MAURA LARKINS
Defendant in pro per


SUPERIOR COURT OF THE STATE OF CALIFORNIA
     COUNTY OF SAN DIEGO


STUTZ ARTIANO SHINOFF
& HOLTZ, APC,        
Plaintiff          


vs.                                                    



MAURA LARKINS,                    
Defendant.                
            
___________________________________)

I.        STATEMENT OF FACTS                    
                  
A. In its Opposition, Plaintiff has not opposed Defendant's contention that the principles
of res judicata and collateral estoppel dictate that a default can not be entered as
long as summary adjudication is in place.  
 

In fact, Plaintiff has not opposed any of Defendant's claims on the first three-and-a-
half pages of her Points and Authorities for the instant motion.
 

Here are some of Defendant’s unopposed assertions (page 2, line 1 to page 4 line 15 of
Defendant’s Points and Authorities for the instant motion):

Striking Defendant’s Answer can not result in default, or in any consequence whatever, as long
as summary adjudication is in place.  Striking the answer has no effect on the case at this point.  
No default can be taken because summary judgment has already occurred.  The case has
already been tried, and all that is left is to determine damages.  Defendant is entitled to a jury
trial, and striking her answer doesn’t take away that right because the answer is not at issue any
longer.  

On April 6, 2009 this court rescinded the finding of malice in the summary adjudication order
prepared by Plaintiff and signed on March 26, 2009 and directed Plaintiff to prepare an
Amended Summary Adjudication Order.  Plaintiff submitted its proposed Amended Summary
Adjudication Order in January 2012.

Since the case has been adjudicated through Summary Adjudication regarding all matters
except damages, the court’s decision on July 27, 2009 to Strike Defendant’s Answer is an action
without any effect on the case.

There can be no default by way of Striking Defendant’s Answer when adjudication of the
Complaint and Answer have already taken place.
Striking the Defendant’s Answer is moot since summary adjudication has taken place.  No
summary adjudication had taken place in Del Junco v. Hufnagel, the case that this court has
relied upon repeatedly.  Also, Hufnagel relied on a different code.  The trial court’s actions in the
instant case seems to be unprecedented.

Not only summary adjudication has taken place: Settlement also took place.  
Default can not stand until the settlement/stipulated injunction is set aside. A court-sanctioned
settlement precludes a default.  There should have been a dismissal or jury trial three and a half
years ago; the judge clearly admitted that the case had been settled.

Court has several options, but they are limited by the doctrines of Collateral
estoppel and res judicata. The trial court has discretion to choose among various paths to final
judgment, but those choices are not unlimited.  At this point, the trial court must choose between
[these] options:

(1) set aside summary judgment and settlement and then strike Defendant’s Answer and enter
default; or

(2) allow a jury trial for damages; or

(3) set aside summary judgment and allow a trial on all issues.

Striking Defendant’s Answer can not result in default, or in any
consequence whatever, as long as settlement is in place.


B. Changed circumstances have resulted in extrinsic fraud

      The most important changed circumstance in this case is that default and default judgment
have been entered instead of a jury trial for damages, thus turning Plaintiff’s intrinsic fraud into
extrinsic fraud and causing illegal harm to Defendant.  

C. Plaintiff’s Opposition contains erroneous statements

      1. Contrary to Plaintiff's Opposition (page 6, line 1 to page 7 line 4), Defendant was not
"admonished by the Court as rights she was giving up."  The judge did not make any effort to
explain or ask about the agreement reached by Plaintiff and Defendant.  

      2. Mr. Holtz states, "Defendant fully understood the stipulated injunction and knowingly
waived certain constitutional rights in order to avoid a trial on
damages."  In fact, there was absolutely no discussion of constitutional rights during
negotiations or in the court room on April 6, 2009.  If there had been, Mr. Holtz would have
quoted it in his Opposition.  Neither Mr. Holtz nor the court ever mentioned on April 6, 2009 that
the injunction would prevent Defendant from stating facts.

