Sacramento Federal Court Corruption Archive Judge John Mendez Recusal-Disqualification by Dylan Smith

Case 2:09-cv-02445-WBS-AC Document 596-24 Filed 10/09/14 Page 2 of 21

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FILED

DOWNEY BRAND LLP WILLIAM R. WARNE(Bar No. 141280) MICHAEL J. THOMAS(Bar No. 172326) ANNIE S. AMARAL(Bar No. 238189) 621 Capitol Mall, 18th Floor Sacramento, CA 95814-4731 Telephone: (916)444-1000 Facsimile: (916)444-2100 bwarne@downeybrand.com mthomas@downeybrand.com aamaral@downeybrand.com

Plumas Superior Court

JUL 2 6 2013 DEBORAH NORRIE, p Clerk of the Court gy K. t3reen ~,U Deputy Cterk

Attorneys for Defendant SIERRA PACIFIC INDUSTRIES

8 9

SUPERIOR COURT OF CALIFORNIA

COUNTY OF PLUMAS

UNLIMITED NRISDICTION

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CALIFORNIA DEPARTMENT OF FORESTRY AND FIRE PROTECTION,

CASE NO. CV09-00205 (lead file) (non-lead cases CV09-00231, CV09-00245, CV0900306,CV 10-00255, CV 10-00264)

Plaintiff, 15 v. 16 17

EUNICE E. HOWELL,INDIVIDUALLY AND DOING BUSINESS AS HOWELL'S FOREST HARVESTING,et al.,

ORDER REGARDING PLAINTIFFS'FAILURE TO ESTABLISH PRIMA FACIE CASE Trial Date:

Defendants.

July 29,2013

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AND CONSOLIDATED ACTIONS.

21 On July 15, 2013,the parties filed trial briefs setting forth their respective legal

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contentions. Defendants' briefs included arguments regarding why all Plaintiffs would be unable

to sustain their burden of proof at trial. On July 22, 2013,the Court issued a "Notice to Counsel" indicating, among other things, ',

26 ~I that because this has been designated a complex case, it would conduct pre-trial hearings pursuant I~ 27

to Cottle v. Superior Court(1992)3 Cal. App. 4th 1367. Under Cottle, in "a complex litigation

case which has been assigned to a judge for all purposes, a court may order the exclusion of 1328049.?

[PROPOSED]ORDER

==N==

Case 2:09-cv-02445-WBS-AC Document 596-24 Filed 10/09/14 Page 3 of 21

evidence ifthe plaintiffs are unable to establish a prima facie claim prior to the start of trial." 3

Cal.App.4th at 1381. Similarly, the "burden is on the plaintiffto establish a prima facie showing

of negligence against the defendant, and, if he fails to do so,that a nonsuit may be properly

granted:' Mastrangelo v. West Side Union High School Dist. ofMerced County(1935)2 Cal.2d

540,546. The court then convened on July 24, 2013,for a previously scheduled hearing and invited

6 7

Defendants Sierra Pacific Industries, Eunice Howell, W.M. Beaty and Associates, and Landowner

Defendants (collectively "Defendants")to request Cottle hearings as they believed appropriate.

Proceedings continued on July 25-26. Defendants requested that Plaintiffs make a prima facie showing to establish causation

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relative to whether a causal connection exists between the alleged failure to do a diligent

inspection for fire under 14 C.C.R. section 938.$ and the spread ofthe Moonlight Fire, and

whether conducting a diligent inspection under section 938.8 or otherwise would have made a

difference in the spread ofthe Moonlight Fire. Sierra Pacific, Beaty, and the Landowner

Defendants also requested a prima facie showing by Plaintiffs that, had they injected themselves

16 ~, into Howell's operations on September 3, 2007,in a manner inconsistent with Howell's role as an 17 ~I independent contractor, it would have made a difference in terms ofthe type of inspection that 18 ~' Howell completed. The parties then spent multiple days discussing these topics and various 19

related issues, including the standard of care associated with Plaintiffs' claims and whether these

issues would be wholly dispositive.

Plaintiffs' Leeal Claims Cal Fire's Causes of Action

Cal Fire stipulated on the record that it seeks to recover fire suppression and related costs

23 24

only pursuant to Health and Safety Code sections 13009 and 13009.1.. Section 13009(a) provides:

"Any person ...who negligently, or in violation ofthe law, sets a fire, allows a fire to be set, or

allows a fire kindled or attended by him or her to escape onto any public or private property ... is

liable for the fire suppression costs incurred in fighting the fire and for the cost of providing

rescue or emergency services ...." Section 13009.1(a) contains nearly identical language, except iazaoae.z

2 [PROPOSED]ORDER

==O==

Case 2:09-cv-02445-WBS-AC Document 596-24 Filed 10/09/14 Page 4 of 21

that it authorizes the collection of investigative and related costs. Accordingly,in order to

establish a prima facie claim under sections 13009 and 13009.1, Cal Fire must demonstrate that

each Defendant either unlawfully or negligently set a fire, allowed a fire to be set, or allowed a

fire kindled or attended by that Defendant to escape onto public or private property. Cal Fire also seeks injunctive relief, but stipulated on the record that its claim for

5 6

injunctive relief is derivative of its underlying cause of action under Health and Safety Code

sections 13009 and 13009.1. Private Plaintiffs' Causes of Action

Cal Engels, Grange, Guy,Brandt and Cozmez(collectively the "Landowner Plaintiffs")

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have plead different causes of action: general negligence (all Landowner Plaintiffs), trespass

(Brandt, Cal Engels, Cosmez, Guy), nuisance (Brandt, Cal Engels,and Grange), negligent

supervision (all Landowner Plaintiffs), negligent hiring (all Landowner Plaintiffs), negligent

retention (Brandt, Cal Engels, Cosmez, Guy), Health and Safety Code sections 13007 and 13008

(Grange), unfair competition(Cal Engels), negligence per se(Brandt and Cal Engels), peculiar

risk (all Landowner Plaintiffs), violation of Public Resources Code section 4422(Grange), and

violation of 14 C.F.R. section 938.8 (Grange).

Negligence

To establish their prima facie negligence claim, Landowner Plaintiffs must demonstrate

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all ofthe following: duty, breach ofthe standard of care, causation, and damages. CACI 400.

With respect to duty,a defendant"owes a duty ofcare to all persons who are foreseeably

endangered by his conduct, with respect to all risks which made the conduct unreasonably

dangerous." Rodriguez v. Bethlehem Steel Corp.(1974) 12 Ca1.3d 382, 399. In ordinary

negligence cases, breach ofthe standard of care means either a failure to act as a reasonably

carefiil person in the same situation(CACI 401), while in professional negligence cases, the

breach ofthe standard of care means a failure to act as a reasonably prudent professional would

have in similar circumstances CACI 600. Causation means that the harm would not have

occurred but-for the negligence of Defendants. CACI 430.

28 ~3z8~9.z

3 [PROPOSED]ORDER

==P==

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Trespass and Nuisance

To establish their prima facie trespass claim, Brandt, Cal Engels, and Grange must show

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that Defendants intentionally, recklessly, or negligently entered, or caused something else to enter

their land. See Gallia v. Pnulou(1956) 140 Ca1.App2d 638,645. Ftutherniore,"[where

negligence and nuisance causes of acrion rely on the same facts about lack of due care,the

nuisance claim is a negligence claim." EZ Escorial Owners'Assn v. DLC Plastering, Inc.(2007)

154 Cal.App.4th 1337, 1349. Accordingly, Brandt, Cal Engels, and Grange must make a prima

facie showing of negligence in order to recover under their nuisance theory. 3.

Negligent Hiring,Supervision and Retention

All Landowner Plaintiffs assert a negligent hiring claim, which requires them to

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demonstrate that the hirer knew or should have knovcm, because of past behavior or other factors,

that an employee is unfit for the specific tasks to be performed and that hiring the person creates a

"p~icular risk or hazard and that particular harm materializes." Phillips v. TLC Plumbing, lac.

(2009) 172 Ca1.App.4th 1133, 1139. Specifically, Landowner Plaintiffs must make a prima facie

showing that(1)the employer lured the employee,(2)the employee was unfit or incompetent to

Perform the work for which he was hired;{3)the employer knew or should have known that the

employee was unfit or incompetent, and that this unfitness or incompetence created a pa.Ricular

risk to others;(4)the employee's unfitness or incompetence harmed the plaintiff;(5)the

employer's hiring ofthe employee was negligent; and(6)the employer's negligence in hiring the

employee was a substantial factor in causing the plaintiff harm. CACI 426. Additionally, Landowner Plaintiffs assert a negligent supervision claim. It is well settled

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that California does not recognize a common law duty to supervise an independent contractor.

Asplund v. Selected Invs. in Fin. Equities, Inc.(2001)86 Cal.App.4th 26, 29, 38-39,45. "The

general supervisory right to control the work so as to insure its satisfactory completion in

accordance with the terms ofthe contract does not make the hirer ofthe independent contractor

liable for the latter's negligent acts in performing the details of the work." McDonald v. Shell

Oil. Co.(1955)44 Cal.2d 785,788. Therefore, to establish their prima facie case, Landowner

Plaintiffs must show that Defendants assumed a duty to supervise Howell. Ibid. Additionally, iazsoev.z

4 [PROPOSED]ORDER

==Q==

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Landowner Plaintiffs must establish all ofthe following:(1)the employer hired the employee,(2)

the employee was unfit or incompetent to perform the work for which he was hired;{3)the

employer knew or should have known that the employee was unfit or incompetent, and that this

unfitness or incompetence created a particular

incompetence harmed the plaintiff;(5)the employer was negligent in supervising the employee;

and (6)the employer's negligence in supervising the employee was a substantial factor in causing

the plaintiff harm. CACI 426.

to others;(4)the employee's unfitness or

risk

Similarly, to establish a prima facie negligent retention claim, Brandt, Cal Engels, Cosmez, and Guy must demonstrate the first four elements ofa negligent supervision claim, and

also the employer's retention ofthe employee was negligent and that the employer's negligence

in retaining the employee was a substantial factor in causing the plaintiff harm. Ibid.

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Statutory Claims

Grange has asserted claims under Health and Safety Code sections 13007 and 13008.

Section 13007 provides:"[ajny person who personally or through another willfully, negligently,

or in violation oflaw, sets fire to, allows fire to be set to, or allows a fire kindled or attended by

him to escape to, the property of another, whether privately or publicly owned,is liable to the

owner ofsuch property for any damages to the property caused by the fire." Section 13008

states: "[a]ny person who allows any fire burning upon his property to escape to the property of

another, whether privately or publicly owned, without exercising due diligence to control such

fire, is liable to the owner ofsuch property for the damages to the property caused by the fire."

Cal Engels seeks an injunction for unfair competition under Business and Professions

Code section 17200. During the hearing on July 25,2013, Cal Engels stipulated on the record

that its claim for injunctive relief is derivative ofits underlying causes of action.

24 25

Negligence Theories vs. Causes of Action

Some Landowner Plaintiffs have pled claims that are not properly characterized as

independent causes of action. For example, negligence per se, which is codified in Evidence

Code section 699,is not an independent cause of action. See Quiroz v. Seventh Ave. Center

(2006) 140 Ca1.App.4th 1256, 1285-86. Because of that,"an underlying claim ofordinary 1328D49.2 5 [PROPOSED]ORDER

==R==

Case 2:09-cv-02445-WBS-AC Document 596-24 Filed 10/09/14 Page 7 of 21

negligence must be viable before the presumption of negligence of Evidence Code section 669

can be employed." California Service Station and Auto. Repair Assn v. American Home Assur.

Co.(1998)62 Cal. App. 4th 1166, 1178 (citations omitted). Accordingly, to invoke a negligence

per se presumption, Brandt and Cal Engels first must establish a prima facie negligence case, and

then demonstrate:(1)the defendant violated a statute, ordinance, or regulation ofa public entity;

(2)the violation pro~cimately caused death or injury to person or property;(3)the death or injury

resulted from an occurrence ofthe nature which the statute, ordinance, or regulation was designed

to prevent; and(4)the person suffering the death or the injury to his person or property was one

ofthe class of persons for whose protection the statute, ordinance, or regulation was adopted.

Evid. Code,ยง 669(a).

Similarly, peculiar risk does not constitute an independent cause of action, but rather is a

tort doctrine that, under certain circumstances,imposes vicarious liability for the negligence of

others. See CACI 3708. Additionally, while Grange asserts a cause of action for violation of

Public Resources Code section 4422 and 14 C.F.R. section 938.8, neither ofthese statutes create

a private right of action.

Expert Testimony Is Required To Establish The Standard Of Care And Its Breach On Plaintiffs' Negligence Claims Asainst Each Defendant.

On June 20, 2013, Cal Fire stated in an opposition to a motion in limine to exclude an 18 expert that "what constitutes a diligent inspection after logging operations is not a matter of 19 common understanding;" that "Forest practices are `sufficiently beyond common experience' of 20 jurors;" and that "an expert is needed to tell the jury how a reasonable Licensed Timber Operator 21 would be expected to conduct a diligent inspection." 22 On July 15, 2013, Siena Pacific filed a trial brief arguing in part that the professional 23 standard of care requiring expert testimony applies to all Defendants. 24 On July 24, 2013, Cal Fire filed a briefregarding standard of care, arguing that expert

testimony is not required on the standard of care for Plaintiffs' negligence claims. 26 The "general rule applicable in negligence cases arising out ofthe rendering of

27 28

professional services" is that the "standard ofcare against which the acts of a [defendant] are to ~szaoa9.z [PROPOSED]ORDER

==S==

Case 2:09-cv-02445-WBS-AC Document 596-24 Filed 10/09/14 Page 8 of 21

be measured is a matter peculiarly within the knowledge ofexperts; it presents the basic issue in a

malpractice action and can only be proved by their testimony, unless the conduct required by the

particular circumstances is within the common knowledge ofthe layman." Flowers v. Torrance

Memorial Hospital Medical Center(1994)8 Cal.4th 992, 1001 (citing Landeros v. Flood(1976)

17 Cal.3d 399, 410).

Another court aptly explained the rationale for the rule: because only "a person

knowledgeable in the specialty can define the applicable duty ofcare and opine whether it was

met...[w]ithout expert testimony that a reasonably prudent specialist ...would, under the facts

as the trial court found them, have acted differently than did respondent, there is no basis to attach

legal fault to his conduct." Wright v. Williams(1975)47 Ca1.App.3d 802, 811.

California heavily regulates its timber harvesting industry. It restricts who may harvest

timber through licensing, and it must review, approve and oversee a timber harvest plan before

specific logging operations may begin. See e.g., Pub. Res. Code ยง 4581. In this action, Plaintiffs

sued Defendants based on their alleged conduct azising out ofthe rendering of professional

services associated with the Cooks Creek Timber Harvest Plan("THP"). Plaintiffs sued Howell,

the licensed timber operator which was operating under the THP on the day the Moonlight Fire

ignited; W.M. Beaty &Associates,Inc., the registered professional forester under the THP; Sierra.

Pacific Industries, which purchased standing timber (i.e. stumpage)from the Landowner

Defendants and hued Howell to harvest it under the THP; and Landowner Defendants,

commercial timber harvesters and sellers who sold the timber associated with the THP.

For the reasons set forth in Defendants' briefs on file with the Court, as well as oral

argument of counsel at the hearing attended by all parties, the Court finds that expert testimony is

required to establish the standard ofcare for all ofPlaintiffs' negligence claims. The court further

finds that the conduct of Defendants required by the particular circumstances in this case does not

fall within the common knowledge ofa lay person and that the exception to the expert testimony

requirement therefore does not apply, Thus, in order to establish a prima facie negligence case,

Plaintiffs are required to proffer expert testimony on the applicable s#andard of care. Expert testimony is also required to establish a breach ofthe standard of care in this case.

28 1326019.2

7 [PROPOSED]ORDER

==T==

Case 2:09-cv-02445-WBS-AC Document 596-24 Filed 10/09/14 Page 9 of 21

See e.g., Stonegate Homeowners Assn v. Staben(2006) 144 Ca1.App.4th 740,749("Standard of

care and its breach in the construction defect context must usually be established through expert

testimony ..."); see Avivi v. Centro Medico Urgente Medical Center(2008) 159 Ca1.App.4th

463,467("Both the standard of Gaze and defendants' breach must normally be established by

expert testimony in a medical malpractice case."); see also Bushling v. Fremont Medical Center

(2004) 117 Cal.App.4th 493,509("In a matter such as this, where the conduct required ofa

medical professional is not within the common knowledge oflaymen, a plaintiff must present

expert witness testimony to prove a breach ofthe standard of care"). Indeed, because "expert evidence is conclusive and cannot be disregarded" on the

9 10

standard of care, and is the only evidence a jury may consider when evaluating a defendants

conduct arising from professional services not within common knowledge ofa lay person, no

could find Defendants breached that standard without such expert testimony. See Flowers v.

Torrance Memorial Hospital Medical Center(1994}8 Cal.4th 992, 1001. Plaintiffs therefore are

also required to proffer expert testimony that Defendants' conduct fell below that standard in

order to establish a prima facie negligence case.

jury

Defendants pointed to the absence of Plaintiffs' expert opinion testimony on the issues of

16 17

standard ofcare and breach ofthe applicable standard. Plaintiffs identified on the record a

number of witnesses who might have an expert opinion on the standard of care. Plaintiffs,

however, did not identify any witnesses who had been disclosed as an expert witness under Code

of Civil Procedure section 2034.260 and had formed an opinion on the applicable standard of

raze, or that any ofthe Defendants breached the applicable standard of care. Plaintiffs identified Shane Cunningham,Jack Medici, John Forno, John Van Duyn,

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Eunice Howell, Kelly Crismon and J.W. Bush. However, Plaintiffs did not indicate that any

witness was designated as either a retained or non-retained expert, and had also formed an

opinion on either the standard ofcare or on whether Defendants breached that standard. Plaintiffs contend that, regardless of whether the proffered witnesses were disclosed as

26 27

experts, their percipient custom and practice testimony is evidence ofthe standard of care.

However,"CACI No.413 [the custom and practice jury instruction] applies only where the 1328049.2

g [PROPOSED]ORDER

==U==

Case 2:09-cv-02445-WBS-AC Document 596-24 Filed 10/09/14 Page 10 of 21

standard of care is within common knowledge. The instruction is not appropriate where,as here,

the standard of care must be established by expert testimony." Scott v. Rayhrer(2010)185

Ca1.App.4th 1535, 1548-1549 (citation omitted). Thus,contrary to Plaintiffs' azguments,the

custom and practices ofany one company or individual do not, by themselves, establish the

standard applicable to the industry as a whole. In addition to witnesses, Plaintiffs also identified Howell's internal policies or plans,

6 7

which they allege Crismon violated on September 3,2007, and which they contend constitute

evidence ofthe standard ofcare. The authority cited by Plaintiffs does not support their

contention that Howell's internal polices set the professional standard ofcare. Dillenbeck v. City

ofLos Angeles(1968)69 Ca1.2d 472 involved a wrongful death claim against the City of Los

Angeles arising from a fatal car crash between a police officer and the decedent. Plaintiffs

alleged that a police officer violated the applicable standard ofcare while speeding to respond to

a bank robbery. The.Supreme Court noted that one ofits prior decisions already "setQ forth the

standard ofcare governing the operation ofemergency vehicles," and thus the present case did

"not turn on the controlling standard of care." Id. at 476-77. The Supreme Court went on to hold

that some ofthe LAPD's Daily Training Bulletins were admissible "to assist the jury in applying

[thatjudicially established] standard." Ibid. The Court did not hold that a defendant's own

policies established the standard ofcare; at most, such policies might be admissible as

supplemental evidence to assist the jury in applying a standard already established by other

means.

Here, however, Howell's own policies are inadequate to establish the standard of care.

Defendants represented that their standard ofcare experts will testify at trial that Howell's fire

inspection policies went far above and beyond the industry standard at that time. Under these

circumstances.

To permit the operator of an industry to establish a standard ofcare by the adoption ofrules, different from the ordinary standard of reasonable care which is required by law, regardless of whether the complainant, who is protected by no special contract of employment,knows ofthese rules, or relies upon them, would create as many standards ofconduct as there are vazious organizations with different operating rules. The public would then

26 27 28 1328049.2

0 (PROPOSED]ORDER

==V==

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have no fixed standard of care upon which it could rely for protection. ~~* The effect of[admitting private rules as evidence of negligence] is that, the more cautious and careful a man is in the adoption of rules in the management of his business in order to protect others, the worse [offJ he is, and the higher the degree ofcare he is bound to exercise.

2 3 4 5 6

Smellie v. Southern Pac. Co.(1933) 128 Ca1.App. 567,580-81 (emphasis added). Because the

only expert opinion testimony on the standard of care evidences that Howell's internal policies

exceed the industry standard, Plaintiffs cannot rely on those internal policies to satisfy its burden

to establish a prima facie negligence claim absent expert testimony.

There is No Causal Connection Between Anv AIle~ed Violation of Section 93$.8 and the Spread of the Moonlisht Fire.

11 Plaintiffs argue that, to whatever extent they cannot establish the standard of care through 12 expert testimony,they can use section 938.8 to establish a minimum standard ofcare, and a 13 breach ofthat standard of caze by defendants Crismon, Bush,and Howell. With respect. to 14 breach, Plaintiffs contend that Crismon, Bush and Howell violated section 938.8 through their 15 actions on September 3,2007. Specifically, Plaintiffs contend that the Moonlight Fire started at 16 12:15 p.m. on September 3,2007, when Crismon's metal-tracked bulldozer drove over a rock, 17 issuing a hot metal fragment which landed in forest litter. Plaintiffs also contend that the fire 18 remained in an "incipient" stage, smoldering in a dry fuel bed for approximately 1.5 hours until it 19

entered into the free-burning stage at approximately 1:45 p.m. Plaintiffs contend that Howell

20 ceased operations at 1:00 p.m.,just after Crismon yarded logs offthe hillside and to a landing 21 with his bulldozer. After greasing and fueling their cats, Crismon and Bush left the area in their 22 vehicles after at approximately 1:30 p.m. 23

In response to requests for admission, Cal Fire has acknowledged that Crismon's

24 operation ofa bulldozer on September 3,2007, was not negligent. Cal Fire expert Bernie Paul 25 26 27 28

~ In 2007,section 938.8 read as follows: "The timber operator or his/her agent shall conduct a diligent aerial or ground inspection within the first 2 hours after cessation of felling, yarding, or loading operations each day during the dry period when fire is likely to spread. The person conducting the inspection shall have adequate communication available for prompt reporting of any fire that may be detected." 13280492

10 [PROPOSED)ORDER

==NM==

Case 2:09-cv-02445-WBS-AC Document 596-24 Filed 10/09/14 Page 12 of 21

confirmed that running over a rock while driving a bulldozer is not negligent. Nevertheless, Cal

Fire alleges that Crismon, Bush and Howell violated section 938.8 by failing to conduct a diligent

inspection of any form. With respect to a diligent ground inspection, Plaintiffs allege that Bush

and Crismon left the scene without conducting an inspection. Chief White testified that he

believed Bush had returned to do a "fire watch" at approximately 2:15 p.m., but even with this

timing, Plaintiffs further contend that Bush's return at roughly 2:15-2:30 p.m. was insufficient

under the regulation because the fire was already out of control, and because he did not have the

ability at the time to engage in communication as required under the regulation. Finally,

Plaintiffs contend that an aerial patrol which spotted smoke from the Moonlight Fire just before it

was called in by the Red Rock lookout tower at 2:24 p.m. was also insufficient to comply ruith

section 938.8 because the patrol company was not acting as the agent ofHowell.

Even ifthe Court were to accept each ofthese allegation as true, they are insufficient for

12 13

purposes ofcreating a prima facie case against Crismon, Bush and Howell. In order to prevail on

their claims against these Defendants for a violation of938.8,Plaintiffs had the burden in this

Cottle hearing to make a prima facie showing that Defendants' acts were a substantial factor in

causing Plaintiffs' damages. See Mitchell v. Gonzales,54 Cal. 3d. 1041 (1991); see also CACI

430. The court finds that Plaintiffs were unable to do so. The clear language of section 938.8

permits an aerial or ground inspection within two hours ofcessation of operations. Here,

however,the Red Rock lookout tower called in the Moonlight Fire at 2:24 p.m. Since Crismon,

Bush and/or Howell could have complied with section 938.8 by returning to the scene at any time

before 3:00 p.m., their alleged failure to do so was not relevant to the damages sought in this case.

In other words, had these Defendants complied in full with 938.8, it would have made no

difference whatsoever in Plaintiffs' damages, as the fire was spotted by others well before the

expiration oftime allowed to Defendants under section 938.8, and at which point it had already

reached a stage where it could not be contained and suppressed. Thus, even if Plaintiffs'

contentions are true, the actions of Crismon, Bush or Howell â&#x20AC;&#x201D;indeed,the action ofany

Defendant with respect to section 938.8 â&#x20AC;&#x201D;could not have been the proximate cause ofPlaintiffs'

damages. iazaon9.z

11 [PROPOSED)ORDER

==NN==

Case 2:09-cv-02445-WBS-AC Document 596-24 Filed 10/09/14 Page 13 of 21

2 3 4 5 6

There is No Evidence That an Insuection Wonld Have Discovered the Fire in an Incipient State.

Defendants also moved under Cottle requesting that Plaintiffs present evidence sufficient to support a finding by the jury that, even assuming an inspection for fire had been conducted under section 938.8, the fire would more likely than not have been detected, reported and suppressed. With respect to this aspect of Defendants' motion, Defendants and the Court have assumed for the sake of argument that Howell ignited the fire via a rock strike as alleged by

7 Plaintiffs, and that Howell failed to conduct any inspection at all. Defendants provided notice in 8 9

their motion of their contention that Plaintiffs had failed to develop any evidence on this essential factual predicate to liability.

10 11 12

In response, Plaintiffs advanced several arguments and factual contentions. However, upon close scrutiny, the Court concludes that Plaintiffs have failed to make a prima facie showing.

The Court's analysis of this issue requires consideration ofthe mode of ignition alleged by

14 Plaintiffs. According to Joint Trial Exhibit No. 1, Cal Fire's Origin and Cause Report for the 15 Moonlight Fire, Plaintiffs contend that the fire remained in an "incipient" stage for approximately 16 17 18 19

1.5 hours following ignition, before reaching the free burning stage. It is this mode of ignition and the allegation ofa latent incipient stage which allows Plaintiffs to explain how the fire could have been ignited by Defendant Howell even though the undisputed evidence is that the fire was not reported until appro~mately one hour after Howell employees left the work area at 1:30 p.m.,

20 and over two hours after Howell left the specific area where the fire is alleged to have ignited. 21 Plaintiffs' presentation of evidence to establish that the fire more likely than not would 22 23

have been detected upon such an inspection is insufficient. Plaintiffs first identified the Origin and Cause Report as evidence, pointing in particular to Chief Josh White's statement in the report

24 that,"It is my opinion that had an inspection for fire occurred, as defined by California Code of 25 Regulations, the fire could have been identified and contained by initial attack resources."2 26 27 28

2 During the hearing, Plaintiffs first described this as evidence that the fire "would" have been discovered but conceded on the record that this initial characterization was incorrect. 13280493

12 [PROPOSED]ORDER

==NO==

Case 2:09-cv-02445-WBS-AC Document 596-24 Filed 10/09/14 Page 14 of 21

Defendants objected to the admissibility of this statement on the ground that it lacks foundation,

that Chief White is not qualified to offer the opinion, and that it is hearsay. For purposes ofthis

motion only,the Court presumes the statement would come into evidence; however,the statement

is speculative and lacks support, and is therefore insufficient. Plaintiffs have proffered no

evidence regarding how Chief White would or could know the condition ofthe fire, or how one

might be expected to detect it. In sum,it appears that this statement. is in the nature ofconjecture,

rather than fact. Nevertheless, even assuming it is a fact for the benefit of Plaintiffs, the mere

belief that some outcome"could" have happened is insufficient to establish that it more likely

than not would have been the case. Dixon v. Ciry ofLivermore(2005) 127 Ca1.App.4th 32;

Saelzler v. Advanced Group 400(2001)25 Cal.4th 763 (granting summaryjudgment where the

evidence showed merely a "speculative possibility" that additional security would have prevented

the assault").

The Court also observes that proof of causation on this front, namely that the fire more

likely than not would have been detected had a ground inspection been conducted, is not within

the common knowledge of a layperson, and thus expert opinion would be required. Plaintiffs did

not identify during their presentation any expert opinion testimony on this front. Indeed,

Defendants pointed out during the hearing that Plaintiffs' designated expert, Shane Cunningham,

testified that inspections for fire under Forest Practice Rule 938.8 aze not fool-proof. According

to Defendants, Mr. Cunningham explained that one can conduct a diligent inspection for fire

under 938.8 and miss a fire, but not be negligent. Plaintiffs did not controvert or rebut this aspect

of Mr. Cunningham's testimony.

Plaintiffs also proffered the testimony of William Kleiner, whom they contend opined that

the fire could possibly have been detected had a ground inspection been conducted. However,the

Court notes that Plaintiffs did not represent to the Court that Mr. Kleiner testified that the fire

would, more likely than not, have been detected under such circumstances.

In the alternative, Plaintiffs argued at length about various alternative factual scenarios in

which the fire might have been prevented. For example, Plaintiffs have surmised that had

Defendants not engaged in operations on September 3,2007,the fire would not have occurred. 13280492 13 [PROPOSED]ORDER

==NP==

Case 2:09-cv-02445-WBS-AC Document 596-24 Filed 10/09/14 Page 15 of 21

However, Plaintiffs have admitted that operations with bulldozers on September 3, 2007,even on

a red flag day, were permissible. Plaintiffs then presumed alternate scenarios surmising that had a

two-hour continuous "fire watch" been conducted,the fire would have been detected and

suppressed. The Court notes that section 938.8 contains no reference to a continuous "fire watch"

requirement and no expert opined that one existed. But even assuming arguendo such a

requirement existed, Plaintiffs have proffered no evidence that if such a "fire watch" had been

conducted,the fire would have been detected in time to be contained and suppressed. Finally, Defendants contend that there is no evidence that an inspection from an air patrol,

8 9

even if diligently executed, would have detected an incipient fire. Plaintiffs have argued that a

"walking" inspection is required, and that an inspection via air or other vehicle would not have

been adequate. The court notes that section 938.8 expressly allows an air inspection, and that Jim

Wilson, Cal Fire's person most qualified on certain categories, testified that a diligent inspection

may be made from a vehicle. Nevertheless,for purposes ofthe above analysis only, the Court

presumes a walking inspection was required.

15 ~'

16 Defendants Sierra Pacific, Beaty, and the Landowner Defendants also requested under

17 18

Cottle a prima facie showing that, had they injected themselves into Howell's operations, it would

have made a difference in terms of the type of inspection that was completed.

Howell was a Licensed Timber Operator at the time ofthe Moonlight Fire. That license

was issued by Cal Fire and Cal Fire never cited Howell for any violations, either before or after

the Moonlight Fire. Sierra Pacific hired Howell to conduct logging operations on the Cooks

Creek Sale, and specifically hired Howell as an independent contractor. Cal Fire has admitted

that it was notified that Howell would be the licensed timber operator for the Cook's Creek

Timber Sale prior to commencement ofany logging activities, and that it was not aware ofany

fires caused by Howell before the Greens Fire. Based on Howell's independent contractor relationship, Siena Pacific monitored the

27 28

quality ofthe logs that Howell delivered to Sierra Pacific's mill, but did not assume control over 1328049.2

14 [PROPOSED]ORDER

==NQ==

Case 2:09-cv-02445-WBS-AC Document 596-24 Filed 10/09/14 Page 16 of 21

the manner in which Howeil conducted its operations. Sierra Pacific, Beaty, and the Landowner

Defendants dispute whether they had a duty to supervise Howell at

and role as an independent contractor, but even ifthey did,there is no evidence that any different

type of communication or supervision would have changed the outcome on September 3, 2007.3

given its licensure status

all,

Plaintiffs' attempt to fall back on the "unlawful" prong of sections 13009 and 13009.1 is

Plaintiffs Have Not Made a Prima Facie Showing on Their Other Claims.

unavailing. Plaintiffs seek to rely on Public Resources Code section 4422, 14 C.C.R. section

938.8 and 36 C.F.R. 261.5, and they argue that violations of each ofthese authorities can

establish their claims. Plaintiffs' position lacks merit. Public Resources Code Section 4422

Public Resources Code section 4422 provides:

11 12

A person shall not do any ofthe following:

(a) Willfully or knowingly allow fire to burn uncontrolled on land which he owns or controls, or to escape to the lands of any person other than that ofthe owner.

14 15

(b) Allow any fire kindled or attended by him to escape from his control. or to spread to the land of any person other than from the land from which the fire originated.

16 17

Fire concedes that section 4422(a)has no application here, but it argues that Defendants

Cal

violated section 4422(b)and that that violation establishes a violation of sections 13009 and

13009.1. Cal Fire argues that if Howell started the fire, Defendants are strictly liable under

section 4422(b). Tt is well established in California, however, that "[lJiability for the escape offire is based

21 22

on negligence." 6 B.E. Witkin, Summ.of Cal. Law (Torts)ยง 1427, p. 850(10th ed. 2005).

Indeed, "it is beyond the power ofthe Legislature to impose a liability for an accidental and

unavoidable fire, which accidentally and unavoidably escapes, if there be no negligence in

causing the fire or in allowing it to escape." Paiva v. California Door Co.(1925)75 Cal. App.

323, 333. Cal Fire's argument is inconsistent with this principle.

