(Stutz v. Larkins appeal #5)
Stutz Artiano Shinoff & Holtz Response
to Maura Larkins' March 28, 2013 Appeal
re Strike Answer, Default, injunction
and Maura Larkins' Reply
|
Maura Larkins' Reply
. "On Appeal, Larkins does not challenge the trial court's finding that
she failed to comply with the April 6th stipulated injunction or the
Court's August 7 order enforcing the stipulated injunction. On remand,
the trial court may consider whether to
exercise its statutory and inherent authority to coerce
compliance with the April 6 or August 7 orders and/or to punish
Larkin~ f.orher failure to comply with said orders in a manner
c.onsist1ntwith the law and the views expressed in this opinion."
PAGE 7
j
(5 AA 1041.) rhis Court thus remanded the proceedingsto the trial court
for
Further c.onsid1rati.ono n enforcement of the Stipulated Injunction. (1
RA 1-2.)
F. Stutz's Motion to Strike Larkins' Answer
On Octpber 25, 2011, Stutz filed a motion to strike Larkins' answer
based on her ~.ontinued failure to comply with the April 6, 2009
Stipulated
Injunction, (6 jAA 1190-1200a, 1201-1252, 1284-1390.) The trial court took
the matter under submission, and on March 12, 2012, issued an extended
briefing schedule allowing a surreply and response, (6 AA 1412-1413.)
G. Larkins' Motion to Modify or Dissolve the Stipulated Permanent
Injunction
While ~tutz' s motion to strike Larkins' answer was pending in the trial
court, Larkins] filed a Motion to Dissolve or Modify the April 6, 2009
Stipulated Injunction, (5 AA 1045-1079.) Stutz opposed on both
substantive
and procedura~ grounds under Code of Civil Procedure section 533 as
invalid
and without substantive merit. (5 AA 1080-1130.)
On Ma~ 30, 2012, the trial court issued a minute order which included
the denial of'Larkins' Motion to Modify or Dissolve the Stipulated
Permanent
Injunction. d AA 1467-1468.) Specifically, the trial court stated, "The
Motion of Defendant Maura Larkins to Modify the Injunction is
DENIED.
(Code Civ. Prqc. § 533)". (7 AA 1468.)
H. The Court Defers Striking Larkins' Answer And Allows Further
Briefing Regarding Compliance
Also on May 30,.2012, the trial court found, "defendant continues to
post statements on her websites that violate the parties' original
stipulated
injunction." (7 AA 1466-1469.) The trial court identified the offending
statements. (7 AA 1466-1467.) The trial court stated that "[a]lthough the
statements change on defendant's web sites, the results are the same.
Defendant continues to willfully violate the stipulated injunction.
Defendant
does not assert, nor has she ever argued that her publications do not
violate the
original stipulated injunction. The Court of Appeal noted the same.
(Court of
Appeal decision, p. 21 ["On appeal, Larkins does not challenge the trial
court's
finding that she failed to comply with the April 6 stipulated injunction,
or the
court's August 7 order enforcing the stipulated injunction."])" (7 AA
1467.)
The trial court then indicated that it would sanction Larkins: "On the
Court's OSC Re: Sanctions, and as directed by the Court of Appeal, the
Court
exercises its discretion to punish defendant for her failure to comply
with the
original April 6, 2009 stipulated injunction and her failure to comply with
subsequent Court Orders. (See August 7, 2009, October 30, 2009 and
December 11, 2009). This ruling applies to the parties original stipulated
injunction, and the Court's ruling herein that [defendant] continues to
violate
the original stipulated injunction." (7 AA 1468.)
The trial court's May 30,2012 Minute Orderrequested further briefing
from the parties regarding Larkins' post-order compliance with the
original
Stipulated Injunction. (7 AA 1467-1468.) This forty-five (45) day window
of
opportunity was presumably given to Larkins by the court to allow time
to
bring the website into compliance and avoid further penalty for violation
of the
Stipulated Injunction. (7 AA 1467-1468.)
8
PAGE 9
I. Larkins' Motion For Reconsideration Of The Denial Of Her
Motion To Modify Or Dissolve The Injunction
Larkins, instead of bringing her website into compliance, filed an
interim motion for reconsideration of the May 30, 2012 order (7 AA 1470-
1489), and three unsuccessful ex parte applications. ,(7 AA 1490-1503
(first
ex parte motion to stay); 7 AA 1504 (minute order denying first ex parte
motion); 7 AA 1513-1528 (second ex parte motion to stay); 7 AA 1529
(minute order denying to reconsider first ex parte motion and denying
second
ex parte motion); 7 AA1531-1569 (third ex parte motion).) Larkins also
filed
an extraordinary writ for alternative review or prohibition with this Court,
which was denied without comment. (8 AA 1827-1878.)
On June 6, 2012 Larkins filed a timely, but procedurally improper
motionfor reconsideration. (7 AA 1470-1489.) The motion, made under
Code Civ. Proc. section 1008, failed to include an affidavit as required by
subdivision (a), and lacked information required to be included by
statute.
(7 AA 1483-1484.) Again, even considering her motion on the-merits, it
failed
to contain reference to any new law or fact upon which the trial court
could
reconsider the May 30, 2012 order. (See 7 AA 1470-1489.)
J. The Trial Court Strikes Larkins' Answer, And Larkins Appeals
the Order Denying Dissolution or Modification of the Injunction.
Despite repeated warnings from the trial court, after May 30, 2012,
Larkins failed to take any action to comply with the trial court's order to
bring
her web sites into compliance with the April 6, 2009 Stipulated
Injunction.
(8 AA 1618-1703.) Accordingly, Stutz filed its brief regarding the status
of
Larkins' website. (6 AA 1390.)
After considering the further briefing from both parties regarding
Larkins' compliance with the Stipulated Injunction, the trial court granted
PAGE 10
Stutz's motion, and ordered Larkins' answer struck on August 10, 2012.
(9 AA 2034-2040.) To that end, the trial court found "Defendant [Larkins]
failed to comply with the Court's Orders of August 7, 2009 and March 10,
2010 as it applies to the parties' original Stipulated Injunction." (9 AA
2037.)
The trial court also found "Defendant [Larkins1has continued to publish
and
republish statements in violation of'the April 6, 2009 Stipulated
Injunction [...]
as late as June 5, 2012 and July 5, 2012." (9 AA2038.) Stutz waived
payment
of sanctions. (9 AA 2037-2038.)
On September 4, 2012, Larkins appealed from the Minute Order
denying her motion to modify or dissolve the stipulated injunction,
which, was
entered on May 30, 2012 by the trial court.' (10 AA 2367.)
K. Default Prove-Up, and the Instant Appeal the Injunction.
Following the trial court's striking of Larkins , answer, Stutz provided
the court with a prove-up brief on damages and requested an entry of
judgment
on its complaint. (11 AA 2385-2390.) On January 29, 2013, as a result of
striking Larkins' answer, the trial court entered final default judgment
against
Larkins. (12 A.A 2562.)
In response, Larkins moved the trial court under Code of Civil
Procedure section 473 to set aside the default (which was a judgment at
that
point) and under Civil Code section 3424, subdivision (a) as well as
Code of
Civil Procedure section 533, to dissolve the injunction. (12 AA
2672-2673.)
