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Kevin M. McCormick CSBN 115973 BENTON, ORR, DUVAL & BUCKINGHAM A PROFESSIONAL CORPORATION 39 North California Street Post Office Box 1178 Ventura, California 93002 Telephone: (805) 648-5111 Facsimile: (805) 648-7218 E-mail: kmccormick@benotonorr.com

Attorneys for Respondents, Superior Court of California, County of Los Angeles and the 7 Hon. David P. Yaffe, Judge of the Superior Court of California, County of Los Angeles
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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION RICHARD I. FINE, Petitioner, v. SHERIFF OF LOS ANGELES COUNTY, Respondent. CASE NO. CV 09-1914-JFW (CW) OPPOSITION OF THE SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES, ET AL, TO MOTION TO VACATE JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT [DECLARATION OF KEVIN M. MCCORMICK IN SUPPORT FILED CONCURRENTLY HEREWITH] Date: Taken Under Submission Time: N/A Ctrm: 640 255 East Temple Street Los Angeles, California M. Judge: Hon. Carla M. Woehrle COME NOW RESPONDENTS, the Superior Court of California, County of Los Angeles (“Superior Court”), and the Hon. David P. Yaffe, Judge of the Superior Court of California, County of Los Angeles and pursuant to this Court’s July 1, 2010

OPPOSITION OF THE SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES, ET AL, TO MOTION TO VACATE JUDGMENT
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Order submit their Opposition to the Motion to Vacate Judgment filed by petitioner in pro se, Richard I. Fine (“Fine”). Dated: July 14, 2010 BENTON, ORR, DUVAL & BUCKINGHAM Kevin M. McCormick Kevin M. McCormick Attorneys for Respondents, Superior Court of California, County of Los Angeles and the Hon. David P Yaffe, Judge of the Superior Court of California, County of Los Angeles By: /s/

OPPOSITION OF THE SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES, ET AL, TO MOTION TO VACATE JUDGMENT
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MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION On or about June 28, 2010, Fine filed this Motion to Vacate Judgment regarding the denial of his Petition for a Writ of Habeas Corpus.1 Fine brings the instant motion on the basis that a fraud was committed upon this Court based upon the “concealment” by Judge Yaffe of the payment of local judicial benefits by the County of Los Angeles.2 Fine also contends that Respondents herein, and their counsel, did not submit a copy of a February 19, 2008 motion and declaration filed by Fine in the state court “Marina Strand litigation” in their response to the Petition for a Writ of Habeas Corpus nor Fine’s purported California Code of Civil Procedure, section 170.3 objection to Judge Yaffe.3 Fine further contends that the Respondents’ omission of these documents from this Court’s record led to a miscarriage of justice. Fine does not demonstrate or explain how this purported omission led to a miscarriage of justice (notwithstanding that these documents were part of the record reviewed by the Ninth Circuit in affirming the Order and Judgment denying the petition) or why Fine did not submit the documentation himself.4

See F.R.Civ.P., Rule 60(c)(1) (“A motion under Rule 60 must be made in a within a reasonable time-and for reasons (1), (2), and (3) no more than a year after the 20 entry of judgment or order or the date of the proceeding.”) The Judgment denying 21 Fine’s Petition was entered June 29, 2009 (Docket No. 31). Fine offers no 22 explanation as to why he waited 364 days to bring this motion.
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See Motion to Vacate, 2:6-28. Id., 3:1-4; 8:3-22.

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Id., 10-11. Fine does not remind this Court that he initially contended that 26 he was not served with a copy of the March 27, 2008 Order Striking Notice of 27 Disqualification. A copy of the Order was attached as Exhibit B to the Response filed by Respondents establishing that Fine had faxed that document on or about April 8,
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OPPOSITION OF THE SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES, ET AL, TO MOTION TO VACATE JUDGMENT
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Fine then concludes that the failure to provide the aforementioned documentation resulted in the district court wrongfully denying his Petition for a Writ of Habeas Corpus as Judge Yaffe should have been disqualified on the basis of his receipt of local judicial benefits and not allowed to preside over Fine’s contempt proceedings.5 Fine’s contentions are specious. Fine fails to concede that he lacked standing at the time of his multiple purported attempts to disqualify Judge Yaffe as he was neither a party nor counsel of record to the Marina Strand litigation, (see, e.g., Avelara v. Superior Court, 7 Cal.App.4th 1270 (1992)) nor could he make a wholesale challenge against all of the judicial officers of the Superior Court based upon the receipt of local judicial benefits (see Grant v. Superior Court, 90 Cal.App.4th 518 (2001)). By way reason of this motion, and upon Fine raising the issue of the lack of a docket entry regarding the March 18, 2008 Order Striking Notice of Disqualification (as referenced in the March 27, 2008 Order Striking Notice of Disqualification), the Superior Court conducted an exhaustive review of its records and files in the Marina Strand litigation regarding the cited March 18, 2008 Order. Upon completion of that review, it was determined that the March 18, 2008