      3. Mr. Holtz fails to address the issue that Defendant CAN NOT give up
constitutional rights without due process, and the court certainly CAN NOT
take away constitutional rights without due process.

      4. Mr. Holtz is the one who wanted to avoid a jury trial--and is on record
opposing my requests for jury trial.  Defendant began asking for the jury trial regarding
damages as soon as it was clear that the stipulated injunction was a hoax.  Plaintiff has opposed
a jury trial for damages, and has gone to shocking lengths to avoid it, including asking the Court
of Appeal to approve an exceedingly unconstitutional injunction.

      5.  The Court of Appeal did not consider the constitutionality of the April
6, 2009 injunction because Defendant did not include the April 6, 2009
injunction in her appeal.

      6. Plaintiff does not deny or oppose Defendant’s declaration, apparently admitting it is true.

II. The Law

      A. Courts have held that it was proper to vacate or modify an injunction when it was
equitable to do so under changed circumstances, even when the parties had previously
stipulated to the judgment giving rise to the injunctive relief [see Mendly v. County of Los
Angeles (1994) 23 Cal. App. 4th 1193, 1207, 28 Cal. Rptr. 2d 822; Welsch v. Goswick (1982)
130 Cal. App. 3d 398, 404-405, 181 Cal. Rptr. 703].

      B.  Del Junco v. Hufnagel was very different from the instant case

      Plaintiff refuses to acknowledge that there was no summary adjudication in the Del Junco
case, and therefore the Hufnagel injunction did not arise from a summary adjudication.  The Del
Junco case involved the Unfair Competition Law (Bus. & Prof. Code, § 17200), not simple
defamation.  Hufnagel was not eligible for the exemption found in subdivision (d) of Civil Code
section 3344 designed to protect uses that are not commercial, such as public affairs and news.
Reports that are “public affairs” are not limited to those “covered on public television or public
radio.” (Dora v. Frontline Video, Inc. (1993) 15 Cal.App.4th 536, 546.)  They are protected
because they report a matter of public interest..., as is the Defendant in the instant case.
C. Lesser alternative was available

      A lesser alternative would have remedied the situation: a jury trial for damages.  It is three
and a half years since Defendant began asking for the jury trial for damages.

III. ARGUMENT--The April 6, 2009 injunction must be dissolved

A.        The April 6, 2009 injunction must be dissolved in the interest of justice

      The end of justice would be served by dissolving the April 6, 2009 stipulated injunction, and
therefore dissolution is sanctioned under Code. Civ. Proc. Sec. 533.

      Unjustified findings that Defendant violated the injunction was used as an excuse to modify
it in a manner so egregious that the California Court of Appeal on August 5, 2011 overturned
the modification as a violation of Defendant’s free speech rights.  The April 6, 2009 injunction
appears to be narrower than the Dec. 11, 2009 injunction, but it is being used to achieve the
precise intent of the injunction that was overturned by the Court of Appeal on Aug. 5, 2011.  
The April 6, 2009 injunction, so innocent on its face, has become the instrument of unjust and
illegal harm to Defendant and the public.  It has been abusively interpreted to violate Defendant’
s right to jury trial, equal protection of the laws, and freedom of speech, and freedom to petition
for redress of grievances.

B. The court engaged in delaying tactics over the past four years since summary adjudication,
ignoring Defendant's repeated requests for a jury trial regarding damages.  The court even
ignored Defendant's  March 9, 2012  Motion for Jury Trial, never ruling on it, and then struck
Defendant's Answer without giving a single example of any specific action that justified the
Striking of the Answer.  The court's actions, in conjunction with Plaintiff's deceit on April 6, 2009,
have resulted in extrinsic fraud in this case.