After briefing from both sides, on March 6, 2013, the trial court issued an
order denying Larkins' motion in full. (Id.)
After the notice of this appeal and the Appellant's Opening Brief
were filed, Larkins also filed this appeal from the final judgment in the
case.
Stutz's motion to consolidate the two appeals was denied by this Court
on
May 2,2013.
< < < page 11
The trial court had no
jurisdiction to throw
out Defendant's
Answer and grant
Default since the
Answer had already
been adjudicated.
The March 10, 2010
sanction was based on
the Dec. 11, 2009 modified
injunction that was found
to be unconstitutional.
The trial court, however,
has made no attempt to
reverse the
unconstitutional harm it
inflicted on Appellant.
< < < In fact, an
Answer has already
been adjudicated.
Any new Answer
would be moot.
page 20
1. A Knowing Waiver Of Constitutional Rights Is Valid
Nothing in the Stipulated Injunction is a waiver of protected First
.Amendment speech, as no person has a privilege to defame another. However,
"it is possible to waive even First Amendment free speech rights by contract."
(ITT Telecom Products Corp. v. Dooley (1989) 214 Cal.App.3d 307, 319;
accord, Charter Communications, Inc. v. County of Santa Cruz (9th Cir. 2002)
304 F.3d 927, 935, fn. 9.)
It is a strained analysis at best to construe the stipulated injunction, the admonishments to
Larkins, and her prior lawsuits for defamation, as anything but a knowing waiver. (See
Sanchez v. County of San Bernardino (2009)
176 Cal.AppAth 516, 528 (the court could see no' way to construe the
confidentiality provision except as a waiver of whatever rights the County had
to disclose the circumstances of Sanchez's resignation).)
2. The Stipulated Permanent Injunction Was Mutually Agreed
Upon And Discussed On the Record With Judge Hayes
Larkins states that she does not understand the injunction or its terms,
a statement contradicted by the record. (1 RT 91-94.) During the April 6,
2009 hearing on the stipulated injunction, defendant was admonished by the
Court as rights she was giving up. (l RT 91-94.)
Pursuant to standard settlement procedure the trial court clearly
questioned Larkins regarding the terms of the stipulation, her understanding,
rights, and ability to seek counsel. (l RT 91-94; 5 AA 1083-1084.) Larkins
stated that she understood the stipulated agreements terms and agreed to be
bound thereby. (Id.) Larkins further clearly waived the right to seek counsel
and stated she wished to continue in propria persona on the record, before the
Court signed the stipulated permanent injunction. (Id.)
Larkins continues to claim extrinsic fraud was committed against her by Plaintiffs and the
Court; this claim is patently untrue.
The stipulated
injunction was reached as a partial settlement, in order for the defendant to
avoid a jury trial on the only remaining issue of damages that day, as liability
had been determined by summary adjudication. Larkins agreed to the
injunction in order to avoid the risks of proceeding on that issue.
3. This Court's Prior Ruling Indicated The Injunction Was
Valid, And The Trial Court Could Coerce Defendant's
Compliance
The Court of Appeal in its decision on August 5, 2011, did not hold the
April 6, 2009 stipulated injunction unconstitutional, and specifically noted it was not
subject to appeal. (See 5AA 1041.) > > >
Rather, the appellate court struck the language expanding the scope of the stipulated
injunction ordered on December 11, 2009. (Id.) This Court specifically stated that on remand,
the trial court may consider whether to exercise its statutory and inherent authority to
coerce compliance with the April 6, 2009 order. (Id.) > > >
The April 6, 2009 injunction remains in effect, and was not touched
upon by the Court of Appeal in its decision. In fact, contrary to Larkins
assertions, the this Court's prior decision in favor did not change, rule upon, or effect the
constitutionality of the April 6, 2009 stipulated injunction. (See id.). > > >
Thus, Larkins made no showing of material change with respect to any
circumstance. > > >
V. CONCLUSION
Respectfully, for the foregoing reasons, this court should affirm the
default judgment and order denying Larkins' motion to set aside default and dissolve
injunction.
DATED: December 9, 2013
[signed]
James F. Holtz
PAGE 11
As to the motion to set aside the default judgment, the trial court
explained that Larkins was required to show that judgment had been entered
as a result of "her mistake, inadvertence, surprise, or excusable neglect."
(12 AA 2672.) Addressing Larkins' failure to meet this burden, the trial court
noted that it was "Defendant's willful and deliberate acts, which resulted in the
Court striking the Defendant's answer as a sanction." (Jd.) In finding that the
default was not "through [Defendant's] mistake, inadvertence, surprise, or
excusable neglect," the trial court referenced Larkins' history of continued
willful and deliberate violations of the April 6, 2009 stipulated injunction.
(Jd.) Specifically, the trial court referenced its efforts through the March 10,
2010 monetary sanction and admonishment to place Larkins on notice that
'" ...the Court will be forced to strike [her] answer and take her default. '" (Jd.)
Lastly, the trial court concluded that "[e]ven if Defendant had demonstrated
mistake, inadvertence, surprise, or excusable neglect, [her] motion was not
'accompanied by a copy of the answer or other pleading proposed to be filed. '" > > >
(Jd.)
In denying the motion to dissolve the injunction, the trial court found
that Larkins had "failed to establish changes in material facts or law upon
which the injunctionwas granted." (12 AA 2672.) Moreover, Larkins did not
"establish how the ends of justice would be served by the dissolution of the
injunction." (Jd.)
On March 28, 2013, Larkins noticed the instant appeal of the
January 29,2013 final default judgment and the March 6, 2013 denial of her
motion to set aside default and dissolve injunction. (12 AA 2674.)
III. STANDARD OF REVIEW
A. Limited Review On Appeal of Default Judgment
On appeal, review of a default judgment is limited to questions of jurisdiction; sufficiency of
the pleadings and excessive damages. > > >
(Corona v.Lundigan (1984) 158 Cal.App.3d764, 766-767.)
The trial court's ruling on
a discretionary motion for relief is not disturbed absent a clear showing of
abuse. (State Farm Fire & Cas. Co. v. Pietak (2001) 90 Cal. App. 4th 600,
610.)
B. Limited Review On Appeal From Order Denying Motion to Dissolve Injunction
On appeal from an order refusing to dissolve an injunction, appellate
review is limited to issues newly arising. from the motion to dissolve the
injunction and does not extend to issues that could have been raised on appeal
from the injunction itself. (Malatka v. Helm (2010) 188 Cal.AppAth 1074,
1081-1084; The Rutter Group, Cal. Prac. Guide Civ. App. & Writs Ch. 2-B
~2:103.1.)
C. Abuse of Discretion Standard
The abuse of discretion standard applies to whether to grant or deny a
permanent injunction. (Horsford v. Board of Trustees of Calif. State Univ.
(2005) l32 Cal.AppAth 359, 390.) And similarly, to a trial court's decision
regarding whether to dissolve a permanent injunction. (North BeverlyPark
Homeowners Ass'n v. Bisno (2007) 147 Cal.AppAth 762, 776.) Abuse of
discretion standard also applied to a trial court's ruling on a discretionary
motion for relief. (State Farm Fire & Cas. Co. v. Pietak (2001) 90 Cal. App.
