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1.

Plaintiff SUSAN (SUE) EICHERLY (Plaintiff) now and at all times

mentioned herein and relevant hereto, is and was a resident of the City of San Clemente,

County of Orange, California.


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2.

Defendant COMMISSION ON JUDICIAL PERFORMANCE

(COMMISSION) is an agency of the State of California in the judicial branch, established

by the California Constitution, Art. VI, sec. 8.

3.

Defendant COMMISSION has its headquarters, office and place of business at

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the Ronald M. George State Office Complex at 455 Golden Gate Ave., Suite No. 14400 City

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and County of San Francisco, 94102, CA. Plaintiff is informed and believes, and thereon

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alleges, that any COMMISSION error or wrongdoing, as alleged herein, principally would

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have occurred in the City and County of San Francisco, California 94102-7007.
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4.

Venue is in this court. Plaintiff does not seek monetary relief. She alleges that

the value of her property affected by this action exceeds the courts jurisdictional minimum.
5.

This court, unlimited division, has jurisdiction over Plaintiffs causes of action

and her prayer for relief pursuant to the California Constitution Article VI, section 10 and

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Code of Civil Procedure section 1060.


6.

Plaintiff has attached Exhibits A and B and 1-12, which exhibits provide

additional and detailed facts in support of this complaint. Plaintiff incorporates the exhibits
into this complaint by reference. The exhibits are paginated sequentially starting with the

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page after the last page of this complaint. Reference will be made to Exhibit or to pages

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within the exhibits, Exh. Pgs. ___. Page nos. have the preface CMP. Exhibit documents

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were provided to the COMMISSION.

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PREFATORY STATEMENT-SUMMARY OF COMPLAINT


7.

Plaintiff brings this action to assert, vindicate and secure the benefit and

enjoyment of her due process constitutional right to an impartial judge, her constitutional and
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other rights as a victim of crime under Marsys Law, Calif. Const. Art. I, sec. 28, and her

right and that of the People of the State of California to have and maintain separation of

powers as provided in the California Constitution in order to ensure effective prosecution of

state laws against those who commit crimes, including judges and judicial officers that
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commit crimes.
8.

Plaintiff contends that COMMISSION has exceeded its power by wrongfully

adopting total confidentiality that blocks Plaintiffs access to information as to which she
has a right to know, and that wrongful COMMISSION confidentiality denies and impairs her

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due process, crime victims rights, and transgresses the basic separation of powers
established in the original California Constitution, all to her loss, damage, and injury.
9.

Plaintiff contends she is harmed and injured by the COMMISSIONs assertion,

under its Rule 102, of a privilege to withhold and not disclose to Plaintiff anything about the

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status, or lack thereof, on the complaint Plaintiff filed with the COMMISSION against

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Orange County Superior Court Judge Hon. Robert J. Moss over seven (7) months ago, even

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though, in her view, and as she alleges on information and belief, the evidence is beyond

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doubt that Judge Moss engaged in willful judicial misconduct and committed crime that has

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harmed Plaintiff and caused her loss of her home, property and HOA membership.
10.

Plaintiff contends, on information and belief, that in her case, and in other cases

like hers where substantial evidence of judge crime is provided, the COMMISSION does not

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effectively act to fulfill its vital purpose of protecting the public from judges who commit

crimes Plaintiff alleges on information and belief that the COMMISSION, confronted by

evidence of judge crime in a complaint, has the practice of (a) not referring the complaint to
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prosecuting authorities, (b) deferring consideration of the complaint on the ground that a case

before the judge is ongoing or on appeal; (c) does not refer the crime because the

COMMISSION has decided that the crime committing judge should only be punished by the

COMMISSION with private or public admonishment or censure or formal proceedings, and


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(d) the COMMISSION seeks to dissuade criminal prosecution of the offender judges.
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Plaintiff further alleges that the COMMISSION has no internal system or

procedure for prioritization of complaints based on gravity of the complaint substance.


COMMISSION makes no distinction between complaints like that of Plaintiff herein that

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allege judge misconduct that has caused millions of dollars in financial harm to senior

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citizens, and complaints that, while meritorious and deserving of action, do not involve

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financial harm to the complainants, but concern judge misconduct that is offensive, immoral,

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and pernicious to the judiciary, but which has no substantial pecuniary loss for the

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complainant. Similarly, Plaintiff is informed and believes and thereon alleges that

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COMMISSION, in handling complaints, makes no distinction between complaints of judge

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misconduct and complaints that demonstrate the misconduct is also judge crime.

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12.

Plaintiff contends that the COMMISSION, as part of the judicial branch, has

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been and to the present remains ineffectual and disabled to fulfill its purpose of protecting

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Californians from judge misconduct that is also crime, because the COMMISSION, which

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includes judges, is overseen by judges and is the same building as the California Judicial

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Council, which has many judges, thereby violating separation of powers and the common

sense and law that those that serve and work in one branch of government cannot be

expected to police, investigate, punish and castigate their colleagues in the same branch; that
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by human nature judges and officers and employees of the judicial branch, beholden to it for

their positions and salaries, would have difficulty being impartial in meting out punishment

to their own, i.e. judges that, at times, in addition to their misconduct, also commit crimes.

THE CALIFORNIA COMMISSION ON JUDICIAL PERFORMANCE


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13.

The California Constitution establishes the COMMISSION as a state agency in

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the judicial branch charged with receiving and investigating complaints about judge

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misconduct and judge crime.

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The COMMISSION has power to sanction and punish judges

for misconduct inside and outside court. Plaintiff contends that COMMISSION has the

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mandatory duty to refer judges who commit crimes to prosecuting authorities in the
executive branch.
14.

In 1960, California established the COMMISSION within the state's judicial

branch, the nation's first permanent state judicial disciplinary commission. (Cal. Const., Art.

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VI, sec. 8) The COMMISSION was created as a means of attempting to meet the public's

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expectations of a fair and impartial judiciary, and in order to enforce rigorous standards of

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judicial conduct. By amending the constitution to add the COMMISSION, California

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citizens have been credited for having the wisdom to make California the first state in the

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Union, and some say the first government in the world, to create a free-standing agency
designed to protect the integrity and impartiality of the judiciary.
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The COMMISSION is an independent state agency vested with authority to

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retire, remove, censure or to admonish a judge, and to disqualify a judge during the pendency

of formal proceedings, subject to the review of the Supreme Court. (Cal. Const., Art. VI,

8, 18, subd. (d).) The COMMISSION also serves as the primary recipient and conduit for
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complaints from the public about judicial officers alleged to have committed crime.

COMMISSION ASSERTS IT CAN DECREE TOTAL CONFIDENTIALITY

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COMMISSION contends that prior to November 1994, the California

Constitution mandated that COMMISSION investigations and hearings be entirely


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confidential. That year, through Proposition 190, the California electorate amended the

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California Constitution to provide that formal proceedings of the COMMISSION are open to

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the public. But other than that, says the COMMISSION, everything it does, or does not do,

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in carrying out its function generally or with regard to a particular complaint, is confidential.

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17.

Article VI, section 18, subdivision (i)(l) of the California Constitution provides

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that "[t]he commission shall make rules for the investigation of judges. The commission may

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provide for the confidentiality of complaints to and investigations by the commission." (Cal.

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Const., Art. VI, sec. 18, subd. (i)(l ))

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COMMISSION asserts that this constitutional provision authorizes it to decree

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total confidentiality as to complaints submitted to it, their information, evidence, and status,

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and as to anything that happens, or not, on a complaint, up until the COMMISSION decides

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to commence and must therefore announce formal proceedings against a judge at which time

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by constitutional mandate the COMMISSION proceedings against the judge become public
under Cal. Const. Art VI sec. 18 (j).

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COMMISSION contends it has full and plenary power to deny access to

information about it and its processing of complaints against judges and judicial officers

brought against any of the near 2,000 judicial officers the COMMISSION oversees.
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20.

The COMMISSION contends that Proposition 190 also reaffirmed its authority

to "publicly or privately admonish a judge or former judge found to have engaged in an

improper action or dereliction of duty." (Cal. Const., art. VI, 18, subd. (d)(3) [emphasis

added].)
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21.

COMMISSION contends that there is no exception to the California

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Constitutions conferring on it, sole authority over confidentiality of the complaints it

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receives, their processing, disposition, and any inquiry and investigation.

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COMMISSION contends its claimed power to dictate total confidentiality

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means it can deny the California State Auditor, Elaine M. Howle, access to COMMISSION

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records. COMMISSION contends that it can contest, resist, and not comply with the Auditor

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in carrying out the audit requested by our State Legislature, by and through official action of

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its Joint Legislative Audit Committee.

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COMMISSION contends that it has exercised what it calls the sole authority

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granted to it by article VI section 18 subdivision (i)(1) of the California Constitution by

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adopting its Rule 102 which provides, in relevant part, that "[ e ]xcept as provided in this

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rule, all papers filed with and proceedings before the commission shall be confidential."

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COMMISSION concedes that Rule 102 provides limited specific exceptions

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where disclosure of confidential records is permissible. However, asserting it is sole arbiter

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of Rule 102, COMMISSION contends that it decides exceptions, if any. Thus, recently,

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COMMISSION decided and decreed that there is no exception to confidentiality such that

the COMMISSION is not subject to audit by the State Auditor acting for the Legislature

through its Joint Legislative Audit Committee.


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25.

COMMISSION emphatically argues that all case law supports its assertion of

complete confidentiality of and about complaints to the COMMISSION and the

COMMISSIONS review and processing of the complaints. COMMISSION asserts that its

total confidentiality is critical to allow it to perform its core constitutional functions and to
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protect and afford rights to complainants, witnesses, and judges. COMMISSION also

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declares that the confidentiality it decrees is essential to preserve the constitutionally

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protected rights of judges whom the COMMISSION decides to privately admonish.

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26.

COMMISSION interprets the California Constitution as affording it the

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extraordinary total power and privilege to conduct itself as a modern day Star Chamber for

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review and taking of action, if any, in its sole discretion against judicial officers accused of

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misconduct that is or probably is crime.

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27.

According to the COMMISSION, because it can and has imposed complete

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confidentiality, neither the public nor the legislature have any rights or power or privilege to

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breach the solid wall the COMMISSION has erected around itself; the COMMISSION can

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seal off from examination and scrutiny all information about it which would reveal whether

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or not it functions as the People of the State of California intended it to in creating it.

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Plaintiff contends that the COMMISSION cannot dictate total confidentiality

and secrecy but must provide to the legislature and public certain information about

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COMMISSION handling of complaints to complainants and about COMMISSION

performance.

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Plaintiff contends that while the COMMISSION has fulfilled its duty to afford

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accused judges due process as to the complaints brought against them, that the

COMMISSION has done so in derogation of the due process, Marsys Law and other rights

of Plaintiff and other complainants as described and alleged in this complaint.

THE PLAINTIFF
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30.

Plaintiff Sue Eicherly is a sixty-six (66) year old widow whose income is social

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security and occasional work. She and her late husband, notwithstanding Judge Moss

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judgment which is on appeal, own a mobilehome located on a space within the Palm Beach

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mobilehome park in San Clemente, California. along with the right to own and occupy the

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space where the mobile home was located in the park and the rights and privileges of a

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member of the Palm Beach Park Association, the homeowners association that leased space

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to members and operated the mobilehome park. They purchased the home in 2003 for

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$185,000.