27 28

3 Cal Fire also admitted that Sierra Pacific was not negligent in hiring Howell as the licensed timber operator; it follows that no Plaintiff can make a prima facie showing ofa negligent hiring claim. 1328049.2

15 [PROPOSED)ORDER

==NR==

Case 2:09-cv-02445-WBS-AC Document 596-24 Filed 10/09/14 Page 17 of 21

Indeed, Cal Fire's argument would render a key provision ofsecrions 13009 and 13009.1

1 2

nugatory. These statutes impose liability for certain actions done "negligently" or "in violation of 'i

law." Health & Saf. Code Â§Â§ 13009, 13009.1. If, as Cal Fire argues, section 4422 imposed strict

liability for starting a fire that spreads, then the "negligently" prong of sections 13009 and

13009.1 would have no effect. Every fire that spread would do so "in violation oflaw," and thus

establishing negligence would never be required. Section 4422 should not be interpreted to

obviate key provisions of other fire-related statutes. Cal Fire's argument.fails for the additional reason that section 4422{b),to the extent it is

8 9

intelligible, does not apply under the undisputed facts of this case. The first clause ofthe statute,

which prohibits "[a)llow[ing] any fire kindled or attended by him to escape from his control,"

does not apply because it is undisputed that Defendants never had control ofthe Moonlight Fire.

On the contrary, the parties agree that the fire was beyond control by the time any Defendant(or

the employee or agent ofany Defendant)knew it was burning. For similar reasons, it is

undisputed that no Defendant "allowed" the fire to escape because no Defendant knew the fire

was burning when it might have been controlled. See County of Ventura v, Southern California

Edison Co.,(1948)85 Ca1.App.2d 529, 532(holding that "[a]llow[ing] fire to be set" means

"negligent acquiescence in, or failure to prevent known conditions, circumstances, or conduct

which might reasonably be expected to result in the starting ofa fire")(emphasis added).

Nor can Cal Fire establish a violation of section 4422(b)'s second clause, which prohibits

"[aJllow[ing] any fire ... to spread to the land of any person other than from the land from which

the fire originated." At best, this statutory language is puzzling. Perhaps it prohibits allowing fire

to spread from land other than the land where it originaxed. If so,then it has no application to the

facts here, because there is no allegation that any Defendant was in a position to allow (or to

disallow) the fire to continue spreading after it had spread to the land of others. On the contrary,

it is undisputed that the fire could not be controlled at that point.

To the extent the language is incomprehensible, of course, it is void. See Connally v. Gen.

Const. Co.(1926)269 U.S. 385, 391 ("[A] statute which either forbids or requires the doing of an

28 13260491

16 [PROPOSED]ORDER

==NS==

Case 2:09-cv-02445-WBS-AC Document 596-24 Filed 10/09/14 Page 18 of 21

act in terms so vague that men ofcommon intelligence must necessarily guess at its meaning and

differ as to its application violates the first essential of due process oflaw").

For the foregoing reasons, Cal Fire cannot rely on section 4422.

14 C.C.R. Section 938.8

For the reasons addressed elsewhere,even assuming Cal Fire could establish a violation of

section 938.8, it cannot establish that the violation caused the fire to spread. Accordingly, a

violation ofsection 938.8 cannot serve as the predicate to liability under sections 13009 or

13009.1.

36 C.F.R. Section 261.5

Cal Fire did not allege a violation of section 261.5 in its complaint, its first amended

complaint or its (operative) second amended complaint. Indeed, it did not mention this federal

regulation until its trial brief, where it azgues that it can establish its claims under sections 13009

and 13009.1 by establishing a violation of section 261.5. Even if Cal Fire could possibly

establish a violation of section 261.5(which, as discussed below, it cannot), its failure to raise the

issue until its trial brief would preclude it from relying on such a violation to establish its claims.

See Estate ofMurphy(1978)82 Cal. App.3d 304, 311 (proper for court to deny leave to amend

complaint when "the proposed amendment opened up an entirely new field ofinquiry without any

satisfactory explanation as to why this major change in point of attack had not been made long

before trial").

In any event, Cal Fire cannot establish that any Defendant violated section 261.5 because

the version ofthe regulation in effect in 2007 applied only to conduct occurring on federal land.

United States v. Mendez Concrete,2009 WL 733881 (C.D. Cal. March 16, 2009).

Burden Shiftins Mechanisms Haft v. Lone Palm Hotel

Plaintiffs argue that the standazd of care regarding causation should shift to Defendants

under Haft v. Lone Palm Hotel(1970)3 Ca13d 756, where, as a matter of public policy, the Court

shifted the burden of proofregarding causation to the defendant, a motel that failed to provide a