4th 600,610.)
Under the "abuse of discretion" standard of review, appellate courts
will disturb discretionary trial court rulings only upon a showing of "a clear
PAGE 12
case of abuse" and "a miscarriage of justice." (Blank v. Kirwan (1985)
39 Ca1.3d311, 331 ("Blank"); Denham v. Super. Ct. (Marsh & Kidder) (1970)
2 Ca1.3d 557, 566 ("Denham ").) On appeals challenging discretionary trial
court rulings, it is appellant's burden to establish an abuse of discretion.
(Blank v. Kirwan, supra, 39 Ca1.3d at 331; Denham, supra, 2 Ca1.3d at 566.)
The "abuse of discretion" standard is not met simply by arguing a
different ruling would have been "better." Discretion is "abused" only when,
in its exercise, the trial court "exceeds the bounds of reason, all of the
circumstances before it being considered." (Denham, supra, 2 Ca1.3d at 566
(internal quotes and citation omitted); Walker v. Super. Ct. (Residential
Construction Enterprises) (1991) 53 Ca1.3d 257,272,279.)
D. Constitutional Issues Should Be Considered Only If Absolutely
Necessary And There Are No Other Dispositive Grounds
Constitutional issues ordinarily will be resolved on appeal only if
"absolutely necessary" arid not if the case can be decided on any other ground. > > >
(Palermo v. Stockton Theatres, Inc. (1948) 32 Ca1.2d 53,65; Kollander Const.,
Inc. v. Super. Ct. (Alvarez) (2002) 98 Cal.App.dth 304,314 (disapproved on
other grounds inLe Francois v. Goel (2005) 35 Ca1.4th 1094, 1107, fn. 5 ("We
are constrained to avoid constitutional questions where other grounds are
available and dispositive").)
IV. ARGUMENTS
A. Larkins Stipulated To An Injunction Against Specific Types Of
Defamation To Avoid A Jury Trial On Damages
The Court record shows that Larkins agreed to refrain from publishing
certain statements about Plaintiff on April 6, 2009, over four years ago, as the
Court was waiting to bring up a jury for trial for damages. (1 RT 85; 6 AA
1287.) A Motion for Summary Adjudication on defamation had already been
PAGE 14
granted. (2 AA.401;6 AA 1287; 1 RT 6-14.) Larkins stated on the record,
under questioning by the Court, that she understood and agreed with the terms
of the injunction. (1 RT 91-92.)
Larkins now claims that the Court's interpretation of the injunction was
unconstitutionally broad in violation of her First Amendment right to free
speech. As stated in the People ex rel Bill Lockyer v. RJ Reynolds Tobacco
Company (2004) 116 Cal.App.4th 1f53, "Reynolds's contention that the
sanction award improperly punished Reynolds's First Amendment
communication with adult smokers is also unpersuasive. Reynolds was
sanctioned not for its constitutionally protected communication with adult
smokers but instead for its violation of MSA [settlement agreement],
subsection IH(a) by targeting youth in its tobacco advertising." (Jd. at 1288.)
Here, Larkins is subject to sanctions not for protected First Amendment
speech, but rather has continued making libelous statements in violation of a
court order to which she stipulated.
In this case, the stipulated injunction enjoined and restrained Larkins
from "continuing to publish or republishing by any method or media, including
but not limited to all electronic data,' websites and webpages, the defamatory
statements alleged in Plaintiffs 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
violations of law, unethical conduct,lack of professional competence or
intimidation." (2 AA 467-468.)
All of the statements set forth above violate the stipulated injunction
and are libelous. Libel is a false and unprivileged publication by writing,
printing, picture, effigy, or other fixed representation to the eye, which exposes
any person to hatred, contempt, ridicule, or obloquy, or which causes him to
page 15
be shunned or avoided, or which has a tendency to injure him in his
occupation. (Civil Code, § 45 (emphasis added).)
Charges of unethical conduct against attorney may constitute actionable
defamation. (Katz v. Rosen (1975) 48 Cal.App.3d 1032, 1036.) A fair
construction of Civil Code section 46 requires a holding that calling an
attorney a "crook" is equally actionable as slander per se without proof of
special damage. (Albertini v. Schaefer (1979) 97 Ca1.App.3d 822.) Imputing
dishonesty or lack of ethics to an attorney is also actionable under Civil Code
section 46 because of the probability of damage to professional reputation.
(Albertini, supra, 97 Ca1.App.3d at pp. 829-830; citing Katz, supra, 48
CaLApp.3d 1032.) A newspaper publication, involving a cartoon and
imputing hypocrisy and habitual alteration of records by plaintiff, an attorney
at law, was held to be libelous per se. (Newby v. Times-Mirror Co. (1920) 46
Ca1.App. 110, 131.) An attorney must not threaten to present criminal,
administrative, or disciplinary charges to obtain an advantage in a civil dispute.
(Rules of Professional Conduct, Rule 5-1OO(A).)
The statements made against
Plaintiff allege unprofessional conduct and are therefore libelous.
This Court of Appeal previously stated: "On appeal, Larkins does not
challenge the trial court's finding that she failed to comply with the April 6th
stipulated injunction or the Court's August 7 order enforcing the stipulated
injunction. On remand, the trial court may consider whether to exercise its
statutory and inherent authority to coerce compliance with the April 6 or
August 7 orders and/or to punish Larkins for her failure to comply with said
orders in a manner consistent with the law and the views expressed in this
opinion." (7 AA 1468.)
The trial court did not abuse its discretion when it refused to modify or
dissolve the stipulated injunction. Rather, it evaluated Larkins' lack of
PAGE 16
compliance with the injunction, and the lack of new law or facts which would
warrant modification or dissolution. Based on Larkins history of refusing to
obey court orders,and the status ofthe website at the time, the trial court was
well within its discretion to refuse her request under Code Civ. Proc.
section 533.
B. The Trial Court Correctly Denied Setting The Aside the Default
Judgment Because Larkins' Continuing Violation of the Stipulation
Was Not Mistake, Inadvertence; Surprise or Excusable Neglect.
Courts have affirmed the denial of relief under section 473, subdivision
(b), where intentional misconduct was found to be responsible,at least in part,
for a dismissal or entry of default j udgment. For instance, in Lang v. Hochman
(2000)77 Cal.App.4th 1225 (Lang), the trial court imposed terminating
sanction after numerous violations of discovery orders. (See Id. at 1239-1240.)
Specifically, the trial court found that the attorneys and the client "'willfully,
intentionally, violated the discovery laws, the orders of this Court, [and] the
recommendations ...", of another judge. (Id. at 1241.) On appeal,the appellate
court reasoned that "a party can rely on the mandatory provision of section 473
only if the party is totally innocent of any wrongdoing and the attorney was the
sole cause of the default or dismissal." (Id. at 1248.) Finding substantial
evidence to support the trial court's determination that shared misconduct
caused the default judgment, the court affirmed the denial of mandatory relief
under section 473, subdivision (b). (Id. at 1252.)
