were void and could not be the basis for a Judgment and Order of Contempt, and that he never intended to have a “Farr Hearing,” thereby

-30-

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

depriving me of due process.

14.

Further, both Judge Yaffe and Commissioner Gross in Department 1-

A knew that neither of them could have a hearing with me present while I remained a “prisoner”, as the civil courthouse does not have facilities for prisoners. 15. Throughout the entire Marina Strand case, I informed both Judge

Yaffe and Commissioner Gross that Judge Yaffe’s orders were void. I had a moral belief that they were void which was supported by U.S. Supreme Court cases and California law; that my belief has been constant and unchanged from the time that I learned of the Los Angeles County payments to Judge Yaffe through the present; and such belief will not change and has only become stronger. My incarceration was “penal” from the outset, is “penal” 15 months later and will continue to be “penal” each day that I am confined. There is not any “substantial likelihood” that the confinement will cause me to answer questions in a debtor examination. 16. Had the confinement been ordered under CCP § 1218, instead of

Section 1219(a), the confinement would have lasted only five days, instead of over 15 months. This difference alone demonstrates a denial of due process.

-31-

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

I DECLARE THAT THE FOREGOING is true and correct under penalty of perjury under the laws of the United States of America. Executed this ___ day of June, 2010, at Los Angeles, California.

RICHARD I. FINE, Declarant

-32-

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 June ___, 2010, I served the foregoing document described as REQUEST FOR HEARING TO DETERMINE WHETHER TO IMMEDIATELY RELEASE FINE FROM “COERCIVE CONFINEMENT” IN WHICH HE IS BEING HELD IN VIOLATION OF DUE PROCESS; MEMORANDUM OF POINTS AND

AUTHORITIES; AND DECLARATION OF RICHARD I. FINE 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 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 _____ day of June, 2010, at Rancho Dominguez, California. _______________________ FRED SOTTILE

-33-

Sign up to vote on this title
UsefulNot useful