statutorily required lifeguard at its pool, which failure resulted in a complete absence ofevidence

~~~80~9.2

17 [PROPOSED]ORDER

==NT==

Case 2:09-cv-02445-WBS-AC Document 596-24 Filed 10/09/14 Page 19 of 21

regarding why and how two motel guests drowned. According to Plaintiffs, Defendants' alleged 2

failure to comply with section 938.8 is akin to the motel's failure to post a lifeguard, and thus the

burden of proofregarding causation should shift to Defendants. Even assuming Plaintiffs can establish a violation of section 938.8, its argument is

4 5

unpersuasive. In Haft,the defendant violated its statutory obligation to post a lifeguard at the

6 ~' pool, resulting in "a #otal lack of direct evidence as to the precise manner in which the drownings 7

occurred:' 3 Ca1.3d at 771. The combination ofthe complete "evidentiary void" resulting from defendant's violation of statute, the purpose of which was not only to prevent accidents but to

9 10

"witness[] those accidents that do occur," the clear culpability ofthe defendant, and the "significant probability ofa successful rescue" ifa lifeguard had been present together led.the

11 ~ Court to shift the burden of proof regarding causation to defendant as a matter of public policy. 12

Id. at 773-74 {"Without such a shift in the burden of proof in the instant case, the promise of

substantial protection held out by our statutory lifeguard requirement will be effectively nullified

in a substantial number ofcases.").

Haft itself, as well as subsequent decisions,.makes clear that shifting the burden of proof

regarding causation is the rare exception rather than the rule, and that it may happen only when a

number offactors align. First, the plaintiff must establish a primafacie case of causation â&#x20AC;&#x201D;that

there is "a substantial probability that a defendant's negligence was a cause ofan accident ...."

Thomas v. Lusk(1994)27 Ca1.App.4th 1709, 1717(quoting Haft, 3 Cal.3d at 774 n.19). This is a

"condition precedent to a shift in the burden of proof." Lusk,27 Cal.App.4th at 1719. For

reasons discussed elsewhere, Plaintiffs cannot satisfy this threshold requirement here. Public Resources Code Section 4435

Plaintiffs contend they can establish negligence under Public Resources Code section

23 24

4435, which provides:

25 26 27 28 1328049.?

Ifthe fire originates from the operation or use of any engine, machine, barbeque, incinerator, railroad rolling stock, chimney, or any other device which may kindle a fire, the occurrence ofthe fire is prima facie evidence of negligence in the maintenance, operation, or use ofsuch engine, machine, barbeque, incinerator, railroad rolling stock, chimney,or other device. Ifsuch fire escapes from the place where it originated, and it can be determined which 18 [PROPOSED]ORDER

==NU==

Case 2:09-cv-02445-WBS-AC Document 596-24 Filed 10/09/14 Page 20 of 21

person's negligence caused such fire, such person is guilty ofa misdemeanor.

1 2 3 4

Plaintiffs argue that the Howell bulldozer started the fire, that a bulldozer is a "device which may kindle a fire," and therefore that they can show prima facie evidence of negligence simply by proving the bulldozer started the fire.

5 6 7 8 9 10 11 12 13 14 15 16

Defendants persuasively argue, however, that even assuming the truth ofPlaintiffs' factual allegations, section 4435 has no application on these facts. It is undisputed that bulldozers routinely and inevitably strike rocks when performing timber operations â&#x20AC;&#x201D;indeed,they are designed to drive over and move rocks â&#x20AC;&#x201D;and Cal Fire has conclusively admitted that doing so is not negligent. Plaintiffs do not contend that Howell somehow used or maintained the bulldozer in such a way as to unreasonably increase any risk that a rock strike would start a fire. Nor do Plaintiffs have any evidence that the fire started as a result ofsomething other than a rock strike. Indeed, Cal Fire's investigator excluded any possible cause but rock strike in the Origin and Cause Report, and this was conclusively established through binding discovery responses. No Plaintiff has pointed to any expert testimony that Howell started the fire in some way other than by a rock strike. The undisputed evidence therefore rebuts as a matter of law any prima facie evidence section 4435 might generate for Plaintiffs, if the statute can even be said to apply under

17 these particular circumstances. 18 H, 19 20 21 22 23 24 25 26

The Parties' Factual Disputes

In requesting these hearings, Defendants necessarily made numerous factual representations for the record. Plaintiffs responded over the course oftwo days and made several factual representations of their own. Plaintiffs and Defendants alike expressed concerns about, and disagreements with, representations made by the other side and wanted to ensure their objections were preserved. However,Defendants repeatedly clarified that for purposes of these motions only, unless stated otherwise, their arguments presumed all doubts about any evidentiary disputes in Plaintiffs' favor. For example, Defendants' motions assumed, arguendo,that Howell ignited the fire via a rock strike as alleged, and that Howell conducted no inspection at a11. With

27 these assumptions, virtually all ofthe evidence proffered by Plaintiffs concerning items such as 28 ~3z8~9 ~

19 [PROPOSED]ORDER

==NV==

Case 2:09-cv-02445-WBS-AC Document 596-24 Filed 10/09/14 Page 21 of 21

11 whether the air patrol was Howell's agent, what Howell's employees intended to do upon 2

returning to the site, the timing of when Howell's employees returned to the area, whether they

3'~ had means of communication, are beside the point. 4~1

ORDER In light ofthe foregoing and based on the record evidence presented, the Court holds that

5 6

Cal Fire and the private Plaintiffs have not made a prima facie showing that they can prevail on

7 '1 any oftheir claims. Defendants are directed to prepaze a formal order ofdismissal. IT IS SO ORDERED.

8 9 10 11

Dated:

~ ~-

~ ,2013 Honorable Leslie C. Nichols Judge of the Superior Court

12 I~ 13 14 I~ 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1328049.2

20 [PROPOSED]ORDER

==OM==

Case 2:09-cv-02445-WBS-AC Document 593 Filed 10/09/14 Page 1 of 6

2 3 4 5 6 7 8 9 10 ll 12 a a Q Q

13 14

DC?WNEY BRAND LLP WILLIAM R. WARNS(SBN 141280) MICHAEL J. THOMAS(SBN 172326) ANNIE S. AMARAL(SBN 238189) MEGHAN M. BAKER(SBN 243765) 621 Capitol Mall, 18th Floor Sacramento, CA 95814-4731 Telephone:(916)444-1000 Facsimile:(916)444-2100 bwarne@downeybrand.com mthomas@downeybrand.com aamaral@downeybrand.com mbaker@downeybrand.com BRACEWELL & GIULIANI LLP RICHARD W.BECKLER D.C. Bar No. 262246 (Pro Hac Vice Application Pending) JENNIFER T. LIAS Virginia Bar No. 85608 (Pro Hac Vice Application Pending) 2000 K Street NW,Suite 500 V~ashington, DC 20006-1809 Telephone:(202)828-5874 Facsimile: (800)404-3970 richard.beckler@bgllp.eom jennifer.lias@bgllp.com

MATHENY SEARS LINKERT &JAIME,LLP RICHARD S. I~INKERT(SBN 88756) JULIA M. REEVES(SBN 241198) 3638 American River Drive Sacramento, CA 95864 Telephone:(916)978-3434 Facsimile:(916)978-3430 Attorneys For Defendants W.M. BEATY & ASSOCIATES,INC. AND ANN MCKEEVER HATCH,as Trustee of the Hatch 198'7 Revocable Trust, et al. RUSHFORD & BONOTTO,LLP PHILLIP R. BON4TT0(SBN 109257) DEREK VANDEVIVER(SBN 227902) 1010 Hurley Way, Suite 410 Sacramento, CA 95825 Telephone:(916)565-0590 Attorneys for Defendant, EUNICE E. HOWELL, INDIVIDUALLY and d/b/a HOWELL'S FOREST HARVESTING

Attorneys for Defendant/Cross-Defendant SIERRA PACIFIC INDUSTRIES

3 ~

17 UNITED STATES DISTRICT COURT 18 EASTERN DISTRICT OF CALIFORNIA 19 20 UNITED STATES OF AMERICA,

Case No. 2:09-CV-02445-KJM-EFB

21 Plaintiff, 22 v.

SIERRA PACIFIC INDUSTRIES, et al., 24 Defendant. 25 26

Date: Time: Dept: Judge:

November 21, 2014 10:00 a.m. Courtroom 3, 15th floor Hon. Kimberly J. Mueller

27 AND ALL RELATED CROSS-ACTIONS. 28 13&378].2

DEFENDANTS'NOTICE OF MOTION AND MOTION TO SET ASIDE A JUDGMENT FOR FRAUD ON THE COURT

Case 2:09-cv-02445-WBS-AC Document 593 Filed 10/09/14 Page 2 of 6 1

T4 THE COURT,ALL PARTIES, AND THEIR COUNSEL OF RECORD:

PLEASE TAKE NOTICE that on November 21, 2014, at 10:00 a.m., or as soon thereafter

as this Court may order, in Courtroom 3, 15th floor ofthe United States District Court, Eastern

District of California, located at 501 I Street, Sacramento, California 95814, before the Honorable

Kimberly J. Mueller, United States District Judge, Defendants Sierra Pacific Industries ("Sierra

Pacific"), W.M. Beaty &Associates,Inc.; Ann McKeever Hatch, as Trustee of the Hatch 1987

Revocable Trust; Leslie Walker, individually and as Trustee of the Brooks Thomas Walker Trust, the Susie Kate Walker Trust, and the Della Grace Walker Trusts; Brooks Walker, III, individually

and as Trustee of the Clayton Brooks Danielson, the Myles Walker Danielson, and the Benjamin

Walker Burlock Trust, and the Margaret Charlotte Burlock Trust; Wellington Smith Henderson,

Jr., as Trustee ofthe Henderson Revocable Trust; John C. Walker,individually and as Trustee of

the Della Walker Van. Loben Sels Trust for the issue of John Walker; Jennifer Walker,

a a Q Q

individually and as Trustee ofthe Emma Walker Silverman Trust and the Max Walker Silverman

Trust; Lindsey Walker, individually and as Trustee of the Reilly Hudson Keenan and Madison

Flanders Keenan Trust, aka Lindsey Walker-Silverman; Eunice E. Howell, individually and doing

business as Howell's Forest Harvesting Company; Charles C. Henderson, as Trustee ofthe

Charles C. and Kristen Henderson Revocable Trust; James A. Henderson; Joan H. Henderson;

Kirby Walker; Brooks Walker, Jr., as Trustee ofthe Brooks Walker, Jr. Revocable Trust and the

Della Walker Van Loben Sels Trust for the Issue of Brooks Walker, Jr.; Richard L. Greene, as

Trustee ofthe Hatch Irrevocable Trust; Mark W. Henderson, as Trustee of the Mark W.

Henderson Revocable Trust; and. Elena D. Henderson (collectively,"Defendants") will, and

hereby do, move for relief from judgment under FRCP Rule 60(d)(3) and under the Court's

inherent power for fraud upon the Court. This motion is brought on the grounds that the United States' prosecution ofthis action

24 25

constituted a fraud upon the Court, as the United States attorneys and the Moonlight Fire

investigators and their counterparts in co-pending state actions, operating under a joint

prosecution agreement with the United States, advanced a corrupt and tainted prosecution,

violated Defendants' due process rights, and engaged in investigatory and prosecutorial 13837&12

DEFENDANTS'NOTICE OF MOTION AND MOTION TO SET ASIDE A JUDGMENT FOR FRAUD ON THE COURT

Case 2:09-cv-02445-WBS-AC Document 593 Filed 10/09/14 Page 3 of 6 misconduct outlined more fully in the accompanying Memorandum ofPoints and Authorities and 2

supporting declarations, but which included among other things: presenting false evidence to the

3 I Defendants and the Court and/or concealing material evidence from the Defendants and the 4

Court, advancing arguments to the Court premised on that false evidence, or for which material

evidence had been withheld, and obtaining Court rulings based thereon; preparing key Moonlight

Fire investigators for depositions, and allowing them to repeatedly give false testimony about the

most important aspects of their investigation; and by failing to disclose the facts and

circumstances associated with the Moonlight Fire lead investigator's direct financial interest in

the outcome ofthe investigation arising from an illegal bank account that has since been exposed.

and terminated. This misconduct was perpetrated by officers of the court and ultimately tampered

with the administration ofjustice, in a manner that wronged not only Defendants, but this Court

and. the public. The government's misconduct compromised the judicial process and amounts to

an unconscionable scheme designed to improperly influence the Court's decisions inthis case.

a a Q Q

upon this Court, that: the Court set aside the judgment in this case, entered on July 18, 2012; enter

a terminating sanction dismissing the action; set aside the Settlement Agreement entered between

the parties; and award any other relief that the Court deems just and proper.

3 Q

Defendants, therefore, request that if the Court finds that a fraud has been perpetrated

Although Defendants' counsel. is aware ofthe requirement that they "engage in a pre-

18 19

filing meet and confer to discuss thoroughly the substance of the contemplated motion and any

potential resolution," Defendants did not meet and confer with the United States regarding the

filing of this motion. Defendants' reasons for this are threefold. First, given the substance ofthe

instant motion, Defendants believe that any effort to meet and confer would be futile, not only

because the motion outlines facts showing that the very attorneys with whom Defendants would

theoretically meet and confer perpetrated a fraud upon the Court, but also because Plaintiffs do

not have the ability or authority to offer the relief that Defendants seek through this motion. That

is, only this Court, to the extent a fraud was perpetrated upon it, and not the government, has the

power to set aside the judgment, set aside the Settlement Agreement, and dismiss the action in its

entirety. ~3as~si.2

DEFENDANTS' NOTICE OF MOTION AND MOTION TO SET ASIDE A JUDGMENT FOR FRAUD ON THE COURT

Case 2:09-cv-02445-WBS-AC Document 593 Filed 10/09/14 Page 4 of 6 Second, Defendants believe that it would not be appropriate to meet and confer with lead 2

prosecutor AUSA Kelli Taylor and others in the United States Attorneys' Office during the

potential pendency of any investigation that the Department of Justice's Office of Professional

Responsibility("OPR")may choose to conduct regarding Plaintiffs in this case and the related

state action.

a a Q

confer with the federal prosecutors on this motion because ofthe nature of the arguments

contained herein, including conclusions reached in former AUSA Robert Wright's Declaration,

which outlines potential criminal liability arising from the conduct of certain investigators and

prosecutors. Defendants believe that they are arguably legally prohibited from suggesting to the

federal prosecutors that there is any relief the federal prosecutors could offer, or that there are any

circumstances under which Defendants would not file the motion. Furthermore, Defendants

believe it would be improper to place the prosecutors in what could be the untenable position of

negotiating from the standpoint oftheir own personal and professional interests rather than in the

interests ofthe United States.

While Defendants have appropriately styled this request as a "motion" for relief under

Third, and finally, Defendants do not believe that it would be appropriate to meet and

O Q

Rule 60(d)(3)in view of the Court's retained jurisdiction over this action, the form in which the

instant request for relief is made(whether it be a motion or an independent action) is of little

import. Because a court's power to set aside a judgment for fraud on the court arises from the

long-recognized "historic power [in] equity to set aside fraudulently begotten judgments," the

substance of a party's filing related to fraud on the court controls over its form. Hazel-Atlas

Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 245 (1944); lI.S. v. Estate ofStonehill, 660 F.3d

415, 443 (9th Cir. 2011)("Courts have inherent equity power to vacate judgments obtained by

fraud.")(citing Chambers v. NASCO,Inc., 501 U.S. 32, 44(1991)); US. v. Buck, 281 F.3d 1336,

25 I, 1342(10th Cir. 2002)("no purpose would be served by denying..,relief on the ground that the 26

motion misstyled the plea for relief...[t]he substance of the plea should control, not the label");

Wright &Miller, 1] Fed. Prac. & Proc. ยง 2868(3d ed.)("A party is not bound by the label used

in the party's papers. A motion may be treated as an independent action or vice versa as is 138378]2 3 DEFENDANTS'NOTICE OF MOTION AND MOTION TO SET ASIDE A JUDGMENT FOR FRAUD ON THE COURT

Case 2:09-cv-02445-WBS-AC Document 593 Filed 10/09/14 Page 5 of 6 1 ~ appropriate.") 2

Defendants understand that any careful assessment of the material presented with this

motion will require significant focused attention, and may warrant the presentation offurther

testimony or evidence. Defendants wish to make known to the Court that they, in concept,

believe that the circumstances of this motion may warrant, in the Court's sound discretion., the

appointment of special master under the Court's inherent power and/or under FRCP Rule 53. Defendants' motion is based on this notice of motion and motion; memorandum of points

7 8

and authorities; declarations of William R. Warne, Robert Wright, Eugene Chittock, Richard

Linkert, Daniel Kim, and Katherine Underwood, and all exhibits thereto; a request for judicial

notice, a request for leave to exceed page limits, a request for leave to file certain materials under

seal, and all previous filings and records in this action or matters of which the Court may take

judicial notice and on such other matters as may be presented to the Court at the tune of hearing

pursuant to this Court's discretion. This motion might also be supported by Defendants'

extensive filing with OPR("OPR Brief'), which Defendants can provide to the Court should the

Court request it. However, given the highly sensitive nature ofthe OPR Brief, and the passibility

that an OPR investigation maybe ongoing, Defendants have not included that brief with this

Motion. Defendants will do so as directed by this Court.

DATED: October 9, 2014

~â&#x20AC;˘

:.. ~

19 20

/s/ William R. Wayne WILLIAM R. WARNS Attorneys for Defendant/Cross-Defendant SIERRA PACIFIC INDUSTRIES

21 22 23 24 25 26 27 28 13837812

DEFENDANTS'NOTICE OF MOTION AND MOTION TO SET ASIDE A JUDGMENT FOR FRAUD ON THE COURT

Case 2:09-cv-02445-WBS-AC Document 593 Filed 10/09/14 Page 6 of 6 1

DATED: October 9,2014

MATHENY SEARS LINKERT &JAIME

2 By: /s/ Richard Linkert(as auth'd on 10/8/14 RICHARD LINKERT Attorneys For Defendants W.M.BEATY & ASSOCIATES,INC. AND ANN MCKEEVER HATCH,as Trustee ofthe Hatch 1987 Revocable Trust, et al.

3 4~ 5 6 7

DATED: October 9,2014

RUSHFORD & BONOTTO,LLP

8 By: /s/Phillip Bonotto (as auth'd on 10/8/14 PHILLIP BONOTTO Attorneys for Defendant, EiINICE E. HOWELL, INDIVIDUALLY and d/b/a HOWELL'S FOREST HARVESTING

9~ 10 11 12 13 14 R 15 ~.

17 18 19 20 21 22 23 24 25 26 27 28 1383781.2

DEFEIv'DAh fS' NOTICF. OF MOTION AND MOTION TO SET ASIDE A JUDGMEh"T FOR FRAUD ON THE COURT

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UNITED STATES DISTRICT JUDGE JOHN A. MENDEZ (JAM)

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Federal Judicial Service:

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Nominated by George W. Bush on September 6, 2007, to a seat vacated by David F. Levi;

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Case 2:09-cv-02445-KJM-EFB Document 603 Filed 10/15/14 Page 1 of 3

1 2 3 4 5 6 7 8

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

10 11

UNITED STATES OF AMERICA,

12 13 14

No. 2:09-cv-02445-KJM-EFB

Plaintiff, v.

ORDER

SIERRA PACIFIC INDUSTRIES, et al.,

Defendants.

16 17

In July 2012, the parties to this action entered into a settlement agreement. See

ECF Nos. 577-78, 592. Defendants agreed to pay $55 million to the United States over

five years, and Sierra Pacific agreed to transfer 22,500 acres of land through ongoing

negotiations. ECF No. 593-3. Thereafter, the Court closed the matter, but retained

jurisdiction to enforce the terms of the compromise settlement. Order, ECF No. 592.

On October 9, 2014, Defendant Sierra Pacific Industries (â&#x20AC;&#x153;Sierra Pacificâ&#x20AC;?) together

with the other named Defendants1 moved to set aside the judgment in this case for fraud

24 25 26 27 28

The other named-defendants include Eunice Howell, individually and dba Howell's Forest Harvesting Company ("Howell's"); W.M. Beaty &Associates, Ina (`Beaty") and the following parties (hereinafter collectively "the Landowners"): Ann McKeever Hatch, as Trustee of the Hatch 1987 Revocable Trust; Richard L. Greene, as Trustee of the Hatch Irrevocable Trust; Brooks Walker, Jr., as Trustee of the Brooks Walker, Jr. Revocable Trust, and the Della Walker Van Loben Sels Trust for the Issue of Brooks Walker, Jr.; Brooks Walker, III, Individually and as Trustee of the Clayton Brooks Danielsen Trust, the Myles Walker Danielsen Trust, the Margaret Charlotte Burlock Trust, and the Benjamin Walker Burlock Trust; Leslie Walker, Individually, and as Trustee of the Brooks Thomas Walker Trust, the Susie Kate Walker Trust, and the Della Grace Walker Trust; Wellington Smith Henderson, Jr., as Trustee of the

Case 2:09-cv-02445-KJM-EFB Document 603 Filed 10/15/14 Page 2 of 3

on the Court under Federal Rule of Civil Procedure 60(d)(3) (the “Motion”). Mot., ECF

No. 593. Defendants base their Motion on the grounds that the United States'

prosecution of this action constituted a fraud upon the Court when the United States

attorneys and the Moonlight Fire investigators and their counterparts in co-pending state

actions, operating under a joint prosecution agreement with the United States, advanced

a corrupt and tainted prosecution, violated Defendants' due process rights, and engaged

in investigatory and prosecutorial misconduct.2 Id. Defendants allege that this

misconduct was perpetrated by officers of the Court and ultimately tampered with the

administration of justice, in a manner that wronged not only Defendants, but also the

Court and the public. Id. According to Defendants, the government's misconduct

compromised the judicial process and amounts to an unconscionable scheme designed

to improperly influence the Court's decisions in this case.3 Id. In fact, Defendants state

that they perceive the Court itself as a victim “as it has neither had the chance to fully

assess the trust it naturally placed in certain federal prosecutors nor the ability to do so

in the context of all that was eventually discovered about the thoroughly corrupt and

financially driven Moonlight Fire investigation.” ECF No. 593-3. Defendants ask that the

Court set aside the judgment and the Settlement Agreement and dismiss this action in

18 19 20 21 22 23 24 25 26 27

Henderson Revocable Trust; Elena D. Henderson, Individually; Mark W. Henderson, as Trustee of the Mark W. Henderson Revocable Trust; John C. Walker, Individually, and as Trustee of the Della Walker Van Loben Sels Trust for the Issue of John C. Walker; James A. Henderson, Individually; Charles C. Henderson, as Trustee of the Charles C. and Kirsten Henderson Revocable Trust; Joan H. Henderson, Individually; Jennifer Walker, Individually, and as Trustee of the Emma Walker Silverman Trust, and the Max Walker Silverman Trust; Kirby Walker, Individually; and Lindsey Walker, a.k.a. Lindsey WalkerSilverman, Individually, and as Trustee of the Reilly Hudson Keenan Trust, and the Madison Flanders Keenan Trust. 2

Specifically, Defendants allege, among other things, that the United States presented false evidence to the Defendants and the Court and/or concealed material evidence from the Defendants and the Court; advanced arguments to the Court premised on that false evidence, or for which material evidence had been withheld, and obtaining Court rulings based thereon; prepared key Moonlight Fire investigators for depositions, and allowed them to repeatedly give false testimony about the most important aspects of their investigation; and failed to disclose the facts and circumstances associated with the Moonlight Fire lead investigator's direct financial interest in the outcome of the investigation arising from an illegal bank account that has since been exposed and terminated. ECF No. 593. 3

Defendants believe that the circumstances may warrant the appointment of special master. ECF No. 593.

Case 2:09-cv-02445-KJM-EFB Document 603 Filed 10/15/14 Page 3 of 3

its entirety. ECF No. 593. Defendant’s Motion is currently set for hearing before Judge

Kimberly J. Mueller on November 21, 2014.

Based upon facts alleged in the Motion and accompanying Declarations and

Exhibits, the impartiality of the District and Magistrate Judges in the Eastern District

might reasonably be questioned. Therefore, on the Court’s own motion and pursuant to

the Code of Conduct for United States Judge, Canons 2 and 3, in order to avoid the

appearance of impropriety, and because a judge has a duty to disqualify him or herself if

his or her impartiality could be reasonably questioned, whether or not such impartiality

actually exists, the Court recuses itself from the above-captioned case. See 28 U.S.C. §

455(a). Accordingly, all District and Magistrate Judges in the Eastern District of

California are RECUSED from hearing case number 2:09-cv-02445 and all related

matters. This matter is REFERRED to Alex Kozinski, Chief Judge of the United States

Ninth Circuit Court of Appeals, for the assignment of a judge other than from the Eastern

District of California to sit by designation and hear case number 2:09-cv-02445 and all

related matters.

16 17

IT IS SO ORDERED. Dated: October 14, 2014

18 19 20 21 22 23 24 25 26 27 28 3

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Sacramento Superior Court Designated Most Corrupt in U.S. by Documentary Film

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By LegalNews | Posted July 27, 2014 | Sacramento, California Posted July 27, 2014 by Follow LegalNews

Location Sacramento, California

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It is now difficult to dispute that the Sacramento County Family Court system - rebuilt more than 20 years ago to the specifications of local judge pro tem family law attorneys by controversial and criminally convicted Judge Peter McBrien, then-Judge Vance Raye, divorce attorney Robert O'Hair, and others - has become the most corrupt family court in the nation.

California Appellate Court Judge Vance Raye Implicated in Alleged Federal Racketeering Scheme Sacramento Superior Court Conflict of Interest Disclosure Violations Continue Sacramento Superior Court Judge Misconduct Results in Landmark "Civil Gideon" Appeal California Supreme Court Chief Justice Caught Using Highway Patrol for Personal Limo and Security Service

The proof is now available to anyone for $20: the cost of the documentary film Divorce Corp, recently released on DVD, and also available by download at the iTunes store. In his first, full-length documentary film, director Joe Sorge meticulously documents the epidemic of corruption and collusion in family courts throughout the United States. And the Sacramento County system rises to the top of the toxic slurry pond. A parade of litigants from Indiana, Tennessee, Ohio, California and other locales recount their nightmare experiences in child custody and other divorce-related court disputes. Retired judges, active attorneys, child custody evaluators and court reform advocates are interviewed over the one hour, 33 minute run time of the film. In one compelling segment, Nevada County Superior Court whistleblower

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Emily Gallup reveals that state-level oversight and accountability of California family courts is effectively nonexistent. In a tacit admission, the Judicial Council and Administrative Office of the Courts declined Sorge's request to be interviewed and respond to Gallup's documented accusations.

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But the locally well-known Ulf Carlsson case takes center stage and is woven throughout the movie, overshadowing the horror stories of other litigants. Judge Peter McBrien's clinically sociopathic, personal vendetta against Carlsson - which in 2012 6th District Court of Appeal Presiding Justice Conrad Rushing called a "judicial reign of terror" - is chronicled in all its perverse glory.

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In the Divorce Corp clip above, Carlsson tells his harrowing story of personal and financial ruin at the hands of McBrien, who ruthlessly punished Carlsson for filing an appeal of orders issued by the judge. Sacramento family court litigants Andrew Karres, Mike Newdow and Robert Saunders, and Nevada County pro per Elena Haskins also make appearances in the movie criticizing virtually every aspect of local court operations. Judges, attorneys, custody evaluators, the family law facilitator, and even the "child's best interest" legal standard are all held under the microscope and come away nakedly exposed and tarnished. Sometimes, only a cliché will do: Divorce Corp must be seen to be believed. Source: Sacramento Family Court News. Used with permission.

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As many of the articles on our main page reflect, Sacramento Family Law Court whistleblowers and watchdogs contend that a "cartel" of local family law attorneys receive kickbacks and other forms of preferential treatment from family court judges, administrators and employees because the lawyers are members of the Sacramento County Bar Association Family Law Section, hold the Office of Temporary Judge, and run the family court settlement conference program on behalf of the court.

The kickbacks usually consist of "rubberstamped" court orders which are contrary to established law, and cannot be attributed to the exercise of judicial discretion. For a detailed overview of the alleged collusion between judge pro tem attorneys and family court employees and judges, we recommend our special Color of Law series of investigative reports. The reports document some of the preferential treatment provided by family court employees and judges to SCBA Family Law Section judge pro tem lawyers. Click here to view the Color of Law series. For a list of our reports about family court temporary judges and controversies, click here.

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Sacramento Family Court reform advocates assert that collusion between judges and local attorneys deprives financially disadvantaged, unrepresented pro per court users of their parental rights, community assets, and due process and access to the court constitutional rights.

The current day Sacramento County Family Court system and attorney operated settlement conference program was set up in 1991 by and for the lawyers of the Sacramento County Bar Association Family Law Section, according to the sworn testimony of controversial family court Judge Peter J. McBrien at his 2009 Commission on Judicial Performance disciplinary proceedings. Click here to read Judge McBrien's

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testimony. In his own testimony during the same proceedings, local veteran family law attorney and judge pro tem Robert J. O'Hair corroborated McBrien's testimony and attested to McBrien's character and value to Sacramento County Bar Association Family Law Section members. Click here to view this excerpt of O'Hair's testimony. To view O'Hair's complete testimony, click here. Court watchdogs assert that the settlement conference kickback arrangement between the public court and private sector attorneys constitutes a racketeering enterprise which deprives the public of the federally protected right to honest government services.

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Court reform and accountability advocates assert that the local family law bar - through the Family Law Executive Committee or FLEC - continues to control for the financial gain of members virtually all aspects of court operations, and have catalogued documented examples of judge pro tem attorney preferential treatment and bias against unrepresented litigants and "outsider" attorneys, including:

CARLSSON CASE (9)

Divorce Corp, a documentary film that "exposes the corrupt and collusive industry of family law in the United States" was released in major U.S. cities on January 10, 2014. After a nationwide search for the most egregious examples of family court corruption, the movie's production team ultimately included four cases from Sacramento County in the film, more than any other jurisdiction. Judge pro tem attorneys Charlotte Keeley, Richard Sokol, Elaine Van Beveren and Dianne Fetzer are each accused of unethical conduct in the problem cases included in the movie. The infamous Carlsson case, featuring judge pro tem attorney Charlotte Keeley and Judge Peter McBrien is the central case profiled in the documentary, with Sacramento County portrayed as the Ground Zero of family court corruption and collusion in the U.S. Click here for our complete coverage of Divorce Corp. Judge Thadd Blizzard issued a rubber-stamped, kickback order in November, 2013 for judge pro tem attorney Richard Sokol authorizing an illegal out-of-state move away and child abduction by Sokol's client, April Berger. The opposing counsel is an "outsider" attorney from San Francisco who was dumbfounded by the order. Click here for our exclusive report, which includes the complete court reporter transcript from the hearing. Click here for our earlier report on the unethical practice of "hometowning" and the prejudicial treatment of outsider attorneys. Whistleblower leaked court records indicate that Sacramento Bar Association Family Law Executive Committee officer and judge pro tem attorney Paula Salinger engaged in obstruction of justice crimes against an indigent, unrepresented domestic violence victim. The victim was a witness in a criminal contempt case against a Salinger client. The circumstances surrounding the obstruction of justice incident also infer collusion between Salinger and controversial Judge Matthew J. Gary. For our complete investigative report, click here. Two "standing orders" still in effect after being issued by Judge Roland Candee in 2006 override a California Rule of Court prohibiting temporary judges from serving in family law cases where one party is self-represented and the other party is represented by an attorney or is an attorney. The orders were renewed by Presiding Judge Laurie M. Earl in February, 2013. Click here for details. Sacramento Family Court judges ignore state conflict of interest laws requiring them to disclose to opposing parties when a judge pro tem working as a private attorney represents a client in family court. Click here for our exclusive investigative report. Click here for a list of other conflict of interest posts. Family court policies and procedures, including local court rules, are dictated by the SCBA Family Law Executive Committee for the financial benefit of private sector attorneys, and often disadvantage the 70 percent of court users without lawyers, according to family court watchdogs and whistleblowers. For example, in sworn testimony by Judge Peter McBrien before the Commission on Judicial Performance, McBrien described seeking and obtaining permission from FLEC to change a local rule. Click here and here. In November, 2012 Sacramento Family Court Judge Jaime R. Roman issued a rubber-stamped, kickback order declaring a family court party a vexatious litigant and ordering him to pay $2,500 to the opposing attorney, both without holding the court hearing required by law. The opposing attorney who requested the orders is Judge Pro Tem Charlotte Keeley. The blatantly illegal orders resulted in both an unnecessary state court appeal and federal litigation, wasting scarce judicial resources and costing taxpayers significant sums. Click here for our exclusive coverage of the case. Judge Matthew Gary used an unlawful fee waiver hearing to both obstruct an appeal of his own orders and help a client of judge pro tem attorney Paula Salinger avoid paying spousal support. Click here for our investigative report. An unrepresented, disabled 52-year-old single mother was made homeless by an illegal child support order issued by Judge Matthew Gary for SCBA Family Law Section attorney Tim Zeff, the partner of temporary judge Scott Buchanan. The rubber-stamped, kickback child support order, and other proceedings in the case were so outrageous that the pro per is now represented on appeal by a team of attorneys led by legendary trial attorney James Brosnahan of global law firm Morrison & Foerster. For our exclusive, ongoing reports on the case, click here. Judge pro tem attorneys Richard Sokol and Elaine Van Beveren helped conceal judge misconduct and failed to comply with Canon 3D(1) of the Code of Judicial Ethics when they were eyewitnesses to

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an unlawful contempt of court and resisting arrest incident in Department 121. Both Sokol and Van Beveren failed to report the misconduct of Judge Matthew Gary as required by state law. Van Beveren is an officer of the SCBA Family Law Executive Committee. Click here for our exclusive report... ...Four years later, Sokol and Van Beveren in open court disseminated demonstrably false and misleading information about the unlawful contempt of court and resisting arrest incident. The apparent objective of the judge pro tem attorneys was to discredit the victim of Gary's misconduct, trivialize the incident, and cover up their own misconduct in failing to report the judge. For our follow-up reports, click here. In 2014, a video of the illegal arrest and assault was leaked by a government whistleblower. Click here for details.

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In 2008 controversial family court Judge Peter J. McBrien deprived a family court litigant of a fair trial in a case where the winning party was represented by judge pro tem attorney Charlotte Keeley. In a scathing, published opinion, the 3rd District Court of Appeal reversed in full and ordered a new trial. 6th District Court of Appeal Presiding Justice Conrad Rushing characterized McBrien's conduct in the case as a "judicial reign of terror." McBrien subsequently was disciplined by the Commission on Judicial Performance for multiple acts of misconduct in 2009. Click here to read the court of appeal decision. Click here to read the disciplinary decision issued by the CJP.

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Judge pro tem attorneys Camille Hemmer, Robert O'Hair, Jerry Guthrie and Russell Carlson each testified in support of Judge Peter J. McBrien when the controversial judge was facing removal from the bench by the Commission on Judicial Performance in 2009. As a sworn temporary judges aware of McBrien's misconduct, each was required by Canon 3D(1) of the Code of Judicial Ethics to take or initiate appropriate corrective action to address McBrien's misconduct. Instead, each testified as a character witness in support of the judge. In the CJP's final disciplinary decision allowing McBrien to remain on the bench, the CJP referred specifically to the testimony as a mitigating factor that reduced McBrien's punishment. Click here. Court records indicate that Judge McBrien has not disclosed the potential conflict of interest to opposing attorneys and litigants in subsequent appearances by the attorneys in cases before the judge. Click here for SFCN coverage of conflict issues. Judge pro tem attorneys Terri Newman, Camille Hemmer, Diane Wasznicky and Donna Reed were involved in a proposed scheme to rig a recall election of controversial Judge Peter J. McBrien in 2008. The plan involved helping McBrien defeat the recall by electing him "Judge of the Year" before the November election. Click here for the Sacramento News and Review report. Judge pro tem attorney Robert J. O'Hair testified as a character witness for controversial Judge Peter J. McBrien at the judge's second CJP disciplinary proceeding in 2009. Paula Salinger, an attorney at O'Hair's firm, Woodruff, O'Hair Posner & Salinger was later granted a waiver of the requirements to become a judge pro tem. A family court watchdog asserts the waiver was payback for O'Hair's testimony for McBrien. Click here to read our exclusive investigative report. In cases where one party is unrepresented, family court clerks and judges permit judge pro tem attorneys to file declarations which violate mandatory state court rule formatting requirements. The declarations - on blank paper and without line numbers - make it impossible for the pro per to make lawful written evidentiary objections to false and inadmissible evidence. Click here for our report documenting multiple state court rule violations in a motion filed by SCBA Family Law Section officer and temporary judge Paula Salinger. To view the pro per responsive declaration objecting to the illegal

Sacramento County Bar Association

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filing click here, and click here for the pro per points & authorities. Family court clerks and judges allow judge pro tem attorneys to file a fabricated "Notice of Entry of Findings and Order After Hearing" in place of a mandatory Judicial Council Notice of Entry of Judgment FL-190 form. The fake form omits critical appeal rights notifications and other information included in the mandatory form. Click here for our exclusive report. Sacramento Family Court temporary judge and family law lawyer Gary Appelblatt was charged with 13-criminal counts including sexual battery and penetration with a foreign object. The victims were clients and potential clients of the attorney. The judge pro tem ultimately pleaded no contest to four of the original 13-counts, including sexual battery, and was sentenced to 18-months in prison. Court administrators concealed from the public that Appelblatt held the Office of Temporary Judge.Click here to read our report. Judge pro tem and SCBA Family Law Section attorney Scott Kendall was disbarred from the practice of law on Nov. 24, 2011. Kendall was disbarred for acts of moral turpitude, advising a client to violate the law, failing to perform legal services competently, and failing to keep clients informed, including not telling a client about a wage garnishment order and then withdrawing from the same case without notifying the client or obtaining court permission. Court administrators concealed from the public that Kendall held the Office of Temporary Judge. Click here to view our report.

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Judge pro tem attorneys Nancy Perkovich and Jacqueline Eston in 2008 helped Donna Gary - the wife of Judge Matthew J. Gary - promote and market ClientTickler, a client management software program for attorneys. The judge reportedly has never disclosed the conflict of interest as required by the Code of Judicial Ethics. Click here for our exclusive report on the controversy.

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In February, 2013 the website of family law firm Bartholomew & Wasznicky cut off the public from the only online access to The Family Law Counselor, a monthly newsletter published by the Sacramento Bar Association Family Law Section. Lawyers at the firm include judge pro tem attorneys Hal Bartholomew, Diane Wasznicky and Mary Molinaro. As SFCN has reported, articles in the newsletter often reflect an unusual, collusive relationship between SCBA attorneys and court administrators and judges. Click here for our report.

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Family court reform advocates assert that judge pro tem attorneys obtain favorable court rulings on disputed issues at a statistically improbable rate. The collusion between full-time judges and judge pro tem attorneys constitutes unfair, fraudulent, and unlawful business practices, all of which are prohibited under California unfair competition laws, including Business and Professions Code § 17200, reform advocates claim.

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Unfair competition and the collusion between judges and judge pro tem attorneys ultimately results in unnecessary appeals burdening the appellate court system, and other, related litigation that wastes public funds, exposes taxpayers to civil liability, and squanders scarce court resources. Watchdogs point out that the court operates what amounts to a two-track system of justice. One for judge pro tem attorneys and another for unrepresented, financially disadvantaged litigants and "outsider attorneys." Two-track systems are prohibited by the Code of Judicial Ethics, according to the Commission on Judicial Performance and the California Judicial Conduct Handbook, the gold standard reference on judge misconduct. Click here for articles about the preferential treatment given judge pro tem attorneys. Click here for examples of how pro pers are treated. After representing a client in Sacramento Family Court, San Francisco attorney Stephen R. Gianelli wrote "this is a 'juice court' in which outside counsel have little chance of prevailing...[the] court has now abandoned even a pretense of being fair to outside counsel." Click here to read Gianelli's complete, scathing account. The Sacramento County Bar Association Family Law Section is led by an "Executive Committee" ("FLEC") of judge pro tem attorneys composed of Chair Russell Carlson, Vice Chair Elaine Van Beveren, Treasurer Fredrick Cohen and Secretary Paula Salinger. Three of the four have been involved in legal malpractice litigation, violations of the Code of Judicial Ethics, or as a defendant in federal civil rights litigation. Click here to read SFCN profiles of the Executive Committee members. Click here for other articles about FLEC. Judge pro tem attorneys are by law required to take or initiate corrective action if they learn that another judge has violated any provision of the Code of Judicial Ethics, or if a lawyer has violated any provision of the California Rules of Professional Conduct. Family court watchdogs assert that temporary judges regularly observe unethical and unlawful conduct by family court judges and attorneys but have never taken or initiated appropriate corrective action, a violation of the judge pro tem oath of office. To view the applicable Code of Judicial Ethics Canons, Click here. For a Judicial Council directive about the obligation to address judicial misconduct, a critical self-policing component of the Code of Judicial Ethics, click here.

