The four
statements that
triggered the injunction
against Maura Larkins:
Since the August 5, 2011 Court of
Appeal ruling, the true identities of
the lawyers in the statements
below can be revealed: Mr. "X" is
Daniel Shinoff and Ms. "A" is
Leslie Devaney.
Objectionable statement
#1: Who trains school
attorneys?
"Who trains school
attorneys? Attorneys who
have helped schools avoid
revealing events in schools
are in charge of training both
new board members and new
school attorneys…Mr. X
trains board members and
employees as well as
attorneys.”
2. “One of Mr. X’s
specialties is planning
legal tactics against
parents who complain that
their kids aren’t getting
the right education.”
3. “Mr. X should be
ashamed of misusing the
suffering of his wife’s
relatives to gain an
advantage in the
courtroom.”
4. “MS. A WAS THE
NUMBER 2 OFFICIAL IN THE
OFFICE OF CITY
ATTORNEY when the city
made deals which the SEC
and the FBI are now
investigating. Perhaps this
one bit of information
explains why Ms. A is
outraged at Aguirre’s efforts
to expose the facts about
actions by public officials!
[Plaintiff's law firm] to which
the SDCOE JPA steers the
lion’s share of its cases, is
closely tied to right-wing
Republicans such as Ms. A.
Ms. A joined the Stutz law firm
after losing to Michael
Aguirre in the race for San
Diego City Attorney. Ms. A
has recently admitted that if
she had been elected, she
would HAVE HELPED city
officials and employees, not
the public, regarding the
secret 2002 pension
underfunding deal. I think
the city attorney should, in
the public interest, demand
explanations from officials.”
Plaintiff discussed a fifth
statement in its motion, but
that statement had been
removed from her website by
Defendant since Defendant.
The fifth statement was,
“Attorney Dan Shinoff fools
the US Office of Civil
Rights…In fact, Stutz law firm
itself used the courts to try to
force a paid expert witness to
testify as the school district
wished” [Vista Unified School
District v. Dr. B. J. Freeman,
a case that was wisely
dropped by the school district
in its early stages].”
Defendant has made a
sincere effort to obey the
stipulated injunction, and in
order to err on the side of
caution, removed the
statement because it
contained the words “fooled
the Office of Civil Rights” and
“used the court to try to force
a paid expert witness to
testify as the school district
wished.” It is a simple fact
that Plaintiff's law firm filed a
lawsuit against a psychologist
because she refused to
testify in support of Vista
Unified School District’s
determination that a specific
child was ineligible for special
education, but Defendant is
willing to go out of her way
not to publish her own
opinions about the legality
and ethics of Plaintiff’s
actions. Defendant does,
however, realize now that the
stipulated injunction
amounted to a blatant
subterfuge by Plaintiff and
Judge Hayes, and is
unconstitutionally broad, as
proven by the infinite
vastness of statements that it
prohibits in the interpretation
of the Superior Court, and
unconstitutionally vague, as
proven by the fact that it has
been interpreted by the
Superior Court to mean
something completely
different from what Defendant
understood when she agreed
to it.
statements that
triggered the injunction
against Maura Larkins:
Since the August 5, 2011 Court of
Appeal ruling, the true identities of
the lawyers in the statements
below can be revealed: Mr. "X" is
Daniel Shinoff and Ms. "A" is
Leslie Devaney.
Objectionable statement
#1: Who trains school
attorneys?
"Who trains school
attorneys? Attorneys who
have helped schools avoid
revealing events in schools
are in charge of training both
new board members and new
school attorneys…Mr. X
trains board members and
employees as well as
attorneys.”
2. “One of Mr. X’s
specialties is planning
legal tactics against
parents who complain that
their kids aren’t getting
the right education.”
3. “Mr. X should be
ashamed of misusing the
suffering of his wife’s
relatives to gain an
advantage in the
courtroom.”
4. “MS. A WAS THE
NUMBER 2 OFFICIAL IN THE
OFFICE OF CITY
ATTORNEY when the city
made deals which the SEC
and the FBI are now
investigating. Perhaps this
one bit of information
explains why Ms. A is
outraged at Aguirre’s efforts
to expose the facts about
actions by public officials!
[Plaintiff's law firm] to which
the SDCOE JPA steers the
lion’s share of its cases, is
closely tied to right-wing
Republicans such as Ms. A.
Ms. A joined the Stutz law firm
after losing to Michael
Aguirre in the race for San
Diego City Attorney. Ms. A
has recently admitted that if
she had been elected, she
would HAVE HELPED city
officials and employees, not
the public, regarding the
secret 2002 pension
underfunding deal. I think
the city attorney should, in
the public interest, demand
explanations from officials.”
Plaintiff discussed a fifth
statement in its motion, but
that statement had been
removed from her website by
Defendant since Defendant.
The fifth statement was,
“Attorney Dan Shinoff fools
the US Office of Civil
Rights…In fact, Stutz law firm
itself used the courts to try to
force a paid expert witness to
testify as the school district
wished” [Vista Unified School
District v. Dr. B. J. Freeman,
a case that was wisely
dropped by the school district
in its early stages].”
Defendant has made a
sincere effort to obey the
stipulated injunction, and in
order to err on the side of
caution, removed the
statement because it
contained the words “fooled
the Office of Civil Rights” and
“used the court to try to force
a paid expert witness to
testify as the school district
wished.” It is a simple fact
that Plaintiff's law firm filed a
lawsuit against a psychologist
because she refused to
testify in support of Vista
Unified School District’s
determination that a specific
child was ineligible for special
education, but Defendant is
willing to go out of her way
not to publish her own
opinions about the legality
and ethics of Plaintiff’s
actions. Defendant does,
however, realize now that the
stipulated injunction
amounted to a blatant
subterfuge by Plaintiff and
Judge Hayes, and is
unconstitutionally broad, as
proven by the infinite
vastness of statements that it
prohibits in the interpretation
of the Superior Court, and
unconstitutionally vague, as
proven by the fact that it has
been interpreted by the
Superior Court to mean
something completely
different from what Defendant
understood when she agreed
to it.
| San Diego Education Report |
| . |
| . |
| San Diego Education Report |
| SDER |
San Diego
Education Report
Education Report
| SDER |
| SDER |
| SDER |
Stutz v. Larkins Appeal 5
March 28, 2013 Appeal re Strike Answer, Default, injunction
The April 6, 2009 injunction in this defamation case is so broad that Defendant is not allowed to say ANYTHING about Plaintiff, a
limited-purpose public figure with enormous influence over public education.
March 28, 2013 Appeal re Strike Answer, Default, injunction
The April 6, 2009 injunction in this defamation case is so broad that Defendant is not allowed to say ANYTHING about Plaintiff, a
limited-purpose public figure with enormous influence over public education.
STATEMENT OF THE CASE
PROCEDURAL HISTORY
STUTZ ARTIANO SHINOFF & HOLTZ,
APC (“SASH”) filed a complaint for
defamation on October 5, 2007 against
MAURA LARKINS based on statements
she published on her website,
mauralarkins.com, regarding Plaintiff’s
law firm’s actions on behalf of local
public schools (I AA 1).
Defendant filed an answer on
November 16, 2007 (I AA 10) (exhibit
2).
A Motion for Summary Adjudication was
filed by Plaintiff on October 24, 2008 (I
AA 155).
Plaintiff’s request (II AA 290) to throw
out the Declaration of Defendant (II AA
269), who had sat for a full six-hour
deposition (II AA 299) and produced
hundreds of highly pertinent
documents, was granted by the court (II
AA 401).
Defendant’s Opposition was thrown out
because she had used the format that
had been replaced on Jan. 1, 2008.
Summary Adjudication was granted to
Plaintiff on February 20, 2009 (II AA
401).
On April 6, 2009 this court rescinded
the finding of malice that Plaintiff had
written into the summary adjudication
order.
A jury trial to determine damages was
set for April 6, 2009, but never took
place.
On August 7, 2009 the court ruled that
Defendant’s “disputed statements” had
violated the injunction (exhibit 37) (III
AA 655a-c). Defendant removed the
words that Plaintiff had complained
about, but kept passages such as
“Daniel Shinoff trains school attorneys”
that Plaintiff had not disputed.
Plaintiff then filed a Motion to Strike
Answer and Enter Default (exhibit 38)
(III AA 656-666), specifying five
statements on Defendant’s website (III
AA 658).
On October 30, 2009 the trial court
denied Plaintiff’s Motion to Strike
Answer, and did not specify any
statement that it found to be a violation
the injunction (exhibit 44) (IV AA 748).
However, the judge implied in her
remarks at the hearing on October 30,
2009 that the statements did violate the
injunction (2 RT 109-115). The trial
court then ordered Defendant to
remove every mention of Plaintiff or any
of its attorneys from her website.
Plaintiff prepared the injunction order
signed on December 11, 2009
modifying the April 6, 2009 stipulated
injunction (IV AA 785). This modified
order was later overturned by the Court
of Appeal (V AA 1021)
Defendant successfully appeals Dec.
11, 2009 injunction
Defendant appealed the December 11,
2009 injunction on March 18, 2010.
Paragraph four of the injunction was
overturned by the Court of Appeal on
August 5, 2011 (V AA 1021) (exhibit
60).
Plaintiff’s 3rd Motion to Strike Answer
was heard on March 9, 2012, at which
time it was taken under submission
(continued below).
Defendant’s 1st MOTION TO MODIFY
OR DISSOLVE INJUNCTION was
originally scheduled to be heard on
March 2, 2012 (V AA 1045) (Exhibit
62). The Exhibits for this Motion are in
Appellant’s Appendix volume X (X AA
2117-2348) (Exhibit 103). Plaintiff
opposed the Motion (V AA 1080) and
Defendant filed a Reply (V AA 1131)
(Exhibit 65). It was heard on March 9,
2012, and taken under submission.
Motion for Jury Trial
Defendant’s Motion for Jury Trial, to set
aside Summary Adjudication decision
and grant jury trial on all issues, or,
alternatively, to grant jury trial
regarding damages, was originally
scheduled to be heard on March 2,
2012 (VI AA 1141) (Exhibit 66, 67).
The Exhibits are the same as those for
the MOTION TO MODIFY OR
DISSOLVE INJUNCTION, and can be
found in Appellant’s Appendix volume X
(X AA 2117-2348) (Exhibit 103).
Plaintiff Opposed and Defendant
Replied (VI AA 1176-1189) (Exhibits 68,
69). It was heard on March 9, 2012,
and taken under submission. No ruling
was ever issued.
The March 9, 2012 hearing on three
motions (vol. 3 RT 135-146)
The March 9, 2012 hearing on three
motions (Motion to Dissolve Injunction,
Motion for Jury Trial, Motion to Strike
Defendant’s Answer) .
The court did not rule on any motions
on March 9, 2012, but did issue a
minute order on March 12, 2012 (VII AA
1412) (exhibit 82) allowing Defendant
to file 6-page Response (VII AA 1414-
1459 ) (exhibits 83-85) regarding new
allegations in Plaintiff’s Reply that had
not been mentioned in Plaintiff’s Motion
to Strike Answer. Defendant filed this
response on March 21, 2012, attaching
an exhibit (VII AA 1443-1444) printed
out on March 20, 2012 that proves that
the third-party comments Plaintiff
complained about had been deleted.
Plaintiff filed a SURREPLY regarding its
3RD MOTION TO STRIKE (VII AA 1460).
May 30, 2012 decision on ONE of the
three motions—the Motion to Modify or
Dissolve Injunction (vol. 3 RT 147-153)
On May 30, 2012 the court issued a
minute order, the order underlying this
appeal (VII AA 1466) (exhibit 87),
denying Defendant’s Motion to Modify
or Dissolve Injunction, and ordered her
to pay $5000 contempt sanction based
on allegations in Plaintiff’s Motion to
Strike. The contempt sanction was
based on the court’s March 10, 2010
OSC decision justified by the Dec. 11,
2009 order that had been found
unconstitutional, NOT on any notice or
pleading made during the 26 months
after March 10, 2010.
The court incorrectly claimed in its May
30, 2012 order that several specific
statements were on Defendant’s
website even though they had been
removed. Also, the court quoted
statements from public records on the
website and claimed that the
statements violated the injunction. In
addition, the court claimed that third-
party comments on Defendant’s blog
violated the injunction. In June and July
2012 Defendant asked the court (VII
AA 1470 through 1531) whether it was
aware that statements mentioned in the
May 30, 2012 decision were third-party
comments and/or public records and/or
were no longer on the website, and
also asked that the court clarify
whether such statements could be
violations of the injunction. The court
refused to answer.
The court may have tacitly admitted
that its May 30, 2012 findings were
false, as proved by Defendant in oral
arguments (I RT 135-146 ) and (VII AA
1414-1459) when the court left out ALL
the May 30, 2012 quotes from its July
27, 2012 decision to Strike Defendant’s
Answer, and did not provide a single
new quote from Defendant’s websites,
although the court had specifically
asked for special briefs to be filed in
July to help it decide the motion. The
court’s removal of the statements
seems to be an admission by the Court
that the $5000 May 30, 2013 sanction
was unjustified.
In its May 30, 2012 decision the court
asked Plaintiff to write an 8-page
pleading about Defendant’s website
(VIII AA 1618) (exhibit 95a) and allowed
Defendant to file an 8-page response
(VIII AA 1704-2008) (95b and 95c).
Court allowed even more pleadings re
Motion to Strike to be filed in July 2012
Motion for Reconsideration of May 30,
2012 decision denying modification or
dissolution of injunction
On July 27, 2012 the court struck
Defendant’s Answer. Plaintiff prepared
an order for the judge to sign (IX AA
2034). Appellant filed an objection to
the Proposed Order Striking Answer (IX
AA 2041).
Appellant filed a Motion to Set Aside
Default and Dissolve Injunction, at
issue in this appeal(XI AA 2569).
Plaintiff filed a statement of damages
(IX AA 2053) and requested default (IX
AA 2056). Default was entered. Final
judgment was ordered on January 29,
2013.
Appellant filed Notice of Appeal on
March 28, 2013 (XI AA 2674) Appellant’
s Notice Designating Record on Appeal
was filed on April 5, 2013 (XI AA 2676).
STATEMENT OF
APPEALABILITY
This appeal is from the March 6, 2013
order denying Defendant’s Motion to
Modify or Dissolve Injunction of the San
Diego County Superior Court and is
authorized by the Code of Civil
Procedure section 904.1(a)(6). The
intent of CCP section 904.1 (a)(6) is
that all orders granting, changing, or
refusing to change injunctions, whether
temporary, permanent or provisional,
are appealable [Western Electroplating
Co. v. Henness (1959) 172 Cal. App.
2d 278, 283, 341 P.2d 718]. In
particular, orders modifying injunctions
are appealable [Pro-Family Advocates
v. Gomez (a996) 46 Cal. App. 1674,
1678 n.1, 54 Cal. Rptr. 2d 600; see
also Chico Feminist Women’s Health
Center v. Scully (1989) 208 Cal. App.
3d 230, 251, 256 Cal Rptr. 194]. Also,
this order is an order after judgment,
appealable under Code of Civil
Procedure section 904.1(a)(2).
Also, Appellant appeals the final
judgment of January 29, 2013 of the
San Diego County Superior Court. The
appeal is authorized by the Code of
Civil Procedure section 904.1(a)(1)
which states: “904.1. (a) An appeal,
other than in a limited civil case, is to
the court of appeal. An appeal, other
than in a limited civil case, may be
taken from any of the
following: (1) From a judgment, except
(A) an interlocutory judgment, other
than as provided in paragraphs (8), (9),
and (11), or (B) a judgment of contempt
that is made final and conclusive by
Section 1222.
The Standard of Review
I. THE STANDARD OF
REVIEW IS ABUSE OF
DISCRETION
The court abuses its discretion if it
exceeds all bounds of reason.
The default judgment in this case is
based on an unconstitutionally broad
and vague injunction.
The April 6, 2009 permanent injunction
is unconstitutional on its face and has
been used by the trial court to violate
defendant’s constitutional rights to due
process, free speech, jury trial and
equal treatment under the law.
Appellant asks that both the default
judgment and the April 6, 2009
stipulated injunction be thrown out.
II. To the extent that these
actions by the court involve
the trial court’s construction
of the constitution and
procedural codes, the
standard of review is de
novo, independent review.
“When an injunction depends on the
construction of a statute, and the
matter is purely a question of law, the
standard of review is whether the
statute was correctly constructed, and
accordingly the appellate court reviews
de novo the court’s order granting an
injunction” Teamsters Local 856 v.
Priceless, LLC (2003). Also Yes on
Measure A v. City of Lake Forest
(1997) and Evans v. Evans (2008) 162
Cal. App. 4th 1157, 1166, 76 Cal. Rptr.
3d 859.
In this case the primary statutes
involved are the freedom of speech,
due process, trial by jury and equal
protection of the laws provided by the
Constitutions of the United States and
California.
PROCEDURAL HISTORY
STUTZ ARTIANO SHINOFF & HOLTZ,
APC (“SASH”) filed a complaint for
defamation on October 5, 2007 against
MAURA LARKINS based on statements
she published on her website,
mauralarkins.com, regarding Plaintiff’s
law firm’s actions on behalf of local
public schools (I AA 1).
Defendant filed an answer on
November 16, 2007 (I AA 10) (exhibit
2).
A Motion for Summary Adjudication was
filed by Plaintiff on October 24, 2008 (I
AA 155).
Plaintiff’s request (II AA 290) to throw
out the Declaration of Defendant (II AA
269), who had sat for a full six-hour
deposition (II AA 299) and produced
hundreds of highly pertinent
documents, was granted by the court (II
AA 401).
Defendant’s Opposition was thrown out
because she had used the format that
had been replaced on Jan. 1, 2008.
Summary Adjudication was granted to
Plaintiff on February 20, 2009 (II AA
401).
On April 6, 2009 this court rescinded
the finding of malice that Plaintiff had
written into the summary adjudication
order.
A jury trial to determine damages was
set for April 6, 2009, but never took
place.
On August 7, 2009 the court ruled that
Defendant’s “disputed statements” had
violated the injunction (exhibit 37) (III
AA 655a-c). Defendant removed the
words that Plaintiff had complained
about, but kept passages such as
“Daniel Shinoff trains school attorneys”
that Plaintiff had not disputed.
Plaintiff then filed a Motion to Strike
Answer and Enter Default (exhibit 38)
(III AA 656-666), specifying five
statements on Defendant’s website (III
AA 658).
On October 30, 2009 the trial court
denied Plaintiff’s Motion to Strike
Answer, and did not specify any
statement that it found to be a violation
the injunction (exhibit 44) (IV AA 748).
However, the judge implied in her
remarks at the hearing on October 30,
2009 that the statements did violate the
injunction (2 RT 109-115). The trial
court then ordered Defendant to
remove every mention of Plaintiff or any
of its attorneys from her website.
Plaintiff prepared the injunction order
signed on December 11, 2009
modifying the April 6, 2009 stipulated
injunction (IV AA 785). This modified
order was later overturned by the Court
of Appeal (V AA 1021)
Defendant successfully appeals Dec.
11, 2009 injunction
Defendant appealed the December 11,
2009 injunction on March 18, 2010.
Paragraph four of the injunction was
overturned by the Court of Appeal on
August 5, 2011 (V AA 1021) (exhibit
60).
Plaintiff’s 3rd Motion to Strike Answer
was heard on March 9, 2012, at which
time it was taken under submission
(continued below).