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31.

Plaintiff is and has been a member of the Palm Beach Park Association

(PBPA) at all relevant times.


32.

The object of years of litigation at Palm Beach Park has been the spectacular

ocean side park property. Attached as Exhibit A are an aerial photo of the park, grids

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showing its 126 spaces, the park office, club house, and other features, along with the 2015
Park operating permit and a historic painting showing the area of Plaintiffs home.

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THE PALM BEACH MOBILEHOME PARK LITIGATION


33.

In 2007 PBPA members, including Plaintiff, voted to convert the mobilehome

park to resident ownership under statutory procedure Bus. & Prof. Code sec. 11010.8, et

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al. The conversion acquisition closed in December 2007 for $24.75 million when PBPA

purchased the park land using contributions from and loans it made to its 126 members.

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34.

Unfortunately, the conversion transactions were entirely illegal. PBPA did

not comply with the statutory procedure to become a resident owned park, 11010.8 et al.

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The new memberships were issued without the required security permit. Plaintiffs space

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was not a lawfully permitted mobilehome space; it had no certificate of occupancy. There

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were bootleg utilities for illegally leased spaces, including that of Plaintiff. The

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Association loan violated federal truth in lending; the Association had no residential lenders

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license. The park, with its failed conversion and worse, was a real estate crime scene.
35.

In 2010 Plaintiff and other residents filed a lawsuit, Floyd Chodosh, Sue

Eicherly, et al. v. Palm Beach Park Association, et al. 30-2010-00423544, Orange County
Superior Court, filed Nov. 2010 the (Chodosh) case. In April 2013, after a phase I trial,

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the trial judge noted unlawful transactions, stating that PBPA, the homeowners association,

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was an illegal lender making illegal mortgage loans. (Chodosh, Ph. I. Trial Transcript,

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Oral Decision of Hon. Nancy Wieben Stock, May 21, 2013, pg. 37, line 17)

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36.

The Palm Beach Park is fifteen (15) acres across the street from the beach in

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San Clemente. It is a rare and wonderful and very valuable parcel of land. (See Exh. A) The
parcel has been used for mobilehomes and trailers since around 1940. Along with the

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Chodosh case filed in 2010, more lawsuits were brought about the park and the HOA, with

the last lawsuit being Haugen v. PBPA 30-2015-00819837, filed Nov. 12, 2015 (Haugen).

37.

The Chodosh case contests the illegal transactions at the park between PBPA

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and its members and others. Judge Moss entered judgment for PBPA in Chodosh April 14,

2016. By entering the judgment against Plaintiff and her co-plaintiffs, Judge Moss

purported to enforce illegal leases, contracts and agreements, which he could not do. A court

can only invalidate an illegal lease or contract; it cannot enforce it against the victims.
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38.

The Haugen case purpose was to stop the fiduciary fraudulent, self-dealing,

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insider rigged under market value and unlawful sale of the park to friends and colleagues of

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the HOA President, a real estate broker, who by breach of her fiduciary duties and self-

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dealing, would be enriched personally from the sale.

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39.

Judge Moss engaged in willful judicial misconduct in Chodosh and Haugen and

in other Palm Beach Park cases.


40.

Judge Moss willful judicial misconduct and, Plaintiff contends on information

and belief, crimes committed by Judge Moss, are and have been proven by facts and events

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and evidence in Haugen and Chodosh which evidence has been presented to the

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COMMISSION.

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JUDGE MOSS WILLFUL JUDICIAL MISCONDUCT IN HAUGEN

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41.

Of all Judge Moss wrongdoing, most egregious and proven beyond doubt is

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Judge Moss willful judicial misconduct in the Haugen case, where, having been disqualified

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weeks earlier, Judge Moss suddenly called in from vacation to reassume jurisdiction, i.e.

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take the Haugen case from the judge to whom it had been reassigned. Having put himself

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back on the case, Judge Moss took off calendar a TRO application that threatened the closing

of the fiduciary fraudulent park sale in which elder HOA members would lose millions in

real estate equity to the affiliates of the HOA president, a real estate broker engaged in
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fiduciary breach, fraud and self-dealing to steal the park from the elder HOA members.
42.

It is law and common sense that a person or entity that is disqualified, whether

judge, juror, referee, sports player or team, that having been disqualified, the judge, juror,
referee, sports player or team does not have the power, on its own volition, to re-qualify. A

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disqualified person or entity does not have power to undo the disqualification.
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Judge Moss, says he reassumed jurisdiction (Ver. Ans. Exh. pg. 8, lines 25-

28; Exh. CMP 156), on his own order, of the Haugen case where he had been previously
disqualified by the Supervising Judges Order granting a Code Civ. Proc. sec. 170.6

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disqualification challenge (Exh. pg. CMP 104, et al.)


44.

Judge Moss knew he had been disqualified; he said so on the record in a hearing

in the Chodosh case on Dec. 1, 2015. (CMP 106-108) The 170.6 disqualification order was
entered Nov. 30, 2015. Judge Moss was disqualified. The Haugen case was reassigned.

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45.

When trial in Chodosh concluded Dec. 15, 2015. Judge Moss stated on the

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record that he would be on vacation for two (2) weeks, which would delay the Chodosh

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decision. (CMP 113, lines 22-26)

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46.

Sometime around Dec. 15, 2015, Plaintiff learned that the fiduciary fraudulent

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real estate broker HOA president and her accomplices had scheduled the fraudulent sale

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closing for Dec. 22, 2015. It appeared the HOA president and accomplices feared the deal

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might not close as the escrow period for the fraudulent sale had expired by its terms.

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47.

A much bigger threat to the fraudulent sale was that the HOA Board president

and directors had received a better and higher offer to purchase the park from a large real

estate company ready to close all cash.


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48.

The HOA President and those acting unlawfully with her withheld the higher

and better offer from the HOA membership, as the fiduciary fraudulent and self-dealing

below market sale would be in jeopardy if the members found out they could quickly close

with an all cash buyer that would yield thousands of dollars more for each members pocket.

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JUDGE MOSS SUDDENLY STEPS IN TO SAVE PARK SALE FROM THE TRO
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Plaintiff and her co-plaintiffs decided they would try to stop the fraudulent park

sale, in order to have time to get word out to PBPA members of the higher and better offer.
50.

For himself and co-plaintiffs, on Dec. 21, 2015, Mr. Haugen filed a TRO

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application to stop the fraudulent Park sale, scheduled for Dec. 22, 2015.
51.

Mr. Haugens TRO was filed in the courtroom of Judge Andler, the judge to

whom the Presiding Judge had reassigned the Haugen case. (Order granting 170.6, Nov. 30,
2015; CMP 104)

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52.

Appearing for the hearing on the TRO the next day, Dec. 22, 2015, Plaintiff and

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her co-plaintiffs and counsel were told by the court clerk to go to Judge Moss courtroom

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regarding the Haugen TRO matter.

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53.

Judge Moss was not in his court; he was on vacation. The clerk confirmed

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Judge Moss absence. Judge Moss Clerk told counsel present that Judge Moss was back on
the case, and that the TRO hearing was continued one (1) week to Dec. 28, 2015.

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54.

Less than four (4) hours after Judge Moss orders to take back the case and

postpone the TRO hearing, the deed for the wrongful park sale recorded. (Judge Moss

orders entered 12/22/15 9:29 a.m.; deed recorded 1:18 p.m. same day; (see CMP 118, 120.)
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55.

A disqualified judge cannot requalify himself or herself. Judge Moss engaged

in blatant, patent willful judicial misconduct by purporting to, as he put it, reassume

jurisdiction; which was impossible. On information and belief, Plaintiff alleges that Judge

Moss engaged in the willful judicial misconduct in Haugen for his personal pecuniary or
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other benefit or compensation. Plaintiff contends Judge Moss had to have motive for his

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perfectly and strategically timed willful judicial misconduct.

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EVIDENCE OF CRIME IN HAUGEN -UNDENIABLE EX-PARTE CONTACT

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It is not happenstance or coincidence that Judge Moss, weeks after his

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disqualification, called in from vacation to order himself back on the Haugen case. There is

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no set of plausible facts on which, without anyone contacting him, Judge Moss would, while

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on vacation, on self-initiative, call into court about another judges case, take over the case

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despite having been disqualified in it, and enter an order to postpone the hearing on a

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temporary restraining order (TRO), an application that would block the fiduciary
fraudulent and self-dealing sale of a senior citizens mobilehome park.
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That Judge Moss called in the wrongful orders from his vacation and that the

sale closed less than four (4) hours later, Plaintiff alleges and contends, on information and

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belief, proves crime. Judge Moss was not in court; someone had to contact him while he was
on vacation to request that he intervene to stifle the TRO which endangered closing of the

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fiduciary fraudulent real estate sale; a fraud that would bilk around 120 senior citizens out of

millions in real estate equity they hold in their HOA.

58.

After discovering Judge Moss willful judicial misconduct in taking back the

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Haugen case, Plaintiff believed she had reason and evidence that beyond reasonable doubt

would support and mandate the disqualification of Judge Moss in the Chodosh and other

Palm Beach Park cases.

59.

Plaintiff and others, through counsel, filed a statement of disqualification

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against Judge Moss. In his sworn answer, Judge Moss I specifically deny that I engaged in

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any ex parte contacts in the Haugen case. (Judge Moss Ver. Answer, pg. 8, 6, lines 21-23,

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see CMP 156) (The disqualification motion papers and Judge Moss response were provided

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to the COMMISSION on April 25 and 29, 2016 (Exhibits 1 and 3)

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60.

Judge Moss denial of ex parte contact in Haugen is not credible. He was

disqualified, the case reassigned, and he stated on the record he had no jurisdiction.
61.

It is undeniable that someone communicated to Judge Moss that the TRO

threatened sale of the Park. There had to have been an ex-parte communication that alerted

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Judge Moss to the sudden need for him to call in and stifle the TRO. In a letter to the
COMMISSION these facts showing ex parte communication were summarized. (Exh. 03)
62.

Plaintiff contends that, apart from the fact that there must have been ex-parte

communication, other evidence proves crime. TRO application opposition papers, filed Dec.

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21, 2015 in the court of Judge Andler, were filed after the clerk or someone altered on the

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caption pages the court and hearing date, changing from Judge Andler to Judge Moss

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and hearing date from Dec. 22 to Dec. 28). (Exh. 1)(Compare, CMP 130-135 to 136-141)

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63.

TRO opposition pleadings were manually changed with a typewriter from

Judge Andler to Judge Moss as of Dec. 21, the day before Judge Moss entered his order
placing himself back on the case. It is on Dec. 22 Judge Moss reassumed jurisdiction.

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64.

It is also evidence that Judge Moss actually took the TRO off calendar and

continued it with his order issued Dec. 22 at 9:00 a.m. (CMP 117) before he auto-requalified

himself back on to the Haugen case with his order entered at 9:29 a.m. (CMP 118)

65.

