You are on page 1of 11

Case 5:14-cv-01413-VBF-DTB Document 97 Filed 11/23/16 Page 1 of 11 Page ID #:3374

1 Sarah L. Overton (SBN 163810)


2 CUMMINGS, MCCLOREY, DAVIS, ACHO & ASSOCIATES, P.C.
3801 University Avenue, Suite 560
3 Riverside, CA 92501
4 (951) 276-4420
(951) 276-4405 facsimile
5
soverton@cmda-law.com
6 Attorneys for Defendants
the Honorable Tani G. Cantil-Sakauye,
7 Chief Justice of California; Martin N. Hoshino,
8 Administrative Director of the Judicial Council of California

9 UNITED STATES DISTRICT COURT


10 CENTRAL DISTRICT OF CALIFORNIA
11 MICHAELWALDEN SMITH, ) CASE: CV 14-01413 VBF (DTB)
)
12 ) Judge: Hon. Valerie B. Fairbanks
Plaintiff, )
13 )
) ANSWER OF DEFENDANTS
14 v. ) THE HONORABLE TANI G. CANTIL-
) SAKAUYE, CHIEF JUSTICE OF
15 ) CALIFORNIA AND MARTIN N.
SUPERIOR COURT OF ) HOSHINO, ADMINISTRATIVE
16 RIVERSIDE COUNTY, et al, ) DIRECTOR OF THE JUDICIAL
) COUNCIL OF CALIFORNIA TO
17 ) PLAINTIFFS FOURTH AMENDED
Defendants. ) COMPLAINT AS MODIFIED BY THE
18 ) COURTS ORDER OF OCTOBER 17,
) 2016
19 )
)
20 )
)
21
22 COMES NOW defendants the Honorable Tani G. Cantil-Sakauye, Chief
23 Justice of California (Chief Justice) and Martin N. Hoshino, Administrative
24 Director of the Judicial Council of California (Hoshino) and answer plaintiffs
25 fourth amended complaint as modified by the courts order dated October 17,
26 2016, as follows:
27 ///
28 ///
Cummings, McClorey,
Davis, Acho
& Associates, P.C.
3801 University Avenue,
Suite 560
Riverside, CA 92501
-1-
__________________________________________________________________________________________________________________
Telephone (951) 276-4420 ANSWER TO PLAINTIFFS FOURTH AMENDED COMPLAINT
Facsimile (951) 276-4405
Case 5:14-cv-01413-VBF-DTB Document 97 Filed 11/23/16 Page 2 of 11 Page ID #:3375

1 A. PREVIOUS LAWSUITS
2 1. Responding to paragraph one, defendants do not have information
3 sufficient to admit or deny these allegations and on that basis deny the allegations
4 contained in this paragraph.
5 2. Responding to paragraph two, defendants admit that Michael
6 Smith was a party in the two federal cases numbered 03-00746 and 09-00901.
7 As for the balance of this paragraph, these answering defendants do not have
8 information sufficient to admit or deny and on that basis deny the allegations
9 contained in the paragraph.
10 B. EXHAUSTION OF ADMINISTRATIVE REMEDIES
11 1. Responding to paragraph one, defendants admit that plaintiff had
12 grievance procedures to which he could have availed himself.
13 2. Responding to paragraph two, defendants deny that plaintiff filed a
14 timely grievance. As for the balance of this paragraph, defendants do not have
15 information sufficient to admit or deny these allegations and on that basis deny
16 the allegations contained in the paragraph.
17 3. Responding to paragraph three, defendants deny that plaintiff filed a
18 timely grievance. As for the balance of this paragraph, defendants do not have
19 information sufficient to admit or deny these allegations and on that basis deny
20 the allegations contained in the paragraph.
21 4. Responding to paragraph four, defendants are unable to respond to
22 this paragraph because it fails to set forth any allegations.
23 C. JURISDICTION
24 Responding to the unnumbered section of C. Jurisdiction, defendants do
25 not have information sufficient to admit or deny the present address of plaintiff.
26 Defendants deny the balance of this paragraph.
27
28
Cummings, McClorey,
Davis, Acho
& Associates, P.C.
3801 University Avenue,
Suite 560
Riverside, CA 92501
-2-
__________________________________________________________________________________________________________________
Telephone (951) 276-4420 ANSWER TO PLAINTIFFS FOURTH AMENDED COMPLAINT
Facsimile (951) 276-4405
Case 5:14-cv-01413-VBF-DTB Document 97 Filed 11/23/16 Page 3 of 11 Page ID #:3376