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California Appellate Court Judge Vance Raye Implicated in Alleged Federal Racketeering Scheme

By LegalNews | Posted 6 minutes ago | Sacramento, California

More from LegalNews Sacramento Superior Court Designated Most Corrupt in U.S. by Documentary Film Sacramento Superior Court Conflict of Interest Disclosure Violations Continue Sacramento Superior Court Judge Misconduct Results in Landmark "Civil Gideon" Appeal California Supreme Court Chief Justice Caught Using Highway Patrol for Personal Limo and Security Service

A Sacramento Superior Court watchdog group has posted online court records and other documents which they allege detail a racketeering enterprise operating in the local court system. Using court filings, court reporter transcripts, public records and other documentary evidence, members of the group say they have reverse engineered the structure and players of the scheme.

"This package of evidence was complied over four years, and includes records dating back ten years," said Ulf Carlsson, the spokesperson for the group. "Judges, court employees and lawyers involved in this criminal enterprise have been able to conceal it for a long time." The group asserts that the documents show the scheme began in 1991 when two judges, Peter McBrien and Vance Raye, restructured the family court system with attorneys from the Sacramento Bar Association Family Law Section. The conspiracy has expanded and been ongoing since that time, according to the whistleblowers. Judge Vance Raye has since been elevated to the 3rd District Court of Appeal in Sacramento, and continues to assist the organization when cases involving the enterprise reach the appellate court level. The goal of the judge-attorney partnership is to significantly reduce the caseload and administrative duties of full-time judges by effectively privatizing the Sacramento Family Court settlement conference program, according to the whistleblowers. The attorneys agreed to take over and run the program in exchange for kickbacks in the form of preferential treatment from judges when they appear in court representing clients. More iReports you should see

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"The attorneys ostensibly act as volunteers," said Carlsson. "But we have documented that the lawyers are in fact compensated with illegal kickbacks

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in the form of 'rubber-stamped' rulings and court orders for their clients, in addition to other perks."

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In order to run the settlement conference program, the attorneys are designated as "judge pro tems," or temporary judges. In operating the settlement program, the lawyers reportedly use heavy-handed, unethical tactics to coerce couples going through a divorce to reach a settlement. When they do, the case is terminated and no further court hearings are required, significantly reducing the workload of full-time, state employed judges.

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"The coerced settlements often result in an unequal division of community property, one-sided child custody arrangements, and unfair child and spousal support payment terms that don't comply with state law," Carlsson explained. "In many cases, only one side has an attorney - who is a member of what we refer to as the 'cartel' - while the other side can't afford a lawyer and is selfrepresented. These cases are where the one-sided outcomes are the most severe," Carlsson said. "You have someone going through a traumatic divorce without a lawyer facing off against a spouse represented by a veteran family law attorney. On top of that, the party without a lawyer is forced into a

settlement conference run by a judge pro tem lawyer who often is a personal friend of the other attorney. As we've now documented, the outcome of these rigged settlement conferences is not fair, ethical, or legal. The conflicts of interest are required by state law to be disclosed, but never are." The alleged criminal enterprise deprives the public of the federally protected right to honest government services, a crime under 18 USC 1346, includes predicate acts of mail and wire fraud, and thereby constitutes a RICO racketeering enterprise under federal criminal law (18 USC 1962), according to the watchdog group. Carlsson said the judge-attorney collusion also violates a number of state laws as well. "The scheme results in unjust enrichment for the judge pro tem attorneys, constitutes unfair business practices, and implicates antitrust laws," Carlsson asserted. "Due to their consistent, virtually perfect success rate in obtaining favorable outcomes in court proceedings, the temporary judge lawyers have achieved a significant monopoly on the family law and divorce business in the greater-Sacramento area." The 43-page set of documents compiled by the group is posted online at Scribd, and can be viewed at this URL: http://www.scribd.com/doc/251282897/Justice-Vance-W-Raye-Charged-inColor-of-Law-Conspiracy-RICO-Racketeering-Scheme-in-3rd-District-Courtof-Appeal-Sacramento-Superior-Court-Sacramen

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Sacramento Family Court News Investigative Reporting, News, Analysis, Opinion & Satire HOME

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29 April 2013

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Judge Matthew Gary Leaked Court Reporter Transcript Records Flagrant State Law Violations at Unlawful Fee Waiver Hearing

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Judge Matthew Gary Orders Illegal Fee Waiver Hearing to Obstruct Appeal of Own Orders, Help Judge Pro Tem Lawyer

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Unilaterally overriding state law, constructing his own ad hoc interpretation of legislative intent, and legislating from the bench, Judge Matthew Gary denies a fee waiver request by an indigent, unrepresented litigant in this startling court reporter transcript. The fee waiver request was for trial court appellate costs for an appeal of several orders issued by the judge. The pro per had an existing fee waiver which by law automatically applied to the trial court appeal costs, making the hearing ordered by the judge patently unlawful. To view the order Gary issued after the hearing, click here. The opposing party is represented by divorce attorney Paula Salinger, partner at the prominent Sacramento family law firm Woodruff, O'Hair, Posner & Salinger Inc., sworn Sacramento County Superior Court temporary judge, and current officer of the Sacramento County Bar Association Family Law Executive Committee or FLEC. Days after the hearing, Gary issued a second order reversing himself and granting the fee waiver request, but at the same time embedding in the order a sham finding designed to help Salinger and her client at a pending trial in the case.

To continue reading, and to view the court reporter transcript click Read more >> below... The second order mischaracterized the facts and testimony recorded in the hearing transcript, and included false statements intended to create a misleading record to enable Salinger to use the order at a pending trial to avoid a potential spousal support obligation of her client. "[T]he court does not find [respondent's] assertion of poverty credible and that, even if he were, the state of 'poverty' is self induced & is a deliberate effort on his part to manipulate this ongoing dissolution case," the judge wrote in his revised order. Click here to view the order. Under judicial ethics rules, Gary's written statement indicates that he was not acting as an impartial judge, according to the Commission on Judicial Performance, the state agency responsible for oversight and accountability of California judges. Gary also is caught on the transcript probing the pro per about the pending trial and spousal support issue, subjects with no logical connection to the fee waiver hearing. Click here to view this portion of the transcript. As the transcript records, the judge manipulated the hearing through intentional misstatements and omissions of material fact to achieve his desired result - fabricating false findings to help the judge pro tem attorney at trial - also a judicial ethics violation, according to the CJP. In essence, Gary used the illegal fee waiver hearing for an unrelated and improper purpose: to influence and reduce or eliminate the potential spousal support liability of Salinger's client at a subsequent trial before a different judge. The formal finding is calculated to enable the attorney to argue that her client should not have to pay support because - according to a finding by the judge assigned to pre-trial proceedings in the case - the unrepresented spouse's lack of income is "self-induced."

As the transcript records, Gary abandoned the role of judge and assumed the role of advocate for the opposing

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attorney. Acting as an advocate for a party or attorney is expressly prohibited by the Code of Judicial Ethics and multiple judge disciplinary decisions by the Commission on Judicial Performance. Click here to view CJP decisions. Revealing additional bias and prejudgment, the judge speculatively accused the unrepresented litigant of "voluntarily" becoming unemployed a year before his wife filed for divorce so that he would be eligible for spousal support. Click here and here to view these excerpts from the court reporter transcript. A fervent right-wing ideologue, Gary reportedly detests what he calls the "entitlement mentality" of family court pro pers who obtain fee waiver orders or are on public assistance, according to a court employee. A trial court judge who obstructs an appeal, or retaliates against an attorney or litigant for taking an appeal is subject to discipline by the CJP for violating the Code of Judicial Ethics. Click here to view a compilation of CJP disciplinary decisions. Judges also have been disciplined for manipulating a hearing to achieve a desired result, click here, and for creating a misleading record, click here. Despite documented, serial violations of the Code of Judicial Ethics, Gary has never been publicly disciplined by the CJP. The judge's unlawful conduct in connection with the fee waiver hearing was witnessed by several court employees, including clerk Christina Arcuri, and bailiff J. Strong. As government employees, each had a legal and ethical duty to report the misconduct. Neither, apparently, did.

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A Sacramento Family Court News investigation indicates that ideology and undisclosed conflicts of interest play a significant role in the outcome of appeals in the Third District Court of Appeal.

An Exclusive Sacramento Family Court News Investigation

This ongoing investigative project was last updated in June, 2014.

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Sacramento Family Court News is conducting an ongoing investigation of published and unpublished 3rd District Court of Appeal decisions in trial court cases originating from family courts. This page is regularly updated with our latest news, analysis, and opinion. Our preliminary findings reveal an unsettling link between how an appeal is decided and the political ideology, work history, and family law bar ties of the court of appeal justices assigned to the appeal. Our investigation indicates that the outcome of an appeal is in large part dependent on the luck of the justice draw. Appeals are assigned to three of ten justices. The background of each appears to play a significant role in how an appeal is decided. For example, 3rd District unpublished opinions show that Court of Appeal justices who were elevated to the appellate court from Sacramento County Superior Court will often effectively cover for judicial errors in appeals from the same court. Third District Justices George Nicholson, Harry E. Hull, Jr., Ronald B. Robie, and Presiding Justice Vance W. Raye previously were trial court judges in Sacramento County Superior Court. Each have social and professional ties to family court judges and

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on the three justices assigned, the outcome may be influenced attorney members of the Sacramento County Bar by ideology and unacknowledged conflicts of interest. Association Family Law Section. After his retirement in 2011, 3rd District Presiding Justice Arthur Scotland described the professional and personal relationships he had with attorneys during his career on the bench.

"[I] enjoy friendships...I go to all the county bar events. I do that for two reasons. One, I think it's a responsibility of a judge to be active in the community, and the attorneys appreciate it. But I really like the people. I really like going to these events. I enjoy friendships and that sort of thing." Click here to view Scotland's statement. To get a sense of the collusive atmosphere in Sacramento Family Law Court, we recommend reading our special Color of Law series of investigative reports, which document the preferential treatment provided by family court employees and judges to SCBA Family Law Section lawyers at the trial court level. Click here to view the Color of Law series. Financially disadvantaged, unrepresented litigants who face opposing parties represented by SCBA attorneys assert that the collusive collegiality taints appeal proceedings in the appellate court.

Pro per advocates contend that under Canon 3E(4)(a) and (c) of the Code of Judicial Ethics, Raye, Robie, Hull and Nicholson should disqualify themselves from participating in any appeal originating from Sacramento Family Law Court. Advocates argue that the same conflict of interest principles apply to family court appeals that resulted in the self-recusal, or removal, of Vance Raye from participating in the 2002 Commission on Judicial Performance prosecution of family court Judge Peter McBrien. To view the 2002 Raye recusal and CJP decision against McBrien, click here. The CJP has disciplined judges for violating the Code of Judicial Ethics rules requiring judges to disclose conflicts. Click here for examples of CJP conflict of interest disciplinary decisions. It is a basic principle of law that state appellate justices and federal judges with personal or professional relationships with trial court judges connected to an appeal or federal court action should disqualify themselves to avoid the appearance of partiality. Click here to view a recent order issued by a federal judge disqualifying the entire bench of the Fresno Division of the US District Court for the Eastern District of California due to personal and professional relationships with local state court judges. The conflict disclosure problem infects the Superior Court as well. To the benefit of local family law attorneys who also hold the office of temporary judge in the same court, Sacramento Family Law Court judges effectively have institutionalized noncompliance with state conflict of interest disclosure laws. Click here. For an example of a Sacramento County civil court trial judge who fully complied with conflict laws, click here. Without oversight or accountability, family court judges routinely - and in violation of state law - ignore the same disclosure requirements.

History & Origins of the Current Sacramento County Family Court System

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WE SUPPORT In 1991, as a superior court judge, current 3rd District Justice Vance Raye partnered with controversial family court Judge Peter J. McBrien and attorneys from the Sacramento County Bar Association Family Law Section in establishing the current, dysfunctional Sacramento Family Court system, according to the sworn testimony of McBrien at his 2009 judicial misconduct trial before the Commission on Judicial Performance.

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Behind closed doors and under oath, the judge provided explicit details about the 1991 origins of the present-day family court structure. The public court system was built to the specifications of private-sector attorneys from the SCBA Family Law Section Family Law Executive Committee, according to McBrien's testimony. To view McBrien's detailed description of the collusive public-private collaboration, posted online exclusively by SFCN, click here. To view the same, current day collusion, click here. The 1991 restructuring plan began with a road trip suggested by the family law bar:

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"[T]he family law bar, and it was a fairly strong bar here in Sacramento, initiated the concept of a trip to Orange County and San Diego County to pick up Tani Cantil Sakauye worked with Peter J. McBrien some ideas about how their courts were structured.

in Sacramento County Superior Court from 1997-2005. And myself and Judge Ridgeway and two family law attorneys made that trip and came back with various ideas of how to restructure the system," McBrien told the CJP. Click here to view.

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But before his sworn 2009 CJP testimony, McBrien gave the public a different account of the road trip and who restructured the family court system in 1991. As reported by the Daily Journal legal newspaper McBrien dishonestly implied that the system was conceived and implemented by judges alone after they made a county-paid "statewide tour" of family law courts. The judge omitted from the story the fact that the trip was initiated by the family law bar, and included two private-sector family law attorneys who took the county-paid trip with McBrien and the late Judge William Ridgeway. "[M]cBrien and a few other Sacramento judges went on a statewide tour of family law courts. At the time, there were continual postponements of trials. 'This is how we came up with the system today,' McBrien said. 'It was the best trip Sacramento County ever paid for.' The judges changed the local system so that family law judges presided over both law and motion matters and trials..." the Daily Journal reported. Click here to view.

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Under oath, McBrien admitted that the private-sector, for-profit family law bar dictated the public court facility restructuring plan - conceived to serve the needs and objectives of SCBA Family Law Section member attorneys - which then essentially was rubber-stamped by the bench. "[T]he Bar culled through the various ideas and options, came up with a plan, presented it to the family law bench. We made what adjustments we felt were appropriate and then presented the whole of it to the full bench," and the plan was approved. Click here to view. In essence, McBrien disclosed that the current public court system was set up by and for local attorneys with little, if any, consideration of the needs of the 70 percent of court users unable to afford counsel. The system also has shown it is designed to repel carpetbagger, outsider attorneys, like Stephen R. Gianelli of San Francisco, and Sharon Huddle of Roseville. Click here and here. "[T]his is a 'juice court' in which counsel outside Sacramento have little chance of prevailing...[the] court has now abandoned even a pretense of being fair to out-of-town counsel," Gianelli said. According to the Commission on Judicial Performance - the state agency responsible for oversight and accountability of California judges - the structure is known as a "two-track system of justice." "In this case, we again confront the vice inherent in a two-track system of justice, where favored treatment is afforded friends and other favored few, and which is easily recognized as 'corruption at the core of our system of impartial equal justice, and...intolerable," the CJP said in a 2005 judicial discipline decision involving a Santa Clara County judge. To view a list of similar CJP decisions, click here. According to the gold standard reference on judicial ethics, the California Judicial Conduct Handbook [pdf], published by the California Judges Association, providing preferential treatment to local, connected attorneys also is known as "hometowning," and is prohibited by the Code of Judicial Ethics. To view this section of the Handbook, click here.

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Keeping Neutral Judges Out-of-the-Loop One objective of the revamped system was to keep all family court proceedings in-house: within the isolated family relations courthouse. Prior to the change, trials were conducted at the downtown, main courthouse and before judges more likely to have a neutral perspective on a given case, and less likely to have ties to the family law bar. "The judges changed the local system so that family law judges presided over both law and motion matters and trials, which used to be sent to a master calendar department and competed with criminal trials for scheduling," the Daily Journal reported. Family court watchdogs and whistleblowers allege that under the system set up by Raye and McBrien, the local family law bar - through the Family Law Executive Committee or FLEC now controls for the financial gain of members virtually all aspects of court operations, including local court rules. A cartel of local family law attorneys receive preferential treatment from family court judges and appellate court

justices because the lawyers are members of the Sacramento Bar Association Family Law Section, hold the Office of Temporary Judge, and run the family court settlement conference program, court reform advocates charge.

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Court watchdogs have catalogued and documented examples of judge pro tem attorney favoritism, and flagrant bias against unrepresented litigants and "outsider" attorneys. Click here for a list of watchdog claims. Published and unpublished 3rd District opinions indicate that Court of Appeal justices without direct ties to the same superior court are more likely to follow the law, and less likely to whitewash trial court mistakes.

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One of these things is not like the others, One of these things just doesn't belong, Can you tell which thing is not like the others, By the time I finish my song? Third District Court of Appeal Justices Ronald B. Robie, Harry E. Hull Jr., George Nicholson and Cole Blease. Only Blease (R) has no past connection to Sacramento County Superior Court.

Google+ Badge One of the few Third District opinions to critically, and scathingly scrutinize the problematic Sacramento Family Court system was the 2008 decision In re Marriage of Carlsson, authored by Associate Justices M. Kathleen Butz, Cole Blease and Rick Sims. The opinion criticized explicitly the conduct of controversial Sacramento County Family Court Judge Peter J. McBrien. None of the three 3rd District justices who decided the appeal had ever worked as a judge in Sacramento County. A fourth outsider jurist, Sixth District Court of Appeal Presiding Justice Conrad L. Rushing subsequently characterized McBrien's conduct in the Carlsson case as a "judicial reign of terror." In addition to ordering a full reversal and new trial, the 3rd District decision subjected McBrien to a second disciplinary action by the state Commission on Judicial Performance.

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Labels The judge's first go-round with the CJP stemmed from McBrien's 2000 arrest for felony vandalism under Penal Code § 594 in connection with the destruction of public-owned trees - valued at more than $20,000 - at the Effie Yeaw Nature Center in Ancil Hoffman Park, Carmichael, California. McBrien had the trees cut to improve the view from his home on a bluff above the park. Click here for the 2001 Sacramento News and Review coverage of the case. Click here to view the original summons charging McBrien with felony vandalism. Click here to view the report of Sacramento County District Attorney's Office Criminal Investigator Craig W. Tourte detailing the complete investigation of McBrien's crime, posted online for the first time exclusively by SFCN.

Less than 48 hours after the judge was charged with the felony, McBrien negotiated a plea bargain, pleading no contest to a misdemeanor violation of Penal Code § 384a, paying restitution of $20,000, and a fine of $500. The improved view increased the value of the judge's home by at least $100,000, according to a local real estate agent, and the sweetheart deal outraged the Ancil Hoffman Park personnel who originally discovered the butchered trees and conducted the initial investigation. McBrien's subsequent 2009 sworn testimony before the CJP recounting his criminal case starkly contradicted Tourte's report and the truth about his criminal conviction.

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In the documentary film Divorce Corp, Ulf Carlsson describes egregious misconduct by Sacramento Family Law Court Judge Peter McBrien. Using misleading sworn testimony about McBrien's reversal rate in the appellate court, 3rd District Court of Appeal Presiding Justice Arthur G. Scotland effectively saved McBrien from being removed from the bench by the Commission on Judicial Performance.

Presiding Justice Arthur G. Scotland Intervenes in McBrien CJP Prosecution On his second trip to the CJP woodshed, Judge Peter McBrien needed all the help he could get to save his job, and then-Third District Court of Appeal Presiding Justice Arthur Scotland delivered in a big way. Among other slight-of-hand tricks, Scotland devised a clever artifice to make it appear to the CJP judges assigned to decide McBrien's fate that the trial court judge had a much lower than average rate of reversal in the court of appeal.

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Scotland's 2009 testimony on McBrien's behalf also was controversial and may itself have violated the Code of Judicial Ethics. A critical self-policing component of the Code, Canon 3D(1) requires judges who have reliable information that another judge has violated any provision of the Code take "appropriate corrective action, which may include reporting the violation to the appropriate authority." Click here to view Canon 3D(1). Click here to view a Judicial Council directive about the duty to take corrective action, and the types of corrective action required.

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By his own admission, Scotland's career in the Judicial Branch of government was the result of connections and preferential treatment. The former justice candidly recited his life history in a nearly three-hour interview for the California Appellate Court Legacy Project in 2011. Like other gratuitous "tough-on-crime" conservative ideologues from a law enforcement background who rose to power in the 1980's, Scotland apparently lived the cliche of being born on third base and going through life thinking he hit a triple. His interest in law developed when he worked as an undercover narcotics agent for the state Department of Justice.

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Tani Cantil-Sakauye, Arthur Scotland, George Nicholson and

While under oath before the CJP, Scotland verified

Peter McBrien all worked for former California Attorney General that he was aware of McBrien's misconduct in the

and Governor George Deukmejian. All were appointed to the

Sacramento County bench by Deukmejian. Carlsson case. Scotland essentially defied the selfpolicing Canon and, in effect, the published Carlsson opinion authored by his co-workers Butz, Blease and Sims, and instead testified in support of McBrien at the CJP. In it's final decision allowing McBrien to remain on the bench, the CJP specifically cited Scotland's testimony as a mitigating factor that reduced McBrien's punishment. Click here. An examination of Scotland's career in government - funded by the taxpayers of California - provides insight into the tactics, motives, and questionable ethics behind his unusual involvement in the McBrien matter.

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"[I] bluffed my way through the interview, and I got hired as a narcotics agent in 1969...I was an undercover narcotics agent. I've bought a lot of dope in my life...all lawfully, but I've bought a lot of dope," Scotland said. "And I testified in court. And that's what got me fascinated in the legal process...and it got me involved in the law." Click here to view. Having worked with prosecutors as an undercover cop, Scotland decided he wanted to be one. But due to his lackluster performance as a college student, law school presented a problem, albeit a problem easily solved through a family connection. "[I] thought, I want to be a prosecutor. I'm going to go to law school; I want to be a prosecutor. So I applied in 1971. I applied to only one school: University of the Pacific, McGeorge School of Law...[M]y grades weren't all that great. I did very well on the LSAT test: I did excellent on that. But I didn't figure I could get accepted anywhere else, 'cause I really hadn't been a serious student. So I went to University of Pacific, McGeorge School of Law," Scotland explained. "I didn't know [McGeorge Dean Gordon D. Schaber], but my dad did. And my dad had done some life insurance, estate planning work for McGeorge. And again, my dad was an influence on my life because he knew people and he set me up with jobs. And I'm sure that one of the reasons I got selected for McGeorge School of Law is my dad's relationship with the dean." Click here to view.

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Arthur Scotland used a family connection to get into

a law school with liberal admission standards.

After graduation, but before he was licensed to practice law, Scotland nonetheless practiced law while employed as a deputy district attorney for Sacramento County. In the outside world, the unauthorized practice of law is a crime. But in Scotland's protective law enforcement bubble, "laws" are only enforced against drug addicts and the unwashed masses. As Scotland explained in his own words, laws are actually only "rules" when a sworn peace officer breaks one. "Actually, before I even got sworn in in the bar, I was assigned out to juvenile hall and we prosecuted...I prosecuted cases without any supervision - you know, against...really against the rules...we were trying cases without any supervision." Click here. In McGregor v. State Bar, the seminal case on the unauthorized practice of law, the California Supreme Court explained why a nonlicensed person is prohibited from exercising the special powers and privileges of a lawyer. "The right to practice law not only presupposes in its possessor integrity, legal standing and attainment, but also the exercise of a special privilege, highly personal and partaking of the nature of a public trust. It is manifest that the powers and privileges derived from it may not with propriety be delegated to or exercised by a nonlicensed person." Click here. 25 years after he obtained his license to practice law, Justice Arthur G. Scotland exploited the implied integrity of his court of appeal office and exercised his special privilege in a way that to many Sacramento Family Court litigants was a manifest violation of the public trust.

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To help his old friend Pete McBrien keep his job, Justice Arthur G. Scotland concocted a clever plan intended to deceive the judges deciding McBrien's punishment at the Commission on Judicial Performance.

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In his Commission on Judicial Performance sworn character witness testimony for his old friend and law enforcement co-worker Peter McBrien, Arthur Scotland drew on his training and experience in deceit from his days as a narc. "[Y]ou have to be an actor, you have to play the game," Scotland explained in the 2011 interview. In front of the three CJP judges responsible for hearing evidence and deciding McBrien's fate, Scotland concocted a clever, deceptive plan - an artifice in legal terminology - and convincingly delivered an award worthy actor's performance.

While testifying for McBrien, Scotland also revealed that his appearance on the troubled judge's behalf effectively was voluntary. Before subpoenaing Scotland to testify, McBrien's defense attorney confirmed that Scotland would not object to the subpoena. Click here. Judicial ethics Canon 2B restricts use of the prestige of judicial office to advance the personal interests of the judge or others. Canon 2B(2)(a) permits a judge to testify as a character witness only when subpoenaed. The transcript of Scotland's testimony also showed that - to prepare his CJP testimony - the presiding justice of the 3rd District affirmatively and voluntarily took the initiative (presumably on his own time) to research 3rd District family court appeals where McBrien was the trial court judge. His objective was to show the CJP that McBrien had a low reversal rate in the appellate court. "I also, by the way -- when you called me to ask if I would object to being Subpoenaed as a witness, and I said no, I did research. I looked up -- I knew what this was all about, so I researched the number of appeals from cases from Judge McBrien's court. And so I -- and I looked -- I read all the opinions in which he was reversed in full or in part... I've known Judge McBrien for 32 years. I got to know, then, Deputy Attorney General Pete McBrien. When I left the Sacramento County District Attorney's Office and went to work for the California Attorney General's Office, he was already a Deputy Attorney General there. So I got to know him there, mainly professionally. Socially to a relatively minor extent. We had -we had two co-ed softball teams. He played on one; I played on another. Of course, we would attend office functions together. His -- one of his very best friends was my supervisor in the Attorney General's Office. So, on occasion -- not frequently, but on occasion we would attend social events with others from the office.... [McBrien had] seven reversals in whole or in part, out of 110 appeals, which is about 6%, which actually is a remarkably good reversal rate. Because our average reversal rate in civil cases is 20 to 25 percent." Scotland testified at pages 549-553 of the reporter's transcript. Click here.

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Scotland's claim that McBrien had a "remarkably good reversal rate" was, at best, a half-truth. Under the legal and ethical standards applicable to lawyers and judges, a half-truth is the same as a "false statement of fact" or what the general public refers to as a lie. Click here.

What Scotland withheld from the CJP is the fact that the vast majority of appeals from family court are never decided on the merits. Unlike appeals from civil cases, most family court appeals are taken by unrepresented parties who fail to navigate the complexities of appellate procedure and never make it past the preliminary stages of an appeal. In other words, Scotland rigged his statistics. While McBrien may have had seven reversals out of 110 appeals filed, only a small portion of the 110 appeals filed were actually decided on the merits.

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SUPREME COURT (3) TAMI Arthur Scotland poses with the fruits of a drug bust from his days as an

undercover cop. Trained to lie and deceive in order to make undercover

drug buys, Scotland acknowledged his skill in the role.

"You have to be an actor, you have to play the game," he said in 2011.

Scotland then made a disingenuous, self-serving apples-to-oranges comparison between the reversal rate in civil case appeals - where both sides are usually represented by an attorney, or team of attorneys, and appeals are decided on the merits - with the reversal rate in family court cases, where neither qualifier is true. SFCN currently is conducting an audit of 3rd District family court appeals, and will have more on this subject in the near future.

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In a final act of both flagrant cronyism to his friend and former Department of Justice co-worker Pete McBrien, and disrespect to the work of his fellow 3rd District Court of Appeal Justices Kathleen Butz, Cole Blease and Rick Sims whose published opinion in the Carlsson case resulted in McBrien's prosecution by the CJP, Scotland had the balls to suggest that disciplining McBrien for his conduct in Carlsson would be a "miscarriage of justice," that would allow "incompetent attorneys to run the court instead of competent judges." "And you haven't asked me this question, but if [McBrien] were, for some reason, to be found to have violated the canons of judicial ethics, or whatever, I frankly -- I know about these cases; I know about the Carlsson case. I think it would be a miscarriage of justice. I think it would send the wrong signal to judges and practitioners that you don't allow -- that you would be allowing incompetent attorneys to run the court instead of competent judges," Scotland testified at the CJP. Like Scotland, 6th District Court of Appeal Presiding Justice Conrad Rushing knew well the Carlsson case, which he said "developed a certain notoriety." Unlike Scotland, Rushing wasn't an old friend and coworker of McBrien who would disingenuously suggest the blame for McBrien's "reign of terror" lay with an incompetent attorney. Scotland's colleagues at the 3rd District, Butz, Blease and Sims reversed and remanded the Carlsson case for retrial based on extremely rare, reversible per se, egregious structural and constitutional error by Judge McBrien. After carefully scrutinizing the trial court record, the panel made no mention of attorney "incompetence" in their published opinion.

However, Scotland's incompetence assertion to the CJP did, coincidentally, perfectly dovetail with the carefully crafted defense McBrien's legal team presented during three days of CJP testimony to the three-judge CJP panel assigned to decide McBrien's fate. A key component of McBrien's defense relied on suspiciously consistent witness testimony portraying Ulf Carlsson's attorney Sharon Huddle as incompetent and effectively provoking McBrien's multiple violations of the Code of Judicial Ethics. CJP prosecutor Andrew Blum mocked the risible defense in a confidential court reporter transcript leaked to SFCN. Click here to view the transcript. Ironically, the time-tested, repugnant but effective blame the victim strategy, was coldly aided and abetted by Scotland, a justice who rose to power with the backing and endorsements of victims rights groups including Crime Victims United of California, and the Doris Tate Crime Victims Bureau. To help McBrien's defense team, Scotland dusted off the dog-eared playbook of exploiting victims, one way or another, to advance his personal agenda. Scotland's irony-infused blame the victim testimony, misleading appeal reversal data, and the weight of character witness testimony from a sitting Court of Appeal presiding justice, along with similar character testimony from Sacramento County Superior Court Judges James Mize, Thomas Cecil (currently Of Counsel at the family, family law firm Cecil & Cianci) , Michael Garcia and Robert Hight, and Sacramento County Bar Association Family Law Section attorneys and judge pro tems Camille Hemmer, Jerry Guthrie, Robert O'Hair and Russell Carlson all tipped the scale just enough to enable McBrien to keep his job. Click here to view the complete, 12-page CJP summary of the McBrien character witness testimony.

Despite the parade of former law enforcement co-workers, friends, and family court judge pro tem cronies McBrien marshaled on his behalf, two of the voting CJP members saw through the ruse and dissented from the decision to let the judge remain on the bench, stating they would have removed McBrien from office. Click here. When he referred to McBrien's conduct in the Carlsson case as a "judicial reign of terror," 6th District Justice Rushing also noted that "two of the nine participating members [voted] to remove him from the bench." Click here. The Carlsson case is prominently featured in Divorce Corp, a documentary film that "exposes the corrupt and collusive industry of family law in the United States." The production team for the film conducted a nationwide search for the most egregious examples of family court corruption and collusion, and four Sacramento County cases are included in the movie. Narrated by Dr. Drew Pinsky, Divorce Corp opened in theaters in major U.S. cities on January 9, 2014. Following the theatrical run, the documentary will be released on DVD, RedBox, Netflix, broadcast and cable TV. Click here for our continuing coverage of Divorce Corp. To view trailers for the movie on YouTube, click here.

Rehabilitation FAIL The near-career death experience apparently has had no discernible corrective effect on the ethically-challenged judge. In subsequent proceedings in his courtroom involving the judge pro tem attorneys (and lawyers at the same firms as the judge pro tems) whose CJP testimony effectively saved his $170,00 per year job, McBrien reportedly has never disclosed to opposing parties and attorneys the potential conflict of interest as required by Canon 3E(2) of the Code of Judicial Ethics. The failure to disclose the potential conflict is a violation of the canon and other state laws, according to the CJP, Judicial Council, and California Judges Association. For the exclusive SFCN report on conflict of interest law, click here.

Justice George Nicholson & the Law Enforcement

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Blue Code of Silence In addition, unpublished Third District Court of Appeal decisions indicate that justices who come from a law enforcement background appear to take to the bench with them the "Blue Code of Silence" culture often found in law enforcement agencies. 3rd District Associate Justice George Nicholson worked as a prosecuting attorney for more than 15 years before being appointed to the bench in Sacramento County. The first time Governor George Deukmejian submitted Nicolson's name to the bar for review as a judge in 1983, he was rated as "not qualified," according to the Sacramento Bee. "George Nicholson, Republican candidate for attorney general in 1982, has been pursuing all manner of public legal positions: U.S. District Court judge, California Superior Court judge, U.S. Attorney, public defender in Riverside County. The other day, when Gov. George Deukmejian appointed him a Sacramento Municipal Court judge, he finally got one. It's an appointment that ought to cause serious concern both within the State Bar and in the community. When Deukmejian submitted Nicholson's name to the bar for review on a possible appointment to the Superior Court in 1983, he was rated 'not qualified.' The bar now ranks him 'qualified', the lowest acceptable rating of three the bar can give.

Third District Court of Appeal Associate Justice George Nicholson

rode to the bench on a "law and order" agenda.

No one can be certain precisely why Nicholson received such low ratings, but there is enough in his public record to raise serious questions about his temperament and judgment. In 1979, he left a job as director of the District Attorneys Association after an audit showed that the organization's finances had been badly mismanaged and that it was on the verge of bankruptcy. Later, as a senior assistant attorney general, he was twice admonished by superiors for promoting a ballot measure in ways that could be mistaken as an official state Justice Department endorsement of the measure. More recently, a federally funded $4 million 'National School Safety Center' affiliated with Pepperdine University that he directed was embroiled in an extended controversy during which 18 of 30 staff members either resigned or were fired. The U.S. General Accounting Office, which conducted an audit into the management of the Pepperdine program and into how the federal money was being spent, cleared the center of fiscal irregularities, attributing the problems to Nicholson's 'combative' personality and management style. But because of those problems, Pepperdine named a new executive director, who, the auditors said, restored stability to the management of the program 'while retaining Nicholson's creative talents,'" the Sacramento Bee said in 1987. Click here. Nicholson subsequently was elected to both Sacramento County Superior Court and the 3rd District Court of Appeal with backing from law enforcement, Crime Victims United and other Astroturf "victims rights" and "law and order" groups. Crime Victims United is funded by - and acts essentially as a subsidiary of - the California Correctional Peace Officers Association, the controversial prison guard union. A principal architect of Proposition 8 the "The Crime Victims' Bill of Rights", after a failed run as the GOP candidate for attorney general Nicholson rode an anti-Rose Bird, tough-on-crime platform to the bench. Over several decades, Associate Justice Nicholson played a significant role in giving the United States one of the highest per capita rates of incarceration in the world. Thanks to Nicholson, the prison guard union, and Astroturf "victims rights" groups bankrolled by the union, California now spends a significantly larger portion of the state budget on corrections than on higher education.

Role of Political Ideology In 1985, Nicholson was demoted from his position as director of the federally financed National School Safety Center in Sacramento. The center was administered by Pepperdine University at Malibu, and established with a $3.8 million Justice Department grant awarded