This evidence shows a scramble to make sure the TRO was neutralized so that

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the fraudulent sale could close on Dec. 22, 2015 as scheduled. Judge Moss was in such a

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hurry that he forgot to first order himself back on to the case, then purport to act as judge in

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the case to postpone the TRO. Plaintiff contends that the wrong sequence resulted from

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haste and rush to make sure the main objective, stopping the TRO from preventing closing of

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the sale, was achieved. Judge Moss mistakenly first stopped the TRO; then reassumed
jurisdiction. The error meant he was not the judge on the case when he continued the TRO.
66.

Judge Moss issued two (2) orders placing himself back on the case, one on Dec.

22, (CMP 118) and the other on Dec. 23, 2015. (CMP 126) There was no reason for Judge

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Moss to issue two separate orders placing himself back on the case. Plaintiff is informed and

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believes, and thereon alleges, that Judge Moss issued the second order as a way to mislead

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Plaintiff and her counsel into believing that his re-assumption of jurisdiction had been

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ordered by the judge to whom the case had been re-assigned, but not Judge Moss himself.

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67.

The Dec. 23 Minute Order just says Defendants objection having been granted

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and peremptory challenge stricken, this is case is reassigned to the Hon. Robert J. Moss for

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all purposes. Clerk to give notice. (12/23/15 Minute Order, at 2:55 p.m. CMP 126) As

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the Judicial Officer Presiding, it states: Under the direction of Honorable Robert J. Moss.

The Dec. 23 Minute Order is vague, making it appear that Judge Moss being put back on the

case was decided and ordered by the assigned or other Judge, but not disqualified Judge
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Moss. As ordered, the clerk served the Dec. 23, 2015 Minute Order on Plaintiffs counsel.
68.

In contrast, the Dec. 22, 2015 (CMP 118) Minute Order precisely reflects that

Judge Moss himself ordered himself re-qualified in Haugen. It recites that peremptory

challenge was filed, that matter was referred to C-1 and case was reassigned to Hon. Gail A.
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Andler. It then notes that Defendant filed an objection on Dec. 1, 2015.


69.

The Dec. 22, 2015 Minute Order then states: The Court, having read and

considered the objection, now rules as follows: Defendants objection is granted.


Peremptory challenge is stricken. Clerk to give e-Service notice to counsel. (12/22/15

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Minute Order, 9:29 a.m., CMP 118)

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70.

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Robert J. Moss.

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71.

The Dec. 22 Minute Order states plainly that the Judicial Officer Presiding was

While Judge Moss ordered service of the Dec. 22 Minute Order, the clerk failed

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to serve it, as shown by blank proof of service. (CMP 119)


72.

Plaintiff is informed and believes, and thereon alleges, that it is not clerk error

that caused her counsel to not be served the Dec. 22 Minute Order which plainly states Judge
Moss issued his own order placing himself back on Haugen. Plaintiff is informed and

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believes that it was deliberate to not serve the Minute Order showing judicial misconduct but

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to instead serve a subsequent Dec. 23 Minute Order that did not specifically reflect that

27

Judge Moss had re-qualified himself. (Dec. 23 Order, CMP 126, proof of service at 127)

28
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COMPLAINT
17

1
2

73.

Plaintiff contends that other evidence of crime is shown by Plaintiffs counsels

correspondence with opposing counsel involved in Palm Beach Park cases and who were

present when Judge Moss took back the case and the sale closed on Dec. 22, 2015. Plaintiff
4
5

provided the correspondence to the COMMISSION. Plaintiff asserts the correspondence

serves as evidence that crime occurred when Judge Moss suddenly took back the case.

74.

As set forth in the correspondence, Plaintiff is informed and believes that the ex-

parte communication related willful judicial misconduct involved conspiracy to obstruct


9
10
11
12
13

justice, Penal Code 182, et al. and likely other crimes.


75.

Plaintiff contends and is informed and believes and thereon alleges that various

crimes did and had to occur for Judge Moss to effectuate unlawful denial of the TRO by his
unlawful re-assumption of jurisdiction and TRO delay order which had the intended result

14
15
16
17
18

of allowing the fraudulent park sale to close as its organizers had scheduled.
JUDGE MOSS WILLFUL JUDICIAL MISCONDUCT IN CHODOSH
76.

In Chodosh, unlike Haugen, there is not a single shocking undeniable set of

facts and events proving judicial misconduct. Rather, starting when he took over the case in

19
20

January 2014, Judge Moss engaged in continual willful judicial misconduct by intentional

21

disregard of the law and Plaintiffs rights and other actions. Most basic, Judge Moss, in his

22

court, upheld and supported illegality.

23

77.

Judge Moss denied Plaintiff and her co-plaintiffs their right to sue and defend

24
25

on the plain evidence that the Palm Beach Park documents and agreements were illegal.

26

Instead, in direct derogation of the most basic principle of law that a court does not lend

27

itself to illegality -- Judge Moss enforced blatantly illegal leases and contracts and

28
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COMPLAINT
18

transactions in favor of an illegal actor fiduciary. A court cannot enforce an illegal contract;

it must invalidate the illegal lease or contract or agreement.

78.

Judge Moss caused Plaintiff and other members to lose their homes by

4
5

enforcing an unlawful contract of forfeiture. Judge Moss ruled that the HOA, by mere vote

of its Board of Directors, could terminate Plaintiffs lease and membership, i.e. take her

home. With Judge Moss, the HOA did not have to foreclose or evict or in some lawful

manner and procedure regain possession, assuming it had the right to do so, it could not just
9
10
11
12
13

take back, by Board vote, and give nothing in return. (CMP 144, line 26)
79.

Essentially Judge Moss granted PBPA an illegal contract of forfeiture, or an

unlawful strict foreclosure, where the lender, here the HOA, by Board vote, terminated
the Plaintiff, taking her lease, membership and home, and giving her nothing for it.

14
15

80.

In addition to having their HOA take their homes for nothing, on leases and

16

contracts that were illegal, on April 14, 2016, Judge Moss entered six (6) figure judgments

17

against Plaintiff and her co-plaintiffs.

18

81.

In summary, in Chodosh, Judge Moss, (1) enforced a fiduciarys illegal leases

19
20

and contracts and agreements against the beneficiaries; (2) upheld the HOA taking homes by

21

mere vote of its Board of Directors, giving no consideration, which was unlawful forfeiture

22

and (3) awarded the illegal actor fiduciary HOA six (6) figure judgments against Plaintiff

23

and others.

24
25

82.

In 2003, Plaintiff and her late husband paid $185,000 for their home in the park.

26

Judge Moss first caused the HOA to take her home and for her to be ejected from it for

27

nothing. Then he awarded her HOA $245,196 against her. (Exh. 12, CMP 208) Judge Moss

28
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COMPLAINT
19

made Plaintiff homeless and financially ruined. He did so by the misconduct of enforcing

against her and in favor or her HOA fiduciary its illegal leases, contracts and agreements.

JUDGE MOSS MISCONDUCT VIOLATES LAW AND COMMISSION RULE

4
5

83.

In Oberholzer v. Calif. Judicial Performance Commission (1999) 20 Cal. 4th

371, 396, our State Supreme Court stated: Action that is legally erroneous nevertheless can

constitute misconduct if it involves bad faith, bias, abuse of authority, disregard for

fundamental rights, intentional disregard of the law or any other purpose other than the
9
10
11
12
13

faithful discharge of judicial duty. (See In re: Whitney (1996) 14 Cal. 4th 1, 2-3).
84.

COMMISSION Rule 111.4 Legal Error [Adopted 5/8/13] incorporates

Oberholzer language verbatim. The rule provides: Discipline, including an advisory letter,
shall not be imposed for mere legal error without more. However, a judge who commits legal

14
15

error which, in addition, clearly and convincingly reflects bad faith, bias, abuse of authority,

16

disregard for fundamental rights, intentional disregard of the law, or any purpose other than

17

the faithful discharge of judicial duty is subject to investigation and discipline.

18

85.

Judge Moss misconduct rampantly runs afoul of Oberholzer and Rule 111.4.

19
20
21
22
23

(Parallel language from Oberholzer and Rule 111.4 is emphasized in italics.)


86.

Judge Moss acted in bad faith. He abused his authority. He made a record of

disregard for fundamental rights. He shows an intentional disregard for the law. In Haugen,
on information and belief, Plaintiff alleges he committed crimes.

24
25
26
27

PLAINTIFFS COMPLAINT TO COMMISSION ABOUT JUDGE MOSS


87.

On April 25, 2016 Plaintiff filed a complaint against Judge Moss with the

COMMISSION. A cover letter (Exhibit 1) described Judge Moss willful judicial

28
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COMPLAINT
20

misconduct. Plaintiff provided numerous documents which proved willful judicial

misconduct, including Plaintiffs Statement of Disqualification against Judge Moss, and

related pleadings.
4
5

88.

Plaintiff also provided the COMMISSION with memorandum of law with

citation to California Supreme Court authority that was on point and dispositive to

demonstrate that Judge Moss actions in taking back a case on which he had been

disqualified was willful judicial misconduct.


9
10

89.

The documents and evidence afforded a complete record to the COMMISSION

11

including legal authority and analysis that showed Judge Moss actions were willful judicial

12

misconduct under California Supreme Court authority. A true and correct copy of the

13

complaint letter to the COMMISSION is attached as Exhibit 1. (With the letter are selected

14
15
16
17
18

pages of the voluminous documents provided to the COMMISSION with the letter.)
90.

On April 26, 2016 the COMMISSION sent a letter acknowledging receipt of the

Complaint. (Exhibit 2))


91.

On April 29, 2016 Plaintiff and her co plaintiffs, through counsel, sent a letter to

19
20

the COMMISSION providing Judge Moss Statement of Disqualification and Judge Moss

21

Order Striking the Statement of Disqualification and his verified answer thereto, filed 4/29.

22

(Exhibit 3)

23

92.

On May 10, 2016, Plaintiff provided to the COMMISSION her counsels letter

24
25

with additional documents for the COMMISSION relating to Judge Moss Willful judicial

26

misconduct. (Exh. 4) Enclosures included Petition for Writ of Mandate to the Orange

27

County Appellate Court, Fourth District, Division 3, PBPA opposition to Judge Moss

28
_________________________________________________________________________________________________
COMPLAINT
21

disqualification, and letter complaining about Judge Moss willful judicial misconduct sent to

Orange County Superior Court Presiding Judge Hon. Charles Margines and PBPA response

letter sent to Judge Margines. (Presiding Judge Margines granted the 170.6 challenge that
4
5
6
7
8

disqualified Judge Moss. Minute Order, 11/30/15, Exh. 4)


93.

On May 24, 2016 Plaintiffs counsel sent a letter to the COMMISSION with a

copy of the PBPA Opposition to the Writ to disqualify Judge Moss. The letter provided
update on Plaintiffs effort to disqualify Judge Moss following his refusal to recuse.

9
10

94.

Plaintiffs actions to disqualify Judge Moss involved her separate case against

11

about mediator misconduct, F. Chodosh, Eicherly, et al. v. John K. Trotter & JAMS, Inc.

12

(#30-2014-00722371)( Fourth District, Division 1 [San Diego], Case Nos. D070952 &53

13

(the JAMS case) filed May 2014. Therefore, she provided the COMMISSION information

14
15
16
17
18

about the JAMS case in her letters to the COMMISSION (Exh. 5).
95.

