Defendant in pro per

                                                COUNTY OF SAN DIEGO

& HOLTZ, APC,                   



MAURA LARKINS,                                                                  
and DOES 1 through 100, inclusive,   
) Case No. 37-2007-00076218-CU-DF-CTL
) Judge:              Hon. Judith F. Hayes
) Dept:                68
) Date                 August 7, 2008        10:30 a.m.
Maura Larkins Opposition to
Stutz' Motion to Enforce Injunction
Court ruling on this
(The tentative ruling is now
Comes now Defendant and offers the following objections to tentative ruling
regarding Plaintiff’s Amended Motion to Enforce Permanent Injunction.

I.  Overview

Plaintiff in its Reply asks the court to determine if Plaintiff’s actions that have
been reported by Defendant on her website were unethical or illegal—and then
to silence Defendant if and only if Stutz has been found by the court to have
committed an illegal or unethical act.   Silencing Defendant regarding conduct
by Plaintiff which the court deems to be illegal or unethical seems to be exactly
what the court has done in its Tentative Ruling.  Or has the court found that
specific words like “destroying lives” and “threat of jail” are forbidden by
injunction that this Ruling seeks to enforce?  Or that Defendant’s specific words
are not an accurate description of Plaintiff’s actions?  Or that the actions never
took place? The injunction at issue is permanent and therefore it is of great
importance that this first, precedent-setting interpretation of the injunction be
not only correct, but also clear.  Defendant asks the court to clarify this decision
so that Defendant can object more effectively to it and the Court of Appeal can
judge more effectively whether this court has ignored the meaning of the
injunction, abused its discretion, and/or violated the First Amendment.

II.  Defendant asks the court for clarification of its tentative decision.

A. Was the truth of Defendant’s statements an issue in this motion

If truth is an issue, the court needs to conduct a mini-trial or mini-summary
judgment on each item of contention, which would require that Plaintiff dispute
the truth of each item and produce documents (such as the written speech read
by Leslie Devaney at the Tri-City Healthcare board meeting on January 5,
2009) and depose witnesses.  Plaintiff has not disputed the truth of the
statements, but has suggested that Defendant has not fully proved their truth.

B. What has the court found to fall within the purview of the injunction—
specific WORDS by Defendant, or specific ACTIONS by Plaintiff?

Is the court forbidding specific phrases, such as “destroying lives” or “threat of
jail”, or is the court forbidding a discussion of specific actions by Plaintiff?  In
other words, does the court find that:
(1) Defendant’s specific words are forbidden by the injunction?
(2) Defendant’s specific words are at variance with Plaintiff’s behavior?
(3) Plaintiff’s behavior  is illegal or unethical?

(1) Defendant objects if the court is allowing Plaintiff to add specific words willy-
nilly to the injunction.  Given the wholesale nature of this motion ruling, it
appears that the court is allowing Plaintiff to add any and all words it wishes to
the injunction.  If the court’s decision reflects the courts belief that a specific
phrase or sentence published by Defendant, such as “destroying lives” or
“threat of jail”, is forbidden by the injunction, Defendant asks the court to clarify
this for each of the nine items addressed in the Motion and Opposition.

(2) Does the court find that Defendant’s words are not an accurate description
of Plaintiff’s behavior? For example, does the court find that calling up the
district attorney to report someone whom Plaintiff has just been hired to sue in
civil court cannot fairly be described as “using the threat of jail in a civil suit”?

(3) Is the court forbidding a discussion of specific actions by Plaintiff, such as
throwing or keeping opponents in jail, or calling up the District Attorney to
report someone whom Plaintiff has just been hired to sue in civil court, on the
basis that those actions are illegal or unethical and therefore discussion of
them is forbidden by the injunction?

If Plaintiff’s behavior has been found to be illegal or unethical by the court, then
Defendant asks the court to make this crystal clear.  This is a matter of concern
for the legal system and society as a whole.  Do the court and Plaintiff also
agree that the court is required to report the behavior to the proper authorities
once it has been determined to be unethical or illegal?    

Defendant asks the court to clarify the basis of its decisions on each of the nine
issues addressed by Plaintiff and Defendant (except for issue number eight,
which Defendant has already fixed) so that Defendant will be able to object
more effectively to the Tentative Ruling regarding the instant motion.  