In the instant case, Larkins, who has been acting in pro per throughout
these proceedings cannot rely on the mistake, inadvertence surprise, or
excusable neglect of her counsel. All of the occasions of misconduct relied on
by the trial court in imposing terminating sanctions and entering default
judgment were committed by Larkins.
17
As in Lang, the trial court found Larkins' intentional misconduct was
responsible for the resulting striking of her answer and entry of default
judgment. Therefore, section 473 cannot afford her relief.
On more than one occasion Larkins filed lengthy, irrelevant, and procedurally defective
pleadings. > > >
(12 AA 2672-2673.) Larkins failed to remove- and continues to publish- ..
statements that violate the April 6, 2009 stipulated injunction and the trial
court's orders. Accordingly, the trial court appropriately exercised its discretion
to strike Larkins' Answer, and enter default judgment in favor of Stutz.
Moreover, section 473 requires that the moving party's proposed answer
accompany the application for relief. (Code Civ. Proc.,§ 473(b ).) To this date,
Larkins has not filed a proposed answer. > > >
On this basis alone, the trial court's denial of Larkins ' motion to set aside the default under
section 473 was correct.
In short, Larkins has not demonstrated any abuse of discretion by the trial court,
and therefore the judgment should be affirmed.
C. Larkins Motion To Modify Or Dissolve The Original Stipulated
Injunction Presented No New Law Or Facts Under Code Civ. Proc.
§ 533 And The Time To Appeal The Original Order Has Expired
Larkins is correct that an appeal may be taken from an order granting
or dissolving an injunction, or refusing to grant or dissolve an injunction.
(Code Civ. Proc., § 904.1 (a)(6).) That said, however, on appeal from an order
refusing to dissolve an injunction, appellate review is limited to issues newly
arising from the motion to dissolve the injunction and does not extend to issues
that could have been raised on appeal from the injunction itself. (Malatka v.
Helm (2010) 188 Cal.App.4th 1074, 1081-1084 ("Malatka").)
In Malatka, the plaintiff obtained a restraining order against a neighbor,...(Malatka, supra, 188
Cal.App.4th at 1079-1081.) The neighbor did not appeal, but later moved to modify the order.
(Ibid.) The court modified the
PAGE 18
order, allowing the neighbor to get within 10 rather than 25 feet of the
plaintiff. (Ibid) The neighbor appealed. (Ibid.) "[T]o prevent both
circumvention of time limits for appealing and duplicative appeals from
essentially the same ruling ... on an appeal from an appealable ruling, an
appellate court will not review earlier appealable rulings." (Id. at 1082.)
Thus, courts have allowed an appeal of a modification of an injunction,
but only insofar as it raises issues that could not have been raised in an earlier
appeal. (Id at 1083.) For example, in Chico Feminist Women's Health Center
v. Scully (1989) 208 Cal.App.3d 230 ("Chico"), the appellants sought to
challenge not only the modifications. of the injunction, but the unmodified
parts of the injunction as well. The court concluded, "We perceive no reason
why defendants should be able to use the order of April 25, amending the
injunction, as an artificial springboard from which to launch an appeal that
could have been taken earlier."(Id at 251.)
Similarly, in Malatka, the defendant asserted that an order refusing to
dissolve an injunction is appealable. The court there rejected the obvious
subterfuge, explaining: "Without conflating restrictions on appealability and
reviewability, we conclude that, to the extent the current appeal from an order
implicitly refusing to dissolve a restraining order presents issues that could
have been raised in an appeal from the original restraining order, those issues
are not reviewable in this appeal. On the other hand, to the extent the motion
to dissolve was dependent on new facts and law, such issues are reviewable."
(Malatka, supra, 188 Cal.AppAth at 1084.)
Larkins presented absolutely no new facts or new law in her motion. As
such, she failed to carry her burden showing that there had been amaterial
change in the facts or law upon which the injunction was granted, or that the
ends of justice would be served by the modification or dissolution of the
injunction, as required. (Code Civ. Proc., § 533.)
Here, unlike Malatka, there is no plausible ground for review because the court did not modify
the injunction. It is the very same injunction Larkins could have appealed almost three years
earlier, but did not.
Larkins, in her motion to the trial court under section 533, failed to identify new facts or law
which would support such a modification, nor were any cited in her subsequent motion under
Code Civ. Proc. section l008(a). > > >
This Court has no discretion to relieve an appellant from the
consequences of delay in filing a notice of appeal. (Chico, supra, 208
Ca1.App.3d at p. 254.) Because appellant did not perfect a timely appeal from
the order granting the original injunction, the court is left without jurisdiction
to review the trial court's original order granting the injunction. (Cal. Rules
of Court, rule 8.104(a), (b); Malatka, supra, 188 Cal.App.4th at 1085-1087.)
D. The Stipulated Injunction Against Defamation Is Constitutional
Because Larkins Knowingly Agreed Not To Defame Stutz And
Agreed To Be So Enjoined
As a preliminary matter, Larkins' citations to cases involving
preliminary and permanent injunctions without agreement by the parties are
unhelpful and inapposite. The California Supreme Court's decision in Balboa
Island Village Inn Inc. (2007) 40 Cal.4th 1141, and this Court's decision in
Evans v. Evans (2008) 162 Cal.App4th 1157, both dealt with injunctions
which were not stipulated to by the parties. Neither case discussed a stipulated
injunction which was agreed upon in front of a judge, in court, with a court
reporter present. In fact, Stutz is not aware of any reported case dealing
squarely with this issue, specifically, in the context of defamation and a
knowing waiver. Generally, however, constitutional rights may be waived.
I. INTRODUCTION
The law firm of Stutz Artiano Shinoff & Holtz, APC ("Stutz") sued
Appellant Maura Larkins for libel based upon statements that Larkins made on
her internet website.
In 2009, the trial court filed a stipulated injunction
prohibiting Larkins from maintaining the defamatory statements on her
website, and barring future publication of statements accusing Stutz and its
lawyers of illegal conduct, violations of law, unethical conduct, lack of
professional competence, or intimidation.
After Larkins failed to comply with the terms of the stipulated injunction, Stutz moved to
sanction Larkins by striking her answer to Stutz's
complaint. In the meantime, Larkins sought to modify the stipulated
injunction, but the trial court denied Larkins' motion. Larkins has appealed
from that order in a separate concurrent appeal.
Pertinent to this appeal, the trial court granted Stutz's motion to strike
her answer, and then entered a default judgment against Larkins. Now, four
years after Larkins made repeated internet publications violating the stipulated
injunction, Larkins claims that the Superior Court's order entering default
judgment was improper.
The trial court, however, did not err. The trial court's order striking the
answer was a viable sanction against Larkins for her willful and deliberate
refusal to comply with the trial court's orders. Larkins' failure to abide by the
terms of the injunction has wasted the trial court's resources, and caused Stutz
to incur unnecessary expenses. The sanction was absolutely warranted under .
the circumstances, and this Court should affirm the default judgment.
Plaintiff and the
court have falsely
accused
Defendant.