C. Settlement

      Plaintiff states (page 7 lines 9-11 Plaintiff's Opposition to the instant motion), "Here the
stipulated injunction was reached as a partial settlement, in order for defendant to avoid a jury
trial on the issue of damages that day" (emphasis added) Plaintiff is thus admitting that the jury
trial for damages was only delayed, not permanently precluded.  But Plaintiff, not Defendant,
has insisted on avoiding a jury trial for the past three-and-a-half years.  The Court of Appeal
has called the stipulated injunction/agreement a "settlement".  Certainly the settlement needs to
be set aside in order to give Plaintiff a default.  It never would have been reached if summary
adjudication had not occurred.

D. The injunction came about after denial of due process

      1. The injunction came about after repeated refusals by the court to allow Defendant to
conduct discovery; and by throwing out Defendant’s Opposition to Summary Judgment for
improper format;

      2. The court was found to have created an “exceedingly unconstitutional” modification of
the injunction.  Both Plaintiff and the court have been wrong before about whether an injunction
in this case was constitutional.  

E.        The judge has NEVER discussed the meaning of the April 6, 2009 injunction

The judge did not discuss the terms or the contents of the injunction on April 6, 2009 except for
the word “intimidation,” which she pressured Defendant to include (Exhibit 7, page 130 line 16 to
page 131 line 11).  Parties agreed on meaning, but the judge avoided any and all discussion of
that meaning, and in fact made clear that regardless of what the injunction actually said, she
wanted Plaintiff’s name completely removed from Defendant’s website (Exhibit 7).  Plaintiff
claimed that the agreement meant something that was specifically ruled out during discussions.  

F.   The injunction is defective because of lack of notice; The court has repeatedly refused to
clarify or explain its interpretation of the injunction

      Lack of notice has occurred in this case because the injunction is uncertain and ambiguous
and the defendant is unable to determine from the order what he may and may not do.   Thus,
the injunction is defective [Evans v. Evans (2008] 162 Cal. App. 4th 1157, 1171-1173, 76 Cal.
Rptr. 3d 859; ReadyLink Healthcare v. Cotton (2005) 126 Cal. App. 1006, 1026, 24 Cal. Rptr.
3d 720. The court has intentionally kept the injunction broad and vague by refusing to respond
to defendant’s requests for clarification (exhibit 8, Aug 7, 2009 transcript).  On August 7, the trial
court held a hearing on the Stutz Firm's motion. At the hearing, Larkins stated that the intent of
the parties in entering into the stipulated
injunction was that, "I would still be able to report the facts, such as [the Stutz Firm] did this
action. I would simply not be able to opine that that action was illegal, unethical, incompetent or
intimidating." Larkins stated that she needed "clarification" of the scope of the injunction as to
"where the limit is."

G. Right to petition for redress of grievances

      The injunction is unconstitutional because it does not allow Defendant to contact proper
authorities, including police and/or the district attorney and make a report if a crime or other
improper behavior is committed by Plaintiff or its attorneys.  Defendant must be allowed to seek
and work with legal counsel and other counsel.

H.  The manner in which the April 6, 2011 injunction has been interpreted is unconstitutionally
broad: as interpreted by Plaintiff and the court, any statement at all can be considered a
violation of this injunction. Plaintiff simply has to say that it believes that the behavior reported
by Defendant is unethical (or illegal, etc.) and the court appears to automatically grant Plaintiff’s
motion to enforce.  

I.  The manipulation and pretense is obvious when you have plaintiff claiming its own behavior
was illegal or unethical, and the judge finding this to be true, and this finding being used as a
reason to silence defendant!  

J. The court is in the bizarre position of having found on multiple occasions that Plaintiff has
committed unethical acts—or worse.  It appears that all acts by Stutz that have been brought to
the attention of the court, including actions described in new stories published by the San Diego
Union –Tribune, have been found to be unethical, intimidating or professionally incompetent--or
possibly illegal--by the court.