III. This case has devolved into a mind-boggling morass.  

The bizarreness of Plaintiff’s argument is shown by the fact that Plaintiff has
worked hard in its Reply to prove that its own actions are unethical, immoral or
illegal. The incongruity of this court’s August 7, 2009 decision is demonstrated
by the fact that Plaintiff does not claim to be falsely accused, nor does it defend
itself by saying it took the described actions in good faith.  Far from it.  Plaintiff
vociferously insists that the acts were unethical or illegal, or both, and that this
is why Defendant must remove statements about those actions from her

IV. The court’s decision is an abuse of judicial discretion
The court’s tentative ruling is an abuse of judicial discretion.  For example, the
court’s ruling that Defendant may not report that Daniel Shinoff’s tactics have
“destroyed lives” is an example of arbitrary and unreasonable decision-making.  
There is no reasonable basis on which the court could find this statement to be
a violation of the injunction.  Many court cases are extremely serious, and their
outcomes leave some parties financially, emotionally or professionally
destroyed.  Lives are destroyed in courtrooms on a regular basis, and it is
perfectly legal to use the court to do this.  It is clearly ethical, too, as far as the
Bar Association is concerned.  It is preposterous for the court to rule that
Defendant accuses Daniel Shinoff of illegal conduct when she makes the
statement that Daniel Shinoff destroys lives with his legal tactics.  It’s a simple
fact that Daniel Shinoff’s tactics have cost some individuals their homes, jobs,
savings and sanity, and that Mr. Shinoff acted within the legal and ethical
bounds of the justice system.  Yet it seems clear that the court has found the
described behavior to be unethical or illegal.  

V. The injunction
Plaintiff’s Reply states, “[Defendant]…should not now be allowed to second-
guess her decision by challenging the scope of the injunction as violative of the
First Amendment, effectively denying SASH the benefit of its bargain (page 2,
lines 21-22).   Clearly, SASH wishes to deny the limits of its bargain.  The
injunction clearly specifies and forbids a short list of statements that would be
defamatory if they were false.  The word “intimidation” was also added to the list
of words.  The injunction prevents Defendant from saying specific words about
the Stutz actions she reports.   Defendant agreed not to make these statements
even if they are true. Defendant did not agree to censor, and the injunction
does not require Defendant to censor, any speech outside this list of specific
statements.  On April 6, 2009 Defendant discussed with Plaintiff’s lawyers
James F. Holtz and Jeffrey Wade, Jr. this precise issue: that Defendant would
be free to report on Plaintiff’s actions, but would not be free to describe them as
illegal, unethical, incompetent or intimidating.  The idea that Defendant
voluntarily gave up her First Amendment Rights beyond these limited
parameters is preposterous.

The new interpretation of the injunction approved in the court’s Tentative
Ruling is abusive of discretion.  Defendant assumes that the court concurs with
the new interpretation of the injunction as explained in Plaintiff’s Reply, but asks
the court to clarify this and other issues outlined in these objections.  

The meaning of the injunction was discussed in careful detail on April 6, 2009
and is limited to certain words that would be defamatory if false—plus the
accusation of intimidation.  

VI. Did Plaintiff perpetrate a fraud on April 6, 2009?

If at the time the agreement on the injunction was signed, April 6, 2009, Plaintiff
intended to interpret the agreement as it has done in its Reply to Defendant’s
Opposition to the instant motion, then Plaintiff obtained Defendant’s agreement
through deceit and fraud.  This issue was thoroughly discussed by Plaintiff and
Defendant.  We conferred for hours, We discussed in detail exactly what the
agreement meant.  It referred to specific words—illegal, unethical, incompetent
and intimidating.  It referred to words that would be defamatory per se if they
were false, plus the word “intimidation”.  The Reply seems to have been written
by someone who had not been involved in this case previously; it claims an
entirely new interpretation of the injunction.   Interestingly, the instant motion
marks Stutz attorney Leslie Devaney’s debut as an issue in this case.

Defendant suspects that Ms. Devaney wasn’t mentioned in previous pleadings
by Plaintiff in order to make it possible for the court to find that the Stutz lawyers
at issue were private figures.  This is bait and switch, a classic fraudulent

Defendant’s behavior has been consistent with the clear meaning of the
injunction.  Defendant has continued to report on Stutz law firm, but have
avoided any of the defamatory-when-false statements clearly specified in the

The Reply states, “[The injunction]… applies to all statements that even accuse
SASH or its attorneys of certain conduct” (page 2, lines 19-20).  This is
incorrect and absurd.  The injunction refers to words Defendant may not use to
describe Plaintiff’s conduct, not her freedom to discuss Plaintiff’s conduct itself.  
Plaintiff is free to report Stutz law firm’s conduct as long as she doesn’t
characterize it as illegal, unethical, incompetent, or intimidating.