1 1. Responding to paragraph one, defendant California Judicial Council has


2 been dismissed from this complaint pursuant to the courts order dated October
3 17, 2016.
4 2. Responding to paragraph two, defendants admit that defendant Chief
5 Justice is the Chief Justice of California and the Chair of the Judicial Council.
6 Defendants admit that the address set forth is that of the Judicial Council.
7 Defendants admit that the Chief Justice takes an oath and affirmatively state
8 that the responsibilities of the Chair of the Judicial Council are set forth in the
9 California Constitution, Article 6, 6 and California Rules of Court, Rule 10.2.
10 To the extent that plaintiffs allegations differ therefrom the allegations are
11 denied. Defendants deny the remaining allegations in this paragraph.
12 3. Responding to paragraph three, defendant Steven Jahr has been dismissed
13 from this complaint pursuant to the courts order dated October 17, 2016.
14 4. Responding to paragraph four, defendants admit that Hoshino is the
15 Administrative Director of the Judicial Council of California. Defendants admit
16 that the address set forth is that of the Judicial Council. Defendants state that the
17 responsibilities of the Administrative Director are set forth in the California
18 Constitution, Article 6, 6 and California Rules of Court, Rules 10.2 and 10.8.
19 To the extent that plaintiffs allegations differ therefrom, the allegations are
20 denied. Defendants deny the remaining allegations in this paragraph.
21 5. Responding to paragraph five, defendant the Honorable Steven Counelis,
22 Judge of the Superior Court of California, County of Riverside has been
23 dismissed from this complaint pursuant to the courts order dated September 30,
24 2015.
25 CLAIMS
26 1. Responding to CLAIM [01], defendants deny the allegations set forth in
27 this paragraph.
28
Cummings, McClorey,
Davis, Acho
& Associates, P.C.
3801 University Avenue,
Suite 560
Riverside, CA 92501
-3-
__________________________________________________________________________________________________________________
Telephone (951) 276-4420 ANSWER TO PLAINTIFFS FOURTH AMENDED COMPLAINT
Facsimile (951) 276-4405
Case 5:14-cv-01413-VBF-DTB Document 97 Filed 11/23/16 Page 4 of 11 Page ID #:3377

1 2. Responding to CLAIM [02], defendants deny the allegations set forth in


2 this paragraph.
3 3. Responding to CLAIM [03], this claim has been dismissed as to these
4 defendants pursuant to the courts order of October 17, 2016.
5 4. Responding to CLAIM [04], this claim has been dismissed as to these
6 defendants pursuant to the courts order of October 17, 2016.
7 5. Responding to CLAIM [05], this claim has been dismissed as to these
8 defendants pursuant to the courts order of October 17, 2016.
9 6. Responding to CLAIM [06], this claim has been dismissed as to these
10 defendants pursuant to the courts order of October 17, 2016.
11 7. Responding to CLAIM [07], this claim has been dismissed as to these
12 defendants pursuant to the courts order of October 17, 2016.
13 8. Responding to CLAIM [08], this claim has been dismissed as to these
14 defendants pursuant to the courts order of October 17, 2016.
15 9. Responding to CLAIM [09], this claim has been dismissed as to these
16 defendants pursuant to the courts order of October 17, 2016.
17 10. Responding to CLAIM [10], this claim has been dismissed as to these
18 defendants pursuant to the courts order of October 17, 2016.
19 SUPPORTING FACTS
20 1. Responding to paragraph one, defendants admit that the court
21 dismissed plaintiffs third amended complaint with leave to amend. Defendants
22 further admit that the instant complaint is the fourth amended complaint.
23 Defendants do not have information sufficient to admit or deny plaintiffs
24 understanding or belief as set forth in this paragraph and on that basis deny the
25 remaining allegations contained in the paragraph.
26 2. Responding to paragraph two, defendants admit that the court issued
27 an order on July 13, 2015. Defendants affirmatively state that the order speaks
28 for itself. Defendants do not have information sufficient to admit or deny
Cummings, McClorey,
Davis, Acho
& Associates, P.C.
3801 University Avenue,
Suite 560
Riverside, CA 92501
-4-
__________________________________________________________________________________________________________________
Telephone (951) 276-4420 ANSWER TO PLAINTIFFS FOURTH AMENDED COMPLAINT
Facsimile (951) 276-4405
Case 5:14-cv-01413-VBF-DTB Document 97 Filed 11/23/16 Page 5 of 11 Page ID #:3378