Defendant’s 1st MOTION TO MODIFY
OR DISSOLVE INJUNCTION was
originally scheduled to be heard on
March 2, 2012 (V AA 1045) (Exhibit
62). The Exhibits for this Motion are in
Appellant’s Appendix volume X (X AA
2117-2348) (Exhibit 103). Plaintiff
opposed the Motion (V AA 1080) and
Defendant filed a Reply (V AA 1131)
(Exhibit 65). It was heard on March 9,
2012, and taken under submission.
Motion for Jury Trial
Defendant’s Motion for Jury Trial, to set
aside Summary Adjudication decision
and grant jury trial on all issues, or,
alternatively, to grant jury trial
regarding damages, was originally
scheduled to be heard on March 2,
2012 (VI AA 1141) (Exhibit 66, 67).
The Exhibits are the same as those for
the MOTION TO MODIFY OR
DISSOLVE INJUNCTION, and can be
found in Appellant’s Appendix volume X
(X AA 2117-2348) (Exhibit 103).
Plaintiff Opposed and Defendant
Replied (VI AA 1176-1189) (Exhibits 68,
69). It was heard on March 9, 2012,
and taken under submission. No ruling
was ever issued.
The March 9, 2012 hearing on three
motions (vol. 3 RT 135-146)
The March 9, 2012 hearing on three
motions (Motion to Dissolve Injunction,
Motion for Jury Trial, Motion to Strike
Defendant’s Answer) .
The court did not rule on any motions
on March 9, 2012, but did issue a
minute order on March 12, 2012 (VII AA
1412) (exhibit 82) allowing Defendant
to file 6-page Response (VII AA 1414-
1459 ) (exhibits 83-85) regarding new
allegations in Plaintiff’s Reply that had
not been mentioned in Plaintiff’s Motion
to Strike Answer. Defendant filed this
response on March 21, 2012, attaching
an exhibit (VII AA 1443-1444) printed
out on March 20, 2012 that proves that
the third-party comments Plaintiff
complained about had been deleted.
Plaintiff filed a SURREPLY regarding its
3RD MOTION TO STRIKE (VII AA 1460).
May 30, 2012 decision on ONE of the
three motions—the Motion to Modify or
Dissolve Injunction (vol. 3 RT 147-153)
On May 30, 2012 the court issued a
minute order, the order underlying this
appeal (VII AA 1466) (exhibit 87),
denying Defendant’s Motion to Modify
or Dissolve Injunction, and ordered her
to pay $5000 contempt sanction based
on allegations in Plaintiff’s Motion to
Strike. The contempt sanction was
based on the court’s March 10, 2010
OSC decision justified by the Dec. 11,
2009 order that had been found
unconstitutional, NOT on any notice or
pleading made during the 26 months
after March 10, 2010.
The court incorrectly claimed in its May
30, 2012 order that several specific
statements were on Defendant’s
website even though they had been
removed. Also, the court quoted
statements from public records on the
website and claimed that the
statements violated the injunction. In
addition, the court claimed that third-
party comments on Defendant’s blog
violated the injunction. In June and July
2012 Defendant asked the court (VII
AA 1470 through 1531) whether it was
aware that statements mentioned in the
May 30, 2012 decision were third-party
comments and/or public records and/or
were no longer on the website, and
also asked that the court clarify
whether such statements could be
violations of the injunction. The court
refused to answer.
The court may have tacitly admitted
that its May 30, 2012 findings were
false, as proved by Defendant in oral
arguments (I RT 135-146 ) and (VII AA
1414-1459) when the court left out ALL
the May 30, 2012 quotes from its July
27, 2012 decision to Strike Defendant’s
Answer, and did not provide a single
new quote from Defendant’s websites,
although the court had specifically
asked for special briefs to be filed in
July to help it decide the motion. The
court’s removal of the statements
seems to be an admission by the Court
that the $5000 May 30, 2013 sanction
was unjustified.
In its May 30, 2012 decision the court
asked Plaintiff to write an 8-page
pleading about Defendant’s website
(VIII AA 1618) (exhibit 95a) and allowed
Defendant to file an 8-page response
(VIII AA 1704-2008) (95b and 95c).
Court allowed even more pleadings re
Motion to Strike to be filed in July 2012
Motion for Reconsideration of May 30,
2012 decision denying modification or
dissolution of injunction
On July 27, 2012 the court struck
Defendant’s Answer. Plaintiff prepared
an order for the judge to sign (IX AA
2034). Appellant filed an objection to
the Proposed Order Striking Answer (IX
AA 2041).
Appellant filed a Motion to Set Aside
Default and Dissolve Injunction, at
issue in this appeal(XI AA 2569).
Plaintiff filed a statement of damages
(IX AA 2053) and requested default (IX
AA 2056). Default was entered. Final
judgment was ordered on January 29,
2013.
Appellant filed Notice of Appeal on
March 28, 2013 (XI AA 2674) Appellant’
s Notice Designating Record on Appeal
was filed on April 5, 2013 (XI AA 2676).
STATEMENT OF
APPEALABILITY
This appeal is from the March 6, 2013
order denying Defendant’s Motion to
Modify or Dissolve Injunction of the San
Diego County Superior Court and is
authorized by the Code of Civil
Procedure section 904.1(a)(6). The
intent of CCP section 904.1 (a)(6) is
that all orders granting, changing, or
refusing to change injunctions, whether
temporary, permanent or provisional,
are appealable [Western Electroplating
Co. v. Henness (1959) 172 Cal. App.
2d 278, 283, 341 P.2d 718]. In
particular, orders modifying injunctions
are appealable [Pro-Family Advocates
v. Gomez (a996) 46 Cal. App. 1674,
1678 n.1, 54 Cal. Rptr. 2d 600; see
also Chico Feminist Women’s Health
Center v. Scully (1989) 208 Cal. App.
3d 230, 251, 256 Cal Rptr. 194]. Also,
this order is an order after judgment,
appealable under Code of Civil
Procedure section 904.1(a)(2).
Also, Appellant appeals the final
judgment of January 29, 2013 of the
San Diego County Superior Court. The
appeal is authorized by the Code of
Civil Procedure section 904.1(a)(1)
which states: “904.1. (a) An appeal,
other than in a limited civil case, is to
the court of appeal. An appeal, other
than in a limited civil case, may be
taken from any of the
following: (1) From a judgment, except
(A) an interlocutory judgment, other
than as provided in paragraphs (8), (9),
and (11), or (B) a judgment of contempt
that is made final and conclusive by
Section 1222.
The Standard of Review
I. THE STANDARD OF
REVIEW IS ABUSE OF
DISCRETION
The court abuses its discretion if it
exceeds all bounds of reason.
The default judgment in this case is
based on an unconstitutionally broad
and vague injunction.
The April 6, 2009 permanent injunction
is unconstitutional on its face and has
been used by the trial court to violate
defendant’s constitutional rights to due
process, free speech, jury trial and
equal treatment under the law.
Appellant asks that both the default
judgment and the April 6, 2009
stipulated injunction be thrown out.
II. To the extent that these
actions by the court involve
the trial court’s construction
of the constitution and
procedural codes, the
standard of review is de
novo, independent review.
“When an injunction depends on the
construction of a statute, and the
matter is purely a question of law, the
standard of review is whether the
statute was correctly constructed, and
accordingly the appellate court reviews
de novo the court’s order granting an
injunction” Teamsters Local 856 v.
Priceless, LLC (2003). Also Yes on
Measure A v. City of Lake Forest
(1997) and Evans v. Evans (2008) 162
Cal. App. 4th 1157, 1166, 76 Cal. Rptr.
3d 859.
In this case the primary statutes
involved are the freedom of speech,
due process, trial by jury and equal
protection of the laws provided by the
Constitutions of the United States and
California.
STATEMENT OF FACTS
I. The April 6, 2009 injunction in this defamation case is so
broad that Defendant is not allowed to say ANYTHING
about Plaintiff.
A. The Court of Appeal ruled in August 2011 (V AA 1021) that the
injunction issued on December 11, 2009 in this case, enjoining Appellant
from mentioning the name of Plaintiff, was unconstitutional.
1. Since that time, Plaintiff and the trial court have instead used the April
6, 2009 stipulated injunction to prevent Defendant from mentioning
Plaintiff—circumventing and ignoring the decision of the Court of Appeal.
2. The trial court has never given even one example of a statement that
would be permitted by the April 6, 2009 injunction (exhibit 8, Aug 7, 2009
transcript). All statements on Defendant’s websites made by Defendant, or by
third party commenters, or even in public court records that have been brought to
the court’s attention have been deemed violations of the injunction.
3. The court stated on June 21, 2012 “I’m not giving you permission to put
anything on” (3 RT 1511 line 19). The court has made clear that it never
intends to give permission to Defendant to say anything at all about Plaintiff.
B. The trial court relied on the April 6, 2009 injunction to strike
Defendant’s Answer and grant a default five years after the case was
filed.
1. However, the court has never set aside the February 2009 summary
adjudication of the case.
2. The Default decision is remarkable since Appellant’s Answer was filed
in a timely manner in 2007, and was adjudicated in 2009.
C. Appellant appeals the January 29, 2013 final default judgment
and the March 6, 2013 denial of Appellant’s Motion to Set Aside Default
and Dissolve Injunction.
1. Appellant asks the Court of Appeal to judge the constitutionality of the
April 6, 2009 stipulated injunction and the legality of the January 29, 2013
default judgment, as well as other decisions made over the past six years.
2. Until now, Defendant has never asked the Court of Appeal to rule on
the constitutionality of the April 2009 injunction.
D. Appellant has made an effort to sort out the strands of logic and law
offered by the parties and the court over the past six years, and hopes
that she has made the information more comprehensible by presenting
the further facts of the case in the section below with the associated
arguments.
ARGUMENT
The controlling cases in this appeal are Balboa Island
Village Inn, Inc. v. Lemen and Evans v. Evans.
According to Balboa Island, even if there had been a fair jury trial on all
issues in which Defendant had been allowed to present her evidence,
and Defendant had been found to have committed defamation, it still
would only have allowed the court to forbid her from repeating the
statements in the complaint. A court can only forbid statements found by
a jury to be defamatory.
Plaintiff and the trial court have tried again and again to connect this case
to Del Junco v. Hufnagel, but the only applicable part of the Hufnagel
decision can be found in the introduction, in which the Court of Appeal
threw out punitive damages. As in Hufnagel, the failure of Plaintiff to
present evidence of Appellant’s financial worth in this case requires
striking the punitive damages.
I. Overview of the issues:
A. Appellant appeals the January 29, 2013 final default
judgment and the March 6, 2013 denial of Motion to Set
Aside Default and Dissolve Injunction based, in part, on
extrinsic fraud committed by Plaintiff, resulting in denial of
a jury trial for damages.
Plaintiff deceptively wrote and negotiated the April 6, 2009 stipulated
injunction with the goal of depriving defendant of a jury trial for damages
after summary adjudication had been granted to Plaintiff. Plaintiff’s goal
was achieved when the court issued a final judgment of default on
January 29, 2013. This final judgment must be set aside due to extrinsic
fraud as well as several other reasons that are detailed in this brief.
Plaintiff never intended to accept the stipulated injunction, as written and
as clarified orally during negotiations, as a settlement. Plaintiff used
deceit to induce Defendant to sign the stipulated injunction in order to
1) prevent the jury trial for damages that was scheduled to begin that
same day, April 6, 2009 (the jury was waiting in the hallway);
2) To create a tool to use (and abuse) to obtain a default judgment
instead of a jury trial for damages. Plaintiff produced a years-long series
of deceptive, self-contradictory motions and arguments to create a cover
for abusive, unlawful and unconstitutional decisions by the court. (After
April 6, 2009, Plaintiff’s fraud was intrinsic, not extrinsic, since the
deception targeted the justice system, not Defendant.)
B. Appellant is appealing the January 29, 2013 final
judgment and the March 6, 2013 denial of Motion to Set Aside Default
and Dissolve Injunction based on the fact that the default judgment is
doubly moot since:
1) summary adjudication has already taken place on Feb. 20, 2009 and
has never been set aside;
2) the ruling striking Defendant’s Answer on July 27, 2012 was based
on the summary adjudication and consequent injunction, yet it creates an
outcome that requires that the summary adjudication be set aside.
C. Appellant appeals the March 6, 2013 order denying her Motion to
Dissolve Injunction based on the fact that the April 6, 2009 permanent
injunction is unconstitutional and an abuse of discretion.
The injunction is unconstitutional on its face in that it is not limited to
statements found at trial to be defamatory, is vague, overly broad, notice
was lacking, and because it has been interpreted in a manner that goes
even further beyond constitutional limits than does the stipulated
injunction itself, as written and verbally agreed upon. The court has
abused its discretion in refusing to dissolve the injunction.
D. The stipulated injunction/agreement between parties should be
invalidated because it was achieved by fraud.
E. The summary adjudication should be set aside because it was achieved
by denial of due process and abuse of discretion, and a jury trial on all
issues should be conducted.
F. Alternatively, Appellant is entitled to a jury trial for damages.
II. The April 6, 2009 injunction
The injunction at issue in this appeal was equitable relief given pursuant
to summary adjudication. The wording was agreed upon by Plaintiff and
Appellant and intended as a settlement. The April 6, 2009 order states in
pertinent part :
“On February 6, 2009 (sic), at 10:30 a.m., Plaintiff STUTZ ARTIANO SHINOFF
& HOLTZ, APC’s Motion for Summary Adjudication came on regularly for
hearing before the Honorable Judith F. Hayes in Department 68 of the
above-entitled court. After having considered the moving papers and
evidence therein, and all other records, pleadings and files contained
herein, the court ordered that Plaintiff’s Motion for Summary Adjudication
was granted as to all causes of action.
“In accordance with the aforementioned Order, IT IS HEREBY ORDERED
as follows:
“Plaintiff has sustained its burden to establish that Plaintiff is entitled to
the relief demanded. Defendant (sic) is entitled to an injunction enjoining
and restraining Defendant from continuing to publish or republishing by
any method or media, including but not limited to all electronic data,
websites and web pages, the defamatory statements alleged in Plaintiff’s
First Amended Complaint pertaining to Plaintiff and any of its lawyers past
or present, and future publication of statements with regard to Plaintiff
and its lawyers accusing illegal conduct or violation of law, unethical
conduct, lack of professional competence or intimidation…” (exhibit 33)
(II AA 467)
III. Extrinsic fraud-- Plaintiff committed
extrinsic fraud on April 6, 2009.
Plaintiff committed extrinsic fraud by tricking Appellant into thinking she
was entering into a reasonable, honest agreement to settle the case on
April 6, 2009, which would make a jury trial unnecessary, rather than
depriving her of a jury trial for damages when Plaintiff had no intention of
honoring its agreement. Plaintiff used deceit to induce Defendant to
accept the April 6, 2009 stipulated injunction agreement in order to
deprive Defendant of a jury trial for damages.
A. Plaintiff was motivated to avoid a jury trial because
it feared having Ray Artiano and Daniel Shinoff testify in
front of a jury and having Appellant show her evidence to a
jury
1. Deposition transcript shows that Dan Shinoff and Ray Artiano did
not want to provide evidence in this case. When Ray Artiano suddenly
ended his Nov. 8, 2007 deposition, Appellant asked:
THE WITNESS: Okay. That’s the end of this deposition.
MR. SHINOFF: We’ll give you notice of our motion for a protective order…
MS. LARKINS: Are you going to attend your deposition, Mr. Shinoff?
MR. SHINOFF: No, because I'm concerned that the deposition will go the same
way. And I think we need guidance from the court so the court can provide
guidance for both parties in terms of the rules that govern the deposition process.
(I AA 130 [compressed page 54, lines 7-18])
2. Plaintiff never filed a request for a protective order regarding the
Nov. 8, 2007 deposition Ray Artiano walked out of or the Nov. 8, 2007
deposition Dan Shinoff refused to attend.
3. Plaintiff later falsely claimed that Mr. Shinoff had begun his
deposition, successfully opposing Appellant’s 2nd Motion to Compel Dan
Shinoff’s deposition (I AA 140-149). Appellant’s 1st Motion to Compel Dan
Shinoff’s deposition was denied for lack of a separate statement, which
should not have been required for a deposition that had not begun (I AA
26-63).
4. The judge, of course, is equally responsible with Plaintiff for
abusing the discovery process. The judge gives the impression that she
never read Appellant’s pleadings, for example, Appellant’s Reply (I AA 150-
153) addressing the false, unsupported claim that Mr. Shinoff began his
deposition.
5. Mr. Shinoff relied on abuse of the discovery process and on the
judge’s abuse of discretion to completely avoid being deposed or being a
witness at a jury trial for damages.
6. Plaintiff feared a jury trial in which Defendant would be allowed to
put Ray Artiano and Daniel Shinoff on the stand
7. Daniel Shinoff instructed Ray Artiano 9 times in 2 hours not to
answer questions (I AA 118).
8. Plaintiff should not have filed this lawsuit since it was unwilling to
provide the evidence it had.
B. Plaintiff feared a jury trial in which Defendant would
have the opportunity to present the evidence she had
produced to Plaintiff, and to explain the “missing” Bate-
stamped documents that Plaintiff failed to produce.
1. The “missing” Bate-stamped documents and other documents that
Plaintiff failed to produce, and the tortured attempts by Plaintiff to explain
why Plaintiff did not produce them (I AA 119-120 [compressed pages 6-11,
lines 1-10] ) and (I AA 121 [compressed pages 14-17, lines 1-18]), would
cause any reasonable juror to conclude that Defendant never defamed
Plaintiff.
2. Defendant had produced an enormous amount of documentary and
digital evidence to Plaintiff.
3. In particular, Plaintiff did not want Defendant to show her website
to a jury (motion in limine) (XI AA 2685), as she was prepared to do with a
computer projector. This attitude is puzzling, since Plaintiff had
demanded, and the court had ordered, after summary adjudication had
taken place, that Defendant produce a digital copy of every version of her
website that she had saved over the years, (motion to compel CDs) (XII AA
2693-2741). There is no evidence that Plaintiff ever looked at the disks.
Defendant was also forced to pay $400 in sanctions for opposing the
request. Defendant produced the CDs—yet Plaintiff nevertheless argued
that she should not be allowed to present them at trial.
April 6, 2009 transcript page 118, line 5 to page 119, line 28:
Mr. Wade: … We did submit a motion in limine…this case is about…liability
issues limited to the seven or eight statements within the motion for summary
adjudication that this court ruled upon. In other words, we don’t want to open up
other issues that aren’t contained within there.
The Court: Okay. I’m not exactly sure what you’re talking about in terms of
evidence. If you’ve got to show malice, you’ve got to show fraud, malice or
oppression. You’ve got to show that the statements were designed to cause
injury, right? How are you going to do that?...So Ms. Larkins has a right to show
that they were made without intent to damage or without reckless disregard, right?
Mr. Wade: I—yeah, I get that point. I guess what I’m concerned about is this
court has already determined that they were defamatory…So I don’t need to
relitigate that issue in front of the jury or explain it to them…You’re not going to
hear…I wanted to limit it to the statements in the summary judgment… So to avoid
re-litigating why they’re true, I think they’re true, she already had that chance.
That forum came and went in the summary adjudication stage, and this case was
decided as a matter of law, no they’re not true.
The Court: The problem is going to be in regard to malice. If you have to put on a
defense for malice, what does that consist of?
Mr. Wade: Well, I guess it would—I guess—generally speaking, if it was the entire
trial and we were trying all the issues at once, liability, causation, and damages, et
cetera, it would be the opportunity…
The Court: You’ve got me in this intellectual conundrum, because the problem is if
you’re trying to show something is not malicious, wouldn’t evidence of the truth of
the matter be relevant to that determination?