without competitive bidding. Under Nicholson's leadership, 20 of the original 30 staff members who set up Third District Court of Appeal justices who previously were Sacramento the Center resigned or were County Superior Court judges include Harry E. Hull Jr., Ronald B. Robie, dismissed. The Associated Press George Nicholson Louis Mauro, and Presiding Justice Vance Raye. reported that that the debacle was rooted in ideological conflicts between Nicholson and staff whom Nicholson perceived as too liberal. According to the AP coverage: "Several [staffers] described Nicholson as a political conservative who mistrusted his mostly liberal staff members, argued with them unceasingly about the direction of projects, and accused them of disloyalty when they questioned his ideas. 'When it became obvious to him he attracted a number of us with a different political philosophy, we were not permitted to do our work,' said Shirley Ruge, a former principal of schools for delinquent children and one of those dismissed. 'We were considered troublemakers and he wanted to shut us up.'" Nicholson and former 3rd District Presiding Justice Arthur Scotland have been close friends and colleagues for more than 30 years. For the California Appellate Court Legacy Project Nicholson conducted an almost threehour interview with Scotland on December 8, 2011. The transcript of the interaction reads like a meeting of the Nicholson-Scotland mutual admiration society. Nicholson opened the interview detailing the joint work history of the BFFs. "George Nicholson: We are here with retired Presiding Justice Arthur G. Scotland, who served on the Court of Appeal, Third Appellate District, for more than 20 years, from 1989 to 2011, and that...the last dozen of which he was the Administrative Presiding Justice. I'm George Nicholson, Justice of the Court of Appeal, Third Appellate District, and I had the pleasure of serving with Presiding Justice Scotland for 20 years on this court. Before that, we served together as trial judges on the Sacramento Superior Court, and even before that we served together in the Governor's Office during the Deukmejian administration and in the California Department of Justice. This has been a long time coming, Scotty, hasn't it?Arthur Scotland: Nick, it has, and it's a delight for me to have you interview me for this project." Click here to view the full interview transcript.

"Judgment Roll" Standard of Review Hits Hardest Indigent and Low-Income Litigants In addition, the Third District Court of Appeal in Sacramento applies a unique and previously rarely used "judgment roll" standard of review that in virtually every case where applied results in affirmance of trial court rulings. Appeals brought by self-represented indigent and low-income litigants make up the vast majority of appeals where the 3rd District applies the judgment roll standard of review. Although the appellate court has authored dozens of decisions invoking the draconian standard against family court litigants, it has managed to keep the assembly line, boilerplate process under the radar. The court has not published a single judgment roll appeal originating from family court. Click here to see a list of unpublished 3rd District opinions archived by Google Scholar. The judgment roll summary affirmance process helps the court maintain its title as the most efficient Court of Appeal in the state. Equal protection of the law is implicated because other appellate court districts do not apply the standard nearly as often as the Third District. Equal application of the law is a foundational attribute of American Democracy.

Justices of the Third District Court of Appeal in Sacramento: Vance W. Raye, Administrative Presiding Justice. Cole Blease Ronald Robie William Murray Jr. George Nicholson Kathleen Butz Elena Duarte Harry Hull Jr. Louis Mauro Andrea Lynn Hoch For additional Sacramento Family Court News reporting on the Court of Appeal for the Third Appellate District, click here.

Click to visit Sacramento Family Court News on: Facebook, YouTube, Google+, Scribd, Vimeo, and Twitter.

Chief Justice Tani Cantil-Sakauye, Justice Goodwin Liu, Justice Marvin R. Baxter, Justice Ming W. Chin, Justice Kathryn M. Werdegar, Justice Joyce L. Kennard, and Justice Carol A. Corrigan of the Supreme Court are responsible for oversight and accountability of the 3rd District Court of Appeal, and the other appellate courts in the state.

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UNITED STATES DISTRICT JUDGEJOHN A. MENDEZ (JAM) United States Magistrate Judge Dennis L. Beck (DLB)

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NO. C071887

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT

SUSAN C. FERRIS, Appellant, v.

DAVID M. FERRIS, Respondent.

Appeal From the Sacramento Superior Court Case No. 98FL05615 Hon. Matthew Gary, Judge Presiding ________________________________________

APPELLANT’S OPENING BRIEF ________________________________________ JAMES BROSNAHAN* (SBN 34555) KEVIN A. CALIA (SBN 227406) DEVON EDWARDS (SBN 264833) MORRISON & FOERSTER LLP 425 Market Street San Francisco, CA 94105-2482 Tel: 415.268.7000 Fax: 415.268.7522 JBrosnahan@mofo.com

WILLIAM KENNEDY (SBN 61701) STEPHEN GOLDBERG (SBN 173499) LEGAL SERVICES OF NORTHERN CALIFORNIA 512 12th Street Sacramento, CA 95814 Tel: 916.551.2150 Fax: 916.551.2195 bkennedy@lsnc.net

Attorneys for Appellant SUSAN C. FERRIS

TABLE OF CONTENTS Page INTRODUCTION ........................................................................................ 1 STATEMENT OF FACTS ........................................................................... 1 A. Susan Is Disabled and Her Disability Hampers Her Focus and Emotional Stability in Stressful Situations ........... 1 B. Susan and M Shared a Close Relationship ............................. 2 C. Susan and M had Serious Concerns About David’s Behavior ................................................................................. 3 D. The Court Deprived Susan of Custody of M in Hearings Where Susan Was Unrepresented ........................... 3 E. The Trial Court Accused Susan of Assisting in M’s Disappearance and Deprived Susan of Her Parental Rights Without Appointing Counsel for Susan...................... 5 F. The Court Allowed David to Send M to an Out-ofState Lock-Down Facility ...................................................... 7 G. The Court Orders Susan to Pay Attorney’s Fees for Filing the Motion to Prevent David from Sending M Out of State............................................................................. 9 H. Susan Had Difficulty Pursuing and Arguing Her Case Without the Assistance of Counsel ...................................... 11 STANDARD OF REVIEW........................................................................ 12 STATEMENT OF APPEALABILITY ...................................................... 13 LEGAL ARGUMENT ............................................................................... 14 I. THE STATE DEPRIVED SUSAN OF ALL CUSTODY AND CONTACT WITH HER DAUGHTER WITHOUT DUE PROCESS OF LAW .............................................................. 15 A. Susan’s Private Interests in the Right to the Care, Custody, and Contact with Her Child Are “Compelling” and “Fundamental” ....................................... 18 B. The State Suspended Susan’s Parental Rights in Proceedings Which Had a High Risk of Error ..................... 20 1. Child Custody Proceedings Have a High Risk of Error When One Party is Unrepresented .............. 20 2. The Proceedings at Issue Were Complex, Emotionally Charged, and Carried a High Risk of Error ...................................................................... 23 3. An Attorney Would Have More Effectively Prepared, Investigated, and Argued Susan’s Case ........................................................................... 24 C. Susan Has a Protected Dignity Interest in Having Counsel Appointed to Adequately Present Her Case........... 27

TABLE OF CONTENTS (continued) Page D.

The State’s Interests Also Weigh in Favor of Appointing Counsel for Susan ............................................. 29 II. FEDERAL AND STATE LAWS PROTECTING PERSONS WITH DISABILITIES GUARANTEE SUSAN THE RIGHT TO COUNSEL IN THIS CASE ...................................................... 31 A. Susan Has a Qualifying Mental Disability ........................... 32 B. Susan Made a Reasonable Request for Accommodation ................................................................... 34 C. The Court Was Obligated to Provide Auxiliary Aids and Services.......................................................................... 34 D. Susan Was Excluded From Meaningfully Participating in Her Hearing as Result of Her Disability .......................... 35 III. THE TRIAL COURT’S $2,500 SANCTION WAS AN ABUSE OF DISCRETION ............................................................. 36 A. Failure to Consider Whether a $2,500 Sanction Would Impose an Undue Burden Was an Abuse of Discretion....... 36 B. Imposing a Sanction Which Would Impose an Undue Burden Was an Abuse of Discretion .................................... 37 C. The Trial Court Had No Reasonable Justification to Sanction Susan ..................................................................... 38 CONCLUSION .......................................................................................... 40

TABLE OF AUTHORITIES Page(s) CASES Adoption of Baby Girl B. (1999) 74 Cal.App.4th 43 .................................................................... 12 American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307 .......................................................................... 30 American Council of the Blind v. Paulson (D.C. Cir. 2008) 525 F.3d 1256 ........................................................... 36 Appellate Defenders, Inc. v. Cheri S. (1995) 35 Cal.App.4th 1819 ................................................................ 18 Biscaro v. Stern (2010) 181 Cal.App.4th 702 .......................................................... 12, 36 Bultemeyer v. Ft. Wayne Community Schools (7th Cir. 1996) 100 F.3d 1281 ............................................................. 34 Clark v. Orange County (1998) 62 Cal.App.4th 576 .................................................................. 17 Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal. 4th 1019 ......................................................................... 3 County of Santa Clara v. Super. Ct. 2 Cal.App.4th 1686 (1992) .................................................................. 17 Cuiellette v. City of Los Angeles (2011) 194 Cal.App.4th 757 ................................................................ 13 Ebersol v. Cowan (1983) 35 Cal.3d 427, 439 ................................................................... 39 Elkins v. Super. Ct. (2004) 121 Cal.App.4th 1371 ....................................................... passim Enrique M. v. Angelina V. (2007) 41 Cal.App.4th 1337 ................................................................ 14 Filip v. Bururenciu (2005) 125 Cal.App.4th 825 ................................................................ 39 Franco-Gonzalez v. Holder (C.D. Cal. 2013) 2013 WL 3674492 ............................................. 32, 35 Guardianship of Ethan S. (1990) 221 Cal.App.3d 1403 ............................................................... 17 iii

TABLE OF AUTHORITIES (continued) Page(s) Henrietta D. v. Bloomberg (2nd Cir. 2003) 331 F.3d 261 .................................................... 5, 35, 36 In re B. G. (1974) 11 Cal.3d 679 ....................................................................................... 18 In re Bryce C. (1995) 12 Cal.4th 226 .......................................................................... 27 In re Emilye A. (1992) 9 Cal.App.4th 1695 ........................................................... passim In re Jacqueline H. (1978) 21 Cal.3d 170 ..................................................................... 17, 19 In re Jay R. (1983) 150 Cal.App.3d 251 ......................................................... passim In re Malinda S. (1990) 51 Cal.3d 368 ..................................................................... 16, 27 In re Marriage of Corona (2009) 172 Cal.App.4th 1205 .............................................................. 36 In re Marriage of Dupre (2005) 127 Cal.App.4th 1517 .............................................................. 14 In re Marriage of Petropoulos (2001) 91 Cal.App.4th 161 .................................................................. 36 In re Marriage of Pollard (1979) 97 Cal.App.3d 535 ................................................................... 37 In re Sade (1996) 13 Cal.4th 952 ................................................................... passim Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245 ............................................................ 33, 35 Lassiter v. Dept. of Social Services (1981) 452 U.S. 18. .............................................................................. 16 Moore v. Super. Ct. (2010) 50 Cal.4th 802 .......................................................................... 16 Ohio v. Barron (1997) 52 Cal.App.4th 62 .................................................................... 13 Parker v. Harbert (2012) 212 Cal.App.4th 1172 ........................................................ 13, 38 iv

TABLE OF AUTHORITIES (continued) Page(s) Payne v. Super. Ct. (1976) 17 Cal.3d. 908 .................................................................... 28, 31 People v. Allen (2008) 44 Cal.4th 843 .................................................................... 15, 28 People v. Ramirez (1979) 25 Cal.3d 260 ........................................................................... 16 Prillman v. United Air Lines, Inc. (1997) (1997) 53 Cal.App.4th 935 .................................................................. 34 Salas v. Cortez (1979) 24 Cal.3d 22 ...................................................................... passim Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986 ............................................................... 34 Santosky v. Kramer (1982) 455 U.S. 745 ............................................................................. 23 Turner v. Association of American Medical Colleges (2008) 167 Cal.App.4th 1401 .............................................................. 13 CONSTITUTION AND STATUTES Cal. Const. art. I, § 7 .................................................................................. 15 California Code of Civil Procedure § 904.1.................................................................................................. 14 § 906..................................................................................................... 14 California Family Code § 271......................................................................................... 10, 36, 37 § 3040............................................................................................. 30, 31 § 3048................................................................................................... 25 § 3060................................................................................................... 25 § 3063................................................................................................... 25 § 7862................................................................................................... 19 § 7895................................................................................................... 18 California Government Code § 11135..................................................................................... 32, 33, 36 § 12926................................................................................................. 33 California Welfare & Institutions Code § 317..................................................................................................... 19 § 16000................................................................................................. 30

TABLE OF AUTHORITIES (continued) Page(s) 42 United States Code § 12102................................................................................................. 33 § 12132........................................................................................... 32, 36 OTHER AUTHORITIES 28 C.F.R. § 35.104................................................................................................ 35 § 35.160................................................................................................ 35 Cal. Rules of Court 8.104..................................................................................................... 13 8.403..................................................................................................... 19 Bezdak, Silence in the Court: Participation and Subordination of Poor Tenants’ Voices in the Legal Process (1992) 20 Hofstra L. Rev. 533 ......................................................................................... 21, 22 Judicial Council of California Task Force on Self-Represented Litigants, Statewide Action Plan for Serving Self-Represented Litigants (2004) ............................................................................. 28, 31 Mnookin, Maccoby, Albiston & Depner, What Custodial Arrangements are Parents Negotiating? , Divorce Reform at the Crossroads (S. Sugarman edits. 1990) ................................................ 21 Seron, et al., The Impact of Legal Counsel on Outcomes for Poor Tenants in New York City’s Housing Court: Results of a Randomized Experiment (2001) 35 Law & Society Rev. 419 ............. 22

INTRODUCTION This appeal challenges an order depriving Susan Ferris, an indigent and disabled mother, of both custody and of all contact with her 14-year old daughter, M, without affording the mother a right to court-appointed counsel. David Ferris, M’s father, who was represented by retained counsel, persuaded the trial court to give him exclusive custody of M with the right to unilaterally send her to an out-of-state boarding school and to enjoin the mother from having any contact with the child. These orders were based on the trial court’s suspicion that Susan helped M hide from her father after M ran away from her father’s home. The trial court did not appoint counsel to Susan despite her repeated requests for an attorney and her stated difficulty in handling this case without one. Under the due process clause of the California Constitution, the mother had a right to be represented by counsel in the proceedings leading to these orders. Because no lawyer was provided, and because the court ordered that the mother have no contact with her child, the orders should be reversed.

STATEMENT OF FACTS A.

Susan Is Disabled and Her Disability Hampers Her Focus and Emotional Stability in Stressful Situations

Susan suffers from Post-Traumatic Stress Syndrome (PTSD) related to a rape in 2005 and a rock climbing accident in 2007. (ACT 3-11.) This disability gives Susan “situational depression and anxiety, mostly related to custody and court issues around [her] daughter.” (ACT 3.) It also results in Susan having “mild generalized depression.” (ACT 4.) The Social

Security Administration awarded Susan disability payments based on the injuries she sustained during the rock climbing accident in 2007, which are her sole source of income. (ACT 7, 11; CT 202.) The Superior Court was fully appraised about these disabilities. (ACT 3-11.) After being put on notice about these disabilities, the lower court witnessed her situational anxiety firsthand. Susan had difficulty juggling her roles as advocate, witness, defendant, and mother during the proceedings which led to the court issuing its no-contact order and prolonging Susan’s separation from her daughter by permitting her father to send her out of state. (See Part H., infra.) B.

Susan and M Shared a Close Relationship

The relationship between Susan and M had always been close. M was born to Susan and her husband on September 19, 1997. (CT 64.) Susan was married to M’s father, until they separated in 1998. (See CT 77.) The Sacramento Family Court entered a formal order dissolving the marriage and ordering custody arrangements on May 5, 1999. (See CT 212.) Prior to November 4, 2011, M would stay with her mother part of the week and with her father for the other part of the week. (CT 32, 62.) This pre-existing custodial arrangement was approved by the court in March of 2011. (CT 62, 11.) When away from her mother, M would miss her. (See, e.g., CT 55, 58, 107.) In an email from M to Susan that Susan sought to introduce in the custody proceeding in November of 2011, “mama I miss u so much, im crying right now cause I miss u! I wanna see u, but I dont know when. I want my mama!!!” (CT 55.) Immediately before she ran away from her father, M left a note for her mother stating, “I miss you and love you sooooooooo much.” (CT 107.) Susan loves her daughter and misses her.

Susan and M had Serious Concerns About David’s Behavior

In late October of 2010, Susan became increasingly distressed by complaints M voiced about the living situation with her father. (CT 31-34, 41.) M voiced two main complaints: she was upset by the bedroom and sleeping situation at her father’s house and scared by his angry outbursts. (CT 16-18.) These included “throwing a table against a wall out of frustration after attempting to tutor her in math.” (CT 64.) At the time, M told her mother that she did “not feel safe [or] feel comfertable [sic] with [her] dad.” (CT 16.) M’s concerns alarmed Susan because of her personal familiarity with the violence that could accompany David’s angry outbursts. (See, e.g., CT 64-65, 70, 72-74.) In the past, David once hit Susan and pushed her onto the floor, tearing the phone out the wall when Susan attempted to call the police. (CT 72-74.) In another instance, David’s elderly mother had sought an emergency protective order against him after he “shook her and hit her in the arm [with] a tin can.” (CT 64, 70.) Susan was also concerned because M’s father had M sleep in his bed with him for a period of over five months. (CT 16-17; see CT 32-34.) M was especially discomforted by this situation because her father would put his hand down his pants in bed while they watched TV. (CT 16-17.) D.

The Court Deprived Susan of Custody of M in Hearings Where Susan Was Unrepresented

Distressed, and scared for her daughter, Susan sought to obtain primary physical custody. (CT 5.) She wanted to continue to share parenting time and allow David’s visitation while these issues were worked out. (CT 5.) In accordance with M’s preference, Susan first attempted to

resolve these issues without going to court. (CT 25.) David insisted on going to court. (Ibid.) Here, his ability to retain an attorney tilted the balance in his favor. David acknowledged that “[M] indicated to [him] that she really desired a 50/50 custody arrangement. [David] responded that it was out of [his] hands and that the court would deal with the custody issues.” (Ibid.) These custody issues were to be determined by the family court, which had continuing jurisdiction over child custody issues after the marriage was formally dissolved and custody was established in 1999. (See CT 212 [judgment of dissolution was entered on May 5, 1999].) Susan then did her best to state the issues to the court, without the assistance of an attorney. (CT 4.) David had the assistance of an attorney throughout the proceedings. (See, e.g., CT 9, 111-113, 117, 212.) This disparity proved to be determinative. On November 4, 2011 the court, instead of granting the custodial arrangements Susan requested, issued temporary orders granting sole physical custody and control of M to her father, and required that visitation by the mother be supervised. (CT 23.) On November 28, 2011 the court extended these temporary orders until January 9, 2012. (CT 81.) The lower court made these determinations in a hearing in which it did not seek or allow M to testify. (RT 12:19-20.) She was never allowed to explain her discomfort with her father. (Ibid.) The lower court stated during a December 2011 hearing: “In hearings past Ms. Ferris has pled for me to talk to [M]. I’ve been rather reticent.” (Ibid.) Shortly thereafter, M ran away from her father’s custody, sending a letter to her father again complaining about the sleeping situation and his angry outbursts. (CT 91.) The letter stated, “Dad, I am getting a

restraining order against you . . . I’m done with you yelling at me, putting me down and verbally assaulting me. And when you touched yourself around me, that was when I told myself I didn’t want this anymore.” (RT 83:3-8.) E.

The Trial Court Accused Susan of Assisting in M’s Disappearance and Deprived Susan of Her Parental Rights Without Appointing Counsel for Susan

David and his attorney brought Susan into court, accusing her of aiding in M’s disappearance and seeking an order depriving Susan of contact with M. (CT 92, 95.) Again, Susan was unrepresented in the December 9, 12, 13, 14, and 15, 2011 hearings. (CT 111-113, 116, 117.) On December 13, Susan told the court that she perceived that her lack of counsel impacted the fairness of the proceedings, saying “when you don’t have an attorney as myself . . . the chances of having a fair trial, in my experience, are less.” (RT 81:19-21.) Without appointing Susan an attorney, the court proceeded with a series of hearings to determine M’s whereabouts, ultimately issued an order that deprived Susan of contact with M, and permitted David to send M out of state. (RT 2:18-3:8, 32:2-15, CT 116, 212.) Without an attorney to aid Susan, opposing counsel was able to frame the evidence to Susan’s detriment and make the hearing one-sided. For instance, the court asked if either parent believed that M was with someone they knew; Susan said she did not believe M was with someone Susan knew, but David brought up the “possibility” that M was staying with his brother. (RT 77:12-19.) Instead of pursuing the matter with David, the court pursued the matter with Susan, questioning her as to whether M was with David’s brother. (RT 77:20-78:2.) The court declined to ask even one follow-up question to David as to why he thought M might

be with his brother. (Ibid.) Instead of concluding that it was likely that M was with a close relative, the court was convinced that M was at “the mercy” of “whatever underground is out there that hides children.” (RT 13:3-4.) The court’s continued references to “the underground” were apparent references to an unspecified organization that hides run-away children. (See, e.g., RT 13:10-16, 59:15-22; 60:21-61:8, 68:13-16, 76:113.) In another instance, David’s attorney introduced evidence that Susan had visited websites, directly after the court’s November 5th order, concerning “legal kidnapping” and argued that these showed she contemplated having her daughter kidnapped. (RT 78:18-24, 80:17-81:3.) Susan explained that the term “legal kidnapping” was actually a reference to circumstances where the legal system had taken away custody from a parent, as the trial court had taken away custody from Susan in a trial she thought was unfair due to her lack of an attorney. (RT 80:11-16, 81:4-22.) The court ignored Susan’s explanation and asked the clerk for a copy of the penal code. (RT 85:15-16.) Reading out its provisions, the court stated that “the person who ‘keeps or withholds’ [M], holds or facilitates the keeping of the child even if that’s what the child wants” and that such a person was “committing a crime.” (RT 88:6-12.) The court stated that it was “a crime to assist or facilitate a child in the underground” and that the court’s “finding” was that Susan “was assisting the child in her runaway” and had committed this crime. (RT 87:14-22.) The court then ordered that Susan return with M. (RT 89:17-19.) The court threatened Susan with arrest and jail time if M was not returned. (RT 92:15-26.) When Susan returned without M, the court ordered that Susan no longer had the right to any contact with her daughter. (RT 109:19-23; CT 116, 117.) The court contemplated putting Susan in jail for contempt of court for failing to return

her daughter, but decided it was not “certain beyond a reasonable doubt” that Susan could comply with the court’s order. (RT 113:17-24.) The Superior Court indicated it would turn over the case to law enforcement and the “Child Abduction Unit” if possible. (RT 114:22-25.) After losing all contact with her daughter, Susan repeatedly asked for an attorney, even going so far as attempting to be held in contempt so that the court would grant her the request. The transcript of the December 15, 2011 hearing shows that Susan stated: “Can you arrest me? . . . And I’d like my Mirandas or whatever, and I do want an attorney.” (RT 131:20132:10.) The court then ordered Susan jailed for direct contempt of court for five days, but ignored her request for an attorney. (RT 143:20-144:15; CT 118.) F.

The Court Allowed David to Send M to an Out-of-State Lock-Down Facility

The court extended the temporary orders giving sole custody to David and depriving Susan of contact with her daughter on January 9, 2012. (CT 143.) M returned to Sacramento and began attending her regular middle school in January. (CT 174, 205.) On March 23, 2012, without consulting M, David arranged for personnel from a “boarding” facility to go to the middle school she attended and take her directly to the facility in Utah. (CT 206.) David’s attorney acknowledged that the “boarding” facility was “a treatment facility where the child is locked up in.” (RT 157:24-26.) The court even stated that the treatment was being used to “deprogram the child.” (RT 164:4.) On April 4, 2012, Susan filed a motion for M to be returned to California and for appointment of counsel for M. (CT 172-74.) The hearing on this motion was set for May 9, 2012.

(CT 172.) On April 12, 2012, Susan filed a motion to consolidate the April 18, 2012 and May 9, 2012 hearings.1 (CT 193-196.) The trial court told Susan that David could send M to “Australia or any place” if he wanted, as he had sole custody. (RT 162:18-25.) The court told her “she has no parental rights and no contact with this child.” (RT 163:1-2.) Susan could not afford an attorney while living on her meager social security benefits. Susan’s sole income was the $1256 per month she received in social security for her disability. (CT 201.) The Court then added to Susan’s inability to afford an attorney on April 18, 2012. (Ibid.) Following the court’s no-contact order with her daughter, the court ordered that Susan pay monthly child support of $920, including $660 to pay for the out-of-state lock-down facility that Susan opposed. (Ibid.) This left Susan with $336 per month in net income and made it difficult for her to afford basic subsistence or housing, let alone afford an attorney. (See CT 194.)2 Again without the benefit of an attorney, Susan then went to the Superior Court to request that the court appoint M an attorney and order that David take her out of the treatment facility and return her to California. (RT 168:1-5.) Susan again stated that she was having difficulty with the 1

Desperate to have her daughter returned to Sacramento and back to her normal middle school, Susan hired an attorney to help her file the Order to Show Cause to return M to California and to appoint M an attorney. (CT 172-174.) Susan was barely able to retain Mr. Frumpkin for the April hearings, and could not afford his services for the May 9 hearing. (CT 194.) Susan filed a notice of substitution of counsel indicating she again was without representation on April 30, 2012. (CT 209.) 2

Not only was she ordered to pay monthly child support of $920, but the order also immediately created a $1700 child support arrearage. The court made $260 per month retroactive for four months and an additional $660 per month was made retroactive one month, totaling $1700. (CT 201.)

case due to the lack of an attorney. (RT 172:14-21.) The court reiterated that David had the right to make a determination of where to send M because David had sole custody. (RT 168:11-13.) Susan stated that the basis for the court’s ruling, David’s custody of M, “is an issue that needs to be discussed.” (RT 168:11-15.) Susan stated that she would like an appeal of this custody finding. (RT 168:17-18.) The court asked Susan, “Isn’t the reason Mr. Ferris has sole legal custody and sole physical custody with a no-contact order because you assisted the child into the underground, and the child disappeared?” (RT 168:21-24.) Susan replied that there had “never been an underground, or facts or evidence of any kind.” (RT 168:25-26.) The court had never made a formal finding of fact that Susan had assisted her daughter in hiding from her father. (CT 111-113, 177, 212.) Nevertheless, the court denied Susan’s motion to prevent her father from sending M out of state and denied Susan’s motion to have counsel appointed for M. (RT 173:12-16; CT 212.) David’s attorney then asked the court to swear Susan in, and Susan was sworn. (RT 174:2-7.) David’s attorney questioned Susan about M’s whereabouts when M had been missing. (RT 174:9-13.) Susan replied that M had not been in her care. (RT 174:17.) Neither Susan nor the court questioned David about whether he had discovered where M had been. (RT 174:17-22.) Nor was he asked if M had been with his brother—as David had earlier acknowledged was “a possibility.” (RT 77:18-19.) G.

The Court Orders Susan to Pay Attorney’s Fees for Filing the Motion to Prevent David from Sending M Out of State

David’s counsel sought attorney’s fees from Susan for the motion she filed to return M to California and appoint M counsel, stating that these motions were “frivolous motions that just create litigation.” (RT 175:1516.)

The record shows that Susan was not attempting to “create litigation” at all. On March 14, 2012 the court set a hearing regarding child support payments for April 18, 2012. (CT 167.) This hearing was set before M was removed from school, on March 23, 2012. (CT 167, 172.) On April 4, 2012, after M was removed from school and taken to Utah, Susan filed the motion for M to be returned to California. (CT 172.) The court set the hearing for this motion to be held on May 9, 2012. (Ibid.) On April 12, 2012, Susan attempted to decrease litigation and filed a motion to consolidate the April 18 hearing regarding child support with the May 9 hearing regarding M’s return. (CT 193-196.) This motion was marked “No Hearing.” (CT 193.) Despite that, opposing counsel appeared. (RT 151:817.) The trial court denied the consolidation request on April 12, 2012. (CT 200.) At the April 18, 2012 hearing, counsel for David asked Susan to drop the May 9 hearing. (RT 175:10-12.) At the May 9, 2012 hearing, the trial court imposed $2,500 in attorney’s fees against Susan under Family Code Section 271. (RT 179:36; CT 212.) The sanction is to be paid at $25 per month with the entire amount becoming due immediately if the monthly payment is 10 days late. (CT 212.) During the May 9, 2012 hearing, the court asked Susan why she should not be sanctioned for failing to drop the May 9 hearing. (RT 175:24-25.) In response, Susan stated she had spoken with the court clerk who had told her that the May 9, 2012 motion could not be dropped from the calendar because a temporary order was in place. (RT 176:1-4, 177:1021, 178:8-9, 178:17-18, 178:27-28.) In response to the question from the court “When you talked to [the court clerk], did you tell [the court clerk] that you and [opposing counsel] had talked and there was an agreement to drop it?” Susan responded, “No.” (RT 177:28-178:3.) Despite this clear

statement, the court then stated that Susan was “avoiding the direct question” and as a result the court assumed “you did tell [the court clerk] that [opposing counsel] agreed to drop it, and it turned out to be false . . .” (RT 178:19-24.) The trial court continued: “ . . . and I can tell from your body language that you are not telling me the truth.” (RT 178:25-26.) Susan stated, “I am not an attorney, I do not know the process, so I called the clerk and asked her . . . and she gave me information.” (RT 176:26177:1.) During the May 9, 2012 hearing, the trial court did not inquire whether Susan was financially able to pay the $2,500 sanctions or to pay that sanction at $25 per month. Nor did the court’s order make a finding regarding whether Susan had the financial ability to pay the sanction. (CT 212; RT 179:3-6.) The trial court had been informed several times about Susan’s financial situation. In her April 12, 2012 declaration requesting consolidation of hearings, she stated she had limited means and wanted to avoid two hearings for that reason. (CT 194.) The April 18, 2012 child support order had left her only $336 per month on which to live. (CT 201, 202.) The trial court was told that Susan’s income was $500 per month less than her expenses. (RT 159:12-15.) The trial court acknowledged that the child support order “doesn’t leave her [Susan] much to live on.” (RT 164:10-11.) H.

Susan Had Difficulty Pursuing and Arguing Her Case Without the Assistance of Counsel

Without the assistance of an attorney, Susan found the proceedings to be difficult and did not have a full and fair opportunity to present the issues to the court. (RT 81:19-21; 172:14-21.) Susan’s disability and

desperation to protect M and keep a close relationship with her daughter clouded her judgment, her interactions with court, her ability to manage her case, and her ability to clearly articulate her positions before the court. This led to friction with the judge. (See, e.g., RT 133:2-16, 142:28-143:24.) Susan interrupted the judge on numerous occasions, sometimes because she was exasperated, and other times to get more information about the legal terms the court used. (See, e.g., RT 105:25-106:4, 127:10-23, 128:20129:12, 131:6-16, 132:27-133:16, 133:26-28.) With her relationship with her daughter at stake, it was understandable that Susan was emotional. Nevertheless, this friction slowed down the proceedings, diverted the court’s focus, and undermined Susan’s advocacy and presentation of her own testimony and evidence.

STANDARD OF REVIEW Because the failure to appoint counsel for Susan before depriving her of contact with M undermined the fundamental fairness of the hearing in violation of the due process clause of the California Constitution, the trial court’s order is reversible per se. When a court infringes upon a right which “calls into question the very fairness of the trial or hearing itself” the “error[] in civil cases remains reversible per se.” (Biscaro v. Stern (2010) 181 Cal.App.4th 702, 704 [holding that a case where “meaningful assistance” was not provided to a party with a mental disability, the denial of this assistance “is [a] structural error infecting a legal proceeding’s reliability”] (Biscaro); see also Adoption of Baby Girl B. (1999) 74 Cal.App.4th 43, 55.) This Court reviews de novo whether the due process clause of the California Constitution required the trial court to appoint counsel for Susan before ordering that she have no contact with her daughter or issuing an

order that caused a prolonged separation between Susan and her daughter. (Ohio v. Barron (1997) 52 Cal.App.4th 62, 67 [constitutional issues reviewed de novo].) This Court also reviews de novo whether California disability law required the court to accommodate Susan’s disability by appointing counsel to assist her in the proceedings below. It is undisputed that Susan is disabled and that the court made no effort to accommodate this disability. The issue of what California disability law requires a court to do to accommodate a mental disability presents a question of statutory interpretation that is reviewed de novo. (Cuiellette v. City of Los Angeles (2011) 194 Cal.App.4th 757, 765 [determining how employment discrimination law applied to undisputed facts reviewed de novo]; Turner v. Association of American Medical Colleges (2008) 167 Cal.App.4th 1401, 1407 [determining that disabled person’s accommodation request should be reviewed de novo where relevant facts are undisputed].) The lower court’s award of attorney’s fees of $2,500 as a sanction against Susan is reviewed for abuse of discretion. (Parker v. Harbert (2012) 212 Cal.App.4th 1172, 1177.) Factual findings made in connection with a sanction are reviewed under the substantial evidence standard. (Ibid.)

STATEMENT OF APPEALABILITY This appeal is from the May 9, 2012 order of the Superior Court of Sacramento County denying Appellant’s request for return of her daughter to California, denying her request that counsel be appointed for her daughter, and imposing $2,500 in sanctions against Susan. (CT 212.) A notice of appeal was filed on August 7, 2012, within the time permitted by California Rule of Court 8.104(a)(1)(C). (CT 217.)

The May 9, 2012 order was a final determination of David’s right to send M to an out-of-state boarding school and constitutes an appealable order after judgment. (See Cal. Code Civ. Proc. § 904.1(a)(2) [an appeal may be taken from “an order made after a judgment made appealable by” Section 904.1(a)(1)]; Enrique M. v. Angelina V. (2004) 121 Cal.App.4th 1371, 1377-1378 [holding order denying request for change in parenting schedule was “an appealable order after judgment”].) Because the May 9 order was based on earlier, temporary orders depriving Susan of custody and contact with M, those temporary orders and the related proceedings are also reviewable in this appeal. (Cal. Code Civ. Proc. § 906.) The order imposing sanctions on Susan is also appealable because it “is not preliminary to some future judgment from which the order might be appealed.” (In re Marriage of Dupre (2005) 127 Cal.App.4th 1517, 15241525, review den. (2005) [denial of a party’s request to impose postjudgment sanctions appealable under California Code of Civil Procedure Section 904.1(a)(2)].)

LEGAL ARGUMENT California courts have recognized that the right to the custody, contact, and care for one’s child is a liberty interest protected by due process. (Salas v. Cortez (1979) 24 Cal.3d 22 (Salas); In re Jay R. (1983) 150 Cal.App.3d 251, 259.) The state cannot deprive Susan of this important liberty interest without due process. Here, the trial court failed to provide the constitutionally required due process because it failed to provide counsel to Susan in proceedings which deprived her of her parental rights and significantly prolonged her separation from her daughter. Susan respectfully requests this Court to order the trial court to appoint her counsel. Susan also asks this court to

reverse the superior court’s sanction of $2,500 for failing to consider that this sanction would impose an undue financial burden on her. I.

THE STATE DEPRIVED SUSAN OF ALL CUSTODY AND CONTACT WITH HER DAUGHTER WITHOUT DUE PROCESS OF LAW The California Constitution provides that “a person may not be

deprived of life, liberty, or property without due process of law.” (Cal. Const. art. I, § 7(a).) The guarantee of due process applies when the state deprives a citizen of a significant liberty interest. (People v. Allen (2008) 44 Cal.4th 843, 862.) California courts have stated that “due process is implicated whenever there is “a substantial possibility of the loss of custody or of prolonged separation from a child.” (In re Emilye A. (1992) 9 Cal.App.4th 1695, 1707 (Emilye A.) [internal citations omitted].) Due process is implicated here. The State deprived Susan of custody and contact with her daughter in November and December of 2011. On May 9, the superior court relied on the orders depriving Susan of custody and ordering that she have no contact with M to justify an order creating a prolonged separation between mother and daughter by allowing David to send M to an out-of-state facility where she was “locked up.” (RT 157:26, 173:12-16; CT 212.) Where the guarantee of due process applies, California courts apply a four-part balancing test to determine what process is due. (Allen, supra, 44 Cal.4th at p. 845.) The four factors are: (1) the private interest that will be affected by the official action, (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards, (3) the dignity interest in informing individuals of the nature, grounds and consequences of the action and in enabling them to

present their side of the story before a responsible governmental official,3 and (4) the governmental interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. (In re Malinda S. (1990) 51 Cal.3d 368, 383 [internal quotations and brackets omitted, paragraphs added]; see In re Sade (1996) 13 Cal.4th 952, 991, fn. 18 [noting that the dignity interest is an additional interest which must be balanced when due process is implicated under article I, section 7 of the California Constitution].)4 Applying this test, California courts have found a constitutional right to appointed counsel in civil proceedings where a parent’s fundamental liberty interest in the companionship, care, custody, and control of his or 3

The dignity interest (also often referred to as the “dignitary interest”) is a person’s right to “‘meaningfully participate’” in a proceeding which could result in the loss of a protected liberty interest. (Moore v. Super. Ct. (2010) 50 Cal.4th 802, 819.) In People v. Ramirez (1979) 25 Cal.3d 260, 268, the Court first articulated this interest, stating that “when an individual is subjected to deprivatory governmental action, he always has a due process liberty interest both in a fair and unprejudiced decisionmaking and in being treated with respect and dignity.” 4

The due process clause of the California Constitution is more protective than the due process clause of the United States Constitution. Under federal law, a court weighs three factors: “the private interests at stake, the government’s interest, and the risk that the procedures used will lead to erroneous decisions” and balances the “net weight” of these factors “against the presumption that there is a right to appointed counsel only where the indigent, if he is unsuccessful, may lose his personal freedom.” (Lassiter v. Dept. of Social Services (1981) 452 U.S. 18, 31 (Lassiter).) Under this test, an indigent parent may have a right to appointed counsel where “the parent’s interests were at their strongest, the State’s interest were at their weakest, and the risks of error at their peak.” (Lassiter, supra, 452 U.S. at p. 31.) California law is more protective in two critical ways. First, under the California Constitution, a fourth factor must be considered: the litigant’s dignity interest in meaningfully participating in the proceedings. (See, e.g., In re Malinda S., supra, 51 Cal.3d at p. 383.) Second, California courts “do not presume that appointed counsel is required only where physical liberty is at stake.” (In re Jay R., supra, 150 Cal.App.3d at p. 262.)