On May 27, 2016, Plaintiff provided to the COMMISSION her counsels letter

with the additional documents of an unfiled Reply and the Div. 3 appellate court order
denying the writ. (Exhibit 6)

19
20

96.

On June 15, 2016, COMMISSION staff counsel Anne M. Hunter sent Plaintiffs

21

counsel a letter requesting certain key documents, all court records in the Haugen case,

22

documents that, in Plaintiffs view, prove beyond reasonable doubt Judge Moss willful

23

judicial misconduct in placing himself back on the Haugen case where he had been

24
25
26
27

disqualified. A true and correct copy of Ms. Hunters letter is attached as Exhibit 07.
97.

On June 21, 2016, Plaintiff, through counsel, responded to the June 15 staff

letter, supplying updated and authenticated copies of the court documents staff counsel had

28
_________________________________________________________________________________________________
COMPLAINT
22

requested. Attached as Exhibit 08 is a true and correct copy of the letter and some of its

attachments, which are the 170.6 disqualification and orders and Judge Moss orders, i.e. the

court record that proves Judge Moss unlawfully purported to re-assume jurisdiction.

4
5

98.

On July 26, 2016 the Commission sent Plaintiffs counsel a letter stating that

the case was still under consideration. A true and correct copy of the letter is attached as

Exhibit 9.

99.

Ten (10) weeks later, not having heard anything further from the Commission,

9
10
11
12
13

on Oct. 6, 2016 Plaintiffs counsel wrote to the Commission to request an update. A true and
correct copy of the letter is attached as Exhibit 10.
100. On October 17, 2016 Plaintiffs counsel received an email from M. Baird,
COMMISSION staff counsel. A true and correct copy of the letter is attached as Exhibit 11.

14
15
16
17
18

JUDGE MOSS CONTINUED MISCONDUCT AGAINST PLAINTIFF


101. While months passed as the COMMISSION considered Plaintiffs complaint,
Plaintiff was forced and left to continue to endure further Judge Moss willful judicial
misconduct that harmed her financially and caused her further distress, fear and anxiety.

19
20

102. Plaintiffs adversary, her HOA, having taken her home and holding a quarter

21

million-dollar Judge Moss issued judgment against her, resurrected a dormant case it had

22

filed in 2011 against Plaintiff for violation of the HOA one dog rule, claiming Plaintiff had

23

2 dogs, the case PBPA v. Eicherly; #30-2011-00498722 (filed Aug. 11, 2011)

24
25

103. Plaintiff brought a motion to dismiss the One Dog case because PBPA had not

26

brought the case to trial within five (5) years as required by Code of Civil Procedure sec.

27

583.360; 583.310.

28
_________________________________________________________________________________________________
COMPLAINT
23

1
2

104.

Apart from facts and law which meant mandatory dismissal, it made no sense to

continue the case, as there was only about $2,400 at issue and PBPA already, from Judge

Moss, had a quarter million-dollar judgment against Plaintiff Ms. Eicherly and had taken
4
5
6
7

possession of her home.


105. Disregarding the facts and law, Judge Moss denied the motion. Under facts and
law, he had no power to deny it; violation of the five (5) year rule means mandatory

dismissal. (See Exhibit 12).


9
10

106.

In denying the motion, Judge Moss forced Plaintiff, a widow on social security

11

who lost her home and suffered a quarter million-dollar judgment in his court, to carry on to

12

defend the dormant and pointless One Dog lawsuit.

13

107. Plaintiff documented to PBPA counsel that Judge Moss order of denial had no

14
15
16
17
18

basis in law or fact, inviting PBPA to explain how Judge Moss could deny the motion. There
was no response.
108. The facts and record prove Judge Moss willful judicial misconduct in denying
the motion to dismiss the One Dog case for violation of the five (5) year rule.

19
20

109. Months after complaining to the COMMISSION about a judge that committed

21

what Plaintiff contends is proven willful judicial misconduct, and which Plaintiff contends,

22

on information and belief, is crime, the COMMISSION reveals no action, leaving Plaintiff to

23

suffer further willful judicial misconduct inflicted on her by the judge she complained about

24
25

to the COMMISSION many months earlier.

26
27
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_________________________________________________________________________________________________
COMPLAINT
24

1
2

COMPLAINT TO THE COMMISSION ABOUT THE COMMISSION


110. On Nov. 30, 2016 Plaintiffs counsel sent a letter and attachments to the

COMMISSION complaining about apparent COMMISSION inaction on the complaint


4
5

against Judge Moss, filed over seven (7) months earlier. A true and correct copy of the

letter is attached hereto as Exhibit B, along with portions of its attachments 1-12, which

exhibits are incorporated by reference into this complaint.

111. Plaintiff complained to the COMMISSION that it appeared the COMMISSION


9
10
11
12
13

had done nothing meaningful on her complaint against Judge Moss, filed over seven (7)
months ago.
112. The COMMISSIONS only information was that the complaint was under
consideration. (Exh. 9)

14
15
16
17
18

113. Plaintiff requested from the COMMISSION information as to whether it had


contacted Judge Moss, deferred the case, or referred the matter to prosecuting authorities.
114. Plaintiff advised the COMMISSION that she continued to suffer wrongful
rulings from Judge Moss, and that she wanted to know if the COMMISSION had contacted

19
20

Judge Moss, so that she could raise her complaint about Judge Moss in a statement and

21

motion to disqualify him based on her having filed the complaint against him with the

22

COMMISSION or take other action using information about any COMMISSION action.

23

115. On Dec. 6, 2016 COMMISSION Director-Chief Counsel Victoria B. Henley

24
25
26
27

responded with a phone call to Plaintiffs counsel to discuss the Nov. 30 letter (Exhibit B).
116. Ms. Henley reiterated what the COMMISSION had already said: (a) it will not
give or provide any status report, update, or other information about a pending complaint

28
_________________________________________________________________________________________________
COMPLAINT
25

before it; (b) the Judge Moss complaint was still under consideration; (c) that the

Commission would advise if it needed any further documents or information from Plaintiff,

(d) the COMMISSION had the choice and option to defer action on the complaint whenever
4
5
6
7

a case or appeal involving the complainant and judge remained pending.


117. Plaintiff counsel asked Ms. Henley if soon there would be information about
Plaintiffs complaint against Judge Moss? She responded that she could not comment.

118. In the Nov. 30, 2016 letter to the COMMISSION Plaintiff and her counsel
9
10

specifically requested that the COMMISSION advise if it held the position that Plaintiff and

11

her counsel were under any legal obligation or constraint that would prevent and prohibit

12

them from publicly disclosing Plaintiffs complaint to the COMMISSION.

13

119. Ms. Henley did not indicate any such constraint or prohibition. On the contrary,

14
15

she advised that if Plaintiffs counsel was not satisfied with the COMMISSIONS refusal to

16

provide any information, that as counsel he should take whatever action he believed was

17

necessary to protect and vindicate Plaintiffs rights.

18

COMMISSION FUNCTION ASSURE QUALIFIED & IMPARTIAL JUDICIARY

19
20

120.

The COMMISSION receives, reviews and investigates complaints about judge

21

misconduct and judge crime.

22

judges. It can publicly or privately admonish, censure, or remove or force retirement of a

23

The COMMISSION has power to sanction and punish

judge that is not performing in the office or whose actions or behavior impugns the judiciary

24
25
26
27

or constitutes uncaring or willful judicial misconduct.


121.

Plaintiff contends that the COMMISSION has the mandatory duty to refer

judges who commit crimes to prosecuting authorities.

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COMPLAINT
26

1
2

122.

The COMMISSION acknowledges the People of the State of California created

it as a means of attempting to meet the public's expectations of a fair and impartial judiciary,

and in order to enforce rigorous standards of judicial conduct.


4
5
6
7
8
9
10
11
12
13

123.

The COMMISSION receives and reviews complaints under its Rule 109. In

relevant part, Rule 109 states:


Upon receiving a written statement alleging facts indicating that a judge is guilty of
willful misconduct in office, . . . . the commission may: (1) . . determine that the
statement is obviously unfounded or frivolous and dismiss the proceeding; (2) If the
statement is not obviously unfounded or frivolous, make a staff inquiry to determine
whether sufficient facts exist to warrant a preliminary investigation; or (3) If sufficient
facts are determined in the course of a staff inquiry or otherwise, make a preliminary
investigation to determine whether formal proceedings should be instituted and a
hearing held.

124.

Under such rule and accompanying procedure, the COMMISSION must also

14
15

ascertain if a complaint contains information that indicates a judge committed a crime. (Rule

16

111.4, infra.)

17

COMMISSION DUTY TO PROTECT PUBLIC FROM JUDGE CRIME

18

125.

The COMMISSION serves as the lead agency and initial point of contact for

19
20
21
22
23

complaints about judge crime. The Commission is the go-to agency for both judge
misconduct and judge crime, particularly where the crime dovetails with the misconduct.
126.

The California Constitution provides that the Commission shall suspend a judge

convicted of crime where the conviction is not final. Upon final conviction, i.e. loss or lapse

24
25

of appeal, a convicted judge must be removed from office. Art. VI 8 (c) A former judge,

26

upon becoming a convicted felon on certain crimes, can lose state pension. See, e.g. Danser

27

v. California Public Employees System (2015) 240 Cal.App.4th 885.

28
_________________________________________________________________________________________________
COMPLAINT
27

1
2

127.

Plaintiff is informed and believes, and thereon alleges, that the California

Attorney General does not routinely accept complaints about judge crime; that the Attorney

General instructs complainants to file the complaint with the COMMISSION. Similarly,
4
5

district attorneys in some counties, Plaintiff is informed and believes, inform persons

complaining about judge crime to make their complaint to the COMMISSION.

128.

By law and practice the COMMISSION is the agency in the criminal justice

system and law enforcement agency that receives complaints about judge crime.
9
10

129.

Commission Policy Declarations, DIVISION IV. DISCLOSURE OF

11

INFORMATION, Rule 4.2, states that where and when indicia of a judges criminal

12

wrongdoing appear as part of a complaint, the COMMISSION must turn over the matter to

13

prosecuting authorities. It provides (with emphasis added):

14
15
16
17
18

4.2 Disclosure of Information to Prosecuting Authorities


When, in the course of evaluating complaints or conducting investigations,
commission staff acquires information revealing possible criminal conduct by a
judge, former judge or by any other individual or entity, such information shall be
brought to the attention of the commission at the earliest possible opportunity for
consideration of a referral of the information to prosecuting authorities. Such a
referral requires a vote of a majority of the commission members.

19
20

130.

Plaintiff is informed and believes, and thereon alleges, that when

21
22

COMMISSION staff ascertain judge crime or see substantial evidence of judge crime in a

23

complaint, they are obligated to apprise the COMMISSION of the facts and evidence of

24

crime that the staff has identified. Further, Plaintiff contends that COMMISSION, upon

25

receipt of staff materials that indicate judge crime, has a duty to the complainant and the

26
27

public to report the judge crime to prosecuting authorities in the executive branch.

28
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COMPLAINT
28

1
2

131.