The meaning of the April 6, 2009 agreement/stipulated injunction is
obvious: Appellant is not allowed to say that Plaintiff's behavior is
illegal, unethical, intimidating or incompetent. Plaintiff and the trial court
have intentionally twisted and distorted the meaning of this simple
agreement into a bizarre formula which has been used to find that
Defendant violated the injunction because she honestly and factually
reported actions of Plaintiff WHICH PLAINTIFF AND THE TRIAL
COURT FIND TO BE UNETHICAL. To be clear, it is Plainitff and the
trial court, not Defendant, who have repeatedly found Plaintiff's
behavior to be unethical, and that because Plaintiff's behavior is
unethical, Defendant is not allowed to factually report it.
If it weren't so harmful, the case could serve as a source of merriment.
The thinking of Plaintiff and the trial court is shocking in its brazen
unreasonableness.
Plaintiff's Response is remarkable for its deafening silence regarding
major issues, such as whether the trial court can grant a default when a
summary adjudication judgment is in effect, and has been in effect for
four years.
Also, whether a trial court can legally deprive a party of a jury trial by
issuing such a default.
And whether a court can enjoin an infinitely broad swath of political
speech.
Whether a trial court can enjoin statements found to be defamatory by a
technicality of law rather than a jury trial.
Plaintiff seems to be working on the assumption that the Court of
Appeal will ignore Appellant's entire Opening Brief, just as the trial court
ignored Appellant's pleadings.
The injunction prohibited specific statements that had been found by a
technicality of law, NOT BY A TRIAL IN WHICH EVIDENCE WAS
CONSIDERED, to be defamatory.
No case law exists allowing a court to enjoin statements found
defamatory WITHOUT A JURY TRIAL.
The technicality of law was that Appellant had put statements in the
wrong column in her Opposition to Summary Adjudication, and so the
trial judge threw out the Opposition and granted Summary Judgment.
Balboa Island v. Lemen states that only statements found to be
defamatory at a jury trial may be enjoined. The the trial court in the
instant does not have the right to enjoin any statements because there
was no trial.
In Balboa Island, 40 Cal. 4th at 1144 he Court stated in the very first
paragraph: “[W]e hold 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.”
Lest there be any doubt, the Court reiterated:
[P]reventing a person from speaking or publishing something that,
allegedly, would constitute a libel if spoken or published is far different
from issuing a posttrial injunction after a statement that already has
been uttered has been found to constitute defamation. Prohibiting a
person from making a statement or publishing a writing before that
statement is spoken or the writing is published is far different from
prohibiting a defendant from repeating a statement or republishing a
writing that has been determined to be defamatory and, thus, unlawful.
This distinction is hardly novel.
This case is about the public's right to know and discuss the actions of
school officials and their lawyers who keep the electorate ignorant about
what is going on in schools as education takes a back seat to jockeying
for personal power.
The trial court had no jurisdiction to throw out Defendant's Answer
and grant Default since the Answer had already been adjudicated.
Since Defendant's 2007 Answer has already been adjudicated, any new
Answer would be moot.
The damages are excessive. The punitive damages are completely
illegal, and the ???? damages are at the very least $42,999.17 too great.
Plaintiff's own exhibits show a maximum claim would be 86 cents.
Plaintiff states, "During the April 6, 2009 hearing on the stipulated
injunction, Larkins was admonished by the Court as to rights she was
giving up."
The Reporter's Transcript ( RT ), proves that the Court did not say
one single word to Defendant about any rights she was giving up,
Constitutional or otherwise. The judge did not make any effort to clarify
the meaning of the injunction.
Defendant was relying on the respresentations of James Holtz during
negotiations regarding the meaning of the agreement.
The judge said, "We go through this exercise in making sure that
everybody understands what they're doing" but, in fact, the judge did
no such thing.
The judge clearly made no effort to clarify the meaning. She later
decided that it meant that if Maura Larkins reported a simple, true fact
about Stutz, without accusing Stutz of illegal, unethical, intimidating or
incompetent behavior, AND THE JUDGE THEN DETERMINED THAT
STUTZ' BEHAVIOR WAS INDEED ILLEGAL, UNETHICAL, ETC, then
Maura Larkins was in violation of the agreement for having reported it.
The judge has never explained her permanent injunction during the four
and a half years since she issued it, even though Maura Larkins has
asked, in writing and in court, how she is to determine whether or not
she can say something.
For example, Defendant does not believe that "Dan Shinoff trains school
attorneys" is an accusation of unethical behavior. It is simply a true
fact. It is legal and ethical to train school attorneys. It is
incomprehensible that Defendant has been forbidden to make this
statement. It is an outrageous violation of Constitutional Rights, and no
one in his or her right mind would claim that it is a violation of the
injunction.
Dan Shinoff got away with twice refusing to show up for his deposition,
yet Plaintiff likes to point out that Appellant got terminating sanctions
when Dan Shinoff pulled off a dirty trick regarding her deposition date.
Stutz has a history of willful failure to comply with the law, and because
it works with powerful public entities and public officials, it gets away
with it. In fact, Stutz got the court to change the date for the deposition
to a date when it knew Appellant could not attend, AFTER Appellant
had agreed to a date Stutz offered. Stutz is accustomed to getting away
with wrongful actions.
Appellant's former attorney Elizabeth Schulman should have demanded
the Bate-stamped documents that are still missing, and she should have
told the OAH panel that the District had committed crimes, but she
wanted to protect Richard Werlin, with whom she schmoozed during
hearing breaks. She refused to ask him the questions Appellant had
prepared for his deposition and for the hearing. She told Appellant
Werlin had suffered enough by not being promoted to Superintendent,
although why she thought he was a viable candidate is a mystery. She
told me it would hurt me if I told the OAH that Werlin had committed a
crime.
In 2005, Stutz thought that by abusing the court system it could make
the truth go away, but Appellant took her case to the court of public
opinion. She had a huge amount of evidence of wrongdoing by Stutz
and its clients. How can voters know who to vote for when this
information is kept secret? Children were harmed by a power-hungry
group of rogue teachers and administrators. The teacher called
themselves the "Castle Park family".
I removed hundreds of statements. I still have scores of de-published
blog posts that I haven't reposted since the Aug. 5, 2011 Court of
Appeal decision.
Beyond the instant case, which is certainly a good example of the
unnecessary burden that Stutz places on the court system, Stutz has
litigated countless cases for the purpose, as the United States Ninth
Circuit Court of Appeal has noted, of "counsel fees".
RESPONSIBILITY
Stutz sued rather than take responsibility for its actions
Desperately trying to hide the truth about previous cases. I am not
surprised that one of its clients burned documents.
Stutz has history of winning through intimidation and dishonesty, willful
failure to comply with the law, such as showing up for deposition and
producing documents. Stutz encourages clients to commit defamation
rather than take responsibility for their actions.
"Larkins could not accept
personal responsibility for her acts which led to her termination"
Respondent does not mention what those "acts" might be, but clearly
states that Appellant did something that caused her termination. In
most terminations, this would be true, so it's understandable that Stutz
would think it could make this statement without contradiction.