her child is implicated. In Salas v. Cortez the California Supreme Court held that indigent defendants had a constitutional right to appointed counsel in civil proceedings brought to establish paternity obligations. (24 Cal.3d at pp. 28-29.)5 The California Supreme Court has found that a parent has a right to counsel when appealing an adverse ruling terminating parental rights. (See In re Jacqueline H. (1978) 21 Cal.3d 170, 175.) Other California courts have likewise recognized a constitutional right to counsel in civil proceedings that implicated the fundamental liberty interest in custody and companionship between parent and child. (In re Jay R., supra, 150 Cal.App.3d at p. 260 [“due process requires appointment of counsel for indigent parents accused of neglect in stepparent adoption proceedings”]; County of Santa Clara v. Super. Ct. (1992) 2 Cal.App.4th 1686 [determining that defendant had a constitutional right to appointed counsel in his child custody contempt hearing].)6 Here, the balance of the four factors weighs heavily in favor of finding that Susan was entitled to have counsel appointed to represent her before the trial court issued orders that deprived her of all contact with her daughter and caused a prolonged separation from her daughter. 5

The Court in Salas applied a three-part test to balance “the nature and magnitude of the interests involved, the possible consequences appellants face and the features which distinguish paternity proceedings from other civil proceedings” against the state’s interests. (Salas, supra, 24 Cal.3d at p. 27.) 6

A few California courts have declined to find a constitutional right to counsel where the interests involved were not as fundamental as the interest in maintaining the parent-child bond. (See, e.g., Clark v. Orange County (1998) 62 Cal.App.4th 576 [proceedings regarding child support payments reflect pecuniary interest]; Guardianship of Ethan S. (1990) 221 Cal.App.3d 1403 [no right to counsel for man seeking to retain presumptive parenthood where the case “affects the severance of a parent-child relationship only in an abstract sense” because at the time of suit the presumptive parent did not claim to be the natural father and had “no existing, defacto parent relationship with the child”].)

Susan’s Private Interests in the Right to the Care, Custody, and Contact with Her Child Are “Compelling” and “Fundamental”

The private interests in the important relationship between parent and child weigh heavily in favor of requiring that counsel be appointed for an indigent and disabled parent before the state may deprive the parent of contact with his or her children. California courts have recognized a parent’s interest in the companionship, care, custody, and management of his or her children as “compelling,” “fundamental,” and “‘among the most basic of civil rights ….’” (Salas, supra, 24 Cal.3d at p. 28 [citations omitted]; In re Jay R., supra, 150 Cal.App.3d at p. 259 citing In re B. G. (1974) 11 Cal.3d 679, 688-689; In re Sade, supra, 13 Cal.4th at p. , 989.) Courts have recognized that the “parent’s interest in maintaining a normal parent/child relationship is an extremely important interest” and a proceeding “which seriously infringes on the parent’s ability to parent a child for a substantial period of time . . . seriously implicates the same important interest.” (Emilye A., supra, 9 Cal.App.4th at p. 1708.) The trial court’s order that Susan have no contact with her daughter and its order permitting M to be sent out of state resulted in a prolonged separation between mother and daughter. A parent’s interest in avoiding this kind of separation from his or her child is one of the strongest possible private interests. There is no way for a parent to turn back the clock and regain the time and experiences that are lost as a result of such state-ordered separation of parent and child. After the California Supreme Court recognized that a parent has the right to counsel on an appeal from the termination of her parental rights, the legislature codified this ruling. (Cal. Fam. Code § 7895; Appellate Defenders, Inc. v. Cheri S. (1995) 35 Cal.App.4th 1819 [examining the legislative history of what is now Family Code Section 7895 and finding

that the legislature intended to codify In re Jacqueline H. (1978) 21 Cal.3d 170].) Many other California statutes explicitly provide counsel to parents and children when custody is at issue. (See Cal. Fam. Code § 7862 [providing right to counsel in termination proceedings]; Cal. Welf. & Inst. Code § 317 [providing right to counsel in dependency proceedings where a parent might be deprived of the temporary custody of her child]; Cal. Rules of Court § 8.403 [providing right to counsel for litigants appealing judgments dependency proceedings arising from the juvenile court].) The California Supreme Court has stated that “the family court [was] created to protect children and to preserve and strengthen the child’s family ties.” (In re Sade, supra, 13 Cal.4th at p. 959, fn. 1 [italics added, internal quotations omitted].) Appointing counsel for indigent parents whose right to contact their child is at stake protects the same interests in preserving family ties that has motivated the Supreme Court of California and the California legislature find that parents have a right to counsel in termination and dependency proceedings. The narrow class of indigent parents who are in a custody proceeding and face a “prolonged separation” from, and loss of contact with, their child also have a right to counsel in these proceedings. (See Emilye A., supra, 9 Cal.App.4th at p. 1707.) When an indigent parent is in danger or losing the right to have any contact with her child, a fundamental private interest is implicated regardless of whether the proceeding is termed a dependency, termination, or custody proceeding. Susan’s private interests also included her interest in maintaining her personal liberty. Courts have been particularly likely to find that a parent’s due process rights to counsel have been infringed where, in addition to facing the “emotionally devastating potential loss of all of, or significant aspects of, their relationship with their children,” they face “potential

findings that they have committed criminal and/or morally condemned acts.” (Emilye A., supra, 9 Cal.App.4th at p. 1709.) Here, the court accused Susan of committing a crime and threatened to turn over the case to law enforcement while also questioning her under oath about the disappearance of her daughter. (RT 87:14-22, 89:17-18, 92:20-26, 114:2225.) These facts also weigh in favor of appointing counsel to assist Susan. B.

The State Suspended Susan’s Parental Rights in Proceedings Which Had a High Risk of Error

The second factor in determining what process is due—“the risk of an erroneous deprivation” and “the probable value” of additional procedural safeguards—also weighs heavily in favor of appointing counsel before the state may deprive a parent of contact with her child. Failing to appoint counsel to an indigent and mentally disabled parent substantially increases the risk of an erroneous determination. When the consequences of an erroneous determination could include a no-contact order that severs an existing parental relationship, a court should appoint counsel to mitigate this risk. 1.

Child Custody Proceedings Have a High Risk of Error When One Party is Unrepresented

The risk of error is high in child custody proceedings because these proceedings are among the most difficult in the law. The difficulties stem not only from the procedural complexities inherent in any adversarial litigation proceeding, but also the intense, emotionally charged backdrop against which child custody decisions are ordinarily made, as well as the amorphous nature of the legal standards that govern in family law disputes. (Emilye A, supra, 9 Cal.App.4th at p. 1709 [stating that “few lay people are equipped to respond to the legal complexity of [custody] proceedings,”

especially when dealing with the “emotionally devastating potential loss of . . . their relationship with their children”].) The lack of an attorney impacts a litigant’s pursuit of his or her case before arriving in a courtroom. Identifying and delineating the substantive issues in a child custody trial is only the first challenge that self-represented litigants face. The range of permissible factors in hearing to determine the best interests of a child is practically infinite, and can require the introduction of expert testimony, affidavits, school reports, or criminal records relating to substance abuse or domestic violence. The procedural rules for introducing this evidence in family court are complex and often inaccessible to laymen. In Elkins v. Super. Ct. (2007) 41 Cal.4th 1337, 1345, the California Supreme Court commented on how difficult, if not impossible, it is for self-represented litigants to learn and understand these rules. Moreover, unrepresented litigants often fail to make sound strategic decisions in framing, timing, and pursuing their cases before any hearing. These are failures which, by their nature, do not make their way into the court record. Studies have shown that the assistance of an attorney makes a significant difference in the outcome of child custody proceedings especially when the opposing parent is represented by counsel. Professor Robert H. Mnookin and other distinguished scholars published a study showing that, unsurprisingly, there was clear correlation between representation and the likelihood of a particular custody outcome: “[m]other physical custody was more common when only the woman had a lawyer, father custody when only the man had a lawyer, and joint custody when both were legally represented.” (Mnookin, Maccoby, Albiston & Depner, What Custodial Arrangements are Parents Negotiating?, Divorce

Reform at the Crossroads, 64 (S. Sugarman and H. Kay edits. 1990.))7 Mothers received physical custody in only 49 percent of the cases in which only the father was represented by counsel, compared to 63 percent of cases in which both parents were represented and 86 percent of the cases in which only the mother had counsel. (Ibid.) If only one parent is represented by counsel, the information that the ultimate decision-maker receives in order to make an assessment of each parent’s custodial capabilities may be significantly skewed, placing the unrepresented parent at a distinct disadvantage in the hearing or negotiation process. As a result, a parent who does not have the assistance of counsel will be at a decisive disadvantage, thus significantly increasing the risks of an erroneous result. (See Emilye A., supra, 9 Cal.App.4th at pp. 1709-10 [“If the parent is unrepresented and the county has legal counsel, the contrast between the two sides, in many cases, would be so tilted in favor of the county’s position that the purpose of the adversarial proceeding, i.e., an accurate and just decision, would not be obtainable”].) Even apart from the emotional impact of participating in proceedings which threaten fundamental parental rights, few parents are capable of performing the essential advocacy functions such a hearing requires. (In re Jay R., supra, 150 Cal.App.3d at p. 263 [“An uneducated indigent [parent] can easily become overwhelmed by . . . a [dependency] proceeding [that involves shifting legal standards and evidentiary issues] without the assistance of counsel”].) In light of the need to apply legal standards within 7

Other empirical studies have consistently shown that legal representation makes a major difference in whether a party wins in cases decided by the courts. (See, e.g., Bezdak, Silence in the Court: Participation and Subordination of Poor Tenants’ Voices in the Legal Process (1992) 20 Hofstra L. Rev. 533; Seron, et al., The Impact of Legal Counsel on Outcomes for Poor Tenants in New York City’s Housing Court: Results of a Randomized Experiment (2001) 35 Law & Society Rev. 419.)

a formalized adjudicative process, appointment of counsel is the most effective means of mitigating the risk of error in proceedings which might result in the loss of parental rights—including the right to have any contact with one’s child. The risk of error is also magnified in family law courts due to the imprecise legal standards these courts use to make determinations implicating parental rights. (Santosky v. Kramer (1982) 455 U.S. 745, 762 [holding that due process requires a family court to use a heightened evidentiary standard in a hearing which may terminate parental rights, noting that family courts must use “imprecise substantive standards that leave determinations unusually open to the subjective values of the judge” and these “magnify the risk of erroneous factfinding”].) 2.

The Proceedings at Issue Were Complex, Emotionally Charged, and Carried a High Risk of Error

The proceedings in which the court ordered Susan to have no contact with M and allowed David to send M out of state were emotionally charged and complex. Concerned about her daughter’s sleeping arrangements and David’s angry outbursts, Susan initiated the hearing in November to gain primary custody, because, as David admitted, “[M] indicated to [him] that she really desired a 50/50 custody arrangement.” (CT 25.) No transcript was made of the November hearing, but the court later stated that Susan had “pled for [the court] to talk to [M],” but the court decided against inviting in testimony from the child. (RT 12:19-22.) At a hearing initiated by Susan out of concern for her daughter, the court instead terminated what custodial rights Susan had. (CT 23.) M then ran away from her father. (CT 91.) This put Susan in a stressful situation: she was accused by opposing counsel and by the court of assisting in the disappearance of her

own daughter (CT 95; RT 85:15-16, 174:9-13); she was threatened with jail time for this disappearance (RT 92:15-26); the testimony that the court and opposing counsel sought to elicit from her (but not from her ex-husband) potentially could have resulted in criminal liability to herself (RT 31:2232:1, 77:12-78:2); she faced the possible loss of any contact and relationship with her daughter; and finally, she believed that her exhusband’s custody of their daughter endangered M’s emotional and physical well-being. (CT 16-17.) Time after time during these proceedings, Susan was forced to juggle multiple roles, first an advocate, then a witness, and always a mother. Overwhelmed, under stress, and under the effects of her mental disability, Susan was unable to effectively argue her case. (See, e.g., RT 105:25-106:4, 127:10-23, 128:20-129:12, 131:6-16, 132:27-133:3, 133:2628.) Counsel for David was able to frame the hearing and the evidence to Susan’s detriment. (RT 77:12-78:2, 78:18-23, 80:18-81:3.) After M had returned, the court allowed counsel for David to put Susan under oath to further question her. (RT 174:2-22.) Facing an experienced attorney under these circumstances, Susan was unable to effectively present her side of the case. The result was a one-sided hearing and a one-sided decision: no custody or contact with her child, no parental rights in determining whether M should be sent out of state. (CT 116, 117; RT 162:18-163:1, 164:4.) 3.

An Attorney Would Have More Effectively Prepared, Investigated, and Argued Susan’s Case

An attorney would have more effectively defended Susan’s right to maintain custody and contact with her daughter. First, a good attorney would have established what Susan’s objectives and motivations were, and then tailored a litigation strategy to achieve those objectives.

At the May 9, 2012 hearing, Susan requested that M not be moved to the out-of-state lock-down facility. (CT 173-174.) Counsel could have greatly aided in this effort. First, an attorney would have pointed out that, because the custody order was a temporary order, the Superior Court was required to “enter an order restraining the person receiving custody from removing the child from the state pending notice and a hearing on the order seeking or modifying custody.” (Cal. Fam. Code § 3063.)8 Second, counsel would have understood that Susan’s goals would be best served by regaining joint custody, and might have made a motion explicitly seeking to modify the custody order, instead of asking the judge to do this at the hearing. (RT 168:11-15.) Finally, an attorney would have argued that a $2,500 sanction imposed an undue burden on an indigent mother who was already ordered to pay over 70% of her income as child support. (CT 201, 202.) An attorney also may have been able to negotiate with David’s counsel, and come to an agreement. Or, if the two parties could not come to an amicable agreement, the attorney could have written a forceful brief in favor of having the court appoint counsel for M, as well as arguing that pulling M from school and sending her to a lock-down facility was not in M’s best-interest. Such a motion would have been bolstered by the applicable statutory law, caselaw, and admissible facts, none of which were presented by Susan on May 9. (RT 166:1-174:22.)

The no-contact and custody orders were “ex parte temporary custody orders” under Family Code Section 3060 et seq., as they were temporary orders setting custody which were ordered “in the absence of an agreement” between Susan and David regarding custody. No final orders modifying custody have been entered. (See Cal. Fam. Code § 3048 [requiring that final custody orders comply with certain form and notice requirements].)

The hearings in November and December of 2011 in which the court severed Susan’s custody and contact with M would also have been markedly different with counsel. First, counsel would have established what Susan’s overall objectives were before Susan sought primary custody, and tailored Susan’s ex parte motion to grant her sole custody in such a way to avoid an order with the opposite result. (CT 23.) In the December hearings, in which the court was determining where M was, an attorney for Susan could have called the father as a witness, including cross-examining him with regard to the statement that it was a “possibility” that M was with his brother. (RT 77:18-19.) The attorney might have been able to effectively argue that granting David sole custody and depriving Susan of contact with M was not consistent M’s best interests. Appointed counsel would have been able to introduce M’s letter, M’s text messages, and call witnesses to establish that it was in M’s best interests to continue to have a relationship with her mother. (See, e.g., CT 16-18, 55, 62, 91, 107.) An attorney for Susan could have deduced that, if Susan and M’s interests were aligned in M not living with her father (as evidenced by her letter and her running away) that the court might be better persuaded by an attorney appointed to represent M. The appointment of an attorney to represent Susan would have avoided friction with the judge. An attorney may have counseled her against attempting to disqualify the judge. (CT 82-85.) Susan’s decision to attempt to disqualify the judge was unsound: foremost because it was an unwelcome distraction from the merits of her case, and second because it was procedurally and substantively defective. (RT 133:17-134:9; CT 152155.) An attorney in this case would have been an effective advocate for

Susan and would have saved hours of the court’s time by better preparing, investigating, and arguing the case. Under these circumstances, the probable value of appointed counsel in mitigating the risk that the trial court erroneously deprived Susan of her parental rights and severed her relationship with M weighs in favor of appointing her counsel. (In re Bryce C. (1995) 12 Cal.4th 226, 234 [“Because of the fundamental importance to the parent and society of an accurate determination whether to terminate parental rights, counsel should be appointed whenever the appearance of counsel may reasonably affect the ultimate decision”].) C.

Susan Has a Protected Dignity Interest in Having Counsel Appointed to Adequately Present Her Case

The third factor in the due process analysis requires the court to determine whether “the dignity interest in . . . enabling [individuals] to present their side of the story before a responsible government official” warrants appointment of counsel. (In re Malinda S., supra, 51 Cal.3d at p. 383 [internal quotations and brackets omitted].) The Supreme Court has struck down local court rules which infringe on this interest. In Elkins v. Super. Ct., supra, 41 Cal.4th at p. 1367, the Court invalidated a local rule which required litigants in family court to submit declarations in lieu of testifying before the court. The Court stated that this rule deprived litigants of the “essential opportunity to ‘tell their story’ and ‘have their day in court.’” (Ibid. [internal citations omitted].) Although the court invalidated the local rule at issue, it noted that heavy family law caseloads, “made all the more difficult” by the high percentage of self-represented litigants, contributed to a statewide “concern with court procedures that do not

permit family law litigants to tell their story.” (Id. at pp. 1367-1368.)9 The California Supreme Court has acknowledged that counsel can serve as an effective means of guaranteeing an individual’s dignity interest under the due process clause of the California Constitution. (People v. Allen, supra, 44 Cal.4th at p. 868.) Pro per litigants in family law courts struggle to meaningfully participate in the proceedings due to lack of education, unfamiliarity with legal rules and procedures, and overburdened family court calendars. (Elkins v. Super. Ct., supra, 41 Cal.4th at p. 1367; Judicial Council of California Task Force on Self-Represented Litigants, Statewide Action Plan for Serving Self-Represented Litigants, at pp. 10-11 (Feb. 2004), available at www.courtinfo.ca.gov/reference/documents/ selfreplitsrept.pdf [“public trust and confidence in the judicial process is undermined when justice is delayed or appears to be completely inaccessible to litigants who do not have access to legal help.”).) Susan’s dignity interest in having her story heard can only be protected by appointed counsel, especially given her mental disabilities that “restrict [her] in-court comprehension and communication skills.” (ACT 1.) When a disabled and indigent litigant cannot be provided meaningful access to the courts without counsel, due process requires the appointment of counsel. (See Payne v. Super. Ct. (1976) 17 Cal.3d. 908, 924 [holding that denial of appointed counsel to an indigent prisoner in a civil case was impermissible under the California Constitution where “no other relief will preserve his right of access to the courts”].)

The court invalidated the local rule because it conflicted with statutory provisions and declined to resolve the “serious constitutional questions” because “judicial restraint . . . counsels against rendering a decision on constitutional grounds if a statutory basis for resolution exists.” (Elkins v. Super. Ct. 41 Cal.4th at p. 1357 [citation omitted].)

The State’s Interests Also Weigh in Favor of Appointing Counsel for Susan

The final factor in determining what process is due—“the governmental interest” in the benefits and burdens of additional procedural safeguards—also weighs in favor of finding that an indigent and disabled parent has a right to counsel when her right to contact or have custody of her child is at stake. The government has a compelling interest making sure there is an accurate determination of parental rights. That is a primary reason family courts exist. (In re Sade, supra, 13 Cal.4th at p. 959, fn. 1.) When the California Supreme Court granted a right to counsel to an indigent man defending against allegations of paternity, it observed that “[a]ppointment of counsel for indigent defendants will make the fact-finding process in paternity cases more accurate, thereby furthering the state’s legitimate interests in securing support for dependent children.” (Salas, supra, 24 Cal.3d at p. 33.) The state’s interest in the just and accurate determination of parental rights has been called “important and even compelling.” (In re Sade, supra, 13 Cal.4th at p. 989.)10 Protecting the state’s interest in having an accurate result depends on an adversarial system that is not overwhelmingly tilted in favor of one litigant. (See Part I.B, supra.) Here, the court made decisions about what the child’s best interests were in a hearing where the father and his lawyer were only countered by a disabled mother struggling to represent herself without counsel. (CT 11-113, 116, 117, 209, 212.) As a result of these 10

In addition to promoting the interests of the child and parent in a just outcome, greater accuracy will also promote public trust and confidence in the court system, a state interest the California Supreme Court has recognized as a priority necessary to the maintenance of the justice system. (Elkins v. Super. Ct., supra, 41 Cal.4th at p. 1367.)

one-sided proceedings, the court made dubious decisions regarding M’s best interests. The court decided that it was in M’s best interest to be in the sole custody of a father who had her share his bed, (CT 16-17) who frightened her, (CT 64-65) and who eventually sent her away to an out-ofstate lock-down facility to “deprogram” her. (RT 164:4.). The state also has a special and particularly compelling interest in protecting the health and welfare of children. (In re Sade, supra, 13 Cal.4th at p. 989 [characterizing this interest as “urgent”]; American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307, 342.) Where only one parent has counsel, it is less likely that a court will come to an accurate conclusion regarding the child’s best interests. “Appointment of counsel [to a parent who lacks counsel] will not only advance substantial state interests, it should serve the child’s interest as well.” (Salas, supra, 24 Cal. 3d 22 at p. 33.) M had a close relationship with her mother, and, like most children, missed her when she was unable to see her. (CT 55.) Nevertheless, without counsel Susan was unable to convince the court to hear testimony from M, who was fourteen at the time, before determining whether Susan should have custody of M. (RT 12:19-20.) The state’s interests in the welfare of children generally align with a parent’s interest in retaining the companionship, care, custody, and management of the child. California statutory law clearly demonstrates a strong state interest in the continued relationship between parent and child. For instance, California Welfare & Institutions Code Section 16000 notes that it “is the intent of the legislature to preserve and strengthen a child’s family ties whenever possible . . . ” This preference is why, in custody proceedings, the number one “preference according to the best interest of the child” is to grant custody to “both parents jointly, or to either parent.” (Cal. Fam. Code § 3040(a).) Because “continuing contact” with both

parents is so important, a court must consider “which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent” when determining custody. (Ibid., italics added.) While the state’s interests in a just and accurate determination of parental rights and in the welfare of children are “compelling” and support appointing counsel for an indigent and disabled parent facing potential separation for his or her child, the “state’s interest in denying counsel to [indigent parents] is largely financial.” (Salas, supra, 24 Cal.3d at p. 33.) Even with regard to that financial interest, the appointment of counsel “can create savings in court time otherwise spent repeatedly processing inaccurate or incomplete paperwork, calendaring unnecessary hearings, and dealing with repeated requests for legal advice made to judicial officers and other court staff.” (Judicial Council of California Task Force on SelfRepresented Litigants, Statewide Action Plan for Serving Self-Represented Litigants, at p. 10.) Appointing counsel for the narrow class of indigent parents who are in a custody proceeding and face a “prolonged separation” from, and loss of contact with their child would be an insubstantial financial burden on the state, and does not outweigh the other important interests which weigh towards appointing counsel. (See Payne v. Super. Ct., supra, 17 Cal.3d. at p. 920 [rejecting argument that providing counsel would “impose a heavy burden on the public fisc” and questioning “how substantially state costs would be increased” by providing counsel to a narrow class of unrepresented civil litigants].) II.

FEDERAL AND STATE LAWS PROTECTING PERSONS WITH DISABILITIES GUARANTEE SUSAN THE RIGHT TO COUNSEL IN THIS CASE California law guarantees full and equal access to the benefits of

state services. The family court is a state service and California is required to provide disabled litigants the means to meaningfully participate in family

court proceedings. (See Franco-Gonzalez v. Holder (C.D. Cal. 2013) 2013 WL 3674492 at pp. *6, 21 (Franco-Gonzalez) [holding that mentally disabled immigrant aliens facing detention proceedings must be appointed an attorney to enable them to “meaningfully participate” in detention proceedings].) California disability law requires that state-funded programs must not discriminate on the basis of a disability and largely incorporates the standards set forth under the Americans with Disabilities Act (“ADA”). (Gov. Code § 11135 et seq.) Under California law, “[n]o person in the State of California shall, on the basis of . . . disability, be unlawfully denied full and equal access to the benefits of” state services, including court hearings. (Gov. Code § 11135(a).) Access to these services must comply with both Section 202 of the ADA (including related federal regulations) and with California’s disability laws; whichever law provides “stronger protections and prohibitions” governs. (Gov. Code § 11135(b).) A public program or service violates the ADA (and therefore also California law) if the litigant can show that: (1) she is a “qualified individual with a disability”; (2) she “was either excluded from participation in or denied the benefits of a public entity’s services, programs, or activities, or was otherwise discriminated against by the public entity”; and (3) “such exclusion, denial of benefits, or discrimination was by reason of [her] disability.” (42 U.S.C. § 12132.) A.

Susan Has a Qualifying Mental Disability

Under the ADA and California law, a person with a mental disability impacting her ability to think clearly is disabled. Under the ADA a

“qualified individual with a disability” includes anyone who has “a physical or mental impairment that substantially limits one or more of the major life activities of such individual” including “thinking.” (42 U.S.C. § 12102.) California law provides greater protections than federal law to persons with only limited disabilities. Government Code Section 11135 incorporates the definition of “disability” from Government Code Section 12926, so that a person who has “any mental or psychological disorder or condition, . . . such as an emotional or mental illness . . . that limits a major life activity” is a person with a disability. While the ADA requires that the disability “substantially limits” one or more major life activities, California law only requires that it “limits” such an activity, a less stringent requirement. (Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019, 1031.) Post-Traumatic Stress Syndrome (PTSD) is a qualifying mental disability. (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 257.) The trial court was aware that Susan had a qualifying mental disability. (ACT 3-11.) Susan had previously submitted letters and diagnostics from the clinical director at her treatment center stating that she had a mental disability. Dr. Gerry Shea, the therapist who treats Susan stated that Susan suffers from “Post-Traumatic Stress Syndrome (PTSD) due to a rape in 2005 and . . . [a] rock climbing accident in 2007.” (ACT 3.) This disability gives Susan “situational depression and anxiety, mostly related to custody and court issues around [her] daughter.” (Ibid.) The trial court also noted that Susan was agitated and upset. (RT 133:2-3, 143:11144:15.) This was the manifestation of the mental disability that Susan had disclosed to the court in her medical records.

Susan Made a Reasonable Request for Accommodation

A person with a qualifying disability is not required to make an explicit or formal request for accommodation. While a disabled person must request some accommodation, the litigant is not required to speak any “magic words.” (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1013; Prillman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 934) Where the person initiating the request for accommodation is mentally disabled, particular leeway is given regarding the form of a request for accommodation. (Bultemeyer v. Ft. Wayne Community Schools (7th Cir. 1996) 100 F.3d 1281, 1285 [employee initiated a request for accommodation when employer was aware of his mental disability and he stated that work at his position “would be too stressful”].) At least twice, Susan made it clear that she was having difficulty in this case because she lacked an attorney. (RT 81:19-21; 172:14-21.) Susan also requested an attorney at least twice. (RT 131:20-132:10; 144:5-6.) These requests and statements, constituted a “reasonable request for accommodation” because the court was on notice about Susan’s mental disability, Susan explicitly and implicitly requested an attorney to help her, and the appointment of an attorney was necessary to provide her with meaningful access to the court. C.

The Court Was Obligated to Provide Auxiliary Aids and Services

Because Susan has a mental disability that prevented her from having meaningful access to court services without counsel, the court was obligated to provide appointed counsel as an accommodation, as Susan had requested. When considering a “request of accommodation,” a public entity must consider available options and furnish “appropriate auxiliary

aids and services where necessary (28 C.F.R. § 35.160 (2003), giving “primary consideration” to the requests of the disabled person. (28 C.F.R. § 35.104 (2003).) “Whether an accommodation is reasonable depends on the individual circumstances of each case and requires a fact-specific, individualized analysis of the individual’s circumstances and the accommodations that enable meaningful access to the “program at issue.” (Franco-Gonzalez, supra, 2013 WL 3674492 at p. *6) The court did not conduct any such analysis. The Superior Court neither appointed the attorney that Susan requested nor “engage[d] in an informal, interactive process in order to attempt to identify a reasonable accommodation” for Susan. (Jensen, supra, 85 Cal.App.4th at p. 261.) Providing legal representation is a reasonable accommodation for persons with mental disabilities who lack attorneys. In Franco-Gonzalez, supra, 2013 WL 3674492 at p. *6, the court explained that mentally disabled litigants “seek only the ability to meaningfully participate in the . . . court process, including the rights to examine the evidence against the [them], to present evidence on [their] own behalf, and to cross-examine witnesses. . . . [The litigants] ability to exercise these rights is hindered by their mental incompetency, and the provision of competent representation able to navigate the proceedings is the only means by which they may invoke those rights.” (Ibid. [internal quotations and citations omitted, italics added].) The court should have appointed Susan an attorney so that she could meaningfully participate in proceedings implicating fundamental rights to continued contact with her daughter. D.

Susan Was Excluded From Meaningfully Participating in Her Hearing as Result of Her Disability

Susan’s disability noticeably impeded her ability to meaningfully participate at her hearing. (Henrietta D. v. Bloomberg (2nd Cir. 2003) 331

F.3d 261, 277-278 [plaintiff need only show that her disability was a “substantial factor” in impeding this participation]; American Council of the Blind v. Paulson (D.C. Cir. 2008) 525 F.3d 1256, 1267.) The court noted that she was agitated and upset, remarking on her frequent interruptions and the general friction in the courtroom. (RT 133:2-3, 143:11-144:15.) Susan’s mental disability prevented her from focusing on the many the accusations leveled at her by the father’s lawyer as well as the inquiries and findings made by the trial court. (See, e.g., CT 13:3-4, 77:1278:2, 80:18-81:3, 88:6-12, 87:14-22, 174:4-13.) Susan was therefore “excluded from participation in,” and “unlawfully denied full and equal access to the benefits of,” the Superior Court’s services: providing a fundamentally fair hearing to determine custody issues. (42 U.S.C. § 12132; Gov. Code § 11135(b).) The May 9 order should therefore be reversed. (See Biscaro, supra, 181 Cal.App.4th at p. 709 [reversing a case where “meaningful assistance” was not provided to a party with a mental disability].) III.

THE TRIAL COURT’S $2,500 SANCTION WAS AN ABUSE OF DISCRETION A.

Failure to Consider Whether a $2,500 Sanction Would Impose an Undue Burden Was an Abuse of Discretion

The trial court was not permitted to order sanctions under Family Code Section 271 that would impose an undue financial burden. (Cal. Fam. Code § 271(a); In re Marriage of Petropoulos (2001) 91 Cal.App.4th 161, 180.) In determining undue financial burden, the trial court “shall” consider the parties’ income, assets, and liabilities. (Cal. Fam. Code § 271(a); In re Marriage of Corona (2009) 172 Cal.App.4th 1205, 1225.) Here, there is nothing in the record that indicates the trial court considered whether a sanction would impose an undue financial burden on Susan.

Imposing a Sanction Which Would Impose an Undue Burden Was an Abuse of Discretion

There was substantial evidence that sanctioning Susan would cause her to suffer an undue financial burden. The trial court had previously ordered Susan to pay $920 of her $1256 monthly income as child support, leaving her with only $336 per month to live on. (CT 201, 202.) The April 18, 2012 order was also retroactive and had created a $1,700 child support debt immediately owed by Susan. (CT 201.) On April 18, the court stated “I realize that [the $920 per month child support order] doesn’t leave her [Susan] much to live on.” (RT 164:10-11.) However, the trial court did not consider these facts when imposing the $2,500 sanction. Although the trial court ordered that the $2,500 sanction would be paid $25 per month, this sanction imposed an undue financial burden on Susan. The trial judge had been informed that Susan’s monthly expenses were $500 more than her income. (RT 159:12-15.) Twenty-five dollars per month is nearly 7.5% of the $336 per month Susan had left after the child support order. With $336 of income, $25 imposed a severe financial burden that reduced Susan’s ability to pay rent and afford basic subsistence. (See, e.g., CT 64, 194, 202.) Susan would have to pay $25 a month for over eight years before her obligation would be fulfilled. A payment late by a mere ten days would accelerate the order and make the entire amount due. (CT 212; RT 179:3-6.) It is “an abuse of discretion for a court to impose such an obligation upon [a] destitute part[y] which will hang over the obligor” for many years. (In re Marriage of Pollard (1979) 97 Cal.App.3d 535, 539 [holding that an attorney’s fees award of $200 (approximately $650 in 2013 dollars) was an abuse of discretion where imposed on a destitute party].) The court’s imposition of a sanction which would hang over Susan for over eight years was an abuse of discretion.

The Trial Court Had No Reasonable Justification to Sanction Susan

The trial court imposed a $2,500 sanction on Susan for failing to drop her motion to appoint minor’s counsel and restrain David from moving M out of state. (CT 212; RT 174:26-175:23.) Family Code Section 271 authorizes attorney’s fees sanctions only for conduct that increases litigation costs by flouting the policy of encouraging settlement and cooperation. (Parker v. Harbert, supra, 212 Cal.App.4th at p. 1176.) The lower court did not state its basis for the sanction. (See RT 174:26179:6.) However, opposing counsel had moved for sanction for filing frivolous motions that created litigation. (RT 175:6-16.) The $2,500 sanction was the amount opposing counsel stated was incurred for fees for the motion to return M to California. (RT 175:19-23.) For several reasons, imposing this sanction was an abuse of discretion. Susan’s testimony as to why she did not drop the May 9, 2012 hearing was uncontradicted. (RT 176:1-179:12.) Susan told the court during the May 9, 2012 hearing that she spoke to the court clerk about dropping the hearing but was told she could not do so because a temporary order was in place. (RT 176:1-4, 177:10-21, 178:8-9, 178:17-18, 178:2728.) There was no testimony on the record from the court clerk or from any other source to contradict Susan’s testimony about her conversation with the court clerk. (RT 179:9-12.) It was an abuse of discretion to sanction Susan for failing to drop a motion which the court clerk had informed her could not be dropped. (Ibid.) The trial court attempted to justify its disbelief of Susan in two ways. First, the trial court stated Susan was “avoiding the direct question” and as a result the court assumed “you did tell [the court clerk] that [opposing counsel] agreed to drop it, and it turned out to be false— . . . .” (RT

178:19-24.) However, the trial court’s characterization misstates Susan’s answers to the court’s questions. The trial judge directly asked “When you talked to [the court clerk], did you tell [her] that you and [opposing counsel] had talked and there was an agreement to drop it?” and Susan directly responded “No.” (RT 177:28-178:3.) Contrary to avoiding the court’s question, Susan directly answered it. The court’s incorrect claim that Susan was evasive should not be a reason to find her not credible. Second, the trial court justified its disbelief, stating, “ . . . and I can tell from your body language that you are not telling me the truth.” (RT 178:25-26.) There is no basis in the record indicating that the trial judge was able to tell truth from fiction by body language. While the trier of fact is permitted to disbelieve even uncontradicted evidence, such evidence cannot be arbitrarily disregarded. (Ebersol v. Cowan (1983) 35 Cal.3d 427, 439; Filip v. Bururenciu (2005) 125 Cal.App.4th 825, 836 [the trier of fact may only reject the uncontradicted testimony of a witness if it “does not act arbitrarily and has a rational ground for doing so.”] [citation omitted].) It is arbitrary and without rational basis for the trial court to question Susan’s claim based solely upon her body language when the court could have directly asked the court clerk to verify or contradict Susan’s statement. Imposing sanctions here constituted an abuse of discretion. It was also an abuse of discretion to sanction Susan for failing to drop a hearing she attempted to consolidate. Susan filed an application to consolidate the April 18 hearing on David’s child support modification motion with the May 9 hearing on the motion to return M to California. (CT 193-196.) Susan’s attempt to save litigation costs by having motions heard at one court appearance instead of two, rather than increase costs, was rejected by the trial court. (CT 200.) The April 12, 2012 motion is

marked “No Hearing.” (CT 193.) Opposing counsel’s choice to appear anyway should not be held against Susan. Because the trial court’s findings lacked reasonable justification, because Susan attempted to decrease litigation costs by asking to combine or cancel hearings, and because the sanction imposed an undue financial burden, a reasonable judge would not have imposed the sanction against her. Imposing this sanction was therefore an abuse of discretion and the order regarding sanctions should be reversed.

CONCLUSION Under the California Constitution’s due process clause, Susan should not have been deprived her of the fundamental right to the care, custody, and contact with her child without first being appointed counsel to assist her in the proceedings. The proceedings leading to the May 9, 2012 order resulted in Susan’s loss of custody of M, an order not to contact M, and an order permitting David to send M out of state. Because the trial court failed to appoint counsel before depriving Susan of her fundamental rights, the May 9, 2012 order should be reversed and the trial court should be instructed to appoint counsel to assist Susan in further proceedings related to contact with and custody of her daughter. Alternatively, this order should be reversed because the court failed to appoint Susan an attorney as a reasonable accommodation for her disability. The order imposing $2,500 in attorney’s fees should be reversed because the court did not consider that this sanction would impose an undue financial burden on Susan and because the court lacked reasonable justification for imposing this sanction.

Appellant respectfully requests this Court reverse the May 9, 2012 order and remand for further proceedings after counsel is appointed for Susan. Dated: September 16, 2013

MORRISON & FOERSTER LLP

By: JAMES J. BROSNAHAN Attorney for Appellant SUSAN C. FERRIS

CERTIFICATE OF COMPLIANCE As required by rule 8.204(c)(1) of the California Rules of Court and in reliance on the word count of the computer program used to prepare this brief, counsel certifies that it was produced using 13 point Roman type and consists of 12,183 words, including footnotes.

Dated: September 16, 2013

MORRISON & FOERSTER LLP

By: JAMES J. BROSNAHAN Attorney for Appellant SUSAN C. FERRIS