Mr. Wade: I guess, generally speaking, in full phase of the trial, that would be—
The Court: No. I’m asking if in the damages phase there has to be a
determination of fraud, malice, or oppression, in determining the issue of malice
whether it was made—a statement was made with reckless disregard, wouldn’t the
truth of the statement be relevant?...
Mr. Wade: To counter whether or not she acted in good faith she can say I did it
for another purpose, not that I did it—not because it was true. I did it for whatever
motive it was that she did do it…
Ms. Larkins: I need to show my reasons for believing that the statements were
true…
4. As soon as it was clear that the stipulated injunction was not
working out, Defendant asked for the jury trial regarding damages that
was promised on April 6, 2009 by the court to be conducted if the
agreement did not work out.
5. Plaintiff opposed Defendant’s requests for jury trial for damages.
C. The agreement discussed in negotiations is very
different from the agreement that Plaintiff claims
Defendant accepted.
1. The stipulated injunction was NOT an agreement by Defendant to
cover up any action, only to refrain from characterizing actions in a
specific way.
a. The stipulated injunction was ABSOLUTELY NOT an agreement to
cover up wrongdoing as Plaintiff and the court have argued.
b. Appellant was willing to obey the stipulated injunction as agreed
upon, feeling that simply stating the facts about Plaintiff’s actions without
giving an opinion about their ethical or legal characteristics was an
acceptable limitation for her website. Appellant made valiant efforts to
change her website to comply with the agreement, but it became clear
that she had been tricked, and neither Plaintiff nor the trial court planned
to allow her to say anything at all about Plaintiff.
c. The meaning of the agreement was made clear during negotiations
between the parties: Defendant would be free to report any and all facts.
d. PLAINTIFF has never countered Defendant’s declarations with any
alternate declaration disputing what happened during negotiations on
April 6, 2009.
e. Plaintiff has never denied under oath the truth and accuracy of
Defendant’s declarations regarding James Holtz’ agreement with her
understanding of the stipulated injunction, although it has been served
with many declarations of Defendant describing the negotiations. This
silence implies consent. Even if James Holtz hadn’t looked straight at
Defendant on April 6, 2009 and clearly nodded his head in agreement, his
silence on that day also would have implied consent. Jeffrey Wade’s
silence also implied consent.
f. Plaintiff has been served repeatedly with Defendant’s declarations
about her discussions with James Holtz and Jeffrey Wade on April 6, 2009,
including the following statements made under penalty of perjury:
1. “…On April 6, 2009 I told James F. Holtz and Jeffrey Wade Jr., attorneys
for Plaintiff, that I believed the injunction as agreed upon allowed me to continue
to report Plaintiff’s actions, but not to characterize those actions as illegal,
unethical, incompetent or intimidating. James F. Holtz looked straight at me and
nodded in agreement. During my hours of discussion on April 6, 2009 with Mr.
Holtz and Mr. Wade, neither one of them gave any inkling that they did not agree
that the injunction forbids specific accusations, that it prevents Defendant only
from accusing Plaintiff specifically of “violations of law”, “incompetence”,“unethical
behavior” or “intimidation”. No other accusation is forbidden by the injunction.
There was no agreement that any behavior by Plaintiff that could conceivably be
interpreted as illegal, unethical, incompetent or intimidating could not be
reported…”
Oct 20, 2009 Opposition 1st Motion to Strike (III AA 682-684)
2. “… Neither Mr. Holtz nor Mr. Wade nor any other lawyer or representative
of' Plaintiff nor the court, ever suggested such a hopeless vague and broad
abridgment of my First Amendment Rights before the agreement was signed on
April 6, 2009…”
February 4, 2012 DECLARATION OF MAURA LARKINS IN SUPPORT OF
[FIRST] MOTION TO DISSOLVE INJUNCTION (XI AA 2587-90 lines 23-15)
3. “…I made clear, and Plaintiff agreed, that no other opinion is forbidden by
the agreement, and certainly no statement of fact is forbidden by the
agreement…Both Plaintiff and the Court made clear that the specific words on the
list of forbidden accusations was significant, and that the inclusion of the word
“intimidation” made a difference as to the effect of the injunction. The injunction is
clearly about specific words. Defendant is willing to also forgo using synonyms of
these words to describe Plaintiffs, but does not accept that the injunction can
reasonably or legally be interpreted to cover Defendant’s reporting of simple facts
about Plaintiff. The injunction forbids Defendant from expressing certain specific
OPINIONS about Plaintiff.”
DECLARATION OF MAURA LARKINS IN SUPPORT OF [SECOND] MOTION TO
DISSOLVE APRIL 6, 2009 INJUNCTION (XI AA 2588-90)
g. Defendant has declared under oath that she would never have
signed the stipulated injunction if James Holtz had not intentionally
deceived her:
“…I would never have agreed to such a hopelessly vague and broad
abridgment of my First Amendment Rights. I did not agree to such a
hopelessly vague and broad abridgment of my First Amendment
Rights…” (XI AA 2590 lines 7-15).
h. Plaintiff’s representatives James Holtz and Jeffrey Wade, Jr.
negotiated an agreement that Plaintiff never planned to honor. Instead,
Plaintiff planned to twist the meaning of the stipulated injunction, through
the use of illogical arguments, into a ruling that would forbid Defendant to
publish any information at all about Plaintiff.
D. Changed circumstances have resulted in
extrinsic fraud
The new facts that justify the motion to set aside default
and dissolve injunction are that Defendant’s answer has
been stricken and default judgment has been entered
instead of a jury trial for damages, thus turning Plaintiff’s
intrinsic fraud into extrinsic fraud and causing illegal harm to
Defendant. Also, Defendant has been abusively sanctioned. There was a
motion for jury trial pending at time of final judgment, and that motion was
never decided.
E. Case law defines the current situation as an instance
of extrinsic fraud:
1. “Where the unsuccessful party has been prevented from
exhibiting fully his case, by fraud or deception practiced on him by his
opponent, as by keeping him away from court, a false promise of a
compromise; …being kept in ignorance by the acts of the plaintiff;
…these, and similar cases which show that there has never been a real
contest in the trial or hearing of the case, are reasons for which a new
suit may be sustained to set aside and annul the former judgment or
decree, and open the case for a new and a fair hearing.” United States v.
Throckmorton (1878) 98 U.S. 61, 65-66.
2. In Estate of Sanders, supra, 40 Cal.3d at pages 614-615, our
Supreme Court explained:
"The seminal definition of extrinsic fraud is found in United States v.
Throckmorton (1878) 98 U.S. 61, 65-66: `Where the unsuccessful party has
been prevented from exhibiting fully his case, by fraud or deception practi
[c]ed on him by his opponent, as by keeping him away from court, a false
promise of a compromise; or where the defendant never had knowledge
of the suit, being kept in ignorance by the acts of the plaintiff… these,
and similar cases which show that there has never been a real contest in
the trial or hearing of the case, are reasons for which a new suit may be
sustained to set aside and annul the former judgment or decree, and
open the case for a new and fair hearing. In all these cases, and many
others which have been examined, relief has been granted, on the
ground that, by some fraud practi[c]ed directly upon the party seeking
relief against the judgment or decree, that party has been prevented
from presenting all of his case to the court.' We recently observed that `
[extrinsic] fraud is a broad concept that "tend[s] to encompass almost any
set of extrinsic circumstances which deprive a party of a fair adversary
hearing."' Thus, the essence of an extrinsic fraud claim is that one party
has deliberately prevented the other party from having his or her day in
court either by concealment, failure to give notice of the action, or
convincing the other party to refrain from presenting a claim or defense.
(Estate of Sanders, supra, 40 Cal.3d at pp. 614-615; Sporn v. Home Depot
USA, Inc.(2005) 126 Cal.App.4th 1294, 1300; Groves v. Peterson (2002) 100
Cal.App.4th 659, 665.)
The United States Supreme Court has also ruled that in a case where
there has not been a real contest in the trial or hearing of the case the
Court should vacate any judgment entered, and open the case for a new
hearing.
F. Defendant has meritorious defense
1. The default and injunction in this case are miscarriages of justice.
2. An abusive summary adjudication in which no evidence or
credibility of witnesses was weighed was used to fraudulently obtain an
unconstitutional permanent injunction. Then the injunction was used to
strike Defendant’s Answer without setting aside the summary
adjudication, which makes the striking of the Answer completely moot!
But the court can’t set aside the summary adjudication without destroying
the basis for striking the Answer. Plaintiff and the trial court have tied
themselves up in knots, and the only way to properly straighten out the
mess is to throw out the default and the injunction. Plaintiff has no
business being in court since it has no credible evidence to support its
own position and is refusing to produce evidence helpful to Defendant.
3. A quick reading of Ray Artiano’s deposition is enough evidence to
throw this case out (II AA 361).
4. Case law states: “To be entitled to relief from a judgment on the
ground of extrinsic fraud, a party must show he or she had a meritorious
defense,]which would have been raised but for the other party’s wrongful
conduct [citations], and also must establish all of the elements of fraud
[citations], which include an intentional or reckless misrepresentation
and justifiable reliance on the misrepresentation by the aggrieved
party.” (In re David H. (1995) 33 Cal.App.4th 368, 381-382.)
5. A trial court has an inherent equity power under which, apart from
statutory authority, it may grant relief from a default judgment obtained
through extrinsic fraud or mistake.
6. No litigation privilege exists for extrinsic fraud.
IV. PROOF OF plaintiff’s intention to commit
extrinsic fraud
A. The manipulation and pretense is obvious when you have plaintiff
claiming in multiple pleadings that its own behavior was illegal or
unethical in order to twist the injunction into a ban on simple statements
of fact.
B. Plaintiff claimed that the agreement meant something that was
specifically ruled out during discussions. Plaintiff never intended to
honor the agreement that was discussed with Defendant, never intended
to live with its own bargain. Starting with the Aug. 7, 2009 Motion to
Enforce, the injunction was intentionally misstated and misinterpreted.
Plaintiff concocted a bizarre misinterpretation of the April 6, 2009
agreement. Plaintiff’s deceit became clear in its first Motion to Enforce
Injunction.
C. In this case, Plaintiff is guilty of fraud and intentional
misrepresentation regarding both the oral and written agreements of
April 6, 2009. Interestingly, Plaintiff has falsely characterized oral and
written agreements in the past, for example, Vista Unified v. Dr. B.J.
Freeman (VII 1553-1557, IX 1880-1926). Plaintiff’s outrageous pleadings
claimed that Dr. Freeman was liable for fraud and negligent
misrepresentation for violating an oral contract in which, Plaintiff argued,
Dr. Freeman had agreed to testify under oath as the District wanted!
D. 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.
E. The court has agreed on multiple occasions that Plaintiff has
committed unethical acts—or worse.
F. The injunction as envisioned by Plaintiff and the trial court is
impossible to enforce because it would take endless litigation to have a
judge rule on every statement Stutz doesn’t like, including simple facts
like “Leslie Devaney was the #2 official in the City Attorney’s office.” And
it’s beyond silly to have Stutz coming to court trying to convince a judge
that its actions were unethical.
G. Defendant’s website regularly reports on those who speak and act
on behalf of public schools and other public entities.
The only way to obey the October 30, 2009 order to remove all mention of
Plaintiff within twenty days from a very large website and blog that both
go back many years would be to depublish them entirely (IV AA 748). The
court’s orders have been unreasonable. It would take months to remove
all mention of Plaintiff’s name from Appellant’s website, and Appellant
worked hard on that goal before giving up the process, since it couldn’t
be completed within time to avoid sanctions, and the order was
unconstitutional, and it would have destroyed the position of the website
on the Internet, harming the public and harming defendant by violating
her constitutional rights.
V. Abuse of discretion leading up to
the issuance of the April 6, 2009
injunction and continuing afterward
A. The trial court abused its discretion when it acted in an unreasonable
manner by repeatedly denying due process, equal access to the law, jury
trial, right to free speech to Defendant.
B. No reasonable person would understand the April 6, 2009 injunction to
mean that Defendant is not allowed to say anything about Plaintif, or that
she is not allowed to report simple facts, or that everything that Stutz
does is unethical.
C. The judge has refused to say whether her injunction applies to public
records, private attorney conversations, and third parties. She refuses
to do this because she doesn’t want to admit openly that it’s
unconstitutional.
D. The court showed a clear bias in favor of Plaintiff and
abused her discretion by:
1. …throwing out all of Appellant’s evidence submitted in opposition
to the Motion for Summary Adjudication, and also throwing out the
Opposition itself, because information was in the wrong column
(Appellant used the format required before Jan. 1, 2008);
2. …approving discovery abuses by Plaintiff:
a. Plaintiff’s official representative, Ray Artiano, walked out of his
deposition (I AA 117) after two hours and Plaintiff’s attorney Daniel
Shinoff, the member of Plaintiff’s law firm who was most prominently
featured on Defendant’s website, refused to show up for his noticed
deposition.
b. In addition to noticing depositions, Defendant had requested
Production of documents, specifying certain missing pages of a set of
Bate-stamped documents related to statements on Defendant’s website.
The documents had been collected by Mr. Shinoff in 2001 at the school
where Defendant was teaching. Plaintiff claimed that its paralegal could
not find the documents. Defendant filed a Motion to Compel Depositions
and Production of Documents (I AA 26). The motion was denied (I AA 63),
citing procedural errors. This decision was an abuse of discretion in
regard to the deposition of Daniel Shinoff since no separate statement
should have been required to compel a deposition that had never begun;
3. relying on declarations of Ray Artiano and Dan Shinoff, who
obviously were hiding evidence. Mr. Artiano and Mr. Shinoff told a story
that no reasonable person would believe to explain why they didn’t bring
subpoenaed documents to Mr. Artiano’s deposition. In stark contrast,
Appellant behaved like someone with nothing to hide, sitting for a
complete, six-hour deposition, producing hundreds of documents and
compact disks with website information. Clearly, a reasonable person
would rely on Appellant’s declaration rather than on those of Mr. Artiano
and Mr. Shinoff;
4. creating the opportunity for Plaintiff to use fraud to get Defendant
to agree to an unconstitutional injunction.
VI. The April 6, 2009 injunction is
unconstitutional on its face.
A. Only statements specifically found to be defamatory at a jury trial
may be included in an injunction enjoining speech, according to Balboa
Island. In this case there was no jury trial to determine the facts of this
case, only a summary adjudication by law after throwing out Defendant’s
opposition and evidence.
B. The summary adjudication did not include any weighing of the
evidence or of the credibility of witnesses. Whether a summary
adjudication obtained by throwing out the defendant’s opposition and
evidence is as good as a jury trial is an issue which has not yet been
determined.
C. The Stutz Firm maintains that there is no difference between
enjoining the repetition of a particular statement already judicially found
to be defamatory, on the one hand, and enjoining different statements to
which so such finding has yet been made. The California Supreme Court,
however, clearly disagrees. It made this point repeatedly, expressly and
unambiguously in Balboa Island. The Court stated in the very first
paragraph: “[W]e hold that that the injunction is overly broad, but that
defendant’s right to free speech would not be infringed by a properly
limited injunction prohibiting defendant from repeating statements about
plaintiff that were determined at trial to be defamatory.” Balboa Island, 40
Cal. 4th at 1144
D. Constitutional rights can be taken away only
by due process.
1. The trial court claims that Defendant gave up her constitutional
rights when she signed the stipulated injunction. Appellant paid $3000
sanctions, and asked Plaintiff to accept a payment plan for $5000
sanctions, rather than take down her website, and paid thousands more
in court costs and copies. Appellant has spent uncounted hours over the
past six years fighting the instant case. This is not the action of someone
who willingly signed away her First Amendment rights.
2. The trial court may not silence Defendant by depriving her of
constitutional rights which she never agreed to relinquish, and never did
relinquish, and which the court had no jurisdiction to take from her.
E. The judge abused her discretion by not asking
Defendant if she was willingly giving up Constitutional
rights
The judge avoided any discussion of the meaning of the stipulated
injunction before signing it, and warned Defendant:
YOU HAVE TO TONE IT DOWN IN THE WEBSITE, TAKE THIS LAW FIRM
OFF THE WEBSITE. THAT IS ADVICE. IT IS NOT PART OF
THE ORDER. BUT SAVE YOURSELF SOME TROUBLE. A
LAWYER DOES WHAT A LAWYER DOES IN EVERY CASE…
(I RT 91, 9-16)
F. 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. The judge made clear that regardless of
what the injunction actually said, she wanted Plaintiff’s name completely
removed from Defendant’s website.
G. Appellant did not have due process in court proceedings before or
after the agreement was obtained, and the agreement was obtained
through pressure and fraud. An agreement obtained through fraud is null
and void.
H. Even if Appellant’s agreement with Plaintiff were
valid, the injunction by the court is not valid because the
Bill of Rights constrains government in a way that does not
constrain ordinary citizens.
Appellant made this argument on August 24, 2012:
MS. LARKINS: …TWO CITIZENS OF THE UNITED STATES OR RESIDENTS OF
THE UNITED STATES CAN MAKE ANY KIND OF AGREEMENT THEY WANT.
BUT THE COURT CAN'T. THE COURT HAS TO OBEY THE CONSTITUTION. THE
COURT CANNOT MAKE AN INJUNCTION THAT'S UNCONSTITUTIONAL.” (III RT
177,18-22)
J. Defendant was not "admonished by the Court as rights
she was giving up."
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.
K. Plaintiff knows very well that a person’s due
process rights are not terminated even by an honest
agreement because Plaintiff attorney Ray Artiano won
the Farahani case by arguing the exact opposite of
what he is saying in this case.
The Farahani case involved pressure, as does the instant case, but the
Farahani case did not involve deceit or fraud.
“In this case we hold that [statute] renders “null and void” the “last
chance agreement” (Agreement) under which community college faculty
member Sam H. Farahani waived his statutory due process rights relating
to faculty discipline…In November 2004, the attorney for the American
Federation of Teachers Guild, California Federation of Teachers Local
1931 (Union) presented Farahani with the Agreement, and told him that
the District would suspend him for a year without pay unless he signed
it…The Release included the following provision: “Farahani waives any
and all appeal rights he may otherwise have to challenge the discipline or
otherwise pursue any appeal relating to the pre-disciplinary notice.”
Sam Farahani v. San Diego Community College District
I. The April 6, 2009 injunction in this defamation case is so
broad that Defendant is not allowed to say ANYTHING
about Plaintiff.
A. The Court of Appeal ruled in August 2011 (V AA 1021) that the
injunction issued on December 11, 2009 in this case, enjoining Appellant
from mentioning the name of Plaintiff, was unconstitutional.
1. Since that time, Plaintiff and the trial court have instead used the April
6, 2009 stipulated injunction to prevent Defendant from mentioning
Plaintiff—circumventing and ignoring the decision of the Court of Appeal.
2. The trial court has never given even one example of a statement that
would be permitted by the April 6, 2009 injunction (exhibit 8, Aug 7, 2009
transcript). All statements on Defendant’s websites made by Defendant, or by
third party commenters, or even in public court records that have been brought to
the court’s attention have been deemed violations of the injunction.
3. The court stated on June 21, 2012 “I’m not giving you permission to put
anything on” (3 RT 1511 line 19). The court has made clear that it never
intends to give permission to Defendant to say anything at all about Plaintiff.
B. The trial court relied on the April 6, 2009 injunction to strike
Defendant’s Answer and grant a default five years after the case was
filed.