Plaintiff contends that the COMMISSION has the mandatory duty to refer

judges who commit crimes to prosecuting authorities in the executive branch.

132.

There is no indication that the COMMISSION has acted on Plaintiffs

4
5

complaint against Judge Moss. Plaintiff contends, on information and belief, that in her case

the COMMISSION has failed to make timely and proper referral of the Judge Moss crimes

to executive branch prosecuting authorities, in breach of the COMMISSIONS purpose and

mandatory duties.
9
10
11
12
13

COMMISSION DOES NOT PRIORITIZE COMPLAINTS


133.

Plaintiff is informed and believes, and thereon alleges, that COMMISSION has

no internal system or procedure for prioritizing complaints it receives. According to the


COMMISSION, complaints are handled in the order received, i.e. the COMMISSION

14
15
16
17
18

system for order of complaint processing is like a pizza parlor- first come, first served.
134.

COMMISSION makes no distinction between a complaint that provides

evidence of judge misconduct that is causing massive millions of dollars in harm to 120
senior citizens and a complaint that a judge was offensive and immoral in denigrating or

19
20
21
22
23

mistreating persons in the judges courtroom.


135.

Broadly speaking there are two (2) types of judge misconduct, that which is

visible and on the record, and that which is silent for being cloaked and concealed in
supposed judgment or rulings that in reality are entirely wrongful for disregard of the law

24
25
26
27

and litigants rights.


136.

Plaintiff is informed and believes, and thereon alleges, that COMMISSION

fails in performance of its duties because it has no triage or other system for identifying and

28
_________________________________________________________________________________________________
COMPLAINT
29

taking action on complaints that show judge harm that is causing ongoing financial and

persona harm as opposed to complaints about judge conduct that, while vile, offensive and

deserving of rebuke, admonishment or censure, does not threaten persons with substantial
4
5
6
7

financial harm.
137.

Plaintiff is informed and believes and thereon alleges that COMMISSION fails

in the performance of its function because it makes no distinction between complaints that

provide evidence of judge misconduct and those that provide substantial evidence of judge
9
10

crime. As a result, judge crime does not receive the COMMISSION attention and action

11

that it should receive.

12

COMMISSION SHEILDS JUDGES WITH LESSER PENALTY AND DELAY

13

138.

Plaintiff is informed and believes and thereon alleges that the COMMISSION

14
15
16
17
18

contends it need not pay any special attention or give priority to complaints that include
substantial evidence of judge crime, as opposed to only evidence of judge misconduct.
139.

Plaintiff is informed and believes, and thereon alleges, that COMMISSION

believes that it has the power to impose on judicial officers who commit crime a lesser

19
20
21
22
23

punishment than what would be prescribed by executive branch prosecuting authorities.


140.

Plaintiff is informed and believes and thereon alleges that COMMISSION

engages in the practice of issuing private admonishment or punishment of diminished


consequence to judges that the COMMISSION knows or should have ascertained committed

24
25
26

crime, and that the COMMISSION routinely does not refer judge crime to prosecuting
authorities.

27
28
_________________________________________________________________________________________________
COMPLAINT
30

1
2

141.

Plaintiff contends that the COMMISSION has no such discretion to not refer

judges that evidence indicates may have committed crimes. Where there is substantial

evidence of judge crime, Plaintiff contends the COMMISSION is obligated to refer the case
4
5
6
7

to prosecuting authorities in the executive branch.


142.

Plaintiff is informed and believes that, where a complaint includes substantial

evidence of judge crime, the COMMISSION at times exercises its power to defer and delay

consideration of a complaint on the basis that the judge and complainant are still involved in
9
10
11
12

a case which is either still in the trial court or on appeal, thereby shielding the judge.
143.

COMMISSION Policy Declarations [No. 1.8 at page 5] allow for deferral of a

pending matter, stating:

13

1.8 Cases Removed from Active Calendar. The commission may defer its
consideration of a pending matter and direct that the staff inquiry or preliminary
investigation be removed from the commissions active calendar.
Circumstances which may warrant deferral in the commissions consideration
of a matter include: when the case from which the complaint arose is still
pending before the judge; when an appeal or ancillary proceeding is pending in
which factual issues or claims relevant to the complaint are to be resolved;
when criminal or other proceedings involving the judge are pending.

14
15
16
17
18
19
20

144.

The COMMISSION has repeatedly emphasized to Plaintiff that her complaint

21

may be deferred because of pending Palm Beach park cases. COMMISSION staff Ms. M.

22

Baird told Plaintiffs counsel that cases can be deferred while the underlying case is in trial

23

or on appeal. COMMISSION Director-Chief Counsel Victoria Henley reiterated the

24
25
26

COMMISSIONS belief that it can place a complaint on hold and in limbo because of a
pending case still in the trial court or on appeal.

27
28
_________________________________________________________________________________________________
COMPLAINT
31

1
2

145.

Plaintiff is informed and believes that the COMMISSION often exercises its

power to defer and delay consideration of a complaint on the basis that the judge and

complainant are still in a case which is either still in the trial court or on appeal. Because an
4
5

appeal can take two (2) years, deferral of COMMISSION action pending appeal undermines

a persons complaint because justice delayed is justice denied.

7
8

146.

As stated in her letter to the COMMISSION, attention Ms. Henley, Plaintiff is

left with the anxious speculation of whether the Commission has removed Plaintiffs

9
10

complaint from active calendar on the provision that it can do so where the case from which

11

the complaint arose is still pending before the judge, or when an appeal or ancillary

12

proceeding is pending. . . (CMP 084)

13

147.

If the Commission has deferred action on her complaint, Plaintiff contends that

14
15

she has the right to know of such deferral decision. If the COMMISSION has purposefully

16

delayed action on her complaint, it is important the know so that they can take alternative

17

action, including possible further disqualification challenge to Judge Moss, or the filing of a

18

criminal complaint against Judge Moss herself.

19
20

148.

Indeed, Plaintiff alleges on information and belief that Judge Moss wrongful

21

ruling in the One Dog case in denying dismissal of the case may have been motivated by

22

his desire to have the case pending because, assuming he is aware of Plaintiffs complaint

23

against him, he knows or perceives that by keeping the One Dog case pending, he can

24
25
26

assert to the COMMISSION that it should defer action on Plaintiffs complaint against him
until the One Dog case is no longer pending.

27
28
_________________________________________________________________________________________________
COMPLAINT
32

1
2
3

COMMISSION ASSERTS CONFIDENTIALITY AGAINST STATE AUDITOR


149.

On August 10, 2016, the Joint Committee on Legislative Audie of the State

Legislature, (JLAC) made request that the California State Auditor conduct an audit,

4
5

designated Commission on Judicial Performance Complaint Policies and Procedures.

The same date the Auditor issued its five (5) page Analysis of the Audit Request, which

includes the information that legislator and JLAC Committee [M]embers are concerned

about the commissions discipline process and whether its policies and practices for handing

9
10
11
12
13

complaint against judge comply with the fundamental concepts of constitutional due
process. (Analysis of Audit, pg. 1, last par.)
150.

In response to the audit, on Oct. 20, 2016, the COMMISSION filed a Petition

against the auditor claiming that the COMMISSIONS right and power to decree

14
15

confidentiality as to information about complaint against judges meant that the auditor would

16

have no access to COMMISSION information and files, apart from budget and accounting

17

information. PETITION FOR WRIT OF PROHIBITORY MANDATE, OR IN THE

18

ALTERNATIVE, COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF, San

19
20

Francisco City and County Court Case No. CPF-16-515308. On Nov. 21, 2016 the Auditor

21

answered the Petition that the auditor has the right and power to review COMMISSION

22

files, as the auditor has done similar audits for the California State Bar and other agencies

23

where confidential and sensitive files and matters did not prevent effective audit.

24
25

151.

Plaintiff asserts and contends that as a California resident and voter, she has the

26

right and standing to oppose the COMMISSIONS declared and forthcoming refusal to

27

provide the State Auditor with information as alleged in the COMMISSIONS petition.

28
_________________________________________________________________________________________________
COMPLAINT
33

1
2
3

152.

Plaintiff contends that the State Legislature, through the JLAC, the Auditor

and otherwise, must be given information about the COMMISSION and its cases in order for
there to be proper and public assessment and accounting of the COMMISSIONS

4
5

performance, or lack thereof, and to enable government and public monitoring of the

COMMISSION in the future.

153.

Plaintiff contends that as an individual complainant to the COMMISSION

alleging and asserting that she has provided substantial evidence of what she contends is
9
10

judge crime, and that the COMMISSION has done nothing but assert confidentiality, that she

11

and the Auditor are entitled to certain information from the COMMISSION, including

12

whether or not the COMMISSION has referred her complaint about Judge Moss to

13

prosecuting authorities, and the information and statistics as to how many judicial officers

14
15
16
17
18

the COMMISSION has referred to prosecuting authorities, if any, pursuant to


COMMISSION Policy Guideline 4.2 or otherwise.
154.

Plaintiff believes that it may be appropriate for the same court to consider the

rights of the State Auditor and Plaintiff in the same action as there is and will be overlapping

19
20

issues of law. Plaintiff will file a Notice of Related case for Commission v. State Auditor.

21

FIRST CAUSE OF ACTION

22

Violation of Plaintiffs California Constitutional Right of Due Process;

23

Calif. Const. Art. I, sec. 7

24
25

155.

Plaintiff hereby incorporates by this reference Paragraphs 1 through 154 above

26
27

as though fully set forth herein.

28
_________________________________________________________________________________________________
COMPLAINT
34

1
2

156.

The California Constitution, in its Declaration of Rights, states: A person may

not be deprived of life, liberty, or property without due process of law. Cal. Const. Art. I,

sec. 7(a).
4
5

157.

In the Chodosh, Haugen and other Palm Beach Park cases, Plaintiff has asserted

or joined to assert rights and claims to protect her home and property. She is informed and

believes, and thereon alleges, that at all relevant times Judge Moss has been and remains

actually and intentionally biased against her and her co-plaintiffs. Judge Moss rulings,

9
10
11
12
13

judgments and orders were willful judicial misconduct and have operated to deprive Plaintiff
of her property and home.
158.

The right to due process includes the right to an impartial judge.

159.

Judge Moss proven willful judicial misconduct demonstrates he was biased and

14
15
16
17
18

against Plaintiff and her co-plaintiffs. His lack of impartiality has been proven.
160.

Plaintiff took action in the trial court and appellate court to have Judge Moss

disqualified. (See Letters to Commission, Exh. 1, 3, 4) Judge Moss would not recuse. The
Appellate Court did not grant a writ to order his recusal. Plaintiff complained about Judge

19
20
21
22
23

Moss to Orange County Superior Court Presiding Judge Charles Margines. (See Exh. 4) To
Plaintiffs knowledge, Presiding Judge Margines did nothing.
161.

Plaintiff filed her complaint against Judge Moss with the COMMISSION on

April 25, 2016.

24
25

162.

Plaintiff contends that she is entitled to due and proper consideration of her

26

complaint by the COMMISSION, and that the complaint must be acted upon taking into

27

account not just the due process rights of Judge Moss, but of her due process rights as well.

28
_________________________________________________________________________________________________
COMPLAINT
35

1
2

163.