NO. C071887

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT IN RE THE MARRIAGE OF DAVID M. FERRIS AND SUSAN C. FERRIS DAVID M. FERRIS, Respondent, v. SUSAN C. FERRIS, Appellant. Appeal From the Sacramento Superior Court Case No. 98FL05615 Hon. Matthew Gary, Judge Presiding ________________________________________

APPELLANT’S REPLY BRIEF ________________________________________ JAMES BROSNAHAN* (SBN 34555) KEVIN A. CALIA (SBN 227406) DEVON EDWARDS (SBN 264833) ANDREW BERNICK (SBN 276115) MORRISON & FOERSTER LLP 425 Market Street San Francisco, CA 94105-2482 Tel: 415.268.7000 Fax: 415.268.7522 JBrosnahan@mofo.com

WILLIAM KENNEDY (SBN 61701) STEPHEN GOLDBERG (SBN 173499) LEGAL SERVICES OF NORTHERN CALIFORNIA 515 12th Street Sacramento, CA 95814 Tel: 916.551.2150 Fax: 916.551.2195 bkennedy@lsnc.net

Attorneys for Appellant SUSAN C. FERRIS

TABLE OF CONTENTS Page

TABLE OF AUTHORITIES........................................................................ ii INTRODUCTION ........................................................................................ 1 LEGAL ARGUMENT ................................................................................. 2 I.

SUSAN REQUESTED COUNSEL .................................................. 2

II.

APPOINTING COUNSEL FOR SUSAN WOULD HAVE MADE A SIGNIFICANT DIFFERENCE IN THE PROCEEDINGS BELOW ................................................................ 3

III.

DAVID DOES NOT DISPUTE SUSAN’S RIGHT TO COUNSEL....................................................................................... 10

IV.

FEDERAL AND STATE LAWS PROTECTING PERSONS WITH DISABILITIES GAVE SUSAN A RIGHT TO COUNSEL IN THIS CASE ............................................................ 12

IT IS UNDISPUTED THAT THE TRIAL COURT ERRED BY IMPOSING THE $2,500 SANCTION ..................................... 12

CONCLUSION .......................................................................................... 13

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TABLE OF AUTHORITIES Page(s) CASES Biscaro v. Stern (2010) 181 Cal.App.4th 702 .................................................................. 4 Chapman v. California (1967) 386 U.S. 18 ................................................................................. 4 Franco-Gonzalez v. Holder (C.D. Cal. 2013) 2013 WL 3674492 ................................................... 12 In re Emilye A. (1992) 9 Cal.App.4th 1695 ............................................................ 10, 11 In re James F. (2008) 42 Cal.4th 901 .................................................................... 4, 5, 6 In re Jay R. (1983) 150 Cal.App.3d 251 ................................................................ 11 In re Malinda S. (1990) 51 Cal.3d 368 ..................................................................... 10, 11 In re Marriage of Petropoulos (2001) 91 Cal.App.4th 161 .................................................................. 12 In re Sade (1996) 13 Cal.4th 952 .......................................................................... 11 Payne v. Superior Court (1976) 17 Cal.3d. 908 .......................................................................... 11 People v. Allen (2008) 44 Cal.4th 843 .......................................................................... 10 Salas v. Cortez (1979) 24 Cal.3d 22 ................................................................. 10, 11, 12 United States v. Gonzalez-Lopez (2006) 548 U.S. 140 ............................................................................... 4

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TABLE OF AUTHORITIES (continued) Page(s) CONSTITUTION AND STATUTES Cal. Const. art. I, § 7 .................................................................................. 10 California Family Code § 271..................................................................................................... 12 § 3020........................................................................................... 7, 9, 11 § 3030..................................................................................................... 7 § 3040............................................................................................. 11, 12 § 3048..................................................................................................... 6 § 3060..................................................................................................... 6 § 3063..................................................................................................... 6 California Welfare & Institutions Code § 16000................................................................................................. 11 OTHER AUTHORITIES Mnookin, Maccoby, Albiston & Depner, What Custodial Arrangements are Parents Negotiating? , Divorce Reform at the Crossroads (S. Sugarman edits. 1990) ................................................... 9

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iii

INTRODUCTION A parent’s interest in the companionship, care, and custody of his or her children is compelling, fundamental, and among the most basic of civil rights. It is an interest worthy of serious protection. Here, the trial court’s order has deprived Susan, a disabled and indigent mother, of contact with her teenage daughter (“M”) for years. This deprivation occurred in proceedings in which an unrepresented, disabled, and indigent mother was pitted against experienced counsel advocating for M’s father, David. As a result, the information presented to the trial court was skewed and the unrepresented mother was placed at a decisive disadvantage. The real question in the case — whether it was in the best interest of the child to lose all contact with her mother — went unasked and unanswered. David’s brief does not say a single word about the serious constitutional issues raised in Susan’s opening brief. Instead, David makes two arguments. First, he says Susan did not request counsel. The record proves this claim is false. Second, David says counsel would not have made a difference. David ignores that a failure to appoint counsel is structural error that requires reversal without further review. David also ignores the numerous ways that counsel for the disabled and indigent mother would have made a difference here. Susan was deprived of her parental rights in proceedings in which she was unable to meaningfully present her case due to her disability and lack of counsel. The Court should reverse the orders below and remand this case for further proceedings after counsel is appointed for Susan. 1

LEGAL ARGUMENT I.

SUSAN REQUESTED COUNSEL David’s contention that Susan did not request counsel is false. (RB

1.) As Susan established in her opening brief, she repeatedly and explicitly requested an attorney. (AOB 7, 8-9, 34.) Immediately after she was deprived of contact with her daughter, Susan requested an attorney — and went so far as suggesting that the trial court hold her in contempt of court in an effort to obtain appointed counsel. (RT 131-132, 137, 143-144.) During the December 15, 2011 hearing — the same hearing from which David selectively quotes — Susan clearly stated on the record: “I do want an attorney.” (RT 132.) Susan repeated her request at the end of that hearing, asking: “may I have an attorney?” (RT 144.) Even before she was deprived of contact with her daughter, Susan had also made it clear that she was having trouble because she was not represented by counsel, explaining to the trial court that “when you don’t have an attorney . . . the chances of having a fair trial, in my experience, are less.” (RT 81.) David contends that Susan “expressly stated she wanted to represent herself.” (RB 2.) This is not accurate. Susan’s statement that “I do have a right . . . to represent myself” was in the context of explaining to the trial court that she should be allowed to speak during that hearing (because she had no attorney to speak for her), and was not a statement that she did not wish to be represented by counsel. In fact, this statement was made during the same hearing in which Susan made two separate requests for a lawyer. (RT 132, 144.)

Susan began the relevant exchange in attempting to respond to the trial court’s statement that M was somewhere in the “underground.” She said “Can I -- ” and was cut off by the judge. (RT 128.) Susan then stated, “I do have the right to speak, and I don’t know what is legal.” (RT 128, italics added.) The trial court responded: “hold on a second.” And then: “You do have the right to speak. Well sort of you have the right to speak.” (RT 128.) It was only after this exchange that Susan referenced a right to “represent herself.” (RT 129.) A short time later, Susan further indicated that what she wanted was a chance to speak, when she stated: “I would like to speak when it is my turn.” (RT 130.) This exchange demonstrates Susan’s difficulty in presenting her case without an attorney. It does not indicate a preference to represent herself instead of having an attorney, only a desire to speak for herself when she did not have counsel. Susan was fighting to preserve her relationship with her child and was forced to fight simultaneously for her right to present her case to the court. These rights would have been more ably vindicated if Susan had an attorney. II.

APPOINTING COUNSEL FOR SUSAN WOULD HAVE MADE A SIGNIFICANT DIFFERENCE IN THE PROCEEDINGS BELOW David contends that counsel for Susan would have made no

difference in the proceedings below. (RB 3.) There are at least two reasons for rejecting this argument. First, David ignores the rule that when a trial court wrongfully denies assistance of counsel to an unrepresented party, the error is a “structural error infecting a legal proceeding’s reliability” and “calls for 3

reversal per se.” (Biscaro v. Stern (2010) 181 Cal.App.4th 702, 704; AOB 12-13.) Both the California Supreme Court and the United States Supreme Court have recognized that the deprivation of a constitutionally protected right to counsel is the type of error that “can never be harmless.” (In re James F. (2008) 42 Cal.4th 901, 914; Chapman v. California (1967) 386 U.S. 18, 23 & fn. 8 [listing right to counsel among “constitutional rights so basic to a fair trial that their infraction can never be treated as harmless”]; United States v. Gonzalez-Lopez (2006) 548 U.S. 140, 150 [erroneous deprivation of counsel of choice “unquestionably qualifies as ‘structural error’”].) Although David contends that counsel would have made “absolutely no difference” (RB at 3), our courts have relieved parties deprived of counsel of the need to show specific prejudice, and thus disposed of the argument David attempts to advance on this appeal. This is a pragmatic approach, recognizing that a record established by a self-represented party cannot suffice to show what might have been different had the party been represented by counsel. Here, it would be impossible for David, or anybody, to ascertain what arguments and evidence may have been developed in this case by an attorney and what the effect would have been on the outcome of these hearings. (AOB 24-27.) Because the error prevents this Court from “ascertaining what might have happened absent the error,” the orders below are “reversible per se” without a showing of prejudice. (Biscaro, supra, 181 Cal.App.4th at p. 704.) Second, to the extent this Court might consider the difference appointed counsel could have made in this case, the record shows the failure to appoint counsel was not harmless under any potentially applicable 4

standard.1 David ignores, rather than disputes, the concrete measures outlined in Susan’s opening brief to demonstrate how counsel could have made a difference in this case. (AOB 24-27.) One way to gauge the potential impact of counsel for Susan is to consider what David’s lawyer did in these proceedings. David was represented by counsel throughout these proceedings. (CT 111-113, 116, 117, 212.) His lawyer significantly impacted the course of the proceedings by submitting motions, calling and effectively questioning witnesses (RT 28-29, 35-36, 39, 42, 174), presenting evidence (RT 10, 54, 70-71, 79, 81, 96), and on numerous occasions providing legal advocacy for his client’s position, such as by examining witnesses under oath and asking for information and evidence from Susan (RT 22, 43, 47, 61, 64, 90, 117, 119, 137), and by arguing that Susan had “orchestrated” M’s disappearance (RT 11, 174). David’s lawyer successfully objected to the examination of M’s cell phone (RT 50, 62) and to Susan’s characterization of the out-of-state lock-down facility where M had been forcibly taken. (RT 167, 171.) Counsel for Susan could have opposed these motions, crossexamined these witnesses, tested this evidence, and countered opposing counsel’s arguments. There were numerous opportunities for an attorney to present witnesses, evidence, and argument on Susan’s behalf. Susan missed these opportunities by virtue of the complexity of the law, her disability, and the emotional stress involved with potentially losing contact with her daughter. (AOB 11-12, 24-27.) Without the assistance of counsel,

The California Supreme Court has not determined the appropriate harmless error standard for constitutional errors in civil cases that do not rise to the level of structural error, but has suggested that such errors would require reversal unless the error was either “harmless beyond a reasonable 5

Susan was unable to successfully juggle the roles of mother, advocate, and witness. Susan opposed David’s sending M out of state, but at the May 9, 2012 hearing on the subject, Susan was unable to provide case law, statutory law, or admissible facts to explain why David should be prohibited from sending M out of state. (RT 166, 174.) An attorney representing Susan could have argued that because the custody order was only a temporary order, the trial court was required to “enter an order restraining the person receiving custody from removing the child from the state pending notice and a hearing on the order seeking or modifying custody.” (Cal. Fam. Code § 3063.)2 Although Susan orally requested a change to the custody orders, permitting her to regain contact and custody with her daughter (RT 168), she did not submit a motion or present any legal argument, testimony, or evidence in support of her request to regain custody of M or contact with M. (Ibid.) An attorney could have made a written motion to change the temporary custody order and presented testimony and evidence to bolster its chances of success. Either of these measures could have made a significant difference in the proceedings below regarding whether David was permitted to send M out of state and whether the order prohibiting contact between Susan and M should remain in effect.

doubt” or at least “harmless by clear and convincing evidence.” (In re James F., supra, 42 Cal.4th at p. 911, fn. 1.) 2

Under Family Code Section 3060 et seq., the no-contact and custody orders entered by the trial court were “ex parte temporary custody orders” because they were temporary orders setting custody which were ordered “in the absence of an agreement” between Susan and David regarding custody. No final orders modifying custody have been entered. (See Cal. Fam. Code § 3048 [requiring that final custody orders comply with certain form and notice requirements].) 6

The relationship between a mother and her daughter is worth protecting. It is California’s “public policy . . . to assure children have frequent and continuing contact with both parents.” (Cal. Fam. Code § 3020 (b).) This policy is so strong that California has a special statute regarding the circumstances when a parent convicted of first degree murder of the other parent will still be permitted to have unsupervised contact with his or her child. (Cal. Fam. Code § 3030 (c).) An attorney could have presented evidence explaining Susan’s relationship with her daughter, which would have shown that depriving Susan of all contact with M is not in M’s best interests. An attorney advocating continuing contact could have asked: Who are M’s friends? Did M ever ask you for advice on how to handle friendships? Did M ever ask you for advice on how to handle other relationships? Do you cook for your daughter? What is her favorite food? Does she help you cook? What does she like to eat on her birthday? What else do you do with M on her birthday? How does M do with her schoolwork? Do you help her with school work? What did you tell her? What kind of television did you watch with M? What were her favorite shows? What games did M like to play? How did you take care of M when she was sick? What made her feel better? Without the benefit of this kind of testimony, the trial court was unable to make an informed decision about the harm that would result from preventing contact between M, a teenage girl, and her mother. An attorney acting as Susan’s advocate could have called David as a witness. While opposing counsel found it advantageous to call Susan as a witness (RT 174), Susan never called David as a witness. Counsel representing Susan could have asked numerous questions to David to help the trial court determine where M was staying and why she had left her father’s house, for example: Just a moment ago, you stated that it was “a 7

possibility” that M was with your “brother.” (RT 77.) Why? Have you heard from your brother? What did he say? Counsel could have helped shed light on M’s disappearance, asking: Can you think of why M might have run away? When M told you that she had gone to “a friend’s house and that she did not want to come home that evening” because you had been “emotionally abusive” to her, what was your reaction? (CT 93.) When you went to pick up M from the friend’s house and you told Ms. Miller that “things would not be easy for [M] now” what did you mean? (CT 102.) How long did you sleep in the same bed with M? (CT 30-34.) Do you think this was appropriate? Did M ever express discomfort with the situation? You say that when you had your hand down your pants while you were watching television in the bed that you shared for five months with your teenage daughter it was because you had jock-itch? (CT 33-34.) Did you ever get a prescription for this jock itch? Have you smoked marijuana in front of your daughter? (CT 64.) Did you throw a table that M was seated at? (Ibid.) Why? An attorney representing Susan also could have called other witnesses to testify about M’s best interests — Susan did not call any witnesses. These witnesses could have included Mr. Price, the academic counselor at M’s school, to speak about whether M’s recent poor academic performance was “the result of what was taking place at the father’s home.” (CT 36-37.) The attorney could have called Ms. Miller, a family friend with whom M had visited before running away, asking: Did M appear upset when she arrived at your house? Was she sobbing? (CT 99.) Did she tell you why she was upset? Did she say she would never go back to live with her father? (Ibid.) Do you know why she ran away? Where did you think M might have run away to? Did she mention whether she might stay with her uncle? Did she say her father was “emotionally abusive”? 8

(CT 93.) How? Did David call you when M stayed with you? (CT 99.) What did he say? Did he appear angry? Did you think M was safe with David? If (as the trial court suspected) Susan knew where M was (RT 89, 90), an attorney might have shown that David also knew where M was (RT 77) and that Susan’s motivations were to further M’s best interests.3 An attorney could have shown the trial court the clear fact that Susan loved her daughter, that M loved her mother, and, regardless of anything else, this was a relationship worth preserving. (See Cal. Fam. Code § 3020 (b) [establishing California’s public policy in favor of continuing contact with both parents].) Studies show that the absence of counsel significantly affects the outcomes of child custody cases. (Mnookin, Maccoby, Albiston & Depner, What Custodial Arrangements are Parents Negotiating?, Divorce Reform at the Crossroads, p. 64 (S. Sugarman and H. Kay edits. 1990) [finding that unrepresented parents were less likely to win custody when they faced represented parents]; AOB 21-22, 21 fn. 7, [collecting studies demonstrating counsel’s effect on the outcomes of civil cases].) The

David contends that the court made a “finding” regarding Susan’s involvement in her daughter’s disappearance, and that legal representation would not have altered what had “had become painfully apparent about M’s whereabouts.” (RB 3.) The trial court mentioned a “finding” in the following exchange: “And isn’t the reason Mr. Ferris has sole legal custody and sole physical custody with a no-contact order from you because you assisted the child into the underground, and the child disappeared? . . . Wasn’t that the finding I made, though?” (RT 168, 169.) The trial court, however, never made a formal finding regarding any involvement by Susan in her daughter’s disappearance. (CT at 111-118, 212.) Nor did the trial court make a formal finding regarding M’s whereabouts during her absence. (Ibid.) 9

assistance of counsel makes a difference in these types of cases and it would have made a difference in this case. III.

DAVID DOES NOT DISPUTE SUSAN’S RIGHT TO COUNSEL David does not dispute any aspect of Susan’s argument that she had

a right to counsel under the due process clause of the California Constitution. Nor does he challenge Susan’s assertion that her fundamental liberty interest in the custody, contact, and care for M is protected by due process, which applies when the state deprives a citizen of a significant liberty interest. (Cal. Const. art. I, § 7(a); People v. Allen (2008) 44 Cal.4th 843, 862.) David does not dispute that the interest of a parent in the custody and contact with her child is such an interest. (Salas v. Cortez (1979) 24 Cal.3d 22, 28; In re Emilye A. (1992) 9 Cal.App.4th 1695, 1707 [noting that where the possibility of a loss of custody or “prolonged separation from a child” exists, due process is implicated].) Nor does David dispute that the four factors of the due process balancing test weigh strongly in favor of a constitutional requirement that counsel must be appointed before the state may deprive a disabled and indigent parent of contact with his or her children. (In re Malinda S. (1990) 51 Cal.3d 368, 383.) The four relevant factors weigh heavily in favor of a right to counsel in this case. First, the interests in maintaining the important relationship between a parent and child weigh heavily in favor of requiring appointment of counsel to an indigent and disabled parent before the state may deprive the parent of contact with her children. (In re Malinda S., supra, 51 Cal.3d at p. 383.) The parent’s interest in the custody, care, and contact with her child is a “compelling one, ranked among the most basic of civil rights.” 10

(Salas, supra, 24 Cal.3d at p. 28; In re Jay R. (1983) 150 Cal.App.3d 251, 259; In re Sade (1996) 13 Cal.4th 952, 989.) Second, child custody proceedings have a high “risk of erroneous deprivation” when one party is unrepresented. (In re Malinda S., supra, 51 Cal.3d at p. 383.) Courts have recognized that the emotional impact of participating in proceedings that threaten parental rights hampers a parent’s ability to perform the essential advocacy functions such a hearing requires. (In re Emilye A. supra, 9 Cal.App.4th at p. 1709.) Third, Susan has a protected dignity in “present[ing] [her] side of the story before a responsible government official” that was undermined by her lack of counsel and her mental disabilities. (In re Malinda S., supra, 51 Cal.3d at p. 383; ACT 1 [explaining that Susan’s disabilities “restrict [her] in-court comprehension and communication skills”]; Payne v. Superior Court (1976) 17 Cal.3d. 908, 924 [where “no other relief will preserve his right of access to the courts,” denial of appointed counsel to an indigent prisoner in a civil case was impermissible under the California Constitution].) Fourth, the State’s interest weighs in favor of appointment of counsel because the government has a compelling interest in ensuring an accurate determination of parental rights. (In re Sade, supra, 13 Cal.4th at p. 959, fn. 1; Salas, supra, 24 Cal.3d at p.33.) The State also has a strong interest in the continued relationship between a parent and child. (Cal. Fam. Code § 3020 (b); Cal. Welf. & Inst. Code § 16000; Cal. Fam. Code § 3040 (a).) In contrast, any state interest in not providing counsel is only “financial.” (Salas, supra, 24 Cal.3d at p. 33.)

IV.

FEDERAL AND STATE LAWS PROTECTING PERSONS WITH DISABILITIES GAVE SUSAN A RIGHT TO COUNSEL IN THIS CASE David does not dispute that Susan was entitled to an attorney as an

accommodation for her disability to protect her right to full and equal access to the benefits of the family court proceedings. The trial court was aware that Susan has a mental disability that qualifies her as “disabled” under state and federal statutes. (AOB 32-33; ACT 3-11.) Susan requested a reasonable accommodation to address her disability, (RT 81, 144, 172), yet the trial court did not provide the accommodation of an attorney to help her “meaningfully participate” in the proceedings. (See FrancoGonzalez v. Holder (C.D. Cal. 2013) 2013 WL 3674492 at p. *6 [mentally disabled immigrants facing detention or removal proceedings must be appointed an attorney to enable them to “meaningfully participate” in these proceedings].) V.

IT IS UNDISPUTED THAT THE TRIAL COURT ERRED BY IMPOSING THE $2,500 SANCTION By his failure to suggest otherwise (or even mention the point),

David concedes the $2,500 sanction against Susan must be reversed. The trial court plainly abused its discretion when it imposed a $2,500 sanction against Susan without considering whether the sanction would constitute an “unreasonable financial burden.” (Cal. Fam. Code § 271(a); In re Marriage of Petropoulos (2001) 91 Cal.App.4th 161, 180.) If the trial court had conducted the required analysis, it could only have found that such a sanction imposed an undue burden. The trial court’s earlier child support order had left Susan with only $336 per month in income, (CT 201, 202), and the $2,500 sanction would impose an undue

burden on Susan by jeopardizing her ability to afford rent and basic sustenance.

CONCLUSION For all the reasons explained in her opening brief and here, Susan submits that the orders challenged by this appeal should be reversed and the cause remanded to the trial court with directions to appoint counsel for Susan and to revisit all of the issues that are the subject of the challenged orders. Dated: December 10, 2013

MORRISON & FOERSTER LLP

By: JAMES J. BROSNAHAN Attorney for Appellant SUSAN C. FERRIS

Dated: December 10, 2013

MORRISON & FOERSTER LLP

By: JAMES J. BROSNAHAN Attorney for Appellant SUSAN C. FERRIS

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Victim of Illegal Order Issued by Judge Matthew J. Gary for Divorce Attorney Timothy Zeff Homeless But Surviving

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Judge Matthew Gary Order for Partner of Judge Pro Tem Attorney Scott Buchanan Results in Homelessness for Disabled Mom

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Larscheid, Buchanan & Zeff family law attorney Timothy Zeff requested and was granted an unlawful $920 child support order by Judge Matthew J. Gary. Zeff's partner, Scott Buchanan, is a family court judge pro tem. The order financially devastated 52-year-old disabled, single parent Susan Ferris. Evicted from her Sacramento home and now homeless, she sleeps on the couch of a Bay Area friend.

SACRAMENTO FAMILY COURT NEWS SPECIAL REPORT The disturbing aftermath of an unconscionable $920 child support order issued by Judge Matthew J. Gary shows one of the ramifications, and the inexorable human cost of what court watchdogs contend is unchecked family court corruption and cronyism. The April, 2012 order gutted the monthly disability income of unrepresented, financially disadvantaged family court litigant Susan Ferris from $1,256 to $336. Gary previously issued an equally unlawful order prohibiting the 52-year-old single parent from having any contact with her daughter, Megan.

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The April support order financially devastated Ferris, leaving her with far less income than she needed for food, utilities, and rent. After several months under the order and behind on her rent, Ferris was evicted from her East Sacramento home and became homeless. The same court order records that her ex-husband, David Ferris, earns $8,089 per month. Click here to view Gary's minute order, obtained and posted online exclusively by Sacramento Family Court News. As a result of the order, Susan Ferris' credit has been thrashed, the repo man came for her car, and the eviction will now be part of her renter's report, making it virtually impossible for her to rent a home in the future.

To continue reading, click Read more>> below: Like orders issued by the same judge in other cases, both minute orders contain no facts or law justifying the draconian rulings, making them patently illegal under state law. The comparison to orders in other cases reveals a consistent pattern that infers a calculated and deliberate intent to conceal from review the judge's misuse of Family Code statutes for the prohibited purpose of punishing unrepresented parties. Gary, a fervent right-wing ideologue, also detests what he reportedly calls the "entitlement mentality" of family court parties who obtain fee waiver orders or are on public assistance, according to a court employee. The template-like repetition of the judge's bad faith tactics and overt socioeconomic bias also evinces an abdication of oversight responsibilities by Court Executive Officer Chris Volkers, superior court Presiding Judge Laurie Earl, and family court Supervising Judge James Mize.

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Family law attorney Timothy Zeff obtained a child support order for his client, David Ferris, who makes $8,089 per month. The order made his disabled ex-wife, Susan Ferris, homeless. In this exclusive SFCN photo, Susan sleeps with her Yellow Lab "Buddy" on the couch of a Bay Area friend. Family law attorney J. Scott Buchanan, Zeff's partner, holds the Office of Temporary Judge in Sacramento Superior Court.

Gary issued the $920 child support order against Susan Ferris at the request of veteran family law attorney Timothy Zeff of the Sacramento family law firm Larscheid, Buchanan & Zeff. Zeff's partner is attorney and family court judge pro tem J. Scott Buchanan. At a subsequent hearing three weeks later, Zeff requested and Gary issued an additional illegal order directing Susan Ferris to pay $2,500 to her ex-husband for Zeff's attorney fees. Click here to view the May attorney fees order, which also is barren of any facts or law justifying the ruling.

The order also is unlawful because it does not record consideration by the judge of the comparative wealth of the parties as required by Family Code §271, the statute Gary used for the order. Click here to view the law applicable to the comparative wealth assessment requirement. Gary has a documented history of issuing unlawful, appeal-proof orders in cases where one party is represented by a judge pro tem family law attorney and the other party is unrepresented and indigent or otherwise financially disadvantaged.

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CALIFORNIA JUDICIAL BRANCH Judge pro tem attorney Paula Salinger requested and was granted this unprecedented sanctions order by Judge Matthew J. Gary against an indigent, unrepresented litigant. Gary recorded no facts, law or evidence in support of the order, making it virtually appeal-proof.

Sacramento Family Court News audits of other family court case files show that Judge Matthew Gary routinely issues severe, disproportionate Family Code §271 attorney fee sanction orders against unrepresented, financially disadvantaged litigants. The statute requires a judge to compare the income, assets and liabilities of both parties before making a sanction ruling. The law is impossible to misconstrue: "In making an award pursuant to this section, the court shall take into consideration all evidence concerning the parties' incomes, assets, and liabilities." reads Family Code §271. Court reporter transcripts, minute orders and other records indicate that Gary - a former family law attorney - does not consider the income, assets and liabilities of both parties, and in cases where only one party has an attorney consistently omits the mandatory comparative wealth assessment required by the law. The draconian sanction orders are unlawful but nonetheless effective against pro per parties with little knowledge of family law, much less knowledge of the appellate law and procedure required to contest the order.

In one example cataloged by court watchdogs and memorialized by a court reporter's transcript, when directly asked if he had considered the comparative wealth of the parties before assessing more than $10,759 in attorney fee sanctions against an indigent, self-represented party, Gary conceded he had not, and appeared to express, or feign ignorance of the law. The transcript records the judge repeatedly using a verbal diversion to the payment terms of the sanction, a separate component of the sanction law unrelated to the comparative wealth consideration. To view the transcript excerpt, click here. To view the complete transcript, click here.

The separate and distinct comparative wealth assessment is required specifically to prevent the misuse of Family Code §271 sanctions to discourage an economically weaker party from asserting their rights, according to both state law and the family law legal reference used by judges and attorneys, California Practice Guide: Family Law, published by The Rutter Group. To view view the Practice Guide reference, click here. To view comparative wealth decisional law references, click here.

Sanction Payment Terms That Ensure Default

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Knowing the litigant would default on the first payment, Judge Matthew Gary ordered an indigent party without assets or income of any kind to make sanction payments of $25 per month on a balance of $10,759. If the payments were made, it would take 35 years to pay off the debt. For the benefit of judge pro tem divorce attorney Paula Salinger, the judge sua sponte - on his own - also made the payment terms subject to "adjustment at trial."

Family Code §271(c) provides that: "An award of attorney's fees and costs as a sanction pursuant to this section is payable only from the property or income of the party against whom the sanction is imposed, except that the award may be against the sanctioned party's share of community property." In addition to ignoring the comparative wealth legal requirement, Gary also ignores this mandatory component of the law. Knowing an indigent litigant without assets or income will be unable to make a monthly sanction payment, the judge orders the litigant to do so, ensuring default when the first payment comes due. When the payment is missed, after 10-days the entire balance is due, as shown in the order above. Click here to view the complete order.

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And like the minute orders in the Ferris case, the facts and law justifying the unprecedented $10,759 attorney fee sanction are omitted from Gary's minute order. Published by the Judicial Council, the California Judges Benchguide Courtroom Control: Contempt and Sanctions instructs judges who issue Family Code §271 sanctions "[t]o issue a written order and to avoid stating conclusions in the words of the statute. Give a factual recital, with reasonable specificity, of the circumstances leading to the order. If desired, incorporate by reference portions of a party's papers that adequately set forth the conduct, circumstances and legal arguments providing the bases for the court's conclusions." Click here to view this section of the Benchguide.

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The Benchguide directions mirror California Rules of Court rule 2.30 - sanctions for rules violations in civil cases - and the elementary principle of law that "An order imposing sanctions must be in writing and must recite in detail the conduct or circumstances justifying the order." Click here. Without any factual recital, portions of the party's papers, or references to the conduct and circumstances justifying the ruling, Gary ordered the unrepresented, indigent litigant to pay a $10,759 sanction for the attorney fees of judge pro tem family law attorney Paula Salinger.

Salinger is an officer of the Sacramento County Bar Association Family Law Section and partner at the controversial family law firm Woodruff, O'Hair, Posner and Salinger. To view the astonishing, complete hearing transcript - which SFCN will report on in an upcoming article - click here. Original, court case file records from this and other cases indicate that Gary routinely uses unlawful sanction orders for the explicitly prohibited purpose of discouraging economically weaker parties from asserting their rights, and to send the message that returning to court will result in still more financial punishment. In addition, to prevent the one-sided, unfair outcomes previously common in family court cases with socioeconomic imbalances between the parties, the Legislature has explicitly mandated equalizing wealth disparities in a variety of family court proceedings. For example, in the context of providing financially disadvantaged parties with attorney representation, to ensure parity between the parties attorney fee awards must be "just and reasonable," and take into account the "relative circumstances" of each spouse. Click here to view more than 40 court of appeal decisions emphasizing this critical, long-established principle of family law.

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2011 SACRAMENTO/MARIN AUDITS (2) 3rd DISTRICT To avoid being reversed on appeal, unethical judges will leave out of an order the facts, law and evidence on which an order is based, according to California Practice Guide: Civil Appeals and Writs, published by The Rutter Group.

Gary also has perfected the use of "appeal-proof" orders, which make appeals attempted by indigent, selfrepresented litigants futile, according to court reform advocates. Court watchdogs have collected minute orders authored by Gary in cases where one party is unrepresented and financially disadvantaged, and compared them with the orders of other judges. The orders issued by Gary consistently show that the judge does not memorialize the facts, law and evidence supporting the ruling(s) issued, which virtually always are against the pro per. Appellate courts have emphasized that a basic, fundamental duty of a trial court judge is to protect the appeal rights of all litigants by making and filing in the trial court record findings on all material issues. "Under our system it is mandatory that the superior court make and file its finding of the ultimate fact on each material issue created by the pleadings," Herman v. Glasscock. Click here.

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"It is elementary that a failure to find on all material issues raised by the pleadings is ground for reversal." Kaiser v. Mansfield. Click here. By comparison, this order from a different judge in a Sacramento Family Court case also involving modification of a child support order contains seven pages of the facts, evidence and law which the judge relied on in making the order. Click here to view the order. And this order from another judge involving modification of custody/parenting time contains 16 pages of facts, evidence and law in support of the order. To view the order, click here. Gary uses the family law legal reference work California Practice Guide: Family Law to provide monthly "Bench Tips" for family law attorneys in the Sacramento County Bar Association Family Law Section newsletter, The Family Law Counselor.

Gary's own preferred legal reference source makes clear that in child support modification proceedings the order issued by the judge must include a statement of information or reasons. Click here for the Practice Guide

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CARLSSON CASE (9) CECIL reference. "Such findings not only will enable the parties to appreciate the basis for the child support order, they will facilitate judicial review in any future appeal..." according to In re Marriage of Hubner, one of the decisional law references cited by the Practice Guide. Click here to view the Hubner case. Although Gary has an legal and ethical obligation to preserve the appeal rights of all litigants, including the poor, under the doctrine of implied findings any appeal taken from an order authored by the judge is all but futile. Where a trial court order is barren of facts supporting the order, the doctrine requires a reviewing court to infer that the trial court judge made all factual findings necessary to support the order. A related legal principle, the presumption of correctness, requires an appellate court to "indulge all presumptions supporting the judgment or order" when the order issued by a trial court judge omits the facts, law and evidence on which the ruling is based.

Unethical judges who issue rulings they know could be reversed on appeal will "cloak" the rulings in the presumption of correctness by leaving an incomplete record for review, according to the legal reference used by judges and attorneys for appellate court procedure, California Practice Guide: Civil Appeals and Writs, published by The Rutter Group. The orders issued by Gary also violate the Trial Court Performance Standards specified in the California Rules of Court Standards of Judicial Administration, including the following provisions of Standard 10.17:

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(3)(D) Decisions of the trial court unambiguously address the issues presented to it and make clear how compliance can be achieved... (3)(F) Records of all relevant court decisions and actions are accurate and properly preserved. Click here to view these portions of Standard 10.17. An example of an attempted appeal of a ruling which Judge Matthew Gary cloaked in the presumption of correctness is this unpublished 3rd District Court of Appeal decision. The reviewing court noted that the facts, law and evidence recited in the written trial court order issued by Gary consisted entirely of "insufficient facts/res judicata." The court of appeal mechanically invoked presumption of correctness and implied findings principles, writing "we must conclusively presume evidence was presented that is sufficient to support the court's findings," and upheld Gary's ruling. Click here to view the court of appeal decision. Click here to view appellate court docket information verifying Matthew Gary as the trial court judge.

"Entitlement Mentality" of Disabled and Indigent Witnesses who attended the April and May 2012 Susan Ferris hearings said that Judge Matthew Gary became embroiled and appeared to issue the child support and attorney fee sanction orders to vindictively punish Susan Ferris for asserting her rights in prior proceedings - including an unsuccessful attempt to disqualify the judge - and for associating with a group of court reform advocates, including Robert Saunders, who also act as court watchers for the indigent and disabled.

Gary reportedly has been livid at Saunders - also indigent, unrepresented and disabled - since Saunders successfully had the judge removed from his own case by a neutral, outside judge from San Joaquin County in 2010. Click here for our exclusive coverage of Gary's disqualification by Saunders. Gary and his long time court clerk Christina Arcuri allegedly are right-wing ideologues who despise what they refer to as the "entitlement mentality" of indigent, family court litigants Judge Matthew Gary favors "judicial restraint" and admires U.S. Supreme Court Justice Antonin Scalia, who obtain fee waiver orders, and disabled litigants on public according to an interview in Sacramento Lawyer magazine. assistance, according to a family court employee whistleblower who provided the information on the condition of anonymity because they could be subject to retaliation for the disclosure. To view a description of retaliation against a previous Sacramento County Superior Court employee whistleblower, click here.

Court records indicate that both Gary and Arcuri convey socioeconomic bias in performing their employmentrelated functions and duties. Bias based on socioeconomic status is explicitly prohibited by four separate sections of the California Code of Judicial Ethics [pdf]. Canon 3B(5) requires judges to perform all judicial duties without bias or prejudice, including bias or prejudice based on socioeconomic status. Judges must require staff and court

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personnel to do the same under Canon 3C(2). A judge must also perform administrative duties - which includes the ministerial duty of accurately drafting and filing court orders - without bias or prejudice based on socioeconomic status, according to Canon 3C(5). Judge Matthew J. Gary is paid $169,289 per year, and was appointed to the bench by Gov. Arnold Schwarzenegger in 2007. Schwarzenegger was named in the 2010 Worst Governors Report by the government watchdog group Citizens for Responsibility and Ethics in Washington. Among other charges, Schwarzenegger was faulted for providing "state jobs to friends with dubious qualifications." Click here. In a 2007 interview with Sacramento Lawyer magazine, Gary characterized his legal philosophy as "favoring judicial restraint," and said he admired U.S. Supreme Court Justice Antonin Scalia.