1. However, the court has never set aside the February 2009 summary
adjudication of the case.
2. The Default decision is remarkable since Appellant’s Answer was filed
in a timely manner in 2007, and was adjudicated in 2009.
C. Appellant appeals the January 29, 2013 final default judgment
and the March 6, 2013 denial of Appellant’s Motion to Set Aside Default
and Dissolve Injunction.
1. Appellant asks the Court of Appeal to judge the constitutionality of the
April 6, 2009 stipulated injunction and the legality of the January 29, 2013
default judgment, as well as other decisions made over the past six years.
2. Until now, Defendant has never asked the Court of Appeal to rule on
the constitutionality of the April 2009 injunction.
D. Appellant has made an effort to sort out the strands of logic and law
offered by the parties and the court over the past six years, and hopes
that she has made the information more comprehensible by presenting
the further facts of the case in the section below with the associated
arguments.
ARGUMENT
The controlling cases in this appeal are Balboa Island
Village Inn, Inc. v. Lemen and Evans v. Evans.
According to Balboa Island, even if there had been a fair jury trial on all
issues in which Defendant had been allowed to present her evidence,
and Defendant had been found to have committed defamation, it still
would only have allowed the court to forbid her from repeating the
statements in the complaint. A court can only forbid statements found by
a jury to be defamatory.
Plaintiff and the trial court have tried again and again to connect this case
to Del Junco v. Hufnagel, but the only applicable part of the Hufnagel
decision can be found in the introduction, in which the Court of Appeal
threw out punitive damages. As in Hufnagel, the failure of Plaintiff to
present evidence of Appellant’s financial worth in this case requires
striking the punitive damages.
I. Overview of the issues:
A. Appellant appeals the January 29, 2013 final default
judgment and the March 6, 2013 denial of Motion to Set
Aside Default and Dissolve Injunction based, in part, on
extrinsic fraud committed by Plaintiff, resulting in denial of
a jury trial for damages.
Plaintiff deceptively wrote and negotiated the April 6, 2009 stipulated
injunction with the goal of depriving defendant of a jury trial for damages
after summary adjudication had been granted to Plaintiff. Plaintiff’s goal
was achieved when the court issued a final judgment of default on
January 29, 2013. This final judgment must be set aside due to extrinsic
fraud as well as several other reasons that are detailed in this brief.
Plaintiff never intended to accept the stipulated injunction, as written and
as clarified orally during negotiations, as a settlement. Plaintiff used
deceit to induce Defendant to sign the stipulated injunction in order to
1) prevent the jury trial for damages that was scheduled to begin that
same day, April 6, 2009 (the jury was waiting in the hallway);
2) To create a tool to use (and abuse) to obtain a default judgment
instead of a jury trial for damages. Plaintiff produced a years-long series
of deceptive, self-contradictory motions and arguments to create a cover
for abusive, unlawful and unconstitutional decisions by the court. (After
April 6, 2009, Plaintiff’s fraud was intrinsic, not extrinsic, since the
deception targeted the justice system, not Defendant.)
B. Appellant is appealing the January 29, 2013 final
judgment and the March 6, 2013 denial of Motion to Set Aside Default
and Dissolve Injunction based on the fact that the default judgment is
doubly moot since:
1) summary adjudication has already taken place on Feb. 20, 2009 and
has never been set aside;
2) the ruling striking Defendant’s Answer on July 27, 2012 was based
on the summary adjudication and consequent injunction, yet it creates an
outcome that requires that the summary adjudication be set aside.
C. Appellant appeals the March 6, 2013 order denying her Motion to
Dissolve Injunction based on the fact that the April 6, 2009 permanent
injunction is unconstitutional and an abuse of discretion.
The injunction is unconstitutional on its face in that it is not limited to
statements found at trial to be defamatory, is vague, overly broad, notice
was lacking, and because it has been interpreted in a manner that goes
even further beyond constitutional limits than does the stipulated
injunction itself, as written and verbally agreed upon. The court has
abused its discretion in refusing to dissolve the injunction.
D. The stipulated injunction/agreement between parties should be
invalidated because it was achieved by fraud.
E. The summary adjudication should be set aside because it was achieved
by denial of due process and abuse of discretion, and a jury trial on all
issues should be conducted.
F. Alternatively, Appellant is entitled to a jury trial for damages.
II. The April 6, 2009 injunction
The injunction at issue in this appeal was equitable relief given pursuant
to summary adjudication. The wording was agreed upon by Plaintiff and
Appellant and intended as a settlement. The April 6, 2009 order states in
pertinent part :
“On February 6, 2009 (sic), at 10:30 a.m., Plaintiff STUTZ ARTIANO SHINOFF
& HOLTZ, APC’s Motion for Summary Adjudication came on regularly for
hearing before the Honorable Judith F. Hayes in Department 68 of the
above-entitled court. After having considered the moving papers and
evidence therein, and all other records, pleadings and files contained
herein, the court ordered that Plaintiff’s Motion for Summary Adjudication
was granted as to all causes of action.
“In accordance with the aforementioned Order, IT IS HEREBY ORDERED
as follows:
“Plaintiff has sustained its burden to establish that Plaintiff is entitled to
the relief demanded. Defendant (sic) is entitled to an injunction enjoining
and restraining Defendant from continuing to publish or republishing by
any method or media, including but not limited to all electronic data,
websites and web pages, the defamatory statements alleged in Plaintiff’s
First Amended Complaint pertaining to Plaintiff and any of its lawyers past
or present, and future publication of statements with regard to Plaintiff
and its lawyers accusing illegal conduct or violation of law, unethical
conduct, lack of professional competence or intimidation…” (exhibit 33)
(II AA 467)
III. Extrinsic fraud-- Plaintiff committed
extrinsic fraud on April 6, 2009.
Plaintiff committed extrinsic fraud by tricking Appellant into thinking she
was entering into a reasonable, honest agreement to settle the case on
April 6, 2009, which would make a jury trial unnecessary, rather than
depriving her of a jury trial for damages when Plaintiff had no intention of
honoring its agreement. Plaintiff used deceit to induce Defendant to
accept the April 6, 2009 stipulated injunction agreement in order to
deprive Defendant of a jury trial for damages.
A. Plaintiff was motivated to avoid a jury trial because
it feared having Ray Artiano and Daniel Shinoff testify in
front of a jury and having Appellant show her evidence to a
jury
1. Deposition transcript shows that Dan Shinoff and Ray Artiano did
not want to provide evidence in this case. When Ray Artiano suddenly
ended his Nov. 8, 2007 deposition, Appellant asked:
THE WITNESS: Okay. That’s the end of this deposition.
MR. SHINOFF: We’ll give you notice of our motion for a protective order…
MS. LARKINS: Are you going to attend your deposition, Mr. Shinoff?
MR. SHINOFF: No, because I'm concerned that the deposition will go the same
way. And I think we need guidance from the court so the court can provide
guidance for both parties in terms of the rules that govern the deposition process.
(I AA 130 [compressed page 54, lines 7-18])
2. Plaintiff never filed a request for a protective order regarding the
Nov. 8, 2007 deposition Ray Artiano walked out of or the Nov. 8, 2007
deposition Dan Shinoff refused to attend.
3. Plaintiff later falsely claimed that Mr. Shinoff had begun his
deposition, successfully opposing Appellant’s 2nd Motion to Compel Dan
Shinoff’s deposition (I AA 140-149). Appellant’s 1st Motion to Compel Dan
Shinoff’s deposition was denied for lack of a separate statement, which
should not have been required for a deposition that had not begun (I AA
26-63).
4. The judge, of course, is equally responsible with Plaintiff for
abusing the discovery process. The judge gives the impression that she
never read Appellant’s pleadings, for example, Appellant’s Reply (I AA 150-
153) addressing the false, unsupported claim that Mr. Shinoff began his
deposition.
5. Mr. Shinoff relied on abuse of the discovery process and on the
judge’s abuse of discretion to completely avoid being deposed or being a
witness at a jury trial for damages.
6. Plaintiff feared a jury trial in which Defendant would be allowed to
put Ray Artiano and Daniel Shinoff on the stand
7. Daniel Shinoff instructed Ray Artiano 9 times in 2 hours not to
answer questions (I AA 118).
8. Plaintiff should not have filed this lawsuit since it was unwilling to
provide the evidence it had.
B. Plaintiff feared a jury trial in which Defendant would
have the opportunity to present the evidence she had
produced to Plaintiff, and to explain the “missing” Bate-
stamped documents that Plaintiff failed to produce.
1. The “missing” Bate-stamped documents and other documents that
Plaintiff failed to produce, and the tortured attempts by Plaintiff to explain
why Plaintiff did not produce them (I AA 119-120 [compressed pages 6-11,
lines 1-10] ) and (I AA 121 [compressed pages 14-17, lines 1-18]), would
cause any reasonable juror to conclude that Defendant never defamed
Plaintiff.
2. Defendant had produced an enormous amount of documentary and
digital evidence to Plaintiff.
3. In particular, Plaintiff did not want Defendant to show her website
to a jury (motion in limine) (XI AA 2685), as she was prepared to do with a
computer projector. This attitude is puzzling, since Plaintiff had
demanded, and the court had ordered, after summary adjudication had
taken place, that Defendant produce a digital copy of every version of her
website that she had saved over the years, (motion to compel CDs) (XII AA
2693-2741). There is no evidence that Plaintiff ever looked at the disks.
Defendant was also forced to pay $400 in sanctions for opposing the
request. Defendant produced the CDs—yet Plaintiff nevertheless argued
that she should not be allowed to present them at trial.
April 6, 2009 transcript page 118, line 5 to page 119, line 28:
Mr. Wade: … We did submit a motion in limine…this case is about…liability
issues limited to the seven or eight statements within the motion for summary
adjudication that this court ruled upon. In other words, we don’t want to open up
other issues that aren’t contained within there.
The Court: Okay. I’m not exactly sure what you’re talking about in terms of
evidence. If you’ve got to show malice, you’ve got to show fraud, malice or
oppression. You’ve got to show that the statements were designed to cause
injury, right? How are you going to do that?...So Ms. Larkins has a right to show
that they were made without intent to damage or without reckless disregard, right?
Mr. Wade: I—yeah, I get that point. I guess what I’m concerned about is this
court has already determined that they were defamatory…So I don’t need to
relitigate that issue in front of the jury or explain it to them…You’re not going to
hear…I wanted to limit it to the statements in the summary judgment… So to avoid
re-litigating why they’re true, I think they’re true, she already had that chance.
That forum came and went in the summary adjudication stage, and this case was
decided as a matter of law, no they’re not true.
The Court: The problem is going to be in regard to malice. If you have to put on a
defense for malice, what does that consist of?
Mr. Wade: Well, I guess it would—I guess—generally speaking, if it was the entire
trial and we were trying all the issues at once, liability, causation, and damages, et
cetera, it would be the opportunity…
The Court: You’ve got me in this intellectual conundrum, because the problem is if
you’re trying to show something is not malicious, wouldn’t evidence of the truth of
the matter be relevant to that determination?
Mr. Wade: I guess, generally speaking, in full phase of the trial, that would be—
The Court: No. I’m asking if in the damages phase there has to be a
determination of fraud, malice, or oppression, in determining the issue of malice
whether it was made—a statement was made with reckless disregard, wouldn’t the
truth of the statement be relevant?...
Mr. Wade: To counter whether or not she acted in good faith she can say I did it
for another purpose, not that I did it—not because it was true. I did it for whatever
motive it was that she did do it…
Ms. Larkins: I need to show my reasons for believing that the statements were
true…
4. As soon as it was clear that the stipulated injunction was not
working out, Defendant asked for the jury trial regarding damages that
was promised on April 6, 2009 by the court to be conducted if the
agreement did not work out.
5. Plaintiff opposed Defendant’s requests for jury trial for damages.
C. The agreement discussed in negotiations is very
different from the agreement that Plaintiff claims
Defendant accepted.
1. The stipulated injunction was NOT an agreement by Defendant to
cover up any action, only to refrain from characterizing actions in a
specific way.
a. The stipulated injunction was ABSOLUTELY NOT an agreement to
cover up wrongdoing as Plaintiff and the court have argued.
b. Appellant was willing to obey the stipulated injunction as agreed
upon, feeling that simply stating the facts about Plaintiff’s actions without
giving an opinion about their ethical or legal characteristics was an
acceptable limitation for her website. Appellant made valiant efforts to
change her website to comply with the agreement, but it became clear
that she had been tricked, and neither Plaintiff nor the trial court planned
to allow her to say anything at all about Plaintiff.
c. The meaning of the agreement was made clear during negotiations
between the parties: Defendant would be free to report any and all facts.
d. PLAINTIFF has never countered Defendant’s declarations with any
alternate declaration disputing what happened during negotiations on
April 6, 2009.
e. Plaintiff has never denied under oath the truth and accuracy of
Defendant’s declarations regarding James Holtz’ agreement with her
understanding of the stipulated injunction, although it has been served
with many declarations of Defendant describing the negotiations. This
silence implies consent. Even if James Holtz hadn’t looked straight at
Defendant on April 6, 2009 and clearly nodded his head in agreement, his
silence on that day also would have implied consent. Jeffrey Wade’s
silence also implied consent.
f. Plaintiff has been served repeatedly with Defendant’s declarations
about her discussions with James Holtz and Jeffrey Wade on April 6, 2009,
including the following statements made under penalty of perjury:
1. “…On April 6, 2009 I told James F. Holtz and Jeffrey Wade Jr., attorneys
for Plaintiff, that I believed the injunction as agreed upon allowed me to continue
to report Plaintiff’s actions, but not to characterize those actions as illegal,
unethical, incompetent or intimidating. James F. Holtz looked straight at me and
nodded in agreement. During my hours of discussion on April 6, 2009 with Mr.
Holtz and Mr. Wade, neither one of them gave any inkling that they did not agree
that the injunction forbids specific accusations, that it prevents Defendant only
from accusing Plaintiff specifically of “violations of law”, “incompetence”,“unethical
behavior” or “intimidation”. No other accusation is forbidden by the injunction.
There was no agreement that any behavior by Plaintiff that could conceivably be
interpreted as illegal, unethical, incompetent or intimidating could not be
reported…”
Oct 20, 2009 Opposition 1st Motion to Strike (III AA 682-684)
2. “… Neither Mr. Holtz nor Mr. Wade nor any other lawyer or representative
of' Plaintiff nor the court, ever suggested such a hopeless vague and broad
abridgment of my First Amendment Rights before the agreement was signed on
April 6, 2009…”
February 4, 2012 DECLARATION OF MAURA LARKINS IN SUPPORT OF
[FIRST] MOTION TO DISSOLVE INJUNCTION (XI AA 2587-90 lines 23-15)
3. “…I made clear, and Plaintiff agreed, that no other opinion is forbidden by
the agreement, and certainly no statement of fact is forbidden by the
agreement…Both Plaintiff and the Court made clear that the specific words on the
list of forbidden accusations was significant, and that the inclusion of the word
“intimidation” made a difference as to the effect of the injunction. The injunction is
clearly about specific words. Defendant is willing to also forgo using synonyms of
these words to describe Plaintiffs, but does not accept that the injunction can
reasonably or legally be interpreted to cover Defendant’s reporting of simple facts
about Plaintiff. The injunction forbids Defendant from expressing certain specific
OPINIONS about Plaintiff.”
DECLARATION OF MAURA LARKINS IN SUPPORT OF [SECOND] MOTION TO
DISSOLVE APRIL 6, 2009 INJUNCTION (XI AA 2588-90)
g. Defendant has declared under oath that she would never have
signed the stipulated injunction if James Holtz had not intentionally
deceived her:
“…I would never have agreed to such a hopelessly vague and broad
abridgment of my First Amendment Rights. I did not agree to such a
hopelessly vague and broad abridgment of my First Amendment
Rights…” (XI AA 2590 lines 7-15).
h. Plaintiff’s representatives James Holtz and Jeffrey Wade, Jr.
negotiated an agreement that Plaintiff never planned to honor. Instead,
Plaintiff planned to twist the meaning of the stipulated injunction, through
the use of illogical arguments, into a ruling that would forbid Defendant to
publish any information at all about Plaintiff.
D. Changed circumstances have resulted in
extrinsic fraud
The new facts that justify the motion to set aside default
and dissolve injunction are that Defendant’s answer has
been stricken and default judgment has been entered
instead of a jury trial for damages, thus turning Plaintiff’s
intrinsic fraud into extrinsic fraud and causing illegal harm to
Defendant. Also, Defendant has been abusively sanctioned. There was a
motion for jury trial pending at time of final judgment, and that motion was
never decided.
E. Case law defines the current situation as an instance
of extrinsic fraud:
1. “Where the unsuccessful party has been prevented from
exhibiting fully his case, by fraud or deception practiced on him by his
opponent, as by keeping him away from court, a false promise of a
compromise; …being kept in ignorance by the acts of the plaintiff;
…these, and similar cases which show that there has never been a real
contest in the trial or hearing of the case, are reasons for which a new
suit may be sustained to set aside and annul the former judgment or
decree, and open the case for a new and a fair hearing.” United States v.
Throckmorton (1878) 98 U.S. 61, 65-66.
2. In Estate of Sanders, supra, 40 Cal.3d at pages 614-615, our
Supreme Court explained:
"The seminal definition of extrinsic fraud is found in United States v.
Throckmorton (1878) 98 U.S. 61, 65-66: `Where the unsuccessful party has
been prevented from exhibiting fully his case, by fraud or deception practi
[c]ed on him by his opponent, as by keeping him away from court, a false
promise of a compromise; or where the defendant never had knowledge
of the suit, being kept in ignorance by the acts of the plaintiff… these,
and similar cases which show that there has never been a real contest in
the trial or hearing of the case, are reasons for which a new suit may be
sustained to set aside and annul the former judgment or decree, and
open the case for a new and fair hearing. In all these cases, and many
others which have been examined, relief has been granted, on the
ground that, by some fraud practi[c]ed directly upon the party seeking
relief against the judgment or decree, that party has been prevented
from presenting all of his case to the court.' We recently observed that `
[extrinsic] fraud is a broad concept that "tend[s] to encompass almost any
set of extrinsic circumstances which deprive a party of a fair adversary
hearing."' Thus, the essence of an extrinsic fraud claim is that one party
has deliberately prevented the other party from having his or her day in
court either by concealment, failure to give notice of the action, or
convincing the other party to refrain from presenting a claim or defense.
(Estate of Sanders, supra, 40 Cal.3d at pp. 614-615; Sporn v. Home Depot
USA, Inc.(2005) 126 Cal.App.4th 1294, 1300; Groves v. Peterson (2002) 100
Cal.App.4th 659, 665.)
The United States Supreme Court has also ruled that in a case where
there has not been a real contest in the trial or hearing of the case the
Court should vacate any judgment entered, and open the case for a new
hearing.
F. Defendant has meritorious defense
1. The default and injunction in this case are miscarriages of justice.
2. An abusive summary adjudication in which no evidence or
credibility of witnesses was weighed was used to fraudulently obtain an
unconstitutional permanent injunction. Then the injunction was used to
strike Defendant’s Answer without setting aside the summary
adjudication, which makes the striking of the Answer completely moot!
But the court can’t set aside the summary adjudication without destroying
the basis for striking the Answer. Plaintiff and the trial court have tied
themselves up in knots, and the only way to properly straighten out the
mess is to throw out the default and the injunction. Plaintiff has no
business being in court since it has no credible evidence to support its
own position and is refusing to produce evidence helpful to Defendant.