K. The negotiations and the agreement

The intent of the agreement was made clear during negotiations between the parties: it was
agreed that Defendant would be free to report facts.

L. The stipulated injunction was NOT an agreement to cover up wrongdoing

      Defendant has stated under penalty of perjury (see attached Declaration, paragraphs 2
through 13) that the April 6, 2009 injunction was achieved by fraud because Plaintiff clearly
agreed on April 6, 2009 that the injunction would merely prevent Defendant from stating specific
opinions, but in actuality, Plaintiff intended the injunction to force Defendant to conceal, even
from the proper authorities, all illegal, unethical, intimidating and incompetent acts that Plaintiff
or its attorneys ever had committed or ever would commit.
M.The motivation of the court is revealed in transcripts; the purpose is to silence public debate

      The court revealed that it wanted to go much farther than removing statements found to be
defamatory and preventing specific accusations.  The court wanted all statements, no matter
how true, no matter how significant to the public good, about the law firm, removed from the
site.  The court made clear that Defendant would have to limit her speech far, far beyond the
scope of the injunction in order to “save [herself] some trouble.”  The court stated, “Take this
law firm off the website.  That is advice.   It is not part of the order.  But save yourself some
trouble.” (Exhibit 7 page 131 lines 10-13)

On April 6, 2012, the judge said, “The advantage of the other side is they get the expedited
judgment procedure if the website doesn’t go away…”  (Exhibit 7, page 108, lines 22-24).  The
judge’s words might not set off so many alarms if it weren’t for the methodical disparity in the
court’s disparity in treatment of plaintiff and defendant in this case.

N.  There is nothing in the April 6, 2009 agreement about “implying”;  the court is not free to
take away constitutional rights without due process, which did not occur here

      The court and Plaintiff inappropriately twisted the agreement into a meaning that was
specifically eliminated during discussions between Plaintiff and Defendant.  

O. The court is required to interpret the agreement in the narrowest manner, not the broadest
manner, possible.   The court may not claim that Defendant gave up constitutional rights that
she specifically insisted she was not giving up.  And even if Defendant intended to give up
rights, which she did not, the court is not automatically free to take away those rights.  For
example, if Defendant agreed that she should be executed for violating the injunction, the court
would not therefore have the right to order her execution.  

      Defendant would like to correct a statement in her Memorandum of Points and Authorities in
support of the instant motion.  Defendant  wrote, "The case has already been tried..." (page 2
line 4).  In fact, the case was never tried, but it was decided through summary adjudication.  The
case wasn't tried, since no evidence of Defendant was ever considered.  Instead, Defendant's
opposition to summary adjudication was thrown out along with her evidence, and she was not
allowed to have a jury trial for damages.

IV. CONCLUSION

      Defendant requests that the court set aside default and default judgment and dissolve the
injunction of April 6, 2009 and the first three paragraphs of the December 11, 2009 modified
injunction (especially paragraph 3), since the injunctions are constitutionally and legally
defective, and to limit its injunctions to specific statements made by Defendant that were found
to be defamatory at trial.  

DATED: February 21, 2013                                                
Maura Larkins, Defendant in pro per
) Case No.   37-2007-00076218-CU-DF-CTL
) Judge:              Hon. Judith F. Hayes
) Dept:                68
) Date                 March 1, 2013   10:30 a.m.
)
) DEFENDANT’S REPLY IN SUPPORT OF
) MOTION TO
) SET ASIDE DEFAULT
) AND DISSOLVE INJUNCTION
)
) TRIAL DATE: NOT SET
) CASE FILED: OCTOBER 5, 2007
)
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Stutz v. Larkins REPLY
re Motion to Set Aside Default
March 1, 2013
Maura Larkins' REPLY re motion to set aside default
Motion to set aside default
Maura Larkins' REPLY to Stutz
Oppositon to this Motion
(I'll put up Stutz' Opposition as
soon as I get a scanner that feeds
documents!)