Plaintiff’s Reply claims that the injunction sets up a system in which the court will
determine whether any reported action by plaintiff is unethical or illegal or
incompetent or an act of intimidation.  It does not.  In fact, the injunction
prevents defendant from using specific words (unethical, incompetent,
intimidating, illegal, etc.) to describe plaintiff.  The injunction does not deny
freedom of speech to defendant.

This wording of the injunction was not created by the court, but by the parties.  
Its intent was clear.  It should not be reinterpreted now.  The injunction is about
WORDS ONLY, NOT ACTIONS.  The court does not have the authority to
restrict legal free speech, and Defendant did not agree to do so.   

VII.  Clarification needed: Does the court find Leslie Devaney to be a
private or a public figure?

A new factor has been injected into this case: the worrisome issue of attorney
Leslie Devaney.  The court has failed to address in its tentative ruling whether
or not it considers Leslie Devaney to be a public figure.   Leslie Devaney was
never mentioned in pleadings before the injunction was agreed upon. Did the
judge intend on April 6, 2009 that the injunction would cover Stutz lawyers even
if they run for very high profile public offices?   Has a classic bait-and-switch
occurred in this case?

VIII. Abuse of discretion by the court regarding Stutz attorney Leslie

Judge Hayes volunteered that she didn’t know Dan Shinoff; her honor had not
been challenged or questioned on the issue.  Clearly, her honor meant this to
refer to any social relationship since she has presided in Dan Shinoff cases.  
Now Defendant has challenged Judge Hayes regarding her relationship with
Leslie Devaney.  This would be a good time for Judge Hayes to reveal whether
or not she knows Leslie Devaney.  Leslie Devaney and Plaintiff are closely
linked. The entrance of Leslie Devaney into the case opens up the question as
to whether the judge should have recused herself at the beginning of the case.  
This case was transferred to Judge Hayes for unknown reasons when it came
back from federal court.  Interestingly, this is not the only Daniel Shinoff case
that has been transferred from Judge Quinn to Judge Hayes.  Now that the
Plaintiff’s relationship to the judge is more fully revealed, it would be
appropriate to have a different judge take over the case.  There has been
abuse of discretion in this case since the court allowed Daniel Shinoff to refuse
to be deposed and to refuse to produce documents.

Did Leslie Devaney act inappropriately when she reported four Tri-City
Healthcare board members to the District Attorney within weeks, if not days, of
having been hired to oppose them in civil court?  Plaintiff says that if Devaney’s
action, the fact of which was reported in two newspaper articles that Defendant
included in her Opposition to this motion, was illegal or unethical or intimidating,
then the injunction requires the court to order Defendant to take the report off
her site.   It appears that the court has found Devaney’s action to be unethical,
illegal and/or intimidating.  The court most certainly needs to follow up on its
decision with a communication to the Bar Association and/or District Attorney.

VI. Abuse of Discretion: Is the court improperly protecting Plaintiff?

If court determines that Plaintiff’s actions were illegal or unethical, the court has
the obligation to report them to the Bar Association or the District Attorney.  If
the court does not do this, it is an indication of improper bias on the part of the
court.  The abuse of discretion began when the court allowed Daniel Shinoff
and Plaintiff to refuse to be deposed or to produce documents.

VII. Violation of the First Amendment

The manner in which Judge Hayes has interpreted the injunction is counter to
its original intent, to state and federal constitutions protecting freedom of
speech, and constitutes an abuse of judicial discretion.  Reality and reason are
allowed no role by the court in the interpretation of the injunction.  Instead, the
enforcement of the judgment is arbitrary and biased.  With this Reply and
Tentative Ruling, Plaintiff and the court are creating an ugly and unjustifiable
vehicle for abuse of Defendant’s basic rights.  It is false and preposterous to
claim that Defendant voluntarily gave up her First Amendment Rights (beyond
the short list of words she agreed not to use) when she signed the injunction.  
This court has no right to take those rights away from Defendant.  

DATED:  August 7, 2009                                                
Maura Larkins, Defendant in pro per
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