3. A quick reading of Ray Artiano’s deposition is enough evidence to
throw this case out (II AA 361).
4. Case law states: “To be entitled to relief from a judgment on the
ground of extrinsic fraud, a party must show he or she had a meritorious
defense,]which would have been raised but for the other party’s wrongful
conduct [citations], and also must establish all of the elements of fraud
[citations], which include an intentional or reckless misrepresentation
and justifiable reliance on the misrepresentation by the aggrieved
party.” (In re David H. (1995) 33 Cal.App.4th 368, 381-382.)
5. A trial court has an inherent equity power under which, apart from
statutory authority, it may grant relief from a default judgment obtained
through extrinsic fraud or mistake.
6. No litigation privilege exists for extrinsic fraud.
IV. PROOF OF plaintiff’s intention to commit
extrinsic fraud
A. The manipulation and pretense is obvious when you have plaintiff
claiming in multiple pleadings that its own behavior was illegal or
unethical in order to twist the injunction into a ban on simple statements
of fact.
B. Plaintiff claimed that the agreement meant something that was
specifically ruled out during discussions. Plaintiff never intended to
honor the agreement that was discussed with Defendant, never intended
to live with its own bargain. Starting with the Aug. 7, 2009 Motion to
Enforce, the injunction was intentionally misstated and misinterpreted.
Plaintiff concocted a bizarre misinterpretation of the April 6, 2009
agreement. Plaintiff’s deceit became clear in its first Motion to Enforce
Injunction.
C. In this case, Plaintiff is guilty of fraud and intentional
misrepresentation regarding both the oral and written agreements of
April 6, 2009. Interestingly, Plaintiff has falsely characterized oral and
written agreements in the past, for example, Vista Unified v. Dr. B.J.
Freeman (VII 1553-1557, IX 1880-1926). Plaintiff’s outrageous pleadings
claimed that Dr. Freeman was liable for fraud and negligent
misrepresentation for violating an oral contract in which, Plaintiff argued,
Dr. Freeman had agreed to testify under oath as the District wanted!
D. 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.
E. The court has agreed on multiple occasions that Plaintiff has
committed unethical acts—or worse.
F. The injunction as envisioned by Plaintiff and the trial court is
impossible to enforce because it would take endless litigation to have a
judge rule on every statement Stutz doesn’t like, including simple facts
like “Leslie Devaney was the #2 official in the City Attorney’s office.” And
it’s beyond silly to have Stutz coming to court trying to convince a judge
that its actions were unethical.
G. Defendant’s website regularly reports on those who speak and act
on behalf of public schools and other public entities.
The only way to obey the October 30, 2009 order to remove all mention of
Plaintiff within twenty days from a very large website and blog that both
go back many years would be to depublish them entirely (IV AA 748). The
court’s orders have been unreasonable. It would take months to remove
all mention of Plaintiff’s name from Appellant’s website, and Appellant
worked hard on that goal before giving up the process, since it couldn’t
be completed within time to avoid sanctions, and the order was
unconstitutional, and it would have destroyed the position of the website
on the Internet, harming the public and harming defendant by violating
her constitutional rights.
V. Abuse of discretion leading up to
the issuance of the April 6, 2009
injunction and continuing afterward
A. The trial court abused its discretion when it acted in an unreasonable
manner by repeatedly denying due process, equal access to the law, jury
trial, right to free speech to Defendant.
B. No reasonable person would understand the April 6, 2009 injunction to
mean that Defendant is not allowed to say anything about Plaintif, or that
she is not allowed to report simple facts, or that everything that Stutz
does is unethical.
C. The judge has refused to say whether her injunction applies to public
records, private attorney conversations, and third parties. She refuses
to do this because she doesn’t want to admit openly that it’s
unconstitutional.
D. The court showed a clear bias in favor of Plaintiff and
abused her discretion by:
1. …throwing out all of Appellant’s evidence submitted in opposition
to the Motion for Summary Adjudication, and also throwing out the
Opposition itself, because information was in the wrong column
(Appellant used the format required before Jan. 1, 2008);
2. …approving discovery abuses by Plaintiff:
a. Plaintiff’s official representative, Ray Artiano, walked out of his
deposition (I AA 117) after two hours and Plaintiff’s attorney Daniel
Shinoff, the member of Plaintiff’s law firm who was most prominently
featured on Defendant’s website, refused to show up for his noticed
deposition.
b. In addition to noticing depositions, Defendant had requested
Production of documents, specifying certain missing pages of a set of
Bate-stamped documents related to statements on Defendant’s website.
The documents had been collected by Mr. Shinoff in 2001 at the school
where Defendant was teaching. Plaintiff claimed that its paralegal could
not find the documents. Defendant filed a Motion to Compel Depositions
and Production of Documents (I AA 26). The motion was denied (I AA 63),
citing procedural errors. This decision was an abuse of discretion in
regard to the deposition of Daniel Shinoff since no separate statement
should have been required to compel a deposition that had never begun;
3. relying on declarations of Ray Artiano and Dan Shinoff, who
obviously were hiding evidence. Mr. Artiano and Mr. Shinoff told a story
that no reasonable person would believe to explain why they didn’t bring
subpoenaed documents to Mr. Artiano’s deposition. In stark contrast,
Appellant behaved like someone with nothing to hide, sitting for a
complete, six-hour deposition, producing hundreds of documents and
compact disks with website information. Clearly, a reasonable person
would rely on Appellant’s declaration rather than on those of Mr. Artiano
and Mr. Shinoff;
4. creating the opportunity for Plaintiff to use fraud to get Defendant
to agree to an unconstitutional injunction.
VI. The April 6, 2009 injunction is
unconstitutional on its face.
A. Only statements specifically found to be defamatory at a jury trial
may be included in an injunction enjoining speech, according to Balboa
Island. In this case there was no jury trial to determine the facts of this
case, only a summary adjudication by law after throwing out Defendant’s
opposition and evidence.
B. The summary adjudication did not include any weighing of the
evidence or of the credibility of witnesses. Whether a summary
adjudication obtained by throwing out the defendant’s opposition and
evidence is as good as a jury trial is an issue which has not yet been
determined.
C. The Stutz Firm maintains that there is no difference between
enjoining the repetition of a particular statement already judicially found
to be defamatory, on the one hand, and enjoining different statements to
which so such finding has yet been made. The California Supreme Court,
however, clearly disagrees. It made this point repeatedly, expressly and
unambiguously in Balboa Island. The Court stated in the very first
paragraph: “[W]e hold that that the injunction is overly broad, but that
defendant’s right to free speech would not be infringed by a properly
limited injunction prohibiting defendant from repeating statements about
plaintiff that were determined at trial to be defamatory.” Balboa Island, 40
Cal. 4th at 1144
D. Constitutional rights can be taken away only
by due process.
1. The trial court claims that Defendant gave up her constitutional
rights when she signed the stipulated injunction. Appellant paid $3000
sanctions, and asked Plaintiff to accept a payment plan for $5000
sanctions, rather than take down her website, and paid thousands more
in court costs and copies. Appellant has spent uncounted hours over the
past six years fighting the instant case. This is not the action of someone
who willingly signed away her First Amendment rights.
2. The trial court may not silence Defendant by depriving her of
constitutional rights which she never agreed to relinquish, and never did
relinquish, and which the court had no jurisdiction to take from her.
E. The judge abused her discretion by not asking
Defendant if she was willingly giving up Constitutional
rights
The judge avoided any discussion of the meaning of the stipulated
injunction before signing it, and warned Defendant:
YOU HAVE TO TONE IT DOWN IN THE WEBSITE, TAKE THIS LAW FIRM
OFF THE WEBSITE. THAT IS ADVICE. IT IS NOT PART OF
THE ORDER. BUT SAVE YOURSELF SOME TROUBLE. A
LAWYER DOES WHAT A LAWYER DOES IN EVERY CASE…
(I RT 91, 9-16)
F. 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. The judge made clear that regardless of
what the injunction actually said, she wanted Plaintiff’s name completely
removed from Defendant’s website.
G. Appellant did not have due process in court proceedings before or
after the agreement was obtained, and the agreement was obtained
through pressure and fraud. An agreement obtained through fraud is null
and void.
H. Even if Appellant’s agreement with Plaintiff were
valid, the injunction by the court is not valid because the
Bill of Rights constrains government in a way that does not
constrain ordinary citizens.
Appellant made this argument on August 24, 2012:
MS. LARKINS: …TWO CITIZENS OF THE UNITED STATES OR RESIDENTS OF
THE UNITED STATES CAN MAKE ANY KIND OF AGREEMENT THEY WANT.
BUT THE COURT CAN'T. THE COURT HAS TO OBEY THE CONSTITUTION. THE
COURT CANNOT MAKE AN INJUNCTION THAT'S UNCONSTITUTIONAL.” (III RT
177,18-22)
J. Defendant was not "admonished by the Court as rights
she was giving up."
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.
K. Plaintiff knows very well that a person’s due
process rights are not terminated even by an honest
agreement because Plaintiff attorney Ray Artiano won
the Farahani case by arguing the exact opposite of
what he is saying in this case.
The Farahani case involved pressure, as does the instant case, but the
Farahani case did not involve deceit or fraud.
“In this case we hold that [statute] renders “null and void” the “last
chance agreement” (Agreement) under which community college faculty
member Sam H. Farahani waived his statutory due process rights relating
to faculty discipline…In November 2004, the attorney for the American
Federation of Teachers Guild, California Federation of Teachers Local
1931 (Union) presented Farahani with the Agreement, and told him that
the District would suspend him for a year without pay unless he signed
it…The Release included the following provision: “Farahani waives any
and all appeal rights he may otherwise have to challenge the discipline or
otherwise pursue any appeal relating to the pre-disciplinary notice.”
Sam Farahani v. San Diego Community College District
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT, DIVISION ONE
STUTZ ARTIANO SHINOFF & Court of Appeal No. D063801
HOLTZ, APC.,
Plaintiff and Respondent,
v. (Super. Ct. No. 37-2007-00076218-
CU-DF-CTL)
MAURA LARKINS,
Defendant and Appellant.
_________________________
Appeal From a Denial of a Motion to Dissolve Injunction and Set Aside Default
and Final Default Judgment Of The Superior Court, County of San Diego
Hon. Judith Hayes, Judge
____________________________________
APPELLANT’S OPENING BRIEF
____________________________________
MAURA LARKINS
Appellant
Self-Represented
FOURTH APPELLATE DISTRICT, DIVISION ONE
STUTZ ARTIANO SHINOFF & Court of Appeal No. D063801
HOLTZ, APC.,
Plaintiff and Respondent,
v. (Super. Ct. No. 37-2007-00076218-
CU-DF-CTL)
MAURA LARKINS,
Defendant and Appellant.
_________________________
Appeal From a Denial of a Motion to Dissolve Injunction and Set Aside Default
and Final Default Judgment Of The Superior Court, County of San Diego
Hon. Judith Hayes, Judge
____________________________________
APPELLANT’S OPENING BRIEF
____________________________________
MAURA LARKINS
Appellant
Self-Represented
| . |
| . |
TABLE OF CONTENTS
TABLE OF
AUTHORITIES xi
STATEMENT OF THE CASE—PROCEDURAL
HISTORY 1
STATEMENT OF
APPEALABILITY 6
THE STANDARD OF
REVIEW 7
STATEMENT OF
FACTS 8
STATEMENT OF FACTS
I. The April 6, 2009 injunction is so
broad that Defendant is not allowed
to say ANYTHING about
Plaintiff. 8
A. The Court of Appeal in August 2011 found
that the injunction issued on December 11,
2009 Plaintiff was unconstitutional. 8
1. Since that time, Plaintiff and the trial court have
instead used the April 6, 2009 stipulated
injunction to prevent Defendant from mentioning
Plaintiff on her website—circumventing and
ignoring the decision of the Court of
Appeal. 8
2. The trial court has never given even one
example of a statement that would be
permitted 9
3. The court stated on June 21, 2012 “I’m not
giving you permission to put anything
on” 9
B. The trial court relied on the April 6, 2009
injunction to strike Defendant’s Answer and grant
a default five years after the case was
filed. 9
1. The trial court has never set aside the
February 2009 summary adjudication
2. The Default decision is remarkable since
Appellant’s Answer was filed in a timely manner in
2007, and was adjudicated in 2009.
C. Appellant appeals the January 29, 2013 final
default judgment and the March 6, 2013 denial of
Appellant’s Motion to Set Aside Default and
Dissolve Injunction.
1. Appellant asks the Court of Appeal to judge the
constitutionality of the April 6, 2009 stipulated
injunction and the legality of the January 29, 2013
default judgment
2. Until now, Defendant has never asked the
Court of Appeal to rule on the constitutionality of
the April 2009 injunction.
ARGUMENT
The controlling cases in this appeal are Balboa
Island and Evans v. Evans. 10
I. Overview of the
issues 11
A. Appellant appeals the January 29, 2013 final
default judgment and the March 6, 2013 denial of
Motion to Set Aside Default and Dissolve
Injunction based, in part, on extrinsic fraud
committed by Plaintiff, resulting in denial of a jury
trial for damages.
B. Appellant is appealing the January 29, 2013
final judgment and the March 6, 2013 denial of
Motion to Set Aside Default and Dissolve
Injunction based on the fact that the default
judgment is doubly moot since:
1) summary adjudication has already taken
place on Feb. 20, 2009 and has never been set
aside;
2) the ruling striking Defendant’s Answer on
July 27, 2012 was based on the summary
adjudication and consequent injunction, yet it
creates an outcome that requires that the
summary adjudication be set aside.
C. Appellant appeals the March 6, 2013 order
denying her Motion to Dissolve Injunction
D. The stipulated injunction/agreement between
parties should be invalidated because it was
achieved by fraud.
E. The summary adjudication should be set aside
because it was achieved by denial of due process
and abuse of discretion, and a jury trial on all
issues should be conducted.
F. Alternatively, Appellant is entitled to a jury trial
for damages.
II. The April 6, 2009 injunction 13
III. Extrinsic fraud-- Plaintiff committed extrinsic
fraud on April 6, 2009. 14
Plaintiff committed extrinsic fraud by tricking
Appellant into thinking she was entering into a
reasonable, honest agreement when the real
purpose was to deprive Appellant of a jury
trial 14
A. Plaintiff was motivated to avoid a jury trial
because it feared having Ray Artiano and Daniel
Shinoff testify in front of a jury 14
B. Plaintiff feared a jury trial in which
Defendant would have the opportunity to present
the evidence she had produced 16
1. The “missing” Bate-stamped documents
would cause any reasonable juror to conclude
that Defendant never defamed Plaintiff.
2. Defendant had produced an enormous
amount of documentary and digital evidence to
Plaintiff
3. In particular, Plaintiff did not want
Defendant to show her website to a jury as she
was prepared to do with a computer projector.
4. Defendant began asking for the jury trial
regarding damages as soon as it was clear that
the stipulated injunction was not working out.
5. Plaintiff opposed Defendant’s requests for
jury trial for damages.
C. The agreement discussed in
negotiations is very different from
the agreement that Plaintiff claims
Defendant accepted.
1. The stipulated injunction was NOT an
agreement by Defendant to cover up any action,
only to refrain from characterizing actions in a
specific way.
a. The stipulated injunction was
ABSOLUTELY NOT an agreement to cover up
wrongdoing 19
b. Appellant was willing to obey the stipulated
injunction as agreed upon
c. The meaning of the agreement was made
clear during negotiations 20
d. PLAINTIFF has never countered
Defendant’s declarations with any alternate
declaration disputing what happened during
negotiations on April 6, 2009.
e. Plaintiff has never denied under oath the
truth and accuracy of Defendant’s declarations
regarding James Holtz’ agreement with her
understanding of the stipulated injunction 20
f. Plaintiff has been served repeatedly with
Defendant’s declarations 20
g. Defendant has declared under oath that
she would never have signed the stipulated
injunction if James Holtz had not intentionally
deceived her 21
h. Plaintiff’s representatives James Holtz and
Jeffrey Wade, Jr. negotiated an agreement that
Plaintiff never planned to honor.
D. Changed circumstances have resulted in
extrinsic fraud 22
The new facts that justify the motion to set aside
default and dissolve injunction are that Defendant’
s answer has been stricken and default judgment
has been entered instead of a jury trial
E. Case law defines the current situation as
an instance of extrinsic fraud
F. Defendant has meritorious defense
G. Defendant requests that the Court of
Appeal instruct the trial court either to conduct a
jury trial for damages or to set aside the summary
adjudication.
IV. PROOF OF plaintiff’s intention to
commit extrinsic fraud 24
A. The manipulation and
pretense is obvious when you have
plaintiff claiming in multiple
pleadings that its own behavior was
illegal or unethical
B. Plaintiff claimed that the agreement meant
something that was specifically ruled out during
discussions.
C. In this case, Plaintiff is guilty of fraud and
intentional misrepresentation regarding both the
oral and written agreements of April 6, 2009.
D. 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.
E. The court has agreed on multiple
occasions that Plaintiff has committed unethical
acts—or worse.
F. The injunction as envisioned by Plaintiff
and the trial court is impossible to enforce
G. Defendant’s website regularly reports on
those who speak and act on behalf of public
schools and other public entities. The only way to
obey the October 30, 2009 order to remove all
mention of Plaintiff within twenty days from a very
large website and blog that both go back many
years would be to depublish them entirely
V. Abuse of discretion leading up to the issuance
of the April 6, 2009 injunction 26
The trial court abused its discretion when it acted
in an unreasonable manner by repeatedly denied
due process, equal access to the law, jury trial,
right to free speech, showing a clear bias in favor
of Stutz law firm in doing the following:
1. throwing out all of Appellant’s evidence
submitted in opposition to the Motion for
Summary Adjudication, and also throwing out the
Opposition itself, because information was in the
wrong column. (Appellant used the format
required before Jan. 1, 2008.)
2. approving discovery abuses by Plaintiff
3. relying on declarations of Ray Artiano and
Dan Shinoff, who obviously were hiding
evidence.
4. creating the opportunity for Plaintiff to use
fraud to get Defendant to agree to an
unconstitutional injunction.
5. The judge revealed on April 6, 2009 and
many times thereafter that her purpose was to go
far beyond the law, preventing me from
mentioning Stutz’ name.
VI. The April 6, 2009 injunction is
unconstitutional on its face 28
A. Only statements specifically found to be
defamatory at a jury trial may be included in an
injunction enjoining speech, according to Balboa
Island.
B. The summary adjudication did not include
any weighing of the evidence or of the credibility
of witnesses.
C. The Stutz Firm maintains that there is
no difference between enjoining the repetition of
a particular statement already judicially found to
be defamatory, on the one hand, and enjoining
different statements to which so such finding has
yet been made
D. Constitutional rights can be taken away
only by due process. 29
E. The judge abused her discretion by not
asking Defendant if she was willingly giving up
Constitutional rights 30
F. The judge did not discuss the terms or the
contents of the injunction on April 6, 2009
G. Appellant did not give up any
constitutional rights when she signed the
agreement/stipulated injunction on April 6, 2009.
H. Appellant did not have due process in
court proceedings before the agreement was
obtained, and the agreement was obtained
through pressure and fraud. An agreement
obtained through fraud is null and void.
I. Even if Appellant’s agreement with Plaintiff
were valid, the injunction by the court is not valid
because the Bill of Rights constrains government
in a way that does not constrain ordinary citizens.
J. Defendant was not "admonished by the
Court as rights she was giving up." 30
K. Plaintiff in this case knows very well that a
person’s due process rights are not terminated
even by an honest agreement. 31
L. The court may not claim that Defendant
gave up constitutional rights that she specifically
insisted she was not giving up. 31
M. This injunction was not obtained through due
process.