2008, clearly evidencing that he had received the March 27, 2008 Order. Fine’s sole remedy at that point was to timely seek a writ of mandamus from the California Court of Appeal, which he failed to do, thereby making the March 27, 2008 Order striking the purported challenge final. Even if Fine had timely sought relief, given that Fine lacked standing to attempt to disqualify Judge Yaffe in the Marina Strand litigation due to his removal as counsel of record (only a party or counsel for a party may move to disqualify a presiding judicial officer), it is unlikely that he would have obtained any relief from the Court of Appeal.
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Fine again proclaims that the receipt of local judicial benefits is a 27 disqualifying event. This contention simply has no basis in law or fact as found by both the District Court and the Ninth Circuit Court of Appeals.
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OPPOSITION OF THE SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES, ET AL, TO MOTION TO VACATE JUDGMENT
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Strike Order was a draft order that was not signed by Judge Yaffe. Instead, Judge Yaffe issued a March 20, 2008 Strike Order finding that the purported Statement of Disqualification contained within Fine’s February 19, 2008 Notice of Motion and Motion to Disqualify LA Superior Court Judges Receiving Money From LA County and Dismiss Sanctions, etc.: 1) Was improperly directed against all of the judges of [the LA Superior Court]; 2) was not presented at the earliest practicable opportunity as required by California Code of Civil Procedure, section 170.3(c)(1); 3) was an improper attempt to obtain another judge to hear a motion for reconsideration regarding the previous sanction order; and 4) the purported statement of disqualification was improperly contained in a motion filed with the court and not personally served on the judge or his clerk as required by California Code of Civil Procedure, section 170.3.6 By way of the March 20, 2008 Strike Order, Judge Yaffe did not intend to make any finding as to whether Mr. Fine, by way of his February 19, 2008 motion, had standing to file a verified statement of disqualification pursuant to Code of Civil Procedure, section 170.3.7 As a result of the discovery of the foregoing regarding the content of the March 27, 2008 Order, Judge Yaffe issued a July 10, 2010 Order clarifying the March 27, 2008 Order Striking Notice of Disqualification.8 The previous inclusion of language from the draft March 18, 2008 Order into the March

See Declaration of Kevin M. McCormick, Exhibit “A.” The March 20, 2008 Order was included in Respondents’ Supplemental Excerpts of Record on Appeal at 23 SER0077-0078.
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Fine received notice of the order striking his Motion to Disqualify by way of 25 a March 25, 2008 Notice of Ruling. See Declaration of Kevin M. McCormick, Exhibit “B.” The March 25, 2008 Notice of Ruling was included in Respondents’ 26 Supplemental Excerpts of Record on Appeal at SER0079-0082.
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See Declaration of Kevin M. McCormick, Exhibit “C.”

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27, 2008 Order does not alter the fact that Fine did not have standing to attempt to disqualify Judge Yaffe and, further, that the receipt of local judicial benefits by Judge Yaffe was not a disqualifying event. Moreover, Fine was placed on notice by way of the citation contained in the March 27, 2008 Order that California Code of Civil Procedure, section 170.3(d) provided the exclusive means by which Fine could seek review of the determination of the question of disqualification. Fine failed to do so making the denial of the multiple attempts to disqualify Judge Yaffe final. Fine’s continued campaign against judicial officers who receive local judicial benefits is without merit and has been rejected time and time again. Fine’s Motion to Vacate the Order and Judgment denying his Petition for a Writ of Habeas Corpus should be denied. II. THE PREMISE UPON WHICH FINE CLAIMS THAT RESPONDENTS COMMITTED A FRAUD UPON THE COURT IS BASED ON THE CLAIMED “CONCEALMENT” BY JUDGE YAFFE OF THE RECEIPT OF LOCAL JUDICIAL BENEFITS FROM THE COUNTY OF LOS ANGELES Fine claims that Judge Yaffe concealed the receipt of local judicial benefits. Fine premises this contention on the averment that he was unaware of Judge Yaffe’s receipt of local judicial benefits from the County of Los Angeles until March 20, 2008, long after he filed the Marina Strand litigation.9 Fine further contends that this lack of knowledge excused his not having brought a timely challenge to Judge Yaffe.10 Notwithstanding his lack of standing to attempt to disqualify Judge Yaffe, Fine’s claimed ignorance of Judge Yaffe’s receipt of local judicial benefits is a blatant misrepresentation.

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Motion to Vacate, 2-3. Motion to Vacate, 5:2-17.