The COMMISSION function is to ascertain and identify judges engaging in

willful misconduct that causes harm to the court or the public and to take appropriate action

in accordance with the gravity of the wrongdoing, evidence of it, and the rights of the
4
5
6
7

accused judicial officer and the complainant.


164.

Plaintiff contends that she provided proof beyond a reasonable doubt of Judge

Moss willful judicial misconduct. She is informed and believes, and thereon alleges, that

the evidence she has provided proves that Judge Moss committed crime in the Haugen case.
9
10
11
12
13

165.

The evidence presented proves that Judge Moss had engaged in willful judicial

misconduct to the detriment of Plaintiff, her co-plaintiffs, and all PBPA members.
166.

Commission Rule 111.4 Legal Error, [Adopted 5/8/13] provides: Discipline,

including an advisory letter, shall not be imposed for mere legal error without more.

14
15

However, a judge who commits legal error which, in addition, clearly and convincingly

16

reflects bad faith, bias, abuse of authority, disregard for fundamental rights, intentional

17

disregard of the law, or any purpose other than the faithful discharge of judicial duty is

18

subject to investigation and discipline.

19
20
21
22
23
24
25

167.

In relevant part, Commission Rule 109 states:

Upon receiving a written statement alleging facts indicating that a judge is guilty of
willful misconduct in office, . . . . the commission may: (1) . . determine that the
statement is obviously unfounded or frivolous and dismiss the proceeding; (2) If the
statement is not obviously unfounded or frivolous, make a staff inquiry to determine
whether sufficient facts exist to warrant a preliminary investigation; or (3) If sufficient
facts are determined in the course of a staff inquiry or otherwise, make a preliminary
investigation to determine whether formal proceedings should be instituted and a
hearing held.

26
27
28
_________________________________________________________________________________________________
COMPLAINT
36

1
2

168.

The facts in the Haugen case are true and not explainable as anything other than

willful judicial misconduct. The same is true with for Judge Moss misconduct in Chodosh.

169.

Under Rule 109 and Rule 111.4, by now, seven (7) months later, the

4
5

COMMISSION should have conducted a staff inquiry and preliminary investigation. By

now it should have contacted Judge Moss, and it should have advised Plaintiff that Judge

Moss had been informed of her filing the complaint against him.

170.

Plaintiff further asserts and alleges on information and belief that by now,

9
10

months later, the COMMISSION staff should have placed the evidence of Judge Moss

11

willful judicial misconduct before the COMMISSION as evidence and indicia of crime, and

12

that, by now, the COMMISSION members should had deliberated, decided and voted to

13

refer Judge Moss to prosecuting authorities in the executive branch.

14
15

171.

Plaintiff seeks and prays for declaratory relief in the form of a court decision

16

and decree that the Commission is obligated to provide information to Plaintiff about her

17

complaint, starting with whether the COMMISSION has notified Judge Moss of her

18

complaint, and further information such as status of any Judge Moss, communication,

19
20

inquiry and investigation, in specific whether the COMMISSION has referred Judge Moss

21

crimes to prosecuting authorities, or whether the COMMISSION has deferred and delayed

22

her complaint against Judge Moss because of still pending lawsuits.

23

172.

The COMMISSION refusing to provide the information to Plaintiff denies and

24
25

violates Plaintiffs due process rights, both procedurally and substantively, to proceedings

26

before an impartial judge. COMMISSION decree of absolute confidentiality tramples

27

Plaintiffs due process rights to protect her home and property from the threat, which on

28
_________________________________________________________________________________________________
COMPLAINT
37

information and belief she alleges she is threatened, by wrongful and criminal state action

undertaken by a biased and corrupt judge who rules against her in complete and purposeful

disregard of the law and her rights.


4
5
6

173.

Wherefore, as to the First Cause of Action, Plaintiff prays and petitions for the

declaratory relief described in the Fourth Cause of Action hereto and prayer following.

SECOND CAUSE OF ACTION

(Violation of Calif. Constitution, Article I, sec. 28 Marsys Law)

9
10
11
12
13

174.

Plaintiff incorporates by reference the foregoing Paragraphs 1 through 173

above as though set forth herein.


175.

Calif. Const. Art. I, sec 28, Marsys Law, was enacted through the California

Victims' Bill of Rights Act of 2008 as an amendment to the State Constitution. California

14
15

voters, through initiative process, added Marsys Law to their State Constitution in the

16

November 2008 general election. Enabling statutes were also enacted as changes and

17

additions to the Penal Code.

18

176.

Marsys Law constitutional provision, Art. I, sec. 28, (a)(2) states:

19

Victims of crime are entitled to have the criminal justice system view criminal
acts as serious threats to the safety and welfare of the people of California. The
enactment of comprehensive provisions and laws ensuring a bill of rights for
victims of crime, including safeguards in the criminal justice system fully
protecting those rights and ensuring that crime victims are treated with respect
and dignity, is a matter of high public importance. California's victims of crime
are largely dependent upon the proper functioning of government, upon the
criminal justice system and upon the expeditious enforcement of the rights of
victims of crime described herein, in order to protect the public safety and to
secure justice when the public safety has been compromised by criminal
activity.

20
21
22
23
24
25
26
27

177.

The constitutionally based Marsys Law also declares:

28
_________________________________________________________________________________________________
COMPLAINT
38

(3) The rights of victims pervade the criminal justice system. These rights
include personally held and enforceable rights described in paragraphs (1)
through (17) of subdivision (b).

1
2
3

(4) The rights of victims also include broader shared collective rights that are
held in common with all of the People of the State of California and that are
enforceable through the enactment of laws and through good-faith efforts and
actions of California's elected, appointed, and publicly employed officials.
These rights encompass the expectation shared with all of the people of
California that persons who commit felonious acts causing injury to innocent
victims will be appropriately and thoroughly investigated, appropriately
detained in custody, brought before the courts of California

4
5
6
7
8
9
10

Calif. Const. Art. I, sec. 28 (a)(3) and (4).


178.

In further relevant part, Marsys Law, as set forth in the constitution, declares:

11

(8) To accomplish the goals it is necessary that the laws of California relating
to the criminal justice process be amended in order to protect the legitimate
rights of victims of crime. (b) In order to preserve and protect a victim's
rights to justice and due process, a victim shall be entitled to the following
rights:

12
13
14
15

(1) To be treated with fairness and respect for his or her privacy and dignity,
and to be free from intimidation, harassment, and abuse, throughout the
criminal or juvenile justice process.

16
17

(2) To be reasonably protected from the defendant and persons acting on


behalf of the defendant.

18
19
20

Id. sec. 28, (8). To carry out the constitutional Marsys Law mandate, the legislature enacted

21

enabling legislation, principally Penal Code sec. 679-680. Hereinafter the constitutional

22

provisions and enabling laws may be referred to collectively as the Marsys Law.

23

179.

Plaintiff contends and alleges, on information and belief, that she is a victim

24
25
26

of crime within the meaning and protection of Marsys Law. (Art. I, sec. 28 (e); Penal
Code sec. 679.01(b)) Plaintiff is informed and believes, and thereon alleges, that Judge

27
28
_________________________________________________________________________________________________
COMPLAINT
39

Moss willful judicial misconduct was crime, within the meaning of Marsys Law. (Penal

Code sec. 679.01(a))

180.

The COMMISSION functions within the California criminal justice system as

4
5

the primary and central agency to receive reports of judge crime. The COMMISSION must

recognize its mandatory duty and role as collector and entry point for complaints about judge

crime. In such role, the COMMISSION is part of the criminal justice system delineated in

the State Constitution, ART. I Sec. 28. The COMMISSION is the primary law enforcement

9
10

agency charged with and having the main role to investigate judicial officer committed

11

criminal acts within the meaning of Marsys Law enabling statute, Penal Code sec.

12

679.026(c)(1)

13

181.

As set forth and quoted above, Marsys Law provides crime victims with certain

14
15
16
17
18

rights, starting with the entitlement to have the criminal justice system view criminal acts as
serious threats to the safety and welfare of the people of California
182.

Marsys Law states and declares that The rights of victims pervade the

criminal justice system. These rights include personally held and enforceable rights

19
20
21
22
23
24
25

described in paragraphs (1) through (17) of subdivision (b)


183.

In relevant part, subdivision (b) provides:


In order to preserve and protect a victim's rights to justice and due process, a
victim shall be entitled to the following rights:
(1) To be treated with fairness and respect for his or her privacy
and dignity, and to be free from intimidation, harassment, and
abuse, throughout the criminal or juvenile justice process.

26
27

(2) To be reasonably protected from the defendant and persons


acting on behalf of the defendant.

28
_________________________________________________________________________________________________
COMPLAINT
40

(6) To reasonable notice of and to reasonably confer with the prosecuting


agency, upon request, regarding, the arrest of the defendant if known by the
prosecutor, the charges filed, the determination whether to extradite the
defendant, and, upon request, to be notified of and informed before any pretrial
disposition of the case.

1
2
3
4

(9) To a speedy trial and a prompt and final conclusion of the


case and any related post-judgment proceedings.

5
6
7
8

184.

Const. Art. I, sec. 28 (d) declares that Marsys Law is not exclusive or

preclusive of victims rights, providing The granting of these rights to victims shall not be

9
10
11
12

construed to deny or disparage other rights possessed by victims.


185.

Marsys Law, in the constitution, states that it does not operate to limit or

purport to include all crime victims rights. In relevant part, Art. I, sec. 28, subd. (f) reads:

13

(f) In addition to the enumerated rights provided in subdivision


(b) that are personally enforceable by victims as provided in
subdivision (c), victims of crime have additional rights that are
shared with all of the People of the State of California.

14
15
16
17

186.

Plaintiff alleges, on information and belief, that Judge Moss committed crimes

18

against her, which crimes, she alleges, are demonstrated by the materials and evidence

19

presented to the COMMISSION over seven (7) months ago.

20

187.

As created under the California constitution, the COMMISSION is part of law

21
22
23
24
25

enforcement; it is part of the criminal justice system, as the COMMISSIION has mandatory
criminal investigatory process with regard to crime committed by judges.
188.

Plaintiff is informed and believes and thereon alleges that the Attorney General,

part of the executive branch, largely and in practice abstains from investigation and

26
27
28

prosecution of crimes committed by judges, contending that the COMMISSION is the


agency to which complaints about judge crime should be and are made, and that many
_________________________________________________________________________________________________
COMPLAINT
41

California District Attorneys have the same practice, i.e. that they refer complainants about

judge crime to the COMMISSION.

189.

Under Marsys Law, Calif. Const. Art. I, sec. 28, Plaintiff has rights as victim

4
5

of crime that she alleges, on information and belief, the evidence proves was committed by

Judge Moss. It is not necessary that Judge Moss is or is not being prosecuted, so long as

Plaintiff alleges on information and belief, that Judge Moss committed crimes against her,

and provides substantial evidence to back her belief, which she has done, Plaintiff has the
9
10
11
12
13

rights and protections of Marsys Law.


190.

Therefore, regardless of whether or not it is ultimately adjudicated that Judge

Moss committed crimes or not, during the pendency of her well documented and
demonstrated complaint to the COMMISSION about his alleged crimes, and any inquiry and

14
15

investigation and action or disposition it performs or undertakes, Plaintiff has rights of access

16

to certain information about the status of COMMISSION process and action with regard to

17

her complaint against Judge Moss.