VII. Abuse of discretion on and after April 6,
2009 32
A. Plaintiff and Defendant agreed to a
specific meaning of the stipulated injunction.
Specific words were included in the agreement for
a specific reason
B. On April 6, 2009 the trial judge
improperly pressured Defendant to agree to
the inclusion of the word “intimidate” in the
injunction, even though Defendant pointed
out that it hadn’t been in the complaint.
C. The court revealed that it was motivated to
limit Defendant’s speech far, far beyond the
scope of the injunction. The court stated, “Take
this law firm off the website” 33
D. The stipulated injunction 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. 33
E. The court clearly wanted to protect Plaintiff
from having to give testimony in a trial
F. No justification has been given by the
court for NOT allowing the jury trial for damages
that was clearly promised on April 6, 2009 (I RT
89, 20-22) (I RT 94, 6-7) (I RT 96 27-28)
G. Plaintiff has made a travesty out of the
four most important words (illegal, unethical,
intimidating, incompetent) in the agreement, and
the trial court has allowed it.
H. The court did not want Plaintiff to be bound by its
agreements made during
settlement 35
I. The court’s decisions exceed the bounds of
reason. The court in this case has set itself up to
stop Appellant from reporting any behavior of
Respondent that the court finds to be illegal,
unethical, intimidating or incompetent even when
Defendant says and believes that the behavior is
not any of these things—such as “Dan Shinoff
trains school attorneys.” 36
J. Plaintiff and the court have interpreted the
injunction to mean that all Stutz has to do to
prevent Defendant from mentioning its name is to
claim that any and every sentence Defendant
writes about Plaintiff is an accusation of illegal,
unethical intimidating or incompetent behavior.
K. Plaintiff and the court have interpreted the
injunction to mean that all Stutz has to do to
prevent Defendant from mentioning its name
L. The court has interpreted the injunction as
meaning that Appellant must first determine if a
statement accuses Plaintiff of illegal, unethical,
intimidating or incompetent actions before she
publishes it. 36
M. If the court is unable or unwilling to say
whether the statement “Daniel Shinoff trains
school attorneys” accuses Plaintiff of illegal,
unethical, intimidating or incompetent behavior,
how can Appellant know? 36
N. Defendant repeatedly asked the judge to
clarify the meaning of the injunction 36
O. The trial court refused on June 21, 2012
to say whether the statements “Daniel Shinoff
trains school attorneys” and “Daniel Shinoff plans
legal tactics against parents” are violations of the
injunction. 38
P. The trial court abused its discretion by
issuing an unconstitutional injunction on April 6,
2009
Q. The trial court is in the bizarre position of
having found on multiple occasions that Plaintiff
has committed unethical acts—or worse. Judge
Hayes has granted motion after motion in which
Plaintiff argued that its own behavior was
unethical, intimidating, professionally
incompetent, and/or possibly illegal and therefore
Defendant was banned from mentioning Plaintiff’s
actions. 39
R. The trial court has made constant false
and prejudicial assertions
S. It was an abuse of discretion by the court
to deny Defendant Due Process, Equal Protection
of the Law, Trial by Jury and Freedom of
Speech 40
T. There is nothing in the April 6, 2009
agreement about “implying”; the court is not free
to take away constitutional rights; there was
fraud, lack of due process, and lack of notice in
creating and enforcing this injunction.
U. Judge Hayes exhibited awareness of the
unconstitutionality of her December 11, 2009
decision 41
V. Judge Hayes abused her discretion when
she determined all Stutz lawyers were not public
figures, even though one of them, Leslie
Devaney, was second in command as Executive
Assistant City Attorney and almost won as City
Atttorney
W. Judge Hayes apparently wanted to find
malice without allowing Defendant to present any
evidence, so a jury trial was out of the question.
X. Judge Hayes was also apparently
determined to give money to Stutz law firm.
VIII. Injunction is unconstitutional because it is vague
and ambiguous, notice was not given,
broad 41
IX. Injunction is unconstitutional because it is too
broad, vague and ambiguous, and notice was not
given 44
X. July 27, 2012 decision Striking Defendant’s
Answer
XI. The April 6, 2009 injunction must be dissolved
because it is an invalid prior
restraint 47
XII Default 50
A. Default is improper when a Summary
Adjudication is in effect.
1. Summary adjudication and striking
answer/default are absolutely incompatible
with each other.
2. Defendant has an entitlement to a jury
trial based on public policy and the constitutional
right to due process and striking her answer
doesn’t take away that right because the answer
is not at issue any longer.
B. The trial court in this case relied on
Del Junco v. Hufnagel to strike Defendant’s
Answer, but in fact NO summary adjudication
had taken place in Del Junco.
C. A court-sanctioned settlement precludes a
default.
D. Lesser alternative was available: jury
trial 52
E. By law, a jury trial should have taken place
within two to five years of the filing of the case or
the case should have been dismissed.
F. Court has reached unreasonable
conclusions through circular reasoning.
G. Defendant proved in her pleadings that
she had not violated the April 6, 2009
injunction. 53
H. The trial court abused its discretion by
rubber-stamping the $43,000 default judgment
requested by Plaintiff. 53
I. The purpose of striking Defendant’s answer
and entering default was to silence a citizen’s
public speech about issues of public interest, and
is therefore unconstitutional. 55
J. The April 6, 2009 injunction was used to
obtain a default; since the injunction is
unconstitutional, the default must be reversed.
XII CONCLUSION 55
CERTIFICATE OF COMPLIANCE 57
TABLE OF
AUTHORITIES xi
STATEMENT OF THE CASE—PROCEDURAL
HISTORY 1
STATEMENT OF
APPEALABILITY 6
THE STANDARD OF
REVIEW 7
STATEMENT OF
FACTS 8
STATEMENT OF FACTS
I. The April 6, 2009 injunction is so
broad that Defendant is not allowed
to say ANYTHING about
Plaintiff. 8
A. The Court of Appeal in August 2011 found
that the injunction issued on December 11,
2009 Plaintiff was unconstitutional. 8
1. Since that time, Plaintiff and the trial court have
instead used the April 6, 2009 stipulated
injunction to prevent Defendant from mentioning
Plaintiff on her website—circumventing and
ignoring the decision of the Court of
Appeal. 8
2. The trial court has never given even one
example of a statement that would be
permitted 9
3. The court stated on June 21, 2012 “I’m not
giving you permission to put anything
on” 9
B. The trial court relied on the April 6, 2009
injunction to strike Defendant’s Answer and grant
a default five years after the case was
filed. 9
1. The trial court has never set aside the
February 2009 summary adjudication
2. The Default decision is remarkable since
Appellant’s Answer was filed in a timely manner in
2007, and was adjudicated in 2009.
C. Appellant appeals the January 29, 2013 final
default judgment and the March 6, 2013 denial of
Appellant’s Motion to Set Aside Default and
Dissolve Injunction.
1. Appellant asks the Court of Appeal to judge the
constitutionality of the April 6, 2009 stipulated
injunction and the legality of the January 29, 2013
default judgment
2. Until now, Defendant has never asked the
Court of Appeal to rule on the constitutionality of
the April 2009 injunction.
ARGUMENT
The controlling cases in this appeal are Balboa
Island and Evans v. Evans. 10
I. Overview of the
issues 11
A. Appellant appeals the January 29, 2013 final
default judgment and the March 6, 2013 denial of
Motion to Set Aside Default and Dissolve
Injunction based, in part, on extrinsic fraud
committed by Plaintiff, resulting in denial of a jury
trial for damages.
B. Appellant is appealing the January 29, 2013
final judgment and the March 6, 2013 denial of
Motion to Set Aside Default and Dissolve
Injunction based on the fact that the default
judgment is doubly moot since:
1) summary adjudication has already taken
place on Feb. 20, 2009 and has never been set
aside;
2) the ruling striking Defendant’s Answer on
July 27, 2012 was based on the summary
adjudication and consequent injunction, yet it
creates an outcome that requires that the
summary adjudication be set aside.
C. Appellant appeals the March 6, 2013 order
denying her Motion to Dissolve Injunction
D. The stipulated injunction/agreement between
parties should be invalidated because it was
achieved by fraud.
E. The summary adjudication should be set aside
because it was achieved by denial of due process
and abuse of discretion, and a jury trial on all
issues should be conducted.
F. Alternatively, Appellant is entitled to a jury trial
for damages.
II. The April 6, 2009 injunction 13
III. Extrinsic fraud-- Plaintiff committed extrinsic
fraud on April 6, 2009. 14
Plaintiff committed extrinsic fraud by tricking
Appellant into thinking she was entering into a
reasonable, honest agreement when the real
purpose was to deprive Appellant of a jury
trial 14
A. Plaintiff was motivated to avoid a jury trial
because it feared having Ray Artiano and Daniel
Shinoff testify in front of a jury 14
B. Plaintiff feared a jury trial in which
Defendant would have the opportunity to present
the evidence she had produced 16
1. The “missing” Bate-stamped documents
would cause any reasonable juror to conclude
that Defendant never defamed Plaintiff.
2. Defendant had produced an enormous
amount of documentary and digital evidence to
Plaintiff
3. In particular, Plaintiff did not want
Defendant to show her website to a jury as she
was prepared to do with a computer projector.
4. Defendant began asking for the jury trial
regarding damages as soon as it was clear that
the stipulated injunction was not working out.
5. Plaintiff opposed Defendant’s requests for
jury trial for damages.
C. The agreement discussed in
negotiations is very different from
the agreement that Plaintiff claims
Defendant accepted.
1. The stipulated injunction was NOT an
agreement by Defendant to cover up any action,
only to refrain from characterizing actions in a
specific way.
a. The stipulated injunction was
ABSOLUTELY NOT an agreement to cover up
wrongdoing 19
b. Appellant was willing to obey the stipulated
injunction as agreed upon
c. The meaning of the agreement was made
clear during negotiations 20
d. PLAINTIFF has never countered
Defendant’s declarations with any alternate
declaration disputing what happened during
negotiations on April 6, 2009.
e. Plaintiff has never denied under oath the
truth and accuracy of Defendant’s declarations
regarding James Holtz’ agreement with her
understanding of the stipulated injunction 20
f. Plaintiff has been served repeatedly with
Defendant’s declarations 20
g. Defendant has declared under oath that
she would never have signed the stipulated
injunction if James Holtz had not intentionally
deceived her 21
h. Plaintiff’s representatives James Holtz and
Jeffrey Wade, Jr. negotiated an agreement that
Plaintiff never planned to honor.
D. Changed circumstances have resulted in
extrinsic fraud 22
The new facts that justify the motion to set aside
default and dissolve injunction are that Defendant’
s answer has been stricken and default judgment
has been entered instead of a jury trial
E. Case law defines the current situation as
an instance of extrinsic fraud
F. Defendant has meritorious defense
G. Defendant requests that the Court of
Appeal instruct the trial court either to conduct a
jury trial for damages or to set aside the summary
adjudication.
IV. PROOF OF plaintiff’s intention to
commit extrinsic fraud 24
A. The manipulation and
pretense is obvious when you have
plaintiff claiming in multiple
pleadings that its own behavior was
illegal or unethical
B. Plaintiff claimed that the agreement meant
something that was specifically ruled out during
discussions.
C. In this case, Plaintiff is guilty of fraud and
intentional misrepresentation regarding both the
oral and written agreements of April 6, 2009.
D. 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.
E. The court has agreed on multiple
occasions that Plaintiff has committed unethical
acts—or worse.
F. The injunction as envisioned by Plaintiff
and the trial court is impossible to enforce
G. Defendant’s website regularly reports on
those who speak and act on behalf of public
schools and other public entities. The only way to
obey the October 30, 2009 order to remove all
mention of Plaintiff within twenty days from a very
large website and blog that both go back many
years would be to depublish them entirely
V. Abuse of discretion leading up to the issuance
of the April 6, 2009 injunction 26
The trial court abused its discretion when it acted
in an unreasonable manner by repeatedly denied
due process, equal access to the law, jury trial,
right to free speech, showing a clear bias in favor
of Stutz law firm in doing the following:
1. throwing out all of Appellant’s evidence
submitted in opposition to the Motion for
Summary Adjudication, and also throwing out the
Opposition itself, because information was in the
wrong column. (Appellant used the format
required before Jan. 1, 2008.)
2. approving discovery abuses by Plaintiff
3. relying on declarations of Ray Artiano and
Dan Shinoff, who obviously were hiding
evidence.
4. creating the opportunity for Plaintiff to use
fraud to get Defendant to agree to an
unconstitutional injunction.
5. The judge revealed on April 6, 2009 and
many times thereafter that her purpose was to go
far beyond the law, preventing me from
mentioning Stutz’ name.
VI. The April 6, 2009 injunction is
unconstitutional on its face 28
A. Only statements specifically found to be
defamatory at a jury trial may be included in an
injunction enjoining speech, according to Balboa
Island.
B. The summary adjudication did not include
any weighing of the evidence or of the credibility
of witnesses.
C. The Stutz Firm maintains that there is
no difference between enjoining the repetition of
a particular statement already judicially found to
be defamatory, on the one hand, and enjoining
different statements to which so such finding has
yet been made
D. Constitutional rights can be taken away
only by due process. 29
E. The judge abused her discretion by not
asking Defendant if she was willingly giving up
Constitutional rights 30
F. The judge did not discuss the terms or the
contents of the injunction on April 6, 2009
G. Appellant did not give up any
constitutional rights when she signed the
agreement/stipulated injunction on April 6, 2009.
H. Appellant did not have due process in
court proceedings before the agreement was
obtained, and the agreement was obtained
through pressure and fraud. An agreement
obtained through fraud is null and void.
I. Even if Appellant’s agreement with Plaintiff
were valid, the injunction by the court is not valid
because the Bill of Rights constrains government
in a way that does not constrain ordinary citizens.
J. Defendant was not "admonished by the
Court as rights she was giving up." 30
K. Plaintiff in this case knows very well that a
person’s due process rights are not terminated
even by an honest agreement. 31
L. The court may not claim that Defendant
gave up constitutional rights that she specifically
insisted she was not giving up. 31
M. This injunction was not obtained through due
process.
VII. Abuse of discretion on and after April 6,
2009 32
A. Plaintiff and Defendant agreed to a
specific meaning of the stipulated injunction.
Specific words were included in the agreement for
a specific reason
B. On April 6, 2009 the trial judge
improperly pressured Defendant to agree to
the inclusion of the word “intimidate” in the
injunction, even though Defendant pointed
out that it hadn’t been in the complaint.
C. The court revealed that it was motivated to
limit Defendant’s speech far, far beyond the
scope of the injunction. The court stated, “Take
this law firm off the website” 33
D. The stipulated injunction 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. 33
E. The court clearly wanted to protect Plaintiff
from having to give testimony in a trial
F. No justification has been given by the
court for NOT allowing the jury trial for damages
that was clearly promised on April 6, 2009 (I RT
89, 20-22) (I RT 94, 6-7) (I RT 96 27-28)
G. Plaintiff has made a travesty out of the
four most important words (illegal, unethical,
intimidating, incompetent) in the agreement, and
the trial court has allowed it.
H. The court did not want Plaintiff to be bound by its
agreements made during
settlement 35
I. The court’s decisions exceed the bounds of
reason. The court in this case has set itself up to
stop Appellant from reporting any behavior of
Respondent that the court finds to be illegal,
unethical, intimidating or incompetent even when
Defendant says and believes that the behavior is
not any of these things—such as “Dan Shinoff
trains school attorneys.” 36
J. Plaintiff and the court have interpreted the
injunction to mean that all Stutz has to do to
prevent Defendant from mentioning its name is to
claim that any and every sentence Defendant
writes about Plaintiff is an accusation of illegal,
unethical intimidating or incompetent behavior.
K. Plaintiff and the court have interpreted the
injunction to mean that all Stutz has to do to
prevent Defendant from mentioning its name
L. The court has interpreted the injunction as
meaning that Appellant must first determine if a
statement accuses Plaintiff of illegal, unethical,
intimidating or incompetent actions before she
publishes it. 36
M. If the court is unable or unwilling to say
whether the statement “Daniel Shinoff trains
school attorneys” accuses Plaintiff of illegal,
unethical, intimidating or incompetent behavior,
how can Appellant know? 36
N. Defendant repeatedly asked the judge to
clarify the meaning of the injunction 36
O. The trial court refused on June 21, 2012
to say whether the statements “Daniel Shinoff
trains school attorneys” and “Daniel Shinoff plans
legal tactics against parents” are violations of the
injunction. 38
P. The trial court abused its discretion by
issuing an unconstitutional injunction on April 6,
2009
Q. The trial court is in the bizarre position of
having found on multiple occasions that Plaintiff
has committed unethical acts—or worse. Judge
Hayes has granted motion after motion in which
Plaintiff argued that its own behavior was
unethical, intimidating, professionally
incompetent, and/or possibly illegal and therefore
Defendant was banned from mentioning Plaintiff’s
actions. 39
R. The trial court has made constant false
and prejudicial assertions
S. It was an abuse of discretion by the court
to deny Defendant Due Process, Equal Protection
of the Law, Trial by Jury and Freedom of
Speech 40
T. There is nothing in the April 6, 2009
agreement about “implying”; the court is not free
to take away constitutional rights; there was
fraud, lack of due process, and lack of notice in
creating and enforcing this injunction.
U. Judge Hayes exhibited awareness of the
unconstitutionality of her December 11, 2009
decision 41
V. Judge Hayes abused her discretion when
she determined all Stutz lawyers were not public
figures, even though one of them, Leslie
Devaney, was second in command as Executive
Assistant City Attorney and almost won as City
Atttorney
W. Judge Hayes apparently wanted to find
malice without allowing Defendant to present any
evidence, so a jury trial was out of the question.
X. Judge Hayes was also apparently
determined to give money to Stutz law firm.
VIII. Injunction is unconstitutional because it is vague
and ambiguous, notice was not given,
broad 41
IX. Injunction is unconstitutional because it is too
broad, vague and ambiguous, and notice was not
given 44
X. July 27, 2012 decision Striking Defendant’s
Answer
XI. The April 6, 2009 injunction must be dissolved
because it is an invalid prior
restraint 47
XII Default 50
A. Default is improper when a Summary
Adjudication is in effect.
1. Summary adjudication and striking
answer/default are absolutely incompatible
with each other.
2. Defendant has an entitlement to a jury
trial based on public policy and the constitutional
right to due process and striking her answer
doesn’t take away that right because the answer
is not at issue any longer.
B. The trial court in this case relied on
Del Junco v. Hufnagel to strike Defendant’s
Answer, but in fact NO summary adjudication
had taken place in Del Junco.
C. A court-sanctioned settlement precludes a
default.
D. Lesser alternative was available: jury
trial 52
E. By law, a jury trial should have taken place
within two to five years of the filing of the case or
the case should have been dismissed.
F. Court has reached unreasonable
conclusions through circular reasoning.
G. Defendant proved in her pleadings that
she had not violated the April 6, 2009
injunction. 53
H. The trial court abused its discretion by
rubber-stamping the $43,000 default judgment
requested by Plaintiff. 53
I. The purpose of striking Defendant’s answer
and entering default was to silence a citizen’s
public speech about issues of public interest, and
is therefore unconstitutional. 55
J. The April 6, 2009 injunction was used to
obtain a default; since the injunction is
unconstitutional, the default must be reversed.