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Fine has long been arguing that the payment of local judicial benefits to judicial officers by the County of Los Angeles is a disqualifying event and cannot now claim that he was ignorant of Judge Yaffe’s receipt of local judicial benefits until March 20, 2008.11 In denying the Petition for a Writ of Habeas Corpus, this Court found that “[t]here is no basis in law for [Fine’s] contention that all judges who have received these county-provided benefits must be precluded, as necessarily biased, from participating in cases in which the county in question is a party.”12 Moreover, the Ninth Circuit, in affirming the Order and Judgment denying the Petition for a Writ of Habeas Corpus, specifically found that Fine’s claim that the receipt of local judicial benefits was criminal was “belied by a California statute expressly providing that judges ‘shall continue to receive supplemental benefits from the county or court then paying the benefits.’ See Cal. Govt. Code § 68220, see also Sturgeon v. County of LA, 84 Cal.Rptr. 3d (2008) (rejecting taxpayer’s contention that judicial compensation was an unconstitutional waste or gift of public funds, but

See, e.g., Silva v. County of Los Angeles, 215 F.Supp.2d 1079 (C.D.Cal. 2002) (“the Court is constrained to note that this is the second time that Mr. Fine has used his “local judicial benefits” theory to file an ill-conceived and meritless complaint against state judges who have ruled against his client or him in state court proceedings. Although the complaint styles the suit as a defendant class action, the particular state judges or judicial officers who are singled out and named in the caption all issued rulings that are unfavorable to Mr. Fine. This suggests to the Court that the purpose of the complaint is not to vindicate Mr. Fine's client's interests, but rather to punish judges who have ruled against him”). See also Los Angeles County Ass'n of Environmental Health Specialists v. Lewin, 215 F.Supp.2d 1071 (C.D.Cal. 2002). Additionally, Fine’s contention that he was ignorant of Judge Yaffe’s receipt of local judicial benefits is contradicted by his own February 19, 2008 attempt to disqualify all judges in Los Angeles County receiving such benefits.
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See June 12, 2009 Report and Recommendation (Docket No. 25-2) at 18:1-5.

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finding that judicial compensation required statutory prescription.)’”13 Fine’s claim that Judge Yaffe committed a fraud upon the district court by concealing his receipt of local judicial benefits is without merit and this motion should be denied. III. NOTWITHSTANDING FINE’S CLAIM THAT RESPONDENTS CONCEALED DOCUMENTS, HE SUBMITTED HIS FEBRUARY 18, 2008 MOTION AND DECLARATION AS AN ATTACHMENT TO THE PETITION FOR A WRIT OF HABEAS CORPUS Although Fine claims that Respondents “concealed” his February 19, 2008 Motion to Disqualify and Declaration from this Court, a review of Fine’s Petition for a Writ of Habeas Corpus, and the attachments submitted in support, reflect that Fine himself submitted this motion and declaration.14 Fine’s contention that these documents were concealed from the District Court is without merit and this motion should be denied. Moreover, and notwithstanding the mistake made by the Superior Court and Judge Yaffe regarding the March 18, 2008 Order, Fine failed to advise this Court of the existence of the March 20, 2008 Order dealing specifically with his February 19, 2008 Motion. IV. CONCLUSION Based upon the foregoing, it is respectfully submitted that Fine’s Motion to Vacate Judgment be denied as he has failed to demonstrate any ground for relief pursuant to F.R.Civ.P., Rule 60. \\\\\ As noted by this Court previously, the California Legislature reaffirmed the practice of providing local judicial benefits by enactment of S.B. 11.
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See Docket No. 1, Document 1-2, pp.23-50, filed by Fine on March 20,

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Dated: July 14, 2010

BENTON, ORR, DUVAL & BUCKINGHAM Kevin M. McCormick Kevin M. McCormick Attorneys for Respondents, Superior Court of California, County of Los Angeles and the Hon. David P Yaffe, Judge of the Superior Court of California, County of Los Angeles By: /s/

OPPOSITION OF THE SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES, ET AL, TO MOTION TO VACATE JUDGMENT
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PROOF OF SERVICE Fine v. Sheriff of Los Angeles County Case No.: CV09-1914-JFW (CW) STATE OF CALIFORNIA, COUNTY OF VENTURA I am employed in the County of Ventura, State of California. I am over the age of 18 and not a party to the within action. On July 14, 2010, I served the foregoing document(s) described as: OPPOSITION OF THE SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES, ET AL, TO MOTION TO VACATE JUDGMENT on the interested parties in this action by placing ____ an original XXX a copy thereof enclosed in a sealed envelope addressed as follows: Richard I. Fine, BK # 1824367 Twin Towers Correctional Facility 450 Bauchet Street Los Angeles, CA 90012 Aaron Fontana, Esq. Lawrence, Beach, Allen & Choi 100 West Broadway, Suite 1200 Glendale, CA 91210 XXX BY FIRST CLASS MAIL) ____ (BY EXPRESS MAIL) I caused such envelope with postage thereon fully prepared to be placed in the United States mail at Ventura, California. I am “readily familiar” with the firm’s practice of collection and processing correspondence for mailing. It is deposited with the U.S. Postal Service on that same day in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. (BY PERSONAL SERVICE) I delivered such envelope by hand to the office of the addressee. XXX (Federal) I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made. I declare under penalty of perjury that the foregoing is true and correct. Executed on July 14, 2010, at Ventura, California /s/ Jacqueline D. Mora Jacqueline D. Mora