18

191.

Plaintiff contends that, under Marsys Law, the COMMISSION must apprise

19
20

her of the following information (a) whether Judge Moss has been notified of the complaint;

21

(b) whether investigation is underway; (c) whether the COMMISSION has referred the

22

complaint to prosecuting authorities, or (d) if the COMMISSION has placed the complaint

23

on hold pending trial court or appellate proceedings, or for any other reason.

24
25
26

192.

However, the COMMISSION contends that it can operate in secrecy, invoking

total confidentiality, and failing and refusing to give Plaintiff any information about the

27
28
_________________________________________________________________________________________________
COMPLAINT
42

status of her complaint against Judge Moss, thereby, including having the right to deny her

the specific information enumerated above.

193.

Without the specified information from the COMMISSION Plaintiff is stymied,

4
5

hampered and prevented in her ability to file and pursue further challenge to Judge Moss in

order to remove him as a judge in cases that affect her and her property. Were the

COMMISSION to inform Plaintiff that it had commenced investigation and given Judge

Moss notice of the complaint, or to provide Plaintiff with other information about the status
9
10

of her complaint against Judge Moss, Plaintiff would be able to use such information to

11

assert that her filing of a complaint with the COMMISSION and action on the complaint are

12

grounds and basis to disqualify Judge Moss, or with such information she could take other

13

action to separate or distance herself from Judge Moss.

14
15

194.

By failing and refusing to provide information to Plaintiff about status and

16

action in or on the complaint she filed with the COMMISSION alleging and providing proof

17

of what she contends is crime committed by Judge Moss, she is unable to disqualify Judge

18

Moss and thereby is harmed in her person and property as she remains subject to the orders

19
20
21
22
23

and rulings of Judge Moss, including in the One Dog case (Exhibit 12), which rulings she
contends are further willful judicial misconduct and proof of Judge Moss actual bias.
195.

The COMMISSION deprives Plaintiff of her rights as a crime victim under the

Marsys Law to obtain information from law enforcement agencies as to the status of

24
25
26

inquiry, investigation or proceedings against Judge Moss, a judicial officer as to whom, on


information and belief and with evidence, Plaintiff alleges he acted as a criminal to harm her.

27
28
_________________________________________________________________________________________________
COMPLAINT
43

1
2
3

196.

Plaintiff also alleges, on information and belief, that COMMISSION deprives

her of her Marsys Law right to have the criminal justice system view criminal acts as
serious threats . . [Art. I, sec. 28 (a)(2)] COMMISSION denies this right because it has no

4
5

system of prioritization which places judge crime at the forefront of investigation, and

because the COMMISSION, Plaintiff is informed and believes, deliberately shirks its duties

to protect the public by not referring judge crime to prosecuting authorities and by imposing

lesser consequences on judges that commit crime, such as admonishment, when the judge

9
10
11
12
13

should be prosecuted criminally for the benefit of the complainant under Marsys Law.
197.

Wherefore, in her Fourth Cause of Action below, Plaintiff complains, petitions

and seeks a declaration that affirms and upholds her rights under Marsys Law to receive
information from the COMMISSION as to status of its action on her complaint against Judge

14
15

Moss and to have the COMMISSION view judge crime as a serious threat to Plaintiff as a

16

victim who has reported what she is informed and believes is crime, albeit committed by a

17

judge, but which thereby confers upon her Marsys Law crime victim rights.

18

THIRD CAUSE OF ACTION

19

SEPARATION OF POWERS CAL. CONS. ART. IV, VI AND VI

20
21
22
23

198.

Plaintiff hereby incorporates by this reference the foregoing Paragraphs 1

through 197 as though fully set forth at length herein.


199.

In accordance with the pillar of constitutional law of separation of powers, in

24
25
26

the California Constitution, three separate and independent branches of government were
created.

27
28
_________________________________________________________________________________________________
COMPLAINT
44

1
2

200.

Article IV is for the legislature. Article IV sec. 1 provides: The legislative

power of this State is vested in the California Legislature. Section 22 provides: It is the

right of the people to hold their legislators accountable.


4
5
6
7

201. Article 5 establishes Californias executive branch. Sec. 1 states:


The supreme executive power of this State is vested in the Governor. The Governor
shall see that the law is faithfully executed.

Section 4 provides:

The Governor may require executive officers and agencies and their employees to
furnish information relating to their duties.

10
11

202.

12

Subject to the powers and duties of the Governor, the Attorney General shall be the
chief law officer of the State. It shall be the duty of the Attorney General to see that
the laws of the State are uniformly and adequately enforced. The Attorney General
shall have direct supervision over every district attorney and sheriff and over such
other law enforcement officers as may be designated by law, in all matters pertaining
to the duties of their respective offices, and may require any of said officers to make
reports concerning the investigation, detection, prosecution, and punishment of crime
in their respective jurisdictions as to the Attorney General may seem advisable.

13
14
15
16
17
18

203.

The Governor enforces laws through the Attorney General. Sec. 13 provides:

Article VI establishes the judicial branch, which consists of the California

19

Supreme Court and lower courts, and includes the COMMISSION as an agency of the

20

judiciary. Sec. 1 states: The judicial power of this State is vested in the Supreme Court,

21
22

courts of appeal, and superior courts, all of which are courts of record. Sec. 1 does not

23

confer any judicial power on the COMMISSION. Sec. 8 establishes the COMMISSION, and

24

sec. 18 prescribes COMMISSION functions, powers and duties.

25
26
27
28

204.

Maintaining and keeping separate the three branches of government and their

respective powers, i.e. separation of powers is integral to the function of a democracy as it


is the cornerstone of checks and balances. The branches are to check and balance each
_________________________________________________________________________________________________
COMPLAINT
45

other, thereby upholding and preserving and protecting individual and other rights conferred

upon the people under their constitution and laws.

205.

Under the California Constitution the Executive Branch has the duty and power

4
5

to enforce the laws. The Executive is the Governor acting through the Office of the Attorney

General. The Executive and Attorney General are charged with enforcing California law

against all persons in California, including individuals that serve as judges or justices or other

judicial officers in the judicial branch.


9
10

206.

The COMMISSION has been granted certain power to admonish, censure,

11

remove from office, and involuntarily retire a judge upon or following the judges willful

12

judicial misconduct or abdication of judge responsibility.

13

207.

Authority and COMMISSION rules and policies direct that the COMMISSION

14
15
16
17
18

staff shall identify and present to the COMMISSION evidence of crime committed by a judge
or judicial officer about whom there is complaint.
208.

Plaintiff is informed and believes, and thereon alleges, that as a result of

COMMISSIONS wrongful interpretation and application of constitutional provisions by

19
20

COMMISSION rule and otherwise, and in what has become practice, because of

21

COMMISSION incorrect assertion of constitutional power, and as a result of what appears to

22

be executive branch abdication of executive branch obligation to faithfully enforce the law,

23

that the Attorney General, acting for the Executive Branch, abstains from and refuses to act as

24
25
26

the lead agency for complaining about and charging a judge or judicial officer with crime
where the evidence indicates crime should be charged.

27
28
_________________________________________________________________________________________________
COMPLAINT
46

209.

1
2

Plaintiff is informed and believes, and thereon alleges, that the Attorney

General typically advises victims of judge crime to file a complaint with the COMMISSION.

Similarly, since the Attorney General exercises power over the District Attorneys (Calif.
4
5

Const. Art. V, sec. 13), Plaintiff is informed and believes, and thereon alleges, that District

Attorneys have the practice of deferring to the COMMISSION as to whether or not a judge

should be charged with crime based on evidence submitted.

210.

Because the COMMISSION asserts the power to investigate judges and judicial

9
10

officers, and by such assertion and practice has garnered primary right and power and role to

11

refer judges for criminal prosecution, the COMMISSION, serves as the focal conduit and

12

starting point for complaints about a judge that has committed crime.

13

211.

The COMMISSION has two functions and duties, first to protect the judiciary

14
15

and judicial officers by affording them due process when they are subject to complaint, and

16

second to protect the public from wrongdoer judges by providing proper and effective

17

handling of complaints which afford the complainant due process, Marsys Law and other

18

rights.

19
20

212.

Plaintiff is informed and believes, and thereon alleges, that the COMMISSION

21

has tilted itself full sway to its function to protect due process rights for judges accused of

22

judicial misconduct or crime, to the detriment and damage of its other function which is to

23

protect individual complainants like Plaintiff.

24
25
26

213.

Plaintiff is informed and believes, and thereon alleges, that the COMMISSION

operates in a manner which denies and impairs the due process and Marsys Law and other

27
28
_________________________________________________________________________________________________
COMPLAINT
47

rights of complainants because COMMISSION secrecy and inclination to bypass or reduce

repercussions for judges that commit crimes has such deleterious effect.

214.

Plaintiff is informed and believes, and thereon alleges, that the COMMISSION

4
5

has handled her complaint wrongfully, with and for the purpose of deferring and denying her

any rights or recourse against Judge Moss, and with the intent and purpose of bestowing upon

Judge Moss delay and time beyond what COMMISSION rules require any action.

215.

Plaintiff is informed and believes, and thereon alleges, that COMMISSION acts

9
10

in such way because it is under the influence of the justices and judges, it shares with them

11

being part of the judiciary, and as a result COMMISSION members are inclined and

12

persuaded not to fully investigate and refer for prosecution judicial officers that commit

13

crime.

14
15

216.

Plaintiff is informed and believes, and thereon alleges, that COMMISSION may

16

have apprised Judge Moss of her complaint, with the result that Judge Moss has calculatedly

17

denied her dismissal of the One Dog case because Judge Moss knows that the

18

COMMISSION may take the position that it can defer action on Plaintiffs complaint while a

19
20
21
22
23

case is pending before him. Therefore, he disregards the law to keep One Dog pending.
217.

Plaintiff is informed and believes, and thereon alleges, that COMMISSION may

have already or may in the future intend to issue to Judge Moss a private admonishment or
other toothless consequence for his willful judicial misconduct, and forego and avoid referral

24
25

of evidence that Plaintiff is informed and believes constitutes evidence of Judge Moss

26

committing crime in the Haugen case. Imposing any such admonishment or lesser

27

consequence would deny Plaintiff her Marsys Law and other rights.

28
_________________________________________________________________________________________________
COMPLAINT
48

1
2

218.

The COMMISSION is part of the judicial branch. In processing complaints

against judges, the COMMISSION is called upon to judge and review judicial officers that

are part of its branch. With respect to judge discipline this is constitutional and acceptable.
4
5

219.

However, with regard to complaints about judges that demonstrate or implicate

the probability that a complained about judge has committed crime, the COMMISSION

cannot effectively act and must and should, under the Constitution and separation of powers,

refer and defer action against judges for commission of crime to the executive branch.
9
10

220.

The COMMISSION, under separation of powers, cannot be given pivotal and

11

point start status for the filing of complaints against judges whom are alleged to have

12

committed crimes and where substantial evidence of such crime is submitted.

13

221.