XII CONCLUSION 55
CERTIFICATE OF COMPLIANCE 57
TABLE OF AUTHORITIES
Balboa Island Village Inn, Inc. v. Lemen (2007)
40 Cal.4th 1141 , 57 Cal.Rptr.3d 320; 156 P.3d 339
….................…10, 28, 29, 48
Chico Feminist Women’s Health Center v. Scully (1989)
208 Cal. App. 3d 230, 251, 256 Cal Rptr 194……….
……..7
Del Junco v. Hufnagel (2007)
Ca. 2nd, 60 Cal.Rptr.3d 22…
……..……..…….11, 51, 54
Evans v. Evans (2008) 162 Cal. App. 4th
1157, 1171-1173, 76 Cal. Rptr. 3d 859 ) …..…..8, 10,
42, 48, 49, 50
Estate of Sanders (1985) 40 Cal.3d 607, 614-
615………………..23
Farahani v. San Diego Community College District et
al.,
D054087……………………………………………………….
…..31
Groves v. Peterson (2002) 100 Cal.App.4th 659, 665.)
……….…..23
Mendly v. County of Los Angeles (1994) 23 Cal. App.
4th 1193, 1207, 28 Cal. Rptr. 2d
822………………………………………………48
Pro-Family Advocates v. Gomez (a996) 46 Cal. App.
1674, 1678 n.1, 54 Cal. Rptr. 2d 600…………………..
…………7
ReadyLink Healthcare v. Cotton (2005)
126 Cal. App. 1006, 1026, 24 Cal. Rptr. 3d 720
………………….42
Welsch v. Goswick (1982) 130 Cal. App. 3d 398, 404-
405, 181
Cal. Rptr.
703………………………………………………………48
Western Electroplating Co. v. Henness (1959) 172 Cal.
App. 2d
278, 283, 341 P.2d 718………………………………..
…………….6
Sporn v. Home Depot USA, Inc.(2005)
126 Cal.App.4th 1294, 1300
……………………………………..23
Teamsters Local 856 v. Priceless, LLC (2003)
……………………8
Yes on Measure A v. City of Lake Forest (1997)
………….………8
STATUTES, CODES and CONSTITUTIONAL
PROVISIONS
California Constitution Article 1 Freedom of speech
California Constitution Article 1, Sec. 7. (a) A person
may not be deprived of life, liberty, or property without
due process of law or denied equal protection of the
laws…
California Constitution Article 1, Sec. 16 (Trial by jury)
US Constitution First Amendment Freedom of speech
US Constitution Fifth Amendment No person shall ...
be deprived of life, liberty, or property, without due
process of law…
US Constitution Fourteenth Amendment, Sec. 1 No
State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United
States; nor shall any State deprive any person of life,
liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal
protection of the laws.
Code Civ. Proc. §533
Code Civ. Proc. § 473, subd. (b)
Civ. Code § 3424
Balboa Island Village Inn, Inc. v. Lemen (2007)
40 Cal.4th 1141 , 57 Cal.Rptr.3d 320; 156 P.3d 339
….................…10, 28, 29, 48
Chico Feminist Women’s Health Center v. Scully (1989)
208 Cal. App. 3d 230, 251, 256 Cal Rptr 194……….
……..7
Del Junco v. Hufnagel (2007)
Ca. 2nd, 60 Cal.Rptr.3d 22…
……..……..…….11, 51, 54
Evans v. Evans (2008) 162 Cal. App. 4th
1157, 1171-1173, 76 Cal. Rptr. 3d 859 ) …..…..8, 10,
42, 48, 49, 50
Estate of Sanders (1985) 40 Cal.3d 607, 614-
615………………..23
Farahani v. San Diego Community College District et
al.,
D054087……………………………………………………….
…..31
Groves v. Peterson (2002) 100 Cal.App.4th 659, 665.)
……….…..23
Mendly v. County of Los Angeles (1994) 23 Cal. App.
4th 1193, 1207, 28 Cal. Rptr. 2d
822………………………………………………48
Pro-Family Advocates v. Gomez (a996) 46 Cal. App.
1674, 1678 n.1, 54 Cal. Rptr. 2d 600…………………..
…………7
ReadyLink Healthcare v. Cotton (2005)
126 Cal. App. 1006, 1026, 24 Cal. Rptr. 3d 720
………………….42
Welsch v. Goswick (1982) 130 Cal. App. 3d 398, 404-
405, 181
Cal. Rptr.
703………………………………………………………48
Western Electroplating Co. v. Henness (1959) 172 Cal.
App. 2d
278, 283, 341 P.2d 718………………………………..
…………….6
Sporn v. Home Depot USA, Inc.(2005)
126 Cal.App.4th 1294, 1300
……………………………………..23
Teamsters Local 856 v. Priceless, LLC (2003)
……………………8
Yes on Measure A v. City of Lake Forest (1997)
………….………8
STATUTES, CODES and CONSTITUTIONAL
PROVISIONS
California Constitution Article 1 Freedom of speech
California Constitution Article 1, Sec. 7. (a) A person
may not be deprived of life, liberty, or property without
due process of law or denied equal protection of the
laws…
California Constitution Article 1, Sec. 16 (Trial by jury)
US Constitution First Amendment Freedom of speech
US Constitution Fifth Amendment No person shall ...
be deprived of life, liberty, or property, without due
process of law…
US Constitution Fourteenth Amendment, Sec. 1 No
State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United
States; nor shall any State deprive any person of life,
liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal
protection of the laws.
Code Civ. Proc. §533
Code Civ. Proc. § 473, subd. (b)
Civ. Code § 3424
Maura Larkins' Opposition
Court decision denying Stutz'
motion to allow Maura
Larkins only ONE opening
brief for TWO appeals, but
giving Stutz another
extension of 30 days in
addition to previous
extension of 46 days to
respond to Larkins' opening
brief
Court decision denying Stutz'
motion to allow Maura
Larkins only ONE opening
brief for TWO appeals, but
giving Stutz another
extension of 30 days in
addition to previous
extension of 46 days to
respond to Larkins' opening
brief
Appeals Stutz v. Larkins
STUTZ MOTION TO
CONSOLIDATE APPEALS 4
AND 5, asking Court of Appeal
to ignore Larkins' Appeal 4,
and allow Stutz to ignore
it--without Stutz being found
in default
CONSOLIDATE APPEALS 4
AND 5, asking Court of Appeal
to ignore Larkins' Appeal 4,
and allow Stutz to ignore
it--without Stutz being found
in default
#3 Sanctions Petition for Writ
Court transcripts
April 6, 2009 court transcript
| News, information and ideas about our education system, courts and health care by Maura Larkins |
L. The court may not claim that Defendant gave up
constitutional rights that Defendant has specifically
insisted she was not giving up.
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 and Plaintiff agreed that Defendant should be
executed for violating the injunction, the court would not
therefore have the right to order her execution.
M. This injunction was not obtained through due process.
Even if there had been a fair jury trial on all issues in
which Defendant had been allowed to present her evidence, and
Defendant had been found to have committed defamation, it still
would only have allowed the court to forbid her from
repeating the statements (see "The four statements") in
the Motion for Summary Adjudication.
The order can only forbid statements found by a jury to
be defamatory. This case had no jury trial, it was a summary
adjudication achieved by throwing out defendant’s evidence and
opposition, and relying on Plaintiff’s declarations.
VII. Abuse of discretion on and after April 6, 2009
A. Plaintiff and Defendant agreed to a specific meaning of the
stipulated injunction. Specific words were included in the
agreement for a specific reason: Defendant agreed not to use
those words (or synonyms) to describe Plaintiff, and in return
Plaintiff agreed to drop the lawsuit. The intended meaning of the
agreement was that Defendant would not express four specific
opinions.
B. On April 6, 2009 the trial judge improperly pressured
Defendant to agree to the inclusion of the word “intimidate” in the
injunction, even though Defendant pointed out that it hadn’t been in
the complaint.
Mr. Holtz: In paragraph two at the end the handwritten part, Ms.
Larkins disagrees with the inclusion of the word “intimidation.”
The Court: Let me read it again. What’s the matter with
“intimidation”?
Ms. Larkins: I don’t believe that was in the complaint. I don’
t think it was litigated.
The Court: Okay. Is that something you have a serious
disagreement with?
Ms. Larkins: No, no.
The Court: You’re not going to put any language accusing
them of intimidation?
Ms. Larkins: I just thought—you could add a lot of words.
The Court: That’s right, but pick your battles. Is that one
you want to fight?
Ms. Larkins: No.
The Court: Okay.
Ms. Larkins: I would just like the—
The Court: Okay. What we’re trying to do here is calm
troubled waters. Okay? If that’s our goal, everyone’s goal,
then we need to look at this realistically. You have to tone
it down in the website, take this law
firm off the website. (I RT 90-91
lines 16 – 11)
C. The court revealed that it was motivated to limit
Defendant’s speech far, far beyond the scope of the
injunction. The court stated, “Take this law firm off the
website” (I RT 91 lines 10-11 ) on April 6, 2011. 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 revealed that it was
motivated to limit Defendant’s speech far beyond the
statements ruled to be defamatory in summary
adjudication, which gives considerable insight into the
motivation of the court’s decisions during the
discovery phase of the case as well as the court’s
decision regarding summary adjudication, contempt
sanctions, and striking answer and rubber-stamping
unlawful default judgment.
D. The stipulated injunction has been abusively
interpreted to violate Defendant’s right to jury trial,
equal protection of the laws, freedom of speech, and
freedom to petition for redress of grievances.
E. Judge Judith Hayes’ penchant for applying the
law unequally can be seen in Digital Cornerstone, Inc.
v. Kevin Carmony (IX AA 1983), in which she
recognized free speech rights, even though the
defendant had paid for a deceptive URL and had
profited from his website.
F. The court clearly wanted to protect Plaintiff from
having to give testimony in a trial, as shown by the
completely false justification given by the trial court
for denying Defendant’s motion to compel Daniel
Shinoff’s deposition. The court falsely claim that Mr.
Shinoff’s deposition had begun, despite the fact that
two hours before his scheduled deposition he had
stated, as counsel during Mr. Artaino’s aborted
deposition, that he was not going to show up for his
own deposition (I AA 131). Also, Plaintiff produced no
transcript of any deposition for Mr. Shinoff.
G. No justification has been given by the court for
NOT allowing the jury trial for damages that was
clearly promised on April 6, 2009.
A jury trial was to take place if either party was
dissatisfied with the agreement. Instead, Plaintiff has
opposed Defendant’s request for the legally-required
jury trial, and Defendant has been slapped with
sanctions and a default. To avoid the jury trial so
clearly unwanted by Plaintiff, the judge has accepted
Plaintiff’s bizarre claims about the stipulated injunction
and ignored Defendant’s requests for a jury trial,
including her Motion for Jury Trial (V AA 1141). The
trial court continued that motion, but in the end did not
rule on it.
Here are the promises made on April 6, 2009 regarding
a jury trial by the court (and by Plaintiff):
THE COURT: …WE WOULD NOT GO FORWARD ON
THE TRIAL AT THIS TIME. BUT EITHER SIDE
COULD COME IN AND REACTIVATE, AND THE CASE
WILL BE TRIED WITHIN A REASONABLE PERIOD OF
TIME, 30 DAYS OR SO… YOU GET TO HAVE YOUR
TRIAL ON DAMAGES, ALBEIT NOT RIGHT AWAY. (I RT
84, 11-19)
MR. HOLTZ:…AND WE ARE GENERALLY ALSO IN AGREEMENT WITH
THE COOLING OFF PERIOD FOR THE DAMAGES TRIAL, WITH A
MINIMUM OFTHREE
MONTHS. (I RT 89, 20-22)
THE COURT: …I MAY SAY WE'RE GOING TO SCHEDULE
THE TRIAL. I MAY DO ANY OF THOSE THINGS.
(I RT 94, 6-7)
THE CLERK: WE CAN SET IT FOR TRIAL CALL ON
DAMAGES FOR JULY THE 10TH AT 9:00. (I RT 96 27-28)
H. Plaintiff has made a travesty out of the four most important
words (illegal, unethical, intimidating, incompetent) in the
agreement, and the trial court has allowed it.
I. The court did not want Plaintiff to be bound by its agreements
made during settlement, but it wanted Defendant to be bound by
rules that were created after settlement.
J. The court’s decisions exceed the bounds of reason. The
court in this case has set itself up to stop Appellant from reporting
any behavior of Respondent that the court finds to be illegal,
unethical, intimidating or incompetent even when Defendant says
and believes that the behavior is not any of these things— such as
“Dan Shinoff trains school attorneys.”
K. Plaintiff and the court have interpreted the injunction to
mean that all Stutz has to do to prevent Defendant from mentioning
its name is to claim that any and every sentence Defendant writes
about Plaintiff is an accusation of illegal, unethical intimidating or
incompetent behavior.
L. The court has interpreted the injunction variously as meaning
that Appellant must first determine if a statement accuses Plaintiff of
illegal, unethical, intimidating or incompetent actions before she
publishes it. But the court has interpreted the injunction as
forbidding Appellant from reporting simple facts, even when no
opinion about ethics, legality, etc. is included. Bizarrely, Plaintiff has
claimed that “Daniel Shinoff trains school attorneys” is a statement
about an unethical action!
M. If the court is unable or unwilling to say whether the
statement “Daniel Shinoff trains school attorneys” accuses Plaintiff
of illegal, unethical, intimidating or incompetent behavior, how can
Appellant know?
N. Defendant repeatedly asked the judge to clarify the meaning
of the injunction
During the June 21, 2012 ex parte hearing regarding Defendant’s
Request for Stay and request for clarification of injunction (VII AA
1490) the judge refused to answer Defendant’s requests to clarify
the meaning of the injunction, as can be seen in the REPORTER’S
TRANSCRIPT (III RT 147-153).
Defendant scheduled an ex-parte hearing on June 27, 2012 (VII AA
1513). Defendant’s ex parte application requested a stay of
sanctions, and included law and case law references, and
requested clarification of court’s interpretation of injunction. When
Defendant got to the court that day, she was told that there would
be no hearing—ever—on her ex-parte application.
Defendant then made a list of specific questions regarding the
meaning of the injunction and scheduled another ex-parte hearing
on July 17, 2012 (VII AA 1531). Defendant asked the court to specify
which statements the court found on Aug. 7, 2009, Oct. 30, 2009; and
Dec. 11, 2009 to be violations of the April 6, 2009 injunction. The
court continued (VII AA 1529) the hearing until July 27, 2012.
The trial court refused on June 21, 2012 to say whether the
statements “Daniel Shinoff trains school attorneys” and “Daniel
Shinoff plans legal tactics against parents” are violations of the
injunction. Yet these statements angered the judge so much on
October 30, 2009, during the hearing regarding Plaintiff’s first
Motion to Strike Defendant’s Answer (Exhibits 38-46 III AA 480-738),
that she issued an order that Defendant could never, by any means
or method, mention Plaintiff’s name (III AA pages 748).
MS. LARKINS: SO YOU ARE SAYING THAT TRAINING--DANIEL SHINOFF
TRAINS SCHOOL ATTORNEYS IS A VIOLATION OF THE INJUNCTION?
THE COURT: WHAT I'M SAYING IS THAT I WILL NOT GO WITH YOU
WORD BY WORD THROUGH WHAT YOU WANT TO DO, BECAUSE I
BELIEVE IT IS PART OF YOUR PLAN TO CIRCUMVENT THE COURT
ORDER.
YOU DON'T REALLY WANT TO KNOW FROM THE COURT WHAT THE
COURT IS SAYING ABOUT A WORD OR TWO WORDS BECAUSE YOU
INTEND TO GO FORWARD, AS I SEE IT, AND PUT THE SAME
DEFAMATORY MATERIAL ON THAT WEBSITE THAT YOU'VE
MAINTAINED ALL ALONG. AND THAT'S NOT GOING TO HAPPEN.
SO I'M NOT GOING TO ANSWER YOUR SPECIFIC QUESTION ABOUT A
WORD. "TRAINED ATTORNEYS," OF COURSE IS NOT DEFAMATORY
ON ITS FACE, AND IT'S NOT DEFAMATORY WHEN STANDING ALONE,
BUT IN CONTEXT -- AND THE CONTEXT IN WHICH YOU EMPLOY IT, IT
MAY WELL BE. SO I'M NOT GIVING YOU PERMISSION TO PUT
ANYTHING ON.
(III RT 153 lines 2-19)
The trial judge said that the statement Daniel Shinoff trains school
attorneys “may well be” defamatory. Apparently the judge is not
sure, so she’s not giving Defendant permission to put anything
(anything!) on her website. How can the judge still not be sure
when the statement “Daniel Shinoff trains school attorneys” has
been discussed in this case for about three years and the webpage
it appears on is in the court files? It is her job to judge, and she
refuses to do it. If the judge doesn’t know whether it’s a violation of
the April 6, 2009 injunction, how can Appellant know? However, the
judge did not include a single example of a violation of the
injunction by Defendant in the July 27, 2012 decision striking
Defendant’s complaint. The judge has simply refused to do her duty
in this case.
O. The trial court abused its discretion by issuing an
unconstitutional injunction on April 6, 2009. The trial court further
abused its discretion, and exceeded it authority, by intentionally
misstating and misinterpreting the injunction written by Plaintiff,
with the goal of depriving Defendant of constitutional rights which
she never agreed to relinquish, and never did relinquish, and which
the court had no jurisdiction to take from her.
P. The trial court is in the bizarre position of having found on
multiple occasions that Plaintiff has committed unethical acts—or
worse. Judge Hayes has granted motion after motion in which
Plaintiff argued that its own behavior was unethical, intimidating,
professionally incompetent, and/or possibly illegal and therefore
Defendant was banned from mentioning Plaintiff’s actions.
Q. The trial court has made constant false and prejudicial
assertions, such as saying Appellant’s longer version of her 8-page
brief regarding the Motion to Strike (exhibits 95b, 95c) was “a
violation” (3 RT 170, 17-21). In fact, Appellant only filed the 8-page
version; the longer version was attached as an exhibit (VIII AA
1718). However, the judge’s false claim reveals how upset she was
about the mere existence of the longer version.
R. It was an abuse of discretion by the court to deny Defendant
Due Process, Equal Protection of the Law, Trial by Jury and Freedom
of Speech
According to the California Constitution, Article 1, Sec. 7(a) and
Article 1, Sec. 16, as well as the United States Constitution Fifth and
Fourteenth Amendments, every litigant is guaranteed due process,
equal protection of the laws and trial by jury in appropriate cases.
The court has the obligation to treat a schoolteacher defendant
(who is in pro per by necessity) in the same manner as it treats a
large law firm (that happens to be in pro per by choice). The
California Constitution Article 1, Sec. 16 states that trial by jury is an
inviolate right and shall be secured to all.
California Constitution Article 1 as well as the US Constitution First
Amendment guarantee freedom of speech.
S. There is nothing in the April 6, 2009 agreement about
“implying”; the court is not free to take away constitutional rights;
there was fraud, lack of due process, and lack of notice in creating
and enforcing this injunction.
THE COURT:
WHEN YOU TALK ABOUT FIRST AMENDMENT
RIGHTS AS WITH ANY CONSTITUTIONAL RIGHT, THE FACT IS THAT WE
DO ALL HAVE THE RIGHT TO FREE SPEECH. BUT AS WITH ANY RIGHT
IT CAN BE BARGAINED AWAY. YOU CAN BARGAIN AWAY A
CONSTITUTIONAL RIGHT AS PART OF AN AGREEMENT.