1 plaintiffs understanding or belief as set forth in this paragraph and on that basis
2 deny the remaining allegations contained in the paragraph.
3 3. Responding to paragraph three as follows:
4 a. As to subparagraph 01, defendants admit that the court issued an
5 order on July 13, 2015. Defendants affirmatively state that the order
6 speaks for itself. Defendants admit that the fourth amended
7 complaint does not seek damages. Defendants do not have
8 information sufficient to admit or deny plaintiffs intentions in
9 seeking damages and on that basis deny the remaining allegations
10 contained in the paragraph.
11 b. As to subparagraph 02, defendants admit that the Eleventh
12 Amendment bars actions against the courts. Defendants admit that
13 the Superior Court is not a current party to this action.
14 c. As to subparagraph 03, defendants admit that the Eleventh
15 Amendment bars actions against courts, judges and some public
16 employees. Defendants do not have information sufficient to admit
17 or deny plaintiffs stated arguments and opinions and on that basis
18 deny the remaining allegations contained in the paragraph.
19 d. As do subparagraph 04, defendants are unable to determine the
20 meaning of plaintiffs term Family Law Court Defendants and their
21 attorneys. On that basis defendants do not have information
22 sufficient to admit or deny plaintiffs allegations and on that basis
23 deny the allegations contained in the paragraph.
24 e. As to subparagraph 05, defendants admit that the vexatious
25 litigant statute does not violate the Fourteenth Amendment in 1983
26 actions. Defendants deny the remaining allegations contained in the
27 paragraph.
28 4. Responding to paragraph four as follows:
Cummings, McClorey,
Davis, Acho
& Associates, P.C.
3801 University Avenue,
Suite 560
Riverside, CA 92501
-5-
__________________________________________________________________________________________________________________
Telephone (951) 276-4420 ANSWER TO PLAINTIFFS FOURTH AMENDED COMPLAINT
Facsimile (951) 276-4405
Case 5:14-cv-01413-VBF-DTB Document 97 Filed 11/23/16 Page 6 of 11 Page ID #:3379

1 a. As to subparagraph 06 [sic], defendants state that order issued by


2 Judge Counelis speaks for itself. Defendants deny plaintiffs
3 allegations contained in the paragraph.
4 b. As to subparagraph 07 [sic], defendants do not have information
5 sufficient to admit or deny plaintiffs allegations and on that basis
6 deny the allegations contained in the paragraph.
7 5. As to paragraph five, defendants admit that parents have certain
8 rights with regard to their children. Defendants deny the remaining allegations
9 contained in the paragraph.
10 6. As to paragraph six, defendants admit that there was an order in
11 2004 in which the court in plaintiffs family law case made a determination that
12 plaintiff was a vexatious litigant. Defendants admit that a prefiling order was
13 issued by that judge. Defendants state that the orders referred to by plaintiff in
14 this paragraph speak for themselves. Defendants deny the remaining allegations
15 contained in the paragraph.
16 7. As to paragraph seven, defendants admit that there was a hearing in
17 which a pre-filing order was issued. Defendants state that the orders issued in
18 plaintiffs family law case speak for themselves. Defendants deny the remaining
19 allegations contained in the paragraph.
20 8. As to paragraph eight, defendants deny the allegations contained in
21 the paragraph.
22 9. As to paragraph nine, defendants deny the allegations contained in
23 the paragraph.
24 10. As to paragraph ten, defendants do not have information sufficient to
25 admit or deny this paragraph and on that basis deny the allegations contained in
26 this paragraph.
27
28
Cummings, McClorey,
Davis, Acho
& Associates, P.C.
3801 University Avenue,
Suite 560
Riverside, CA 92501
-6-
__________________________________________________________________________________________________________________
Telephone (951) 276-4420 ANSWER TO PLAINTIFFS FOURTH AMENDED COMPLAINT
Facsimile (951) 276-4405
Case 5:14-cv-01413-VBF-DTB Document 97 Filed 11/23/16 Page 7 of 11 Page ID #:3380