Judge Gary was found guilty in 2010 by San Joaquin County Superior Court Judge Xapuri B. Villapudua of not following proper contempt procedures when he had a disabled litigant arrested and forcibly removed from his courtroom. As SFCN reported in 2011, Gary's wife, Donna Gary provides law firm administrative services and sells a client management software program to family law attorneys. Click here for our exclusive report. In 2011 a controversial Governor Arnold Schwarzenegger. ruling issued by Gary was reversed in full by the 3rd District Court of Appeal. In 2012 Gary was involuntarily demoted from his position as the supervising family court judge. Gary is a graduate of El Camino High School in Sacramento and previously worked at his father’s law firm, Gary, Till & Burlingham. His father, Richard Gary, is a family law attorney. Links on the firm's resources page include the Christian Legal Society and the Christian Counseling & Educational Foundation.

Nonexistent Oversight and Accountability by Court Administrators Court watchdogs and whistleblowers point out that the flagrant lawlessness of Judge Matthew Gary's series of orders in the Ferris case, and conduct in other cases is additional evidence that accountability and oversight by court administrators, including Court Executive Officer Christina Volkers, Presiding Judge Laurie Earl, and family court Supervising Judge James Mize is nonexistent in Sacramento County Superior Court. Sacramento Family Court News has reported on multiple instances of misconduct by family court judges and clerks and employees, egregious violations of conflict of interest laws and the preferential treatment of attorneys who also act as temporary judges in family court.

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Court administrators and oversight officials have repeatedly declined to provide information about what corrective measures, if any, have been initiated to address the problems. As state court judges, Mize and Earl are required by state law to take appropriate corrective action when another judge violates state law, court rules, and the state Code of Judicial Ethics. The obligation is a critical self-policing component of judicial ethics standards and ensures that the rule of law is maintained. To view a Judicial Council directive about the duty to take corrective action, and the types of corrective action required, click here. In addition, Judge Gary's unlawful conduct has been witnessed by several court employees, including clerk Christina Arcuri, and bailiff J. Strong. As government employees, each has a legal and ethical duty to report the misconduct. Supervising Family Court Judge James M. Mize.

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2014 UPDATE: Judge Matthew Gary's outrageous treatment of Susan Ferris resulted in a team of attorneys - led by prominent San Francisco trial attorney James Brosnahan of Morrison & Foerster - taking over her case after she filed an appeal in the 3rd District Appellate Court. The Sacramento Bee published a front page story about the appeal on March 26, 2014: "This is at the point where a lot of us think it's a disgrace," Brosnahan said. "You can't take someone's child and that person doesn't have an attorney when you do...It's an outrage," Brosnahan explained to Sacramento Bee reporter Brad Branan.

(1)

PARENTAL

PAULA SALINGER

(14)

PETER J. McBRIEN

(20) PHILLIP HERNANDEZ ALIENATION

(1)

(3) PRESIDING JUDGE (2)

PRO PERS (18)

PROTEST (7) PSY (1) PUBLIC RECORDS

(1)

THORBOURNE (1)

Click to visit Sacramento Family Court News on: Facebook, YouTube, Google+, Scribd, Vimeo, and Twitter. For additional reporting on the people and issues in this post, click the corresponding labels below:

SOL (2) T. GARCIA

RAOUL

RAPTON(9)

KARRES

RECOGNITION/AWARDS (3)

REVISIONISM SERIES (1)

-"---'

THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF SACRAMENTO

---ooo---

In re the Marriage of:

Petitioner,

CASE NO. 10 ,

8 9

Respondent.

10 ---ooo---

11 12 13

REPORTER'S TRANSCRIPT OF PROCEEDINGS

14 15

Held in the Superior Court, in and for the County of Sacramento, Department 121, on Wednesday, May 9, 2012;

16 17

Before the HONORABLE MATTHEW J. GARY, Judge

---ooo---

APPEARANCES

For the Petitioner:

WOODRUFF, O'HAIR, POSNER & SALINGER 2251 Fair Oaks Boulevard Sacramento, California 95825

For the Respondent:

IN PROPRIA PERSONA

Reported By:

Tara Murany, CSR No. 12892

21 22 23 24 25 26 27 28 ~~

~--------SACRAMENTO

COUNTY OFFICIAL COURT

REPORTERS--------~

SACRAMENTO, CALIFORNIA

MAY 9, 2012

---ooo---

Proceedings in the Marriage of

Case No.

, came on regularly this day before the Honorable

5 6

MATTHEW J. GARY, Judge of the Superior Court of California,

for the County of Sacramento, Department 121, thereof.

The Petitioner,

represented by PAULA D. SALINGER, Attorney at Law.

10 11

was

The Respondent,

appeared

IN PROPRIA PERSONA.

The following proceedings were then had, to wit:

---ooo---

13 14

THE COURT:

MS. SALINGER:

THE COURT:

MS. SALINGER:

And then

Your Honor, I do have a statement of

attorney's fees and costs. THE COURT:

MS. SALINGER:

You may, thank you.

THE COURT:

I did give

Great.

a copy of it

Thank you.

And good morning to

all.

MS. SALINGER:

THE COURT:

Good morning.

Record will reflect both parties are

present, and counsel for

worked out at all on this?

May I approach?

this morning.

22 23

Yes, Your Honor.

Come on up.

, is that ready?

MS. SALINGER: ~-------SACRAMENTO

is present.

And anything

No, Your Honor.

COUNTY OFFICIAL COURT REPORTERS--------1

THE RESPONDENT:

just handed you, Your Honor?

3 4

THE COURT: fees and costs.

Yes, sir.

THE RESPONDENT:

THE COURT: is your motion.

8 9

A statement of attorney's

And did you receive that, sir?

Can we get on the record what she

Yes, I did, just five minutes ago.

Okay.

And Ms. Salinger, I believe this

You may be heard.

MS. SALINGER:

Yes, Your Honor.

Motion presents

seven items that we are requesting that the Court orders, and

really nothing has changed since the filing of the motion.

Did you have an opportunity, Your Honor, to review the motion

and the points and authorities?

THE COURT:

Yes.

MS. SALINGER:

So the most important part of our

motion are the first two requests that we're making.

making a request to present Mr. -- prevent Mr.

presenting evidence that should have been presented in his

declaration of disclosure.

does the code provide that he is supposed to serve a

declaration of disclosure, and then in October of 2010 after

the filing of a Motion to Compel the Court ordered him to

provide his declaration of disclosure, it still has not been

completed.

and get the issues resolved, and get it to trial without

Mr.

the first order that we're requesting.

27 28

We're from

Despite the fact that not only

We're simply unable to proceed on this matter,

presenting a declaration of disclosure.

So that is

And what ties into that is granting my client the voluntary waiver of Mr. ~--------SACRAMENTO

declaration of disclosure,

COUNTY OFFICIAL COURT REPORTERS--------2

again, so this matter can proceed to trial.

Mr.

difficult for my client and not be able to reach a resolution

of this matter.

it.

refuses to comply with the court orders and comply with

discovery, comply with disclosure.

desire to simply drag this matter out to make it

And we have made several attempts to resolve

We've been to a settlement conference.

He simply

The other items that we're requesting are that he

I believe it's

obtain his personal property, which is in a storage unit that

my client has obtained for him.

October 2010 that he vacate the residence, my client moved

in, and he did not take his personal belongings.

point in order to secure those belongings, she moved them

into a storage unit.

them up.

storage unit since November of 2010.

When the Court ordered in

So at that

We immediately requested that he pick

He has refused, and she's been paying for that

The other items are the automobile that is in his

possession was my client's separate property.

than happy to turn it over to him.

ordered that he have exclusive use and possession.

the title here today.

She has continued to have to pay the expenses associated with

that, mainly the DMV registration, and also it ties into the

automobile insurance.

automobile insurance separated at this point.

She's more

The Court previously She has

She's ready to sign it over to him.

She'd like to get the parties

Then the other two items are related to fees and

costs.

Your Honor, from October of 2010.

Mr.

did file an appeal of your orders, While he did file that

-~----

~-------SACRAMENTO

COUNTY OFFICIAL COURT REPORTERS--------3

'""'----

appeal, he just delayed it.

after getting numerous, I think it was five or six,

extensions; so after nearly a year, the court of appeal

dismissed that appeal.

waiting to see what would happen with that, so again, a

further delay.

Supreme Court of California, which was denied.

have to retain a counsel that was associated in, and her fees

associated with the appeal, her fees and costs, were

10 11

He never filed an opening brief

Of course, we were sort of in limbo

He also filed a petition for review of the My client did

$4,957.11. In addition, I'm requesting that Mr.

pay

attorney's fees and sanctions for the necessity of bringing

this motion today.

code to provide disclosure.

provided -- not provided disclosure, but also not complied

with the Court's orders to provide disclosure and to answer

the discovery.

not only contained in my motion, but an updated statement of

fees and costs was provided to the Court and to Mr.

this morning.

are now $3,302.50, and we're also requesting $5,000 in

sanctions against Mr.

He does have a fiduciary duty under the

So the request for the fees and sanctions is

So the fees incurred related to this motion

THE COURT:

MS. SALINGER:

25 26

And certainly he's not only

How much was the appeal attorney? The appeal was $4,957.11.

Those

were the costs and fees with Elizabeth Niemi. THE COURT:

And Mr.

if you wish, if you'd

walk through -- walk me through your position on each of

those issues? ~--------SACRAMENTO

COUNTY OFFICIAL COURT REPORTERS--------4

THE RESPONDENT:

Yes, thank you, Your Honor.

off, I'd like to request a long-cause hearing for this

matter.

THE COURT:

THE RESPONDENT:

THE COURT:

THE RESPONDENT:

THE COURT:

THE RESPONDENT:

Well, a long cause on what?

THE RESPONDENT:

THE COURT:

THE RESPONDENT:

THE COURT:

file your pleadings?

My responsive declaration.

Where did you file it, sir? Here.

Where? Well, I filed it by mail.

What do

What do you mean where?

Have you read my pleadings?

Which pleadings, sir?

THE COURT:

you mean here?

On the issues at issue here.

On which issue, though?

First

Where did you send -- where did you

THE RESPONDENT:

I sent it by mail to this address

here to the clerk of the court.

MS. SALINGER:

Your Honor, Mr.

pleadings

were served on my office on the 3rd of May, so I'm guessing

the Court has not received them.

22 23 24 25 26

THE COURT:

Let me go back to the original

question. THE RESPONDENT:

I have an extra set here, Your

Honor, if that would help. THE COURT:

Okay.

Well, let me go back.

requesting a long cause.

sure what the factual dispute is at this point. ~--------SACRAMENTO

I'm not quite sure what.

You're I'm not

I'm going to

COUNTY OFFICIAL COURT REPORTERS--------5

deny the request to long cause without prejudice to hearing

what your side is right now on each of these requests.

THE RESPONDENT:

THE COURT:

Okay.

Apparently a package did come in.

did arrive.

Apparently you sent this up to admin, or you sent --

actually, you sent it simply to the court, which unless you

send it in with a -- with a runner or you bring it in or

something, it's simply delivered to general mail upstairs.

Did this go to general mail upstairs?

11 12

There's a whole package of unfiled documents.

THE RESPONDENT:

I followed the instructions for

filing by mail, Your Honor

THE COURT:

THE RESPONDENT:

Yeah.

So -on the website, the court

website.

THE COURT:

these apparently came in.

The post

mark on this is May 3rd, so I'm not exactly sure when the

court received it.

or Tuesday.

20 21

It may have been Friday.

the documents are not here timely.

In any event, I didn't I have not reviewed

them.

22 23

My assumption is probably sometime Monday

THE RESPONDENT:

It was sent priority mail per the

instructions on the court website.

THE COURT:

Sure.

Just for your information,

though, sir, I have not reviewed or -- I have not reviewed

the documents as they were not filed timely.

look now.

Ms. Salinger, you have an objection to the Court considering

I'll take a

I'll take a look at the documents unless,

~--------SACRAMENTO

COUNTY OFFICIAL COURT REPORTERS--------6

the documents based upon the timeliness or untimeliness of

their filing. MS. SALINGER:

I do have an objection, Your Honor.

The documents as you just mentioned are due at least nine

court days prior to the hearing to be filed and served, and

that would have been April 26th that they should have been

served and filed with the Court.

THE COURT:

MS. SALINGER:

When did you receive them?

I received them on the 3rd of May

also via e-mail.

11 12

Okay.

THE COURT:

Have you had adequate opportunity to

review them and reply?

MS. SALINGER:

replied, Your Honor.

to draft a reply.

I have reviewed.

THE COURT:

Okay.

I have not

I did not have time

All right.

Mr.

unfortunately, I'm going to go ahead and have the documents

filed for you, but I will not consider them for today's

hearing as they are untimely filed and served.

20 21

THE RESPONDENT:

Now, isn't it, Your Honor,

customary -- I'd request to continuance then, Your Honor.

THE COURT:

If I can go back, sir, and let's go

ahead and take a look at the issues.

Ms.

from producing evidence simply because you did not comply

with the Court's order to provide disclosures, and this

should be under 2100 et sec.

And on the first issue,

is simply requesting that the Court prevent you

THE RESPONDENT: ~-------SACRAMENTO

What's your position on that?

Your Honor, if I may, I wasn't

COUNTY OFFICIAL COURT REPORTERS--------7

1 ~~/

quite finished with my grounds for my evidentiary hearing.

THE COURT:

But Mr.

THE RESPONDENT:

THE COURT:

Yes, sir.

I am finished with it for just a

moment.

direct my court, I'm directing you to reply to the first

request.

have to, but we're going to actually stay on my agenda for

now and not yours.

And if you would follow my lead and allow me to

And you don't have to.

I'm not telling you you

So between you and I, what I'm inviting is your

reply to their first item.

first two items.

disclosure, and she wishes to proceed without your

disclosures, and she wishes an order preventing you from

producing evidence based on stuff that would otherwise have

had to have been disclosed.

Frankly, it's actually their

She wishes to voluntarily waive your

THE RESPONDENT:

How do you reply? Your Honor, I have objections to

that under rule 5.118, subsection (f), California Rules of

Court and Code of Civil Procedure Section 436 and 431.10.

Those contentions are based on two declarations, which

contain inadmissible material.

THE COURT:

Mr.

is it true that I ordered

back in October of 2000

MS. SALINGER:

'10, Your Honor.

THE COURT:

2010 to produce a declaration for

disclosure?

THE RESPONDENT:

THE COURT: ~--------SACRAMENTO

That's true, Your Honor.

And did you do that? COUNTY OFFICIAL COURT REPORTERS--------8

THE RESPONDENT:

THE COURT:

THE RESPONDENT:

No, I didn't, Your Honor.

Okay. It's my position that those orders

are void on their face.

THE COURT:

A and B are

granted.

that would otherwise have been disclosed in the disclosures,

and she may proceed to judgment with a voluntary waiver of

his preliminary and final disclosures.

is precluded from producing the evidence

So SA and 8B are

granted in the motion.

11 12

Mr.

That's -- thank, you sir.

As to C, sir, do you have any objection of obtaining your personal property?

THE RESPONDENT:

live testimony under rule

to which I meant -- tried to say earlier.

THE COURT:

THE RESPONDENT:

THE COURT:

Does that require notice?

wish to present live testimony today?

THE COURT:

Did you give a notice of that?

Did you notice the other side that you

MS. SALINGER:

California Rules of Court 5.119

Okay.

Your Honor, I'd like to present

He did not, Your Honor.

And who did you wish to call as a

witness? THE RESPONDENT:

I wish to call as a witness the

authors of the two declarations.

THE COURT:

THE RESPONDENT:

THE COURT:

THE RESPONDENT: ~-------SACRAMENTO

Are they here? One of them is.

Authors of what two declarations? The two declarations that were

COUNTY OFFICIAL COURT REPORTERS----------9

1 "--/

filed with this motion today.

THE COURT:

THE RESPONDENT:

THE COURT:

THE RESPONDENT:

THE COURT:

THE RESPONDENT:

Who are you speaking of, sir? I'm speaking of the Petitioner.

Who do you wish to call as a witness? The Petitioner.

For what purpose? To question her about the content

of the declaration she filed. THE COURT:

Well, I'm asking you about 8C, the

request

8C says she wishes that you obtain your personal

property.

Do you have any objection for the return of your

personal property?

want your property?

object to obtaining your property.

15 16

She's offering you your property.

Do you

I was kind of thinking that you wouldn't

THE RESPONDENT:

Your Honor, that property is not

my property.

THE COURT:

THE RESPONDENT:

Okay.

Then can she have it? That is community property, which

she unilaterally divided and transferred in violation of the

automatic temporary restraining orders.

THE COURT:

Mr.

, would you like her to keep

the property at this point, or do you want to obtain the

property?

24 25

THE RESPONDENT:

It's community property.

hasn't been divided yet.

26 27

She's offering it to you.

THE COURT: point.

And she's offering it to you at this

Do you want it? THE RESPONDENT:

~-------SACRAMENTO

I do not want it.

COUNTY OFFICIAL COURT REPORTERS-------10

THE COURT:

THE RESPONDENT:

3 4

Do you want I want to go through the normal

process of dividing community property. THE COURT:

This is actually a normal process.

you don't want it, she can have it.

you can have it.

THE RESPONDENT:

If she doesn't want it,

I don't know if I want it or not.

I don't know how -- it's all negotiable.

that point yet.

10 11 12 13 14 15

THE COURT:

Yes, you do.

THE RESPONDENT:

It's on the table right

This is a wrong condition.

This

is a coercive condition, coercive environment. THE COURT:

So I'm going to assume at this point

she can have the property; is that fair? THE RESPONDENT:

THE COURT:

it to you right now.

arrange it.

No, that's not fair.

Okay.

I'm going to go ahead and order

You can pick it up.

THE RESPONDENT:

THE COURT:

THE RESPONDENT:

THE COURT:

Go ahead and

I have no way to pick it up.

You can have all the property. I have no way to transport it.

I do need it removed out of the storage

within how soon?

MS. SALINGER:

Mrs. Mrs.:

MS. SALINGER:

We haven't got to

now, and I'm offering it to you.

Are you paid through June?

I'm paid through the end of May. So the payment is good to the end of

May, so if it can be picked up by May 31st? ~-------SACRAMENTO

COUNTY OFFICIAL COURT REPORTERS-------11

THE COURT:

1 2

property.

Sure.

Sir, go ahead and pick up your

I'm going to award you the property.

3 4

Ms. Salinger, your client's position is he can have all the property?

MS. SALINGER:

THE COURT:

MS. SALINGER:

THE COURT:

9 10 11 12

Yes, all the property.

She's not charging a value? No, Your Honor.

Sir, you can have all the property,

just have it vacated out of the storage by May 31st. THE RESPONDENT:

I have no way to get it out of the

storage, Your Honor. MS. SALINGER:

Mr. -- Your Honor, Mr.

has a

Toyota 4Runner my client has given him, and he can transport

the property with that automobile.

THE RESPONDENT:

Your Honor, that's not true.

That's -- I barely have gas money to get here.

of this case she took control of all of our assets.

refused to release any funds to me to hire an attorney, to

pay rent, to pay business expenses.

closed for insufficient funds in November 2011.

borrow money to get gas to come to this hearing today.

filed a response with evidentiary objections because her

pleading does not conform to California Rules of Court and

local rules.

She's

My checking account was I had to I

You haven't read the pleadings.

THE COURT:

THE RESPONDENT:

THE COURT:

At the start

You haven't

You haven't read my response.

You haven't timely filed it, and it was

properly objected to, and I'm not going to read it. ~--------SACRAMENTO

COUNTY OFFICIAL COURT REPORTERS

I will 12

'~"

go ahead and have it filed for you, but I will not consider

it because it is not timely filed.

issue, so let's move away from that.

And I've addressed that

Sir, I do want you to pick up that property, have

4 5

the property removed from the storage on or before 5-31-2012.

If it's not removed timely, she may go ahead and remove the

property and dispose of it, which means she can sell it, she

can keep it, she can give it away.

point, if it's fair with you, that you have abandoned the

And I will assume at that

property, and she can do with it what she wants.

you?

THE RESPONDENT:

THE COURT:

THE RESPONDENT:

THE COURT:

Yes, Your Honor.

Okay with

Let me --

Thank you. ask one thing.

So that will take care of Item C.

if he doesn't have it removed, she can go ahead and dispose. MS. SALINGER:

There's also the issue of

reimbursing the Petitioner for storage expenses because she

has --

THE COURT:

How much is she asking for?

MS. SALINGER:

She is requesting $1,723.

That was

the cost of the storage from the date Mr.

to move out.

He was ordered to move out November 1,

items to storage February 1,

and that's just through March of '12.

another $279 on top of that, so it's $1,992 that will get us

through May.

was ordered

Actually, she kept it a couple months later.

~-------SACRAMENTO

'10.

She moved the

'11, so from February 1, So it's 139.

'11, It's

COUNTY OFFICIAL COURT REPORTERS-------13

THE COURT:

And does she say that was his separate

property, or was that simply his goods from the marriage, in

essence, community?

THE PETITIONER:

MS. SALINGER:

6 7

It was separate property. As I recall, the vast majority of

those items were separate property items. THE RESPONDENT:

Your Honor, those items are listed

in her statement of issues, contentions and proposed

disposition filed November 23rd, 2010 as community property,

and in all settlement proposals it's all been listed as

community property.

property, transferred it to a storage unit in violation of

the automatic temporary restraining orders.

THE COURT:

She unilaterally divided community

Actually, that wouldn't be

transferring property to a storage unit is not a violation of

ATRO, A-T-R-0.

17 18 19

It's not.

Okay, so sir, what's your position regarding the reimbursement for the storage? THE RESPONDENT:

I -- I

Your Honor, isn't it

customary that when -- between -- if I -- if I was -- if I

had an attorney, would it not be customary if an -- and this

is -- I'm saying this based on having read Civil Procedure

Before Trial by Wiel and Brown, Hogoboom and Kings Family

Law, Wegner et al. Civil Trials in Evidence, all the Rutter

Group California Practice Guide publications.

customary when if I had an attorney, two attorneys, if one

filed -- according to these references, if one attorney files

a pleading, which is tardy, and the other attorney objects,

Now, isn't it

'~----/

~---------SACRAMENTO

COUNTY OFFICIAL COURT REPORTERS---------14

the objecting attorney is offered a continuance in order to

reply to the pleading, otherwise the pleading is considered.

THE COURT:

THE RESPONDENT:

Not necessarily. What -- can you cite some

authority for that decision? THE COURT:

How about if we just simply if I can

redirect you back to my agenda?

No, I don't -- I really

can't think -- by the way, I cannot think of the authority on

this excepting to give you the general rule.

When there are

timelines set for the filing and the reply to pleadings,

those timelines are for a reason.

constitutional requirement of notice and opportunity to be

heard.

They're to meet the

And so when Ms. Salinger filed her motion, she was

14 15

required to have it filed and served on you within X number

of days.

court days, if it's served by mail 16 court days plus five

days mail, to allow you to have the time and the opportunity

to prepare, meaningfully review the request and to prepare a

reply, and that she gave you.

the response is to allow the person who filed the motion the

opportunity to have -- to have the time to review the

response and provide a reply.

Typically it's served personally a minimum of 16

The reason for the timeline on

Now, many times it is true that counsel offer each

other courtesies.

But when it comes to the point

could be, by the way, it could be a counsel offering counsel

courtesy, or a counsel offering a self-represented, as you

are, a courtesy, or a self-represented offering counsel a

and that

~-------SACRAMENTO

COUNTY OFFICIAL COURT REPORTERS-------15

courtesy.

cases as they progress, when one party or one attorney begins

to be obstinate, and every step of the way the other side has

to pull teeth to get things done, for example, your case, and

then Ms. Salinger -THE RESPONDENT:

6 7

What happens in

You're referring to me as being

obstinate? THE COURT:

It could go either which way.

No, I'm referring to you as every step

of the way in your case you have, as Ms. Salinger has pointed

out, been somewhat difficult.

you know what, I don't think today I'm going to offer

Mr.

always offered me courtesies in return, and she doesn't do

that, I can understand that, but I'm not going to force her

to do it.

speak, and I can see what's going on in the case -- I've had

the case for some time now, since 2010, and I can see why her

position would be that way.

and so I'm not going to overrule her objection and ignore the

timelines.

So if she comes in and says,

a courtesy that I might offer someone else who has

And I can see what's going on in this case as we

'路---------

I don't find it unreasonable,

Now, I can't cite you to a statute, or I can't cite

you to a case.

timelines.

and I will sustain her objection.

made by law, and it's properly sustained.

I can simply tell you the reason for the

And she doesn't consent to waiving the defect,

So can I get --

THE RESPONDENT:

THE COURT:

The objection is properly

It's not a matter of--

Can I get you to reply?

If you will

'---

~-------SACRAMENTO

COUNTY OFFICIAL COURT REPORTERS---------16

stay with my agenda, once again, can I get you to reply to

the request for $1992 for storage?

THE RESPONDENT:

Your Honor, my reply, I have

objections to the evidence under California Rules of Court

5.118, subsection (f).

Your Honor?

THE RESPONDENT:

THE COURT:

I apologize.

That's not fair.

You're right. THE COURT:

Yeah, I agree.

It's not fair.

And all

the amendments that come out every single year.

16 17

Well, I would think it would be.

You would think I would have memorized

THE RESPONDENT:

14 15

That I would

the Family Code, the Civil Code, the Code of Civil Procedure?

12 13

Does that surprise you?

have to look up a rule.

You're looking it up there.

THE COURT:

You're not familiar with that rule,

And sir, what do you propose is the defect under (f), 5.118(f)?

THE RESPONDENT:

The defect is the motion was not

filed -- just give me a second.

papers here.

California Rules of Court 2.108, subsection (4) requiring

line numbers in the left margin.

defect.

I have to go through my

The declaration does not comply with the

THE COURT:

THE RESPONDENT:

THE COURT:

Now, that is not a trivial

How so? It also does not comply --

How so, Mr.

mind on that.

the objection once again?

Never mind.

Never

And can you point me to the timely filing of Oh, that's right, we don't have

~-------SACRAMENTO

COUNTY OFFICIAL COURT REPORTERS-------17

one. THE RESPONDENT:

2 3

That's been resolved.

Now we're

moving on to objections I have a right to protect here. THE COURT:

That's right, we

okay.

sir.

having no valid reason why that shouldn't be.

Thank you,

I'm going to go ahead and order the 1992 reimbursement

Sir, you've had notice of this all along.

She's

been making a request.

I don't know why she would be stuck with the burden of paying

You simply haven't complied with it.

for all of that all along when you didn't address it

reasonably.

THE RESPONDENT:

THE COURT:

MS. SALINGER:

Let's go ahead and move on to 8D. Then, Your Honor, can that be due

also on the 31st of this month?

16 17

I have addressed it.

THE COURT: order.

Yes.

I'm just going to render an

It's collectible at any time.

MS. SALINGER:

THE COURT:

Okay.

Thank you, Your Honor.

8D, and that is, sir, can you go

ahead and pick up your own automobile insurance at this

point?

THE RESPONDENT:

THE COURT:

You can't?

MS. SALINGER:

THE COURT:

Okay.

This is prejudgment

still?

No, I can't.

Yes, Your Honor.

And how much is that a month she's

paying? MS. SALINGER:

It's approximately $100 a month for

~-------SACRAMENTO

COUNTY OFFICIAL COURT REPORTERS-------18

both parties.

THE PETITIONER:

MS. SALINGER:

4 5

THE COURT:

I'm assuming she's going to be asking

for a credit in the end? MS. SALINGER:

THE COURT:

So about $50 a month is Mr.

portion.

Mm-hmm.

Yes, Your Honor.

Okay.

And sir, is there a reason you

can't pay for your $50 a month for your auto insurance? THE RESPONDENT:

Yes, Your Honor.

I just explained

to you that I have no funds whatsoever.

destitute, literally, as a result of Petitioner's conduct.

We had $20,000, $23,000 community funds, but she --and she's

the managing spouse, which she took control of before she

filed the petition for divorce.

mapped out ahead of time.

to coerce settlement, an inequitable settlement, deny me the

right to an attorney.

Under the facts of this case, I have a

right to an attorney.

Assets, community assets exist to

allow me to have an attorney.

MS. SALINGER:

I'm indigent.

I'm

It appears to have all been

They've used my indigency to try

Mr.

has been provided funds.

He also is electing not to work.

attempted to file an Income and Expense Declaration, which

shows expenses which are paid, so I'm assuming he has income

from some source.

26 27 28

THE RESPONDENT:

He also filed, well,

I have no income.

I live with my

father who is on social security. THE COURT:

How long until this matter is set for

---------SACRAMENTO COUNTY OFFICIAL COURT REPORTERS-------19

1 2

trial? MS. SALINGER:

I'll be filing an at issue

memorandum right after this, Your Honor.

cure the disclosure problem up.

THE COURT:

THE RESPONDENT:

Right. And I had line-by-line evidentiary

objections under rule 5.118(f).

THE COURT:

I just needed to

Unfortunately, I did not get a timely

filing on that, so --

THE RESPONDENT:

this is an in-court rule.

evidentiary objections in family law cases, and I filed

written -- timely and written evidentiary objections before

the last hearing, which you didn't rule on then either.

THE COURT:

MS. SALINGER:

THE COURT:

MS. SALINGER:

THE COURT:

MS. SALINGER:

No, I'm-- Your Honor, this rule, This rule permits in-court

Is there a combined insurance policy? The auto insurance, Your Honor?

Uh-huh. Yes.

A multi-discount rate right now? Do you have other items on there or

just the vehicles?

insurance and the parties' vehicles on there, so I'm assuming

she's getting some small benefit for that, yes.

THE COURT:

Okay.

So Ms.

Okay.

has her homeowner's

On that request I'm going to go

ahead and deny the request without prejudice.

that at long cause and request reimbursement --

She can raise

MS. SALINGER:

Okay.

THE COURT:

Epstein claim or Watts, or Epstein

~-------SACRAMENTO

COUNTY OFFICIAL COURT REPORTERS-------20

claim. Sir, any objection to your taking the Toyota

2 3

4Runner?

THE RESPONDENT:

THE COURT:

MS. SALINGER:

THE COURT:

Yes.

It was her separate property, right? Yes, Your Honor.

And she's giving you her separate

property. THE RESPONDENT:

The descriptionS in her

declaration regarding the 4Runner are not true.

incorrect.

They're false. THE COURT:

Does she want possession of the 4Runner

now?

MS. SALINGER:

THE PETITIONER:

MS. SALINGER:

They're

Do you want it back? If he doesn't want it. If he doesn't want it, she'll take

it back.

THE COURT:

Sir, why don't you just -- why don't

you then at this point, if you don't want -- she's giving you

a vehicle.

THE RESPONDENT:

THE COURT:

THE RESPONDENT:

THE COURT:

25 26 27 28

I didn't say I don't want it.

I don't get it. I said

I just asked you if it's okay.

She's

offering to give you the 4Runner. THE RESPONDENT:

She's offering to give me the

4Runner so she won't have to pay for the insurance. THE COURT:

Well, she's probably not going to have

~--------SACRAMENTO

COUNTY OFFICIAL COURT REPORTERS-------21

to pay for the insurance in two months anyway when you get to

trial. THE RESPONDENT:

of the case, Your Honor, she's --

5 6

THE COURT:

I have looked at the history of the

case.

THE RESPONDENT:

THE COURT:

Well, if you look at the history

reading.

She's the managing spouse.

Sir, Mr.

I can tell.

, you have done a lot of

You must spend your days reading.

must spend your days completely absorbed in your case.

happens to some people.

you.

I understand it.

You It

It is happening to

What I'm telling you is first of all, you have a

seven-year marriage.

You separated in 2010.

The parties'

duties and responsibilities to each other are going to come

to an end sooner rather than later.

that Ms.

insurance for you for any length of time at all.

It is highly unlikely

is going to be ordered to be carrying car

What she's doing right now, if the facts as stated

19 20

are true, she has a separate property interest in the Toyota.

It --meaning it's hers.

that is true, she is not just giving you one half of a

community interest in something, she's giving you something

you have no interest at all, and frankly, you have no right

to have possession of right now.

she's offering you title to the vehicle.

vehicle for free, or do you wish to give the vehicle back to

her?

It's not subject to division.

So what she's doing is Do you want a

And you can go obtain your own vehicle, and that way

~-------SACRAMENTO

COUNTY OFFICIAL COURT REPORTERS-------22

you won't have that string tied that you fear is tying you

down.

THE RESPONDENT:

THE COURT:

You keep looking at generosity as if

it's somehow nefarious.

THE RESPONDENT:

THE COURT:

THE RESPONDENT:

9 10 11 12 13 14 15 16 17 18

Your Honor, your --

Your qualifier in that was --

I'm not here to -assuming these facts are true.

They are not true. THE COURT:

Oh, you mean the Toyota 4Runner was not

hers before marriage? THE RESPONDENT:

It was hers before marriage.

was -- it was -- became mine during marriage. THE COURT:

How so?

You mean she transferred title

to your name? THE RESPONDENT:

No.

We kept the title in her name

for a reason. THE COURT:

So title and time, if you go look up

your sources that you keep citing me to, if you look those

up, you will find two ways generally to characterize

property, title and time.

her name, and time, acquired prior to marriage, you're going

to find it's hers.

24 25 26 27 28

THE RESPONDENT:

And if we use both title, it's in

There is -- I'm familiar with the

law, Your Honor. THE COURT:

Okay.

So you're familiar then it's her

property, and she's offering it to you. Mr.

Do you want it?

, I am trying to work through this with

,.........__,

~--------SACRAMENTO

COUNTY OFFICIAL COURT REPORTERS-------23

you so that you see, but I don't see anything nefarious about

her offering you her separate property.

not?

vehicle, one of the thought processes in my mind is if he has

the vehicle, she's going to want to maintain --make sure

it's still insured because it's in her name, right?

Otherwise, she can have it back.

MS. SALINGER:

THE COURT:

9 10

to maintain insurance.

THE COURT:

Right, Your Honor.

going to send the vehicle back to her, and she doesn't have

THE RESPONDENT:

Sure.

Would that be forthwith? If you want to surrender it now,

it doesn't matter to me. THE RESPONDENT:

How would I get back to San Jose

where I live?

THE COURT:

dad, or a friend or something.

18 19 20 21 22

And if she has the

So if you don't want the vehicle, I'm

Do you want it or

Public transportation, or call your

THE RESPONDENT:

I don't know.

Under those coercive conditions, I

will take the 4Runner. THE COURT: anything, Mr.

I'm not trying to coerce you into Do you wish to have the 4Runner?

And if -- by the way, if I do award -- give you the

4Runner now, in essence, a predisposition, I am going to ask

that you maintain the insurance on it.

THE RESPONDENT:

THE COURT:

Yeah.

As a condition of taking it, or -It's no longer going to be hers.

She's going to sign title over to you, and you insure your

own vehicle. ~-------SACRAMENTO

COUNTY OFFICIAL COURT REPORTERS-------24

THE RESPONDENT:

1 '----

work?

THE COURT:

THE RESPONDENT:

Isn't that how it normally would

Is that okay with you then? You don't have to order that,

right?

THE COURT:

Is that okay with you?

THE RESPONDENT:

Well, it's all based on defective

pleadings and declarations, so it's okay with me with that

qualifier.

THE COURT:

THE RESPONDENT:

THE COURT:

With what?

Okay.

So --

What you just said.

-- you take the Toyota, and then you

take the insurance on the Toyota.

THE RESPONDENT:

THE COURT:

Right.

Yeah, perfect.

All right.

So I'm

going to strike what I ordered before on the insurance, and

what we're going to do

18 19

MS. SALINGER:

issue for the prior months at long cause.

THE COURT:

MS. SALINGER:

THE COURT:

MS. SALINGER:

Yes, just make a claim at long cause.

Your Honor.

and be finished with it.

27 28

Yes.

So Mr.

We'll deal with the reimbursement

gets the Toyota.

And we have the title today,

So after the hearing, we'll fill everything out

THE COURT:

Sign it off and do your notice of

non-responsibility, and you're clear. MS. SALINGER: ~-------SACRAMENTO

Yes.

COUNTY OFFICIAL COURT REPORTERS-------25

THE COURT:

Okay.

Then finally, sir, would you

like to be heard on the issue of attorney's fees?

the appeal, the request for fees for the appeal of just shy

of 5,000, 4,957, costs for today's hearing of $3,302 and

5,000 in sanctions.

THE RESPONDENT:

THE COURT:

8 9

Yes, I have

Is that okay?

THE RESPONDENT:

I have evidentiary objections on

that too. THE COURT:

10 11

I've got

Okay.

But how about the underlying --

the underlying request itself on the merits?

THE RESPONDENT:

with Rules of Court.

THE COURT:

THE RESPONDENT:

Okay.

Well, the pleading does not comply

And besides that? Besides that it -- the declaration

-- the declaration of the appellate attorney misrepresents

the court of appeal proceedings.

that I'd like to enter, exhibits that I'd like to enter into

evidence from the actual court of appeal pleading.

20 21 22

THE COURT:

And I have evidence here

Would you mind summarizing that for me

briefly? THE RESPONDENT:

I -- you're catching me off-guard,

Your Honor.

I was prepared to, you know, make formal

objections and present evidence the way it's done in civil

court, which is my right, and it's apparent that that's not

going to happen.

THE COURT:

THE RESPONDENT: ~--------SACRAMENTO

Anything else on that issue, sir? And I'd like to request a long

COUNTY OFFICIAL COURT REPORTERS-------26

cause hearing too for that issue.

Obviously it's very

substantial.

misrepresent the court of appeal record and the court of

appeal proceedings. And I have formal evidentiary objections

to both declarations as I stated earlier, and I would like to

present live testimony as I stated earlier.

contain false, immaterial and irrelevant material as defined

by the Code of Civil Procedure.

pleadings, which is what occurred at the last hearing as

It's a lot of money.

Both declarations

The declarations

You are not familiar with my

well.

offered you an -- I brought an extra set of pleadings for you

just in case.

13 14

THE COURT:

And sir, on the request for live

THE RESPONDENT:

I wish to call Petitioner, the

authors of the two declarations.

THE COURT:

the other author is.

19 20

testimony, again, who did you wish to call?

15 16

For whatever reason you didn't get them on time.

Well, ma'am

THE RESPONDENT:

sir, I don't know who

That would be Elizabeth Niemi, the

appellate attorney.

THE COURT:

Okay.

And again, did you make a

request prior to the hearing and file and serve a witness

list?

THE RESPONDENT:

Where -- what is the reference for

that, Your Honor, because I didn't -- I'm not familiar with

that.

THE COURT:

THE RESPONDENT: ~-------SACRAMENTO

217(c). What is it?

COUNTY OFFICIAL COURT REPORTERS-------27

THE COURT:

If you wish to call Ms.

she's your witness.

3 4

217(c).

Ms.

, if you'd come on up to the witness

stand?

THE RESPONDENT:

Now, this would be on the --

THE COURT:

Ma'am, if you'd raise your right hand, I'll swear

I don't know.

you in.

give in the cause now pending shall be the truth, so help

Do you solemnly swear the testimony you're about to

you, God?

THE WITNESS:

THE COURT:

13 14

seat.

I do. Thank you.

State your full name and spell it for us. THE WITNESS:

THE COURT:

THE WITNESS:

THE COURT:

THE RESPONDENT:

20 21 22

You're welcome to have a

short recess.

. Thank you.

Good morning again to you.

Good morning. Mr.

, your witness on direct exam. Your Honor, I'd like to request a

You are catching me off-guard here.

THE COURT:

I thought you wanted to put on live

testimony this morning.

THE RESPONDENT:

THE COURT:

THE RESPONDENT:

I did.

Your witness is on the stand. As you may have noticed, I already

started packing up my stuff --

THE COURT:

THE RESPONDENT: ~--------SACRAMENTO

I didn't. -- based on your prior denial of

COUNTY OFFICIAL COURT REPORTERS-------28

that request. THE COURT:

I did not notice that.

No, I only

asked you if you had a list because you were calling other

than parties.

non-parties, but for a party -- I mean

You don't need an advance notice for

THE RESPONDENT:

THE COURT:

Yeah, no. you need to notify of non-parties.

But for a party, you can call, and I have your witness on the

stand.

Your request to continue is denied.

10 11

THE RESPONDENT:

THE COURT: disorganized.

14 15

I can see, sir, that you are completely

I'm not --

THE RESPONDENT:

THE COURT:

you are not ready to question a witness, that all of this is just simply posturing.

THE RESPONDENT:

Well, if you read my -- if you

had --

THE COURT:

filed?

filed and served.

witness.

The declarations that are untimely

I have not read them and won't. Your witness, sir.

TESTIMONY OF

27 28

I have

It appears to me you are not ready to

How am I disorganized?

everything neatly organized in envelopes.

16 17

Let me find what I need to

find here.

12 13

Okay.

Your witness.

They're untimely You may question your

having been called as a witness by the Respondent; and having been duly sworn, was examined and testified as

-~--------SACRAMENTO

COUNTY OFFICIAL COURT REPORTERS-------29

follows:

DIRECT EXAMINATION

BY THE RESPONDENT:

Okay.

Let's see, where is her declaration at?

go.

Okay.

On your declaration -- state your name.

THE COURT:

THE RESPONDENT:

BY THE RESPONDENT:

Okay.

Here we

She has. Okay.

On your declaration, page 1, let's see, it would

be under, A, discovery, there's no -- there's no paragraph

numbers on this declaration, and there's no line numbers in

the left margin. THE COURT:

Sir, did you have a question for the

witness?

BY THE RESPONDENT:

On August 3rd, 2010, a demand for production of documents was

served on Respondent.

Under A, under discovery, the first paragraph, it says:

Respondent failed to respond.

Is that -- is that true?

I believe that's true.

Did you not -- did your attorney provide you with copies

of my response?

MS. SALINGER:

Objection, Your Honor.

irrelevant to the issue we're addressing.

attorney's fees.

This is

We're addressing

You've already ruled on these items.

THE COURT:

Overruled.

First of all, the call of

the question was really whether or not that's what it says in

the declaration.

Is that what it says in the declaration to

~-------SACRAMENTO

COUNTY OFFICIAL COURT REPORTERS-------30

your knowledge?

Sir, did you have a courtesy copy for your witness?

THE RESPONDENT:

THE COURT:

THE RESPONDENT:

THE COURT:

Yeah, I brought --

multiple copies of everything,

Your Honor, for that very purpose.

THE COURT:

THE RESPONDENT:

THE COURT:

And where are they? I have multiple copies of --

Yes, but I need one, and so the does

the witness. THE RESPONDENT:

-- all of the court of appeal

pleadings.

THE COURT:

Did you have a copy of the document

you're referring the witness to?

the Court, counsel and the witness?

THE RESPONDENT:

The

Are you prepared to do this?

THE RESPONDENT:

And do you have a copy for

Yes, I do.

Here we are.

Here's --

MS. SALINGER:

As I glance over his shoulder,

Your Honor, this is a completely different declaration.

is not the declaration that he is referring to.

like it's a declaration from a prior motion or response that

was filed.

28 '

The Court will need a copy.

THE RESPONDENT:

That is

counsel will need a copy, and the witness should have a copy.

.._____

And where is that, please?

Yes, I did.

THE COURT:

This

It looks

Is that true, Mr.

~--------SACRAMENTO

COUNTY OFFICIAL COURT REPORTERS-------31

THE RESPONDENT:

1 2

THE COURT:

THE RESPONDENT:

THE COURT:

THE RESPONDENT:

THE COURT:

19 20

Yes, I do, but apparently I can't

comply with the requirement that I provide her copies of -THE COURT:

Well, it's not necessarily a

requirement, it's courtesy.

17 18

My question to you is do you have any

THE RESPONDENT:

15 16

Well, I have other parts of the