THE COURT: … IF AS PART OF A
BARGAIN YOU AGREE TO GIVE UP THAT CONSTITUTIONAL RIGHT OR
TO MODIFY IT IN SOME WAY WELL, IN THIS CASE IT SEEMS TO ME
THAT YOU
HAVE AGREED TO MODIFY YOUR FREE SPEECH RIGHTS AS PART OF
A BARGAIN. AND THAT MEANS THAT, NO, YOU CAN'T GO ON THE
WEBSITE AND CONTINUE TO DO WHAT YOU HAVE BEEN DOING IN
TERMS OF IMPLYING THAT THERE'S ILLEGAL ACTIVITY ON THE PART
OF THIS LAW FIRM, AND I THINK THAT'S THE COMPLAINT THAT THE
LAW FIRM HAS.
August 7, 2009 (I RT 98-99, 13-15)
T. Judge Hayes exhibited awareness of the unconstitutionality
of her December 11, 2009 decision in trying to prevent Defendant
from appealing by using financial sanctions to force the shutdown of
the website, and telling Defendant that the time for appeal had
passed, and telling Defendant that she did not understand
constitutional law (V AA 1012). In fact, it would appear that the judge
knew very well that Defendant was correct about the
unconstitutionality of the Dec. 11, 2009 injunction, and was
determined to enforce her will despite the Aug. 5, 2011 ruling of the
Court of Appeal (V AA 1021)
U. Judge Hayes abused her discretion when she determined all
Stutz lawyers were not public figures, even though one of them,
Leslie Devaney, was second in command as Executive Assistant City
Attorney and almost won as City Atttorney, and another, Dan Shinoff,
frequently acts and speaks for public entities. A person can also
become a "limited public figure" by engaging in actions which
generate publicity within a narrow area of interest. Dan Shinoff was
much in the news in the widely-reported MiraCosta College palm
tree scandal when the cost of his investigation and actions on
behalf of a public entity soared to over a million dollars. In Aug 2007
Judge Michael Anello found very publicly that Mr. Shinoff appeared
to have violated professional attorney standards, over a year before
Judge Hayes’ “finding”.
The injunction would prohibit Appellant from mentioning that Ms.
Devaney committed a crime even if Ms. Devaney confessed to that
offense and was convicted at trial – classic First Amendment (and
entirely accurate) speech.
V. Judge Hayes apparently wanted to find malice without
allowing Defendant to present any evidence, so a jury trial was out
of the question.
W. Judge Hayes was also apparently determined to give money
to Stutz law firm. Her final judgment was $43,000, including $10,000
in obviously illegal punitive damages, in addition to $8,400 in
sanctions.
VIII. Injunction is unconstitutional because it is too broad, vague and
ambiguous, and notice was not given
A. 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. The court is required to interpret the agreement in
the narrowest manner, not the broadest manner, possible.
B. 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. 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."
C. The Constitution comes before commerce
In Retirement Group v. Galante the Court of Appeal found that
Judge Hayes’ injunction was an invalid prior restraint on their First
Amendment rights of speech and association, and on the ground
that the enjoined conduct is couched in terms too vague to give fair
notice of the conduct proscribed by the injunction. The contractual
clause Edwards concluded was unenforceable was a
noncompetition clause –in this case, it is unenforceable because it
violates the constitution.
D. Refusal by the court to clarify the injunction
The trial court refused to answer Appellant’s questions, apparently
because doing so would have set out the illegality of the injunction
in stark, obvious terms. Since clarifying the injunction would have
remedied the situation, it was an abuse of discretion by the court to
say Appellant’s conduct was clear and deliberate when Defendant
asked for three years to have injunction clarified, and to have a jury
trial for damages.
1. The trial court never said third parties or public court records
are covered by injunction, yet sanctioned Appellant and struck her
answer based on comments by third parties and quotes from public
court records, thus abusing her discretion.
2. The judge has illegally included third-party comments in her
injunction, in violation of the Communications Act.
3. The injunction forbids Appellant from suing Plaintiff, although
she presented evidence of recently discovered wrongful actions by
Mr. Shinoff against her (see Declaration attached to Reply for March
2012 Motion to Dissolve injunction). This violates her constitutional
right to petition for redress of grievances and equal protection of
the law.
4. The injunction is unconstitutional because it does not allow
Defendant to petition for redress of grievances, 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 is not allowed to seek legal
representation. Appellant is not even allowed to discuss her
lawsuit with her husband, although he is financially liable for the
sanctions and judgment.
IX. July 27, 2012 decision Striking Defendant’s Answer
A. Defendant’s Answer was stricken more than four years, nine
months after it was filed, less than 3 months before the deadline for
a jury trial, the lack of which would legally require the complaint to
be dismissed.
B. The court did a remarkable turnaround between the time it
produced a tentative ruling on July 26, 2012 and the time it
produced the actual minute order for July 27, 2012 (IX AA 2033)
(exhibit 96). The tentative ruling claimed that statements were
“currently” on Defendant’s sites, when the court had known for
several months that the statements (actually, public records and
third-party comments) had been erased.
During the July 27, 2012 hearing, (vol. 3 RT 154-171) Defendant tried
once again to understand the court’s interpretation of the April 6,
2009 injunction:
Ms. Larkins: Did the court find that Plaintiff behaved unethically or
illegally in the Dr. B.J. Freeman case? Is this the reason that I’m not
allowed to publish information about this case? (vol. 3 RT 163 lines
2-5).
Ms. Larkins: …I believe that is from a document that I never
published until Plaintiff added it to Daniel Shinoff’s declaration. It’s
a court document that was put into the court record by Plaintiff. I
need to know if I am not allowed to publish public court records
(vol. 3 RT 164 lines 20-24).
Ms. Larkins: And I would like your honor to tell me if it is okay to say
Julie Hatoff sued for extortion, because that’s what the website says
now (3 RT 165, 26-28 to 166 1).
The court abused its discretion when it found on July 27, 2012 that
on April 6, 2009 Defendant understood the agreement:
The Court: Ms. Larkins, you said on the day you entered into it that
you understood that, and you did. I make that finding (3 RT 168, 7-9).
Nor did Defendant imagine that Plaintiff would claim that the factual
statement, “Leslie Devaney was the number 2 official in the office of
city attorney when the city made deals which the SEC and the FBI
are now investigating.” This is a simple statement about the history
of our city. It offers no opinion. Leslie Devaney ran for city attorney
of San Diego, but the trial court in the instant case found that she is
not a public figure, or even a limited-purpose public figure. The
court has thus transgressed the First Amendment most grievously
in using the injunction to silence political reporting that does not
even express an opinion.
The Court [July 27, 2012]: “You have accused the Shinoff Firm of—of
so many unethical actions that I won’t try to list them all here other
that the fact that when you say that the court has never told you
what these violations are, in our rulings previously we have
specifically outlined exactly what statements violated the
injunction” (3 RT 168, 17-21).
In fact, the court listed specific statements in ONLY ONE ruling, that
of May 30, 2012. The court included these same statements in its
tentative ruling for July 27, 2012. Minutes after the court made the
declaration above, it erased ALL THE SPECIFIC STATEMENTS from
the tentative ruling and filed and extremely brief minute order for
July 27, 2012 (IX AA 2033). The court knew that its tentative ruling
contained false findings and wisely erased the false findings. Since
the court has tacitly retracted its list of specific statements listed in
the May 30, 2012, Appellant has no clear indication of even A SINGLE
STATEMENT THAT VIOLATED THE INJUNCTION, despite the posturing
on July 27, 2012. Appellant has never been given proper notice of
the injunction.
Neither Plaintiff nor judge has not argued that Defendant’s
statements are false, or that they are opinions stating that SASH
behaved illegally or unethically. But according to the convoluted
reasoning of the interpretation of plaintiff and the court, the judge
must find that Defendant’s factual reports refer to unethical
conduct, even when they are simple statements such as “Dan
Shinoff trains board members” and “plans legal tactics against
parents who complain.”
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.
The $3000 March 10, 2010 contempt sanction issued pursuant to an
injunction found to be unconstitutional should be reversed and the
money returned
On January 21, 2010 (IV AA 789) Plaintiff filed an ex parte application
requesting that the court find Defendant in contempt of court, but
complained only of the fact that Defendant’s site continued to
mention Plaintiff and its attorneys. In response, the court
scheduled a Motion to Show Cause regarding contempt, and
Defendant was found in contempt of court on March 10, 2010 and
sanctioned $3000 (V AA 1017). Defendant paid $3000 to Plaintiff.
VIII. The April 6, 2009 injunction must be dissolved because it is an
invalid prior restraint
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. 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.
A. This Court squarely held in Evans that the injunction entered
by the trial court was an invalid prior restraint prohibited by both the
First Amendment as well as Article I, Section 2 of the California
Constitution. “We conclude,” this Court stated, that “the preliminary
injunction was overbroad and constituted an invalid prior restraint
before trial.” Id. at 1161. This Court reviewed the California
Supreme Court’s opinion in Balboa Island, which it noted stood for
the proposition that while a party may permissibly be enjoined “from
repeating specific statements found at trial to be defamatory,”
Evans, 162 Cal. App. 4th at 1168 (emphasis in original), the trial court’
s injunction did not merely enjoin specific prior statements that had
already been expressly found defamatory, but instead included
statements – including but not limited to those not yet made -- that
had not previously been adjudicated to be defamatory. Id. at 1169.
This Court noted, citing Gilbert, that “[w]hile a party may be held
responsible for abusing his right to speak freely in a subsequent
tort action, he has the initial right to speak freely without
censorship.” Id. at 1168. This Court held:
Under these principles, the court’s preliminary injunction
prohibiting Linda from publishing any ‘false or defamatory’
statements on the Internet is constitutionally invalid. Because there
has been no trial and no determination on the merits that any
statement made by Linda was defamatory, the court cannot prohibit
her from making statements characterized only as ‘false and
defamatory.’ . . . It is well-settled that a plaintiff may recover
damages for speech that is proved to be damaged or libelous.
Additionally, a court may enjoin a defendant after trial from
repeating defamatory statements. . . . [But] a court may not
constitutionally prevent a person from uttering a ‘defamatory’
statement before it has been determined at trial that the statement
was defamatory. Id. at 1169.
What was true in Evans is equally true here. Indeed, the injunction
applied to Ms. Evans was even more limited than the one applied to
Appellant, as the former restrained only “false and defamatory”
statements, whereas the one at issue here denies Ms. Larkins
permission to “say anything.”
Just as the trial court’s injunction was an impermissible prior
restraint in Evans, so too is the trial court’s injunction here equally
impermissible. Even if a trial court may enjoin the repetition of
specific statements previously adjudicated to be defamatory, it may
not enjoin other statements not previously so found. This central
principle is dispositive, and compels reversal.
The court abused its discretion by ignoring Defendant’s Motion for
Jury Trial (Exhibits 66-69) (II PA 1141-1189) and continuing to deprive
Defendant of her constitutional rights to free speech and due
process and a jury trial.
The April 6, 2009 injunction must be dissolved in the interest of
justice; dissolution is sanctioned under Code. Civ. Proc. Sec. 533.
X. Default
A. Default is improper when a summary
adjudication decision is in effect.
1. Summary adjudication and striking answer/default are
absolutely incompatible with each other. Since the case was
adjudicated through Summary Adjudication regarding all matters
except damages on Feb. 20, 2009, the court’s decision on July 27,
2012 to Strike Defendant’s Answer is an action without any effect on
the case; the issue of striking the Answer is moot. No default can
be taken because summary adjudication has already occurred.
2. Defendant has an entitlement to a jury trial regarding
damages based on public policy and the constitutional right to due
process; striking her answer does not take away that right because
the answer has already been adjudicated.
B. The trial court in this case relied on Del Junco v. Hufnagel to
strike Defendant’s Answer, but in fact NO summary adjudication had
taken place in Del Junco. Also, Hufnagel relied on a different code.
The trial court’s actions in the instant case seems to be
unprecedented.
Del Junco v. Hufnagel was very different from the instant case
There was no summary adjudication in the Del Junco case; 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. A court-sanctioned settlement precludes a default.
Not only has summary adjudication taken place, settlement also took
place. Default can not stand until the settlement/stipulated
injunction is set aside. The court clearly established that this case
was settled:
THE COURT: Let’s set a date in three months. If everything is going
okay I’ll put you on the dismissal calendar for another three months.
I’ll give you 90 days after that. Can’t do much more than after that,
because looking at the filing date, it is getting a little old.”
(Exhibit 7, April 6, 2009 Page 134 line 17)
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 thus admits that the jury trial for damages was only delayed,
not permanently precluded.
The Court of Appeal has called the stipulated injunction/agreement
a "settlement". Certainly a settlement needs to be set aside in
order to give Plaintiff a default.
D. Lesser alternative was available: jury trial
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.
E. By law, a jury trial should have taken place within two to five years
of the filing of the case or the case should have been dismissed
THE COURT: “In addition to that, we have that pesky issue of the
damages. Remember? That’s the jury trial issue. Well, if we go
forward on that, then there’s likely to be a judgment…What we’re
going to do is put that off for three months…At the end of three
months I may put it over another three months. I may say we’re
going to schedule the trial…looking at the filing date, it is getting a
little old.”-- April 6, 2009 (I RT 93-94, 24-22)
F. Court has reached unreasonable conclusions through circular
reasoning.
The injunction was direct result of the summary adjudication signed
on March 26, 2009 (II AA 450). The stipulated injunction specifically
states that the summary adjudication entitles [Plaintiff] to an
injunction. The striking of the answer depends on the existence of
the injunction, which depends on the summary adjudication, the
striking of the answer is a logical contradiction; the court can not
strike the answer as long as the summary adjudication is in force.
G. Defendant proved in her pleadings starting with the Aug. 7, 2009
Motion to Enforce (III AA 563-628) through the Special Brief filed at
the court’s request ( III AA 1704-2032) that she had not violated the
April 6, 2009 injunction.
The trial court abusively ignored all Defendant’s facts, law,
arguments, declarations and exhibits.
The court in its ruling striking Answer claims to base its decisions
on unspecified previous findings, but does not offer a single
example of a violation of the injunction, tacitly acknowledging that
previous findings were unjustified because they were based on
third-party comments that had been removed, or public records,
obviously acceptable statements (“Dan Shinoff trains school
attorneys”), statements that had been long ago removed from the
website, or simply the fact that Plaintiff’s name was mentioned
(March 10, 2010).
H. The trial court abused its discretion by rubber-stamping the
$43,000 default judgment requested by Plaintiff. The amount of the
judgment is not consistent with the law or with the conclusions a
reasonable person would draw from looking at the record.
1. The trial court ignored the fact that no financial information
about Defendant’s ability to pay was included in the “prove-up”, and
therefore the $10,000 in punitive damages must be reversed. This
point of law is made clear at the beginning of the Hufnagel decision
that both Plaintiff and judge have quoted in this proceeding.
2. The calculations for the $30,000 is based on a ludicrous,
unreasonable and illogical conclusions drawn from Exhibits D and
E. The printouts in Exhibit E state clearly, “This site’s metrics are
not certified” (AA 2506, 2510).
3. Exhibit D appears to have many graphs, but 2482-2487 actually
consists of the same graph repeated fifteen times.
4. If the trial court had looked at Exhibit E of the prove-up, it
would have seen that visitors to Defendant’s site were looking for
CVESD, CTA, MEA, Fagen Friedman Fulfrost, Emily Shieh, Voice of
San Diego Education, Procopio, Kaiser Permanente, Vickie
Gilbreath, medical records, insurance, the new teacher project,
Cornell, Bonifacio Bonny Garcia, CTA lawyer, and Councilman
Castaneda.
It isn’t until page AA 2510 that we see the two (2!) total queries in
Exhibit E referring to Plaintiff. These two queries would appear to
justify damages of $.86. Since these terms are not “high impact” or
“top queries” or “top search queries” as are search terms on pages
AA 2501-2509 and 2511-2515, they can not be assumed to have been
made by multiple searchers. These two queries are introduced with
the words, “You may be interested in…”
It was unreasonable for the trial court to order Defendant to pay
Plaintiff $.43 every single hit on the site, when almost all of the hits
were by Defendant herself; search robots; visitors who only stayed
on the site a second or two; people looking for health and insurance
information--particularly Kaiser Permanente; visitors wanting
information about schools, education and San Diego politics; or non-
Plaintiff lawyers.
X. The purpose of striking Defendant’s answer and granting
default judgment was to silence a citizen’s public speech about
issues of public interest, the striking of the Answer and default
judgment are therefore unconstitutional and abuses of discretion.
Y. The April 6, 2009 injunction was relied upon to obtain a
default; since the injunction is unconstitutional, the default must be
reversed.
XI. CONCLUSION
The injunction here is an express prior restraint on speech, and
as such is presumptively unconstitutional. Bantam Book, Inc. v.
Sullivan (1963) 372 U.S. 58, 70. Moreover, the prior restraint here
constitutes a violation of the First Amendment not by the executive
branch, but by the judiciary itself. It would be both bizarre and
unprincipled were this branch of government to immunize its own
presumptively unconstitutional conduct from review by dismissing
appeals that challenged the constitutional validity of such orders.
Such a rule would be akin to dismissing an appeal by Rosa Parks
because she continued to sit in the front of the bus.
The trial court erred by imposing the April 6,2009 injunction to
create an impermissible prior restraint on speech. Defamatory
speech admittedly creates some problems. But the lessons of
history have repeatedly taught us that the dangers engendered by
prior restraints – including those imposed by the judicial branch –
constitute a far more dangerous threat to liberty. It is for this
reason that the First Amendment prohibits such acts, even when
perceived to be “necessary” at the time.
This principle is especially applicable here. The danger created by
the trial court’s ruling – or, worse yet, any acceptance of that order
by this Court – would be far, far worse than the private losses (if
any) that might be imposed upon the profits of the Stutz Firm by Ms.
Larkins’ blog.
This Court should stridently reaffirm the longstanding principles of
Anglo-American prior restraint jurisprudence and vacate the
injunction below.
The reasons set forth above compel reversal of the trial court’s
April 6, 2009 injunction as unconstitutional.
1. Appellant respectfully requests that the Superior Court be
instructed to dissolve the injunction of April 6, 2009 and the first
three paragraphs of the December 11, 2009 modified injunction and
to limit its injunctions to specific statements made by Defendant that
were found to be defamatory at trial.
2. Defendant requests that the court set aside default judgment.
3. Defendant requests that the Court of Appeal instruct the trial
court either to conduct a jury trial for damages or to set aside the
summary adjudication and conduct a trial on all issues.
4. Since the trial court decided not to dissolve the April 6, 2009
PERMANENT injunction, then Defendant’s July 17, 2012 ex parte
request for clarification of injunction is not moot. The injunction is
permanent, but it has never been clarified, and Defendant has been
given highly contradictory and confusing, as well as
unconstitutional, directives from the court regarding the injunction.
Defendant asks the court to put the July 17, 2012 ex parte request
for clarification of injunction on calendar so that Defendant can
obtain a clarification of the injunction.
5. Defendant asks the Court of Appeal to take away the special
jurisdiction the trial court claimed in its April 6, 2009 injunction to
continue its oversight of the injunction.
DATED: October 14, 2013
Maura Larkins, Appellant in pro per
CERTIFICATE OF COMPLIANCE
Pursuant to rule 8.204(c) of the California Rules of Court, I hereby
certify that this brief contains 13,995 words, including footnotes. In
preparing this certificate, I relied on the word count generated by
the computer program used to prepare the brief.
By ____________________________
Maura Larkins, Appellant
Updated version of this page can be found HERE. |