1 11. As to paragraph eleven, defendants deny the allegations contained in


2 the paragraph and state that plaintiffs memorandum of law referred to herein
3 speaks for itself.
4 12. As to paragraph twelve, plaintiffs memorandum of law referred to
5 herein speaks for itself. Defendants deny plaintiffs contention that the instant
6 action is not barred against these defendants.
7 13. As to paragraph thirteen, defendants state that the legal citations
8 referred to herein speak for themselves. Defendants are unable to admit or deny
9 this paragraph because plaintiff has failed to set forth any factual contentions or
10 allegations.
11
12 REQUEST FOR JURY TRIAL
13 Defendant hereby requests a trial by jury.
14
15 AFFIRMATIVE DEFENSES
16 1. FOR AND AS A FIRST, SEPARATE, AND AFFIRMATIVE
17 DEFENSE, defendants allege that plaintiff has at all times complained of
18 received due process of law.
19 2. FOR AND AS A SECOND, SEPARATE AND AFFIRMATIVE
20 DEFENSE, defendants allege that plaintiff has not suffered a deprivation of a
21 constitutional or substantive right as alleged in the fourth amended complaint.
22 3. FOR AND AS A THIRD, SEPARATE, AND AFFIRMATIVE
23 DEFENSE, defendants allege that plaintiffs claims are barred by the applicable
24 statute of limitations.
25 4. FOR AND AS A FOURTH, SEPARATE, AND AFFIRMATIVE
26 DEFENSE, defendants allege that they are entitled to judicial and/or qualified
27 immunity.
28
Cummings, McClorey,
Davis, Acho
& Associates, P.C.
3801 University Avenue,
Suite 560
Riverside, CA 92501
-7-
__________________________________________________________________________________________________________________
Telephone (951) 276-4420 ANSWER TO PLAINTIFFS FOURTH AMENDED COMPLAINT
Facsimile (951) 276-4405
Case 5:14-cv-01413-VBF-DTB Document 97 Filed 11/23/16 Page 8 of 11 Page ID #:3381

1 5. FOR AND AS A FIFTH, SEPARATE, AND AFFIRMATIVE


2 DEFENSE, defendants allege that plaintiffs claims are barred by laches.
3 6. FOR AND AS A SIXTH, SEPARATE, AND AFFIRMATIVE
4 DEFENSE, defendants allege that plaintiffs claims are barred by the doctrine of
5 waiver.
6 7. FOR AND AS A SEVENTH, SEPARATE, AND AFFIRMATIVE
7 DEFENSE, defendants allege that plaintiffs claims are barred by the doctrine of
8 unclean hands.
9 8. FOR AND AS AN EIGHTH, SEPARATE, AND AFFIRMATIVE
10 DEFENSE, defendants allege that plaintiffs claims are barred by res
11 judicata/collateral estoppel.
12 9. FOR AND AS A NINTH, SEPARATE, AND AFFIRMATIVE
13 DEFENSE, defendants allege that plaintiffs claims are barred by his failure to
14 exhaust his administrative and/or judicial remedies.
15 10. FOR AND AS A TENTH, SEPARATE, AND AFFIRMATIVE
16 DEFENSE, defendants allege that they are immune from plaintiffs claims based
17 upon the Eleventh Amendment.
18 11. Upon information and belief, defendants affirmatively allege all of
19 the defenses available under Rule 8(c) of the Federal Rules of Civil Procedure as
20 they may apply to this litigation and reserve the right to amend this answer at a
21 later time to assert any matters contributing to an avoidance or affirmative
22 defense which discovery or more a definite statement by plaintiff under Federal
23 Rules of Civil Procedures 12(e) may show to be applicable.
24 ///
25 ///
26 ///
27 ///
28 ///
Cummings, McClorey,
Davis, Acho
& Associates, P.C.
3801 University Avenue,
Suite 560
Riverside, CA 92501
-8-
__________________________________________________________________________________________________________________
Telephone (951) 276-4420 ANSWER TO PLAINTIFFS FOURTH AMENDED COMPLAINT
Facsimile (951) 276-4405
Case 5:14-cv-01413-VBF-DTB Document 97 Filed 11/23/16 Page 9 of 11 Page ID #:3382

1 WHEREFORE, defendants pray this court dismiss the plaintiffs fourth


2 amended complaint in its entirety and that defendants be awarded costs and
3 attorney fees and for such other relief as the court may deem just and proper.
4 Dated: November 25, 2015
5 Cummings, McClorey, Davis, Acho & Associates, P.C.
6 /S/ Sarah L. Overton
7 By: _____________________________________
8 Sarah L. Overton
9 Attorneys for Defendants
the Honorable Tani G. Cantil-Sakauye,
10 Chief Justice of California and
11 Martin N. Hoshino,
Administrative Director of the
12
Judicial Council of California
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Cummings, McClorey,
Davis, Acho
& Associates, P.C.
3801 University Avenue,
Suite 560
Riverside, CA 92501
-9-
__________________________________________________________________________________________________________________
Telephone (951) 276-4420 ANSWER TO PLAINTIFFS FOURTH AMENDED COMPLAINT
Facsimile (951) 276-4405
Case 5:14-cv-01413-VBF-DTB Document 97 Filed 11/23/16 Page 10 of 11 Page ID #:3383