Under separation of powers, procedures and practices for the prosecution of

14
15
16
17
18

judges that commit crimes must remain and originate in the Executive Branch.
222.

To the extent constitutional provisions have purported to make the

COMMISSION the arbiter and handler of complaints against judges who are alleged to have
committed crimes, such provisions are unconstitutional for breach of separation of powers,

19
20
21
22
23

the taking and transfer of executive branch law enforcement from the executive branch to the
judicial branch.
223.

Violation of Separation of Powers harms Plaintiff and acts to deny her the right

to executive handling and prosecution of crime committed by Judge Moss, if any, as she has

24
25
26
27

alleged, in her right as a citizen, by complaint to the COMMISSION with evidence.


224.

Wherefore, in this cause of action, Plaintiff prays and petitions for the

declaratory relief set forth in the Fourth Cause of Action herein and in the prayer that follows.

28
_________________________________________________________________________________________________
COMPLAINT
49

FOURTH CAUSE OF ACTION

2
3

DECLARATORY RELIEF, CAL. CONST. ART. VI, SEC. 10; and


CODE CIV. PROC. SEC. 1060

(That COMMISSION violates due process, Marsys Law, and Separation of Powers)

225.

Plaintiff incorporates by reference the foregoing paragraphs 1 224 above.

6
7
8
9
10

A. Plaintiffs Due Process Rights to Information About Complaint Status


226.

Plaintiff contends that she has the right and the COMMISSION has the

obligation to inform her of certain information as to the status of the case against Judge
Moss, as such information is essential to her exercise of due process in seeking to disqualify

11
12
13
14
15

Judge Moss based on the complaint filed with the Commission.


227.

Plaintiff does not, at this time, assert the right to open and unfettered access to

Judge Moss case and file, but rather, that she has the right to know certain information about
her case, including whether the COMMISSION (a) has notified Judge Moss of the

16
17

Complaint; (b) decided to defer action on the Complaint (Rule 1.8); (c) referred the case to

18

prosecuting authorities; (d) decided, by COMMISSION vote, not to refer the case to

19

prosecuting authorities (e) if COMMISSION staff counsel referred the case information and

20

evidence for review and consideration for referral to prosecuting authorities as provided in

21
22
23
24
25

COMMISSION Policy Declaration 4.2, et al.


228.

Plaintiff is informed and believes that the COMMISSION contends it has no

obligation to provide information to Plaintiff, that its denial and refusal do not violate due
process, and that its refusal is grounded and founded on what the COMMISSION contends

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28

is its plenary privilege and power, under the California constitution, to invoke confidentiality
and has refused and can refuse Plaintiff and all complainants any information about
_________________________________________________________________________________________________
COMPLAINT
50

complaints they file with the COMMISSION unless and until there are formal proceedings

which must be made public under Calif. Const. Art. VI, sec. 18(j).

229.

Plaintiff contends that she has the right and the COMMISSION has the

4
5

obligation to inform her of the status of the case against Judge Moss, by providing to her

certain information, as such information is essential to afford her due process rights.

230.

Plaintiff is informed and believes that the COMMISSION contends its denial

and refusal does not violate her due process rights,


9
10

231.

A controversy has arisen and exists between the parties for which judicial

11

determination and declaration of their respective rights, obligations, duties and requirements,

12

as alleged herein, must be made.

13

B.

Rights Under Marsys Law to Have Judge Crime Prosecuted

232.

Plaintiff is informed and believes that the COMMISSION contends it has no

14
15
16

obligation, even if it would be reasonably determined, based on the evidence submitted, that

17

Plaintiff is correct in her information and belief that Judge Moss committed crime, to refer

18

the case to prosecuting authorities.

19
20

233.

Plaintiff is informed and believes, and thereon alleges, that COMMISSION

21

contends it has power, despite substantial evidence of judge crime in a complaint, to ignore

22

such evidence of crime and not refer it to prosecuting authorities, and to instead impose, in

23

COMMISSIONS sole discretion, lesser and not comparable punishments including the

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25
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27

toothless rebuke of private admonishment pursuant to Art. VI, sec. 18(d)(3) et al.
234.

Plaintiff is entitled to access to an agency within the Executive Branch where

Plaintiff can make and pursue and assert and provide evidence for what she believes was

28
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COMPLAINT
51

criminal conduct on the part of Judge Moss. Plaintiff has the right, as a victim of probable

crime, including in and during pre-trial or pre-charging investigation, to have the crime

viewed as serious and to have appropriate action taken, and to receive and have information
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5

which will or may enable her to be protected or protect herself from the putative criminal

defendant, in this case Judge Moss. (Art. 1, sec. 28 (a)(8).

235.

Plaintiff is informed and believes, and thereon alleges, that COMMISSION

contends that Plaintiff has no such right and the constitution mandates no such designation of
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10

an agency within the Executive Branch as the agency for making complaint and pursuing

11

against judges that commit crime, and that the COMMISSION is and shall be the central and

12

primary point for submission of complaints about judge misconduct that evidence shows

13

may also be crime committed by a judicial officer.

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15
16
17
18

236.

There are actual controversies between Plaintiff and the COMMISSION such

that a judicial determination and declaration of the rights and obligations is necessary.
C.
237.

Right to Have Evidence of Judge Crime Referred to Prosecuting Authorities


Plaintiff contends that she has the right and the COMMISSION has the

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20

obligation to authorize and allow and instruct that the evidence in her case against Judge

21

Moss, which she contends, on information and belief, proves he committed crimes, to be

22

submitted to, reviewed, handled and prosecuted within the executive branch, and that by law

23

and practice any purported appointment of the COMMISSION as the primary agency for

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deciding whether or not to make claim and seek prosecution against judges that commit
crimes violates separation of powers.

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28
_________________________________________________________________________________________________
COMPLAINT
52

1
2

238.

Plaintiff concedes that COMMISSION can administer admonishment, censure,

removal and involuntary retirement of offending judges, but disputes that COMMISSION

has the right and power to anoint itself or be designated under the constitution as the primary
4
5
6
7
8

and central agency responsible for handling complaints about judges that commit crimes.
239.

Plaintiff is informed and believes that the COMMISSION contends it has the

right and power to refuse to refer Plaintiffs case to the executive branch, and that in doing so
it does not violate separation of power or Plaintiffs rights.

9
10

240.

A controversy has arisen and exists between the parties for which judicial

11

determination and declaration of their respective rights, obligations, duties and requirements,

12

as alleged herein must be made.

13

PRAYER FOR RELIEF


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15

WHEREFORE, Plaintiff seeks and prays for relief as follows:

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17
18

ON THE FIRST CAUSE OF ACTION - VIOLATION OF DUE PROCESS


A.

For Declaration that the Commission must disclose to Plaintiff, in


vindication and satisfaction of her due process rights, information about the
status of her case against Judge Moss, as alleged herein, whether the
Commission (a) has informed Judge Moss of her complaint; (b)
commenced any investigation against him; (c) placed Plaintiffs complaint
on hold because of a pending case; and (d) voted or not voted to refer or
not refer Judge Moss misconduct and the evidence thereof to prosecuting
authorities in the executive branch.

B.

For Declaration that the Commission has mandatory duty to refer


complaints to prosecuting authorities in the executive branch where the
complaint submitted provides substantial evidence that the judge
misconduct is also or could also be crime.

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20
21
22
23
24
25
26
27
28

_________________________________________________________________________________________________
COMPLAINT
53

1
2

ON THE SECOND CAUSE OF ACTION - VIOLATION OF MARSYS LAW


A.

For Declaration that the Commission must disclose to Plaintiff, in


vindication and satisfaction of her Marsys Law rights, information about
the status of her complaint against Judge Moss, as alleged herein and
specified above;

B.

For declaration that the COMMISSION must refer Plaintiffs case against
Judge Moss to prosecuting authorities in the executive branch;

C.

For a declaration that the COMMISSION has no power or discretion to


disregard the evidence Plaintiff has submitted to it which she is informed
and believes proves that Judge Moss committed crimes, and by ignoring the
evidence and failing to follow it, instead impose upon Judge Moss some far
lesser punishment such as public or private admonishment.

3
4
5
6
7
8
9
10
11
12
13
14
15

ON THIRD CAUSE OF ACTION - VIOLATION OF SEPARATION OF POWERS


A.

For Declaration that the COMMISSION cannot act as arbiter and decider as
to whether to refer Plaintiffs complaint to prosecuting authorities within
the executive branch; that when a complaint submitted to the
COMMISSION contains substantial evidence that the willful misconduct of
a judicial officer may also be crime, that the COMMISSION must submit
the complaint to prosecuting authorities; and

B.

For a Declaration that the COMMISSION, as part of the judicial branch,


cannot have primary and lead function to decide whether to refer or cause
or not refer or cause prosecuting authorities to pursue judge crime that has
been brought to the COMMISSIONS attention by a complaint received.

16
17
18
19
20
21
22
23
24
25

ON THE FOURTH CAUSE OF ACTION -DECLARATORY RELIEF


For the declaratory relief requested.

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27
28
_________________________________________________________________________________________________
COMPLAINT
54

1
2

ON ALL CAUSES OF ACTION

A.

For such other relief as the court deems just and proper.

4
5

B. For costs of suit:

C.

For attorneys fees if available and allowed by any statute or law.

7
8

IN WITNESS WHEREOF, by and through counsel, Plaintiff SUE EICHERLY


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10
11

has stated her complaint against defendant the COMMISSION ON JUDICIAL


PERFORMANCE.

12
13
14

DATED: December 9, 2016

LAW OFFICE OF PATRICK J. EVANS

15
16
17
18
19

By: _____________________________
PATRICK J. EVANS
Attorney for Plaintiff, Sue Eicherly

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_________________________________________________________________________________________________
COMPLAINT
55

SUE EICHERLY v. COMMISSION ON JUDICIAL PERFORMANCE

EXHIBIT LIST AND REFERENCES

3
4
5

EXH. Date

Item / Document Title / Description

1997, etc.

The Palm Beach Park - description

Complaint
Ref. Pg. /
9 32

11/30/16

Letter to Commission Complaining About

25 110

6
7

Commission
1

4/25/16

8
9

Letter to Commission of complaint against

21 89

Judge Moss, with documents


2

4/26/16

Commission Letter acknowledging complaint

21 90

receipt

10
11

4/29/16

Letter to Comm. re Judge Answer and Order

21 91

12

5/10/16

Letter to Commission

22 94

13

5/24/16

Letter to Commission re: Writ filed to Appellate 22 94


Court following Judge Moss refusal to recuse

14
15

5/27/16

6/15/16

Commission Staff Counsel Letter requesting

23 96

documents

18
19

22 95

Brief

16
17

Letter to Comm. re: Writ Denial /unfiled Reply

6/21/16

Letter to Commission with documents,

23 97

responding to Commission 6/15/16 letter.


20

7/26/16

21
22
23
24
25

Commission Staff Letter matter is still under

23 98

consideration
10

10/6/16

Letter to Commission requesting case update

23 99

11

10/17/16

Email from Commission Staff Counsel

23 100

12

10/21/16

Judge Moss wrongful and ruling in the One 19 82


Dog case; relevant prior court orders
24 105

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_________________________________________________________________________________________________
COMPLAINT
56