In fact, Appellant was the target of a group of teachers hostile to
bilingual education, who managed to get two out of a total of four
bilingual teacher fired in a period of six years. The ringleaders of the
group committed criminal acts as part of a campaign of harassment
against Defendant, and a rogue administration asked Stutz to protect the
wrongdoers. The asst. supt of human resources caused an even worse
fiasco in West Contra Costa District, and is now unemployable as a
school administrator. He now works in interior design. But the board
members who approved his actions remained in office since few
members of the voting public were aware of how they supported
destructive and illegal shenanigans by employees that harmed students
directly by giving them a string of substitute teachers during their
critical final semester of transition to English-only instruction, and
indirectly by wasting district funds.
11 principals in 11 years
Well, maybe it would help if Stutz would produce the documents
prepared by CVESD employees about those events. Why has Stutz
been hiding those documents for ten years?
Stutz must have been very confident when it sued that it could avoid
producing documents and being deposed and having a jury trial. How
could it have been so confident that Judge Hayes would ignore the
basic tenets of justice, and even the Constitution, on Stutz' behalf?
Stutz seems to possess extrasensory perception. Surely it didn't have
any interactions with Judge Hayes outside the courtroom regarding this
case.
I most certainly did accept responsibility for the two action that led to
my termination: I refused to go to work, and I sued the district.
Stutz is clearly trying to imply that there was some justification for the
illegal acts of a group of teachers at my school who ended up being
transferred out of the school because of their extreme aggressiveness
and hostility. But it is telling that for ten years Stutz has refused to
produce documents prepared by teachers and administrators involved in
illegal actions against Appellant.
In fact, I was fired over a year after I refused to go back to work until the
district conducted an investigation into the harassment and accusations
against me. No investigation was ever completed, although Dan Shinoff
did initiate an investigation. However, Mr. Shinoff's investigation ended
with no findings and no report, and half of the Bate-stamped documents
he collected missing.
It should be noted that I was fired right after I filed suit against the
district. It is illegal, of course, to fire an employee for filing a lawsuit, but
apparently Dan Shinoff does not admonish school districts to worry
about such things.
I was shocked to learn that the District would support illegal actions
and hire attorneys to cover them up. I witnessed abusive actions by
Stutz law firm, but it wasn't long before I became aware that other
education attorneys were also being paid large amounts of taxpayer
money to conceal wrongdoing in other school districts. I worked to
inform the public of what was going on. My concern was for the public
good, particularly the good of children, not Mr. Shinoff personally.
The instant case contains a large number of instances of abuse of
discretion
Under the "abuse of discretion" standard of review, appellate courts
will disturb discretionary trial court rulings only upon a showing of "a
clear case of abuse" and "a miscarriage of justice." (Blank v. Kirwan
(1985) 39 Ca1.3d311, 331 ("Blank"); Denham v. Super. Ct. (Marsh &
Kidder) (1970) 2 Ca1.3d 557, 566 ("Denham ").) On appeals challenging
discretionary trial court rulings, it is appellant's burden to establish an
abuse of discretion. (Blank v. Kirwan, supra, 39 Ca1.3d at 331; Denham,
supra, 2 Ca1.3d at 566.)
The "abuse of discretion" standard is not met simply by arguing a
different ruling would have been "better." Discretion is "abused" only
when, in its exercise, the trial court "exceeds the bounds of reason, all of
the circumstances before it being considered." (Denham, supra, 2 Ca1.3d
at 566 (internal quotes and citation omitted); Walker v. Super. Ct.
(Residential Construction Enterprises) (1991) 53 Ca1.3d 257,272,279.)
It is indeed absolutely necessary to resolve Constitutional issues in this
case since the injunction is permanent. Assuming that the Court of
Appeal throws out the Default, the injunction itself must be addressed.
Plaintiff's statement about lengthy and irrelevant pleadings is false. It
appears that Plaintiff copied this line out of Del Junco v. Hufnagel
without regard to the actual facts of the instant case.
Plaintiff has been unable to name a single pleading filed by Maura
Larkins that was lengthy or irrelevant.
In fact, the smallest procedural error by Defendant has been used
abusively by the court to justify unconscionable denials of
Constitutional rights.
Plaintiff, on the other hand, has failed to timely serve Defendant on
multiple occasions, has filed false declarations, has abused the
discovery process, and has made bizarre and convoluted arguments to
justify its demands that Defendant's Constitutional rights be violated by
the Superior Court.
Plaintiff is pretending that the record does not contain Plaintiff's own
repeated arguments that Defendant may not report TRUE, simple facts
IF IT HAPPENS THAT THOSE FACTS SHOW THAT PLAINTIFF
BEHAVED UNETHICALLY. PLAINTIFF CLAIMS THAT IT DID
BEHAVE UNETHICALLY IN THE Dr. B. J. Freeman case. Defendant
merely reported the facts (and has asked the court for judicial notice of
the documents in the Vista Unified School District v. B.J. Freeman case
(IX AA 1880-1927).
"The statements made against Plaintiff allege unprofessional conduct
and are therefore libelous."
In fact, they are only libelous if they're untrue. But statements that
merely state facts without the opinion that the facts demonstrate lack of
ethics, etc. are neither libelous nor are they violations of the agreement
as written.
Plaintiff and the trial court argue that Defendant may not report the
simple, unvarnished truth in those cases, apparently legion, in which
Plaintiff and the court find that Plaintiff actually behaved unethically.
It is Plaintiff and the trial court, not Defendant, who have stated that
Plaintiff's actions were unethical, even when those actions consisted
merely of training school attorneys. Plaintiff's pleadings in this case,
and the trial court's decisions, are bizarre in the extreme.
This was all covered in Appellant's Opening Brief.
This Response has few references to the record, and those it has are
largely misrepresentations or completely irrelevant. It is largely a
narrative without documentation or legal significance.
page 20
1. A Knowing Waiver Of Rights Is Valid only if there is due process--as
Mr. Holtz' co-counsel in this case knows full well--see AOB--and not
always then. Would the trial court be allowed to execute me if I
knowingly waived my right against cruel and unusual punishment?
I did not, knowingly or otherwise, sign a waiver of my right to discuss
Plaintiff's actions. The only thing I agreed not to say was my opinion
that Plaintiff's behavior is unethical, illegal, intimidating or incompetent.
But the court has no right to issue a prior restraint injunction to this
effect. I believe it would have been legal as an agreement between two
parties if it had not been achieved by fraud, but the injunction is
unconstitutional. Obviously, there was no due process since the court
threw out Appellant's Opposition and Evidence for the summary
adjudication.
The Sanchez v. County of San Bernardino (2009) reference is inappropo
as it discusses "whatever rights" the party had to disclose a specific
piece of information discussed in an agreement, not the permanent
gagging of a citizen by an infinitely broad injunction against political
speech.
The meaning of the injunction is obvious: Appellant is not allowed to
say that Plaintiff's behavior is illegal, unethical, intimidating or
incompetent.
I perfectly well understood the agreement. Plainitff has pretended that
the agreement means something other than what it says, and something
other than what Plaintiff discussed and agreed to.
If "standard settlement procedure" had been followed, the meaning of
the agreement would have been discussed.
To his credit, in his response Mr. Holtz does not deny that he personally
assured me during negotiations that our agreement would allow me to
report any and all facts, as, indeed, it does.
Plaintiff implicitly admits to having committed extrinsic fraud, but simply
can't break an old habit of plying the court with words to the contrary.
Quite a few public officials have been actively supporting his law firm in
this case, and will be sorely disappointed if Plaintiff fails to shut down
my website and every other avenue of public speech that I have,
including any oral discussion of the actions of Plaintiff and its clients.
The April 6, 2009 agreement states that Defendant (yes, that's what it
says) 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)
Here is the introductory section of the injunction of the April 6, 2009
order:
“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)
In fact, the injunction contains a glaringly false statement by the court,
to the effect that it had "considered the moving papers and evidence
therein, and all other records, pleadings and files contained herein when,
in fact, the court had thrown out Defendant's opposition and all
defendant's evidence.
The casual manner in which Plaintiff sought and obtained the
cooperation of the trial court in violating Defendant's constitutional
rights is astounding. Even the date is wrong (February 6, 2009 instead
of April 6, 2009). Very little effort seems to have been expended by
Plaintiff during this litigation. Both Plaintiff and the trial judge appear to
have assumed that a third-grade teacher, whom Plaintiff had deprived of
a full pension and health care benefits, would not have the resources to
bring this case to the attention of the Court of Appeal.
If Plaintiff had given much thought to this case as it began to take
shape in 2001, it would have told its public entity client to apologize to
Defendant, and transfer the ringleaders of the teacher clique that had
committed crimes against Defendant out of their small elementary
school. Instead, the clique went further out of control after Defendant
had left, and five members were transferred out of the school in 2005.
But by that time the school had been virtually destroyed, with a $20,000
PTA embezzlement and large numbers of students who had voted with
their feet for any other school they could get to. The district always
admitted that Defendant was a fine teacher. Shamefully, the policy of
Superintendent Libia Gil and Assistant Superintendent Richard Werlin
was to rely on teacher cliques to control schools so that the top brass
could relax at the district office, and Plaintiff's policy was to support
school officials rather than to admonish them for illegal actions.
Appellant has since repeatedly requested the jury trial to which she is
entitled. Plaintiff has consistently sought to avoid the risks of a jury
trial since April 6, 2009 when it entered into a fraudulent agreement with
Defendant in order not only to permanently avoid jury trial, but also to
create a tool that the court would use to violate Appellant's rights to free
speech, due process and equal access to the law.
The court's prior ruling did NOT indicate that the April 6, 2009 injunction
was valid, only that it had not been challenged in that appeal.
Respondent states, "The Court of Appeal in its decision on August 5,
2011, did not hold the April 6, 2009 stipulated injunction
unconstitutional, and specifically noted it was not subject to appeal.
(See 5AA 1041.)"
The April 6, 2009 injunction was not addressed in the decision of Aug.
5, 2011 because Appellant did not ask the Court of Appeal to consider it.
This bizarre, unreasonable new meaning should have been clarified. No
reasonable person would ever have thought that the agreement forbade
Appellant from saying, "Dan Shinoff trains school attorneys" or
"DEVANEY WAS THE NUMBER 2 OFFICIAL IN THE OFFICE OF CITY
ATTORNEY until Mike Aguirre took office." And certainly no
reasonable person would think that Leslie Devaney is not a public figure.
"may consider whether to exercise its statutory and inherent authority to
coerce compliance"
Exactly. But clearly, the trial judge was on autopilot, and seems to have
ignored the Court of Appeal's suggestion that she give the matter some
consideration.
The Aug. 5, 2011 decision made clear that Plaintiff and the trial judge
either did not understand the constitution, or had wilfully ignored it.
The Court of Appeal ruled that the trial court had abused its discretion.
The Court of Appeal can be assumed to have expected that the trial
court would have felt somewhat chastened by the decision. Clearly, this
was not the case. The trial court has continued to thumb its nose at the
Constitution.
The new circumstances in this case are that the trial court has abused
its authority in several instances since the August 5, 2011 decision of
the Court of Appeal.
Enormous changes have occurred in the past three years. The
injunction has been misinterpreted and abused by Plaintiff and the Court
to achieve outcomes that could not have been conceived of three years
ago when there was still reason to expect that the trial court would
clarify its permanent injunction.
From the day this case was filed, its purpose has been to misuse the
legal system to remove true reports about public entities from public
forums. The purpose has been to deny the benefits of the First
Amendment to the students, teachers, voters and taxpayers of San
Diego and elsewhere.
People v. Castillo says a trial court can always reconsider
In People v. Castello (1998) 65 Cal.App.4th 1242, 1248, this court
addressed the inherent powers of a court to correct erroneous rulings,
noting: "A court's inherent powers are wide. [Citations.] They include
authority to rehear or reconsider rulings: '[T] he power to grant
rehearings is inherent,—is an essential ingredient of jurisdiction, and
ends only with the loss of jurisdiction.' [Citations.]" (Accord, Bernstein
v. Consolidated American Ins. Co. (1995) 37 Cal.App.4th 763, 774 [court
has complete power before entry of judgment to correct its own
erroneous rulings and may change conclusions of law or findings of
fact].)
PAGE 3
and all of the individual district employee defendants and costs were awarded.
(6 AA 1386-1388.) She dismissed the remaining claims. (6 AA 1390.)
From the foregoing, it is apparent that because
Larkins could not accept personal responsibility for her acts which led to her
termination, she repeatedly attempted to sue the school district, her superiors
and co-employees, and repeatedly lost. (6 AA 1287.)
By 2005, she had turned her attention to the
Stutz firm because they represented the school district. (6 AA 1287.) Because
Daniel Shinoff was the. firm member in charge of the school team, she began
directing her ire towards him personally and other firm attorneys with whom
she had contact. (6 AA 1287.)
B. The Complaint And Summary Adjudication
On October 5, 2007, Stutz filed its complaint with the Superior Court
of San Diego County alleging damages fordefamation by Larkins and seeking
punitive damages. (l AA 1-9.) On October 24, 2008, Stutz filed a motion for
summary adjudication. (l AA 155 - 2 AA 268.) On March 26,2009, the trial
court granted Stutz's motion finding that certain statements on Larkins'
website were defamatory. (2 AA 401.)
C. The April 6, 2009 Stipulated Permanent Injunction
Larkins, in order to avoid a jury trial that day on the issue of damages
engaged in negotiations with Stutz. (l RT 89-91.) The parties stipulated to the
Court issuing a permanent injunction with agreed upon terms. (l RT 91-93.)
On April 6, 2009, the trial court issued an Order on a Stipulated Permanent
Injunction (the "Stipulated Injunction") which enjoined and restrained Larkins
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
PAGE 4
lawyers past or present, and future publication of statements
with regard to Plaintiff and its lawyers accusing illegal conduct
or violations of law, unethical conduct, lack of professional
competence or intimidation:
(2 AA 467-468.)
During the April 6, 2009 hearing on the stipulated injunction, Larkins
was admonished by the Court as to rights she was giving up. > > >
I HAVE BEFORE ME A DOCUMENT
ENTITLED, "ORDER ON PERMANENT
INJUNCTION." IT HAS BEEN
SUBMITTED TO THE COURT FOR MY
SIGNATURE. IT IS MY
UNDERSTANDING THAT THE
PARTIES AGREE ON THIS. IS THAT
CORRECT, COUNSEL?
YES, YOUR HONOR. THIS IS A
S TIPULA TED PERMANENT
INJUNCTION.
DID YOU READ IT?
YES I DID.
DID YOU UNDERSTAND IT?
YES, I DID.
DO YOU HAVE ANY QUESTIONS
ABOUT ANYTHING?
NO, I DON'T.
HAVE YOU HAD ENOUGH TIME TO
LOOK AT THIS?
OH, YES.
YOU UNDERSTAND IF YOU
WANTED YOU COULD GO TAKE IT
TO A LAWYER, BUT YOU'VE
CHOSEN TO REPRESENT YOURSELF.
IS THAT WHAT YOU WANT TO
CONTINUE TO DO?
YES.
(l RT91-94.)
The following exchange occurred:
THE COURT: OKAY. IS THIS AGREEABLE TO YOU?
IT MOST CERTAINLY IS.
IS THIS WHAT YOU WANT TO DO?
THIS IS WHA T I WANT TO DO.
(l RT 91-92.) The Court then went on to explain:
THE COURT: I'M GOING TO GO AHEAD AND SIGN
THIS. ANYTHING 13EFORE I SIGN IT? ANYBODY WANT
TO SAY ANYTHING? I DIDN'T ASK THOSE QUESTIONS
BECAUSE I SAW ANYTHING IN HERE THAT IS
QUESTIONABLE. THE REASON I ASK YOU THOSE
QUESTIONS IS THAT IN EVERY AGREEMENT THAT'S
GIVEN TO THE COURT I ASK THE SAME QUESTIONS.
THAT IS TO PREVENT SOMEBODY FROM COMING
BACK LATER AND SAYING, NO, I DIDN'T REALLY
MEAN TO SAY WtIAT I SAID OR DO W1!AT I DID. THAT
REMEDY IS NOT GOING TO BE AVAILABLE, BECAUSE
WE GO THROUGH THIS EXERCISE IN MAKING SURE
THAT EVERYBODY UNDERSTANDS WHAT THEY'RE
DOING, ESPECIALL Y IF YOU DON'T HAVE A LAWYER
HERE. I WANT TO MAKE SURE YOU READ IT,
UNDERSTAND IT,AND DON'T HAVE ANY QUESTIONS.
(1 RT 92-93.)
Pursuant to standard settlement procedure the Court questioned
Larkins regarding the terms of the stipulation. (l RT 91-93.) Larkins stated
that she understood the stipulated injunction's terms and agreed to be bound
thereby. (1 RT 91-92,94.) Then Larkins made a knowing waiver of the right
to seek counsel and stated she wished to continue in pro per on the record,
before the Court signed the stipulated permanent injunction. (l RT 91-92.)
Larkins subsequently failed to remove the statements listed in Stutz's
First Amended Complaint and continued to publish defamatory falsehoods in
violation of the injunction. (3 AA 507-543.) Stutz sent multiple "meet-andconfer"
letters addressing these violations in detail. (3 AA 545-558.) Stutz
then filed a motion to enforce the stipulated injunction with evidence of the
violations and the attempts to meet and confer. (3 AA 480-562.)
On August 7, 2009, the Court confirmed its tentative ruling after
briefing by the parties and argument; and granted Stutz's Motion to Enforce
Permanent Injunction against Larkins, ordering Larkins to remove the subject
statements within 48 hours. (3 AA 655a.) This minute order was followed by
a formal order dated September 18,2009. (3 AA 655b-655c.)
D. The December 11, 2009 "Expanded Injunction"
Larkins, again, did not remove all of the statements held defamatory by
the court, and in some cases she only slightly modified her statements in an
attempt to skirt the trial court's ruling. (3 AA 656-666.) Accordingly, Stutz
filed a motion to strike Larkins' answer. (3 AA 656-666.) On December 11,
2009, the trial court denied the motion, but expanded the original Stipulated
Injunction to a blanket prohibition against mentioning Stutz anywhere on
Larkins' website (the "Expanded Injunction"). (4 AA 785-787.)
On March 18, 2010, Larkins appealed the Expanded Injunction.
(5 AA 1032.) However, Larkins did not appeal the March 10,2010 contempt
and sanctions order. (5 AA 1031.)
E. Larkins' Appeal of the December 11,2009 "Expanded Injunction"
On August 5, 2011, this Court of Appeal issued an opinion on Larkins'
appeal of the Expanded Injunction. (5 AA 1021-1042.) While this Court
reversed and remanded the Expanded Injunction due to constitutional
concerns, it stated that the trial court may consider other methods to compel
Larkins' compliance with the earlier Stipulated Injunction. (5 AA 1041.)
Specifically, this Court stated in its opinion:
PAGE 2
II. FACTS AND PROCEDURAL HISTORY
A. Prior Proceedings
Maura Larkins has a pattern of willful failure to comply with the law,
resulting in terminating sanctions. (6 AA 1286,1380-1382, 1384, 1386-1388,
1390; 9 AA 2034-2040.) In fact, terminating sanctions have now been issued
four times, and she has voluntarily dismissed one other case. (Id.)
Larkins was a teacher in the Chula Vista Elementary School District.
(6 AA 1336-1337.) She was terminated in 2001. (6 AA 1340; 6 AA 1376)
Larkins sued the school district's assistant principal, and fellow teachers in
Larkins v. Werlin, et al. (Case No. GIC 781970). (6 AA 1336-1378.) She
alleged libel and slander showing she knew what these terms mean.
(6 AA 1336-1378.) On December 3, 2004, Judge Nevitt granted terminating
sanctions for failure to comply with litigation requirements. (6 AA 1380-
1382.)
In January 2004, Larkins sued the lawyer who represented her in the
employment dismissal hearing for alleged malpractice in Larkins v. Schulman,
Case No. GIC 823858. (6 AA 1287,1384.) Larkins subpoenaed many district ,
employees for deposition, and the court granted a motion to quash those
subpoenas and a protective order in August 2004. (6 AA 1287.) Later, the
legal malpractice case was dismissed by the Court as a "terminating sanction".
(6 AA 1384.)
In April 2004, Larkins filed another case in San Diego Superior Court
related to her employment with the District called Larkins v. California
Teachers Association, et al., Case No. GIC 825879. (6 AA 1287.) The Court
consolidated the Larkins v. Werlin and Larkins v. CTA cases. (6 AA 1287.)
In January 2005,judgment was entered against Larkins in favor of the District
page 10
Simply false.
page 9
It was impossible.
The judge refused
to give me
permission to say
"Daniel Shinoff
trains school
attorneys" not by
explaining why it
was a violation of
the injunction, but
by saying "it could
well be."
The injunction did not
prohibit defamatory
statements. But the
law does prohibit
defamatory
statements, so such a
prohibition in an
injunction would be
redundant.
< < <
Plaintiff's statement is false. It appears that Plaintiff
copied this line out of Del Junco v. Hufnagel without
regard to the actual facts of the instant case.
Plaintiff has been unable to name a single pleading filed
by Maura Larkins that was lengthy or irrelevant.
In fact, the smallest procedural error by Defendant has
been used abusively by the court to justify
unconscionable denials of Constitutional rights.