1 PROOF OF SERVICE
2 Smith v. Superior Court, et al
CASE: EDCV14-01413 VBF (DTB)
3
4 I, the undersigned, declare as follows:
5
I am employed in the County of Riverside, State of California. I am
6 over the age of 18 years, and not a party to the within action. I am an
7
employee of or agent for Cummings, McClorey, Davis, Acho & Associates,
P.C., 3801 University Avenue, Suite 560, Riverside, California 92501.
8
9 On November 23, 2016, I served the foregoing document(s): ANSWER
OF DEFENDANTS, THE HONORABLE TANI G. CANTIL-SAKAUYE,
10 CHIEF JUSTICE OF CALIFORNIA AND MARTIN N. HOSHINO,
ADMINISTRATIVE DIRECTOR OF THE JUDICIAL COUNCIL OF
11 CALIFORNIA TO PLAINTIFFS FOURTH AMENDED COMPLAINT AS
MODIFIED BY THE COURTS ORDER OF OCTOBER 17, 2016
12 on the following party(ies) in this action addressed as follows:
13 MICHAEL WALDEN SMITH
14 74-801 HOVLEY LANE EAST, UNIT # 10776
PALM DESERT, CA 92255
15
16 [XX] (BY MAIL) I caused a true copy of each document, placed in a sealed
envelope with postage fully paid, to be placed in the United States mail
17
at Riverside, California. I am readily familiar with this firms
18 business practice for collection and processing of mail, that in the
19
ordinary course of business said document(s) would be deposited with
the U.S. Postal Service on that same day. I understand that the service
20 shall be presumed invalid if the postal cancellation date or postage
21 meter date on the envelope is more than one day after the date of
deposit for mailing contained in this affidavit.
22
23 [ ] (BY PERSONAL SERVICE) Each such document listed was delivered
by hand to each addressee listed by messenger service.
24
25 [ ] (BY OVERNIGHT DELIVERY) I caused a true copy of each document,
26 placed in a sealed envelope with delivery fees provided for, to be
deposited in a box regularly maintained by United Parcel Service
27 (UPS). I am readily familiar with this firms practice for collection
28 and processing of documents for overnight delivery and know that in
Cummings, McClorey,
Davis, Acho
& Associates, P.C.
3801 University Avenue,
Suite 560
Riverside, CA 92501
-10-
__________________________________________________________________________________________________________________
Telephone (951) 276-4420 ANSWER TO PLAINTIFFS FOURTH AMENDED COMPLAINT
Facsimile (951) 276-4405
Case 5:14-cv-01413-VBF-DTB Document 97 Filed 11/23/16 Page 11 of 11 Page ID #:3384

1 the ordinary course of business practice the document(s) described


2 above will be deposited in a box or other facility regularly maintained
by UPS or delivered to a courier or driver authorized by UPS to receive
3 documents on the same date it is placed for collection.
4
[ ] (BY FACSIMILE) By use of facsimile machine number (951) 276-
5
4405, I served a copy of the within document(s) on the above
6 interested parties at the facsimile numbers listed above. The
7
transmission was reported as complete and without error. The
transmission report was properly issued by the transmitting facsimile
8 machine.
9
[ ] (ELECTRONIC TRANSMISSION OR E-MAIL) Based on a court order
10
or an agreement by the parties to accept service by e-mail or electronic
11 transmission, I caused a copy of the documents to be sent from e-mail
address mbradley@cmda-law.com to the person(s) at the e-mail
12
address listed in the Service List.
13
14 Executed on November 23, 2016, in Riverside, California. I declare
under penalty of perjury under the laws of the State of California that the
15 above is true and correct.
16
/S/ Marsha Bradley
17
18 Marsha Bradley
19
20
21
22
23
24
25
26
27
28
Cummings, McClorey,
Davis, Acho
& Associates, P.C.
3801 University Avenue,
Suite 560
Riverside, CA 92501
-11-
__________________________________________________________________________________________________________________
Telephone (951) 276-4420 ANSWER TO PLAINTIFFS FOURTH AMENDED COMPLAINT
Facsimile (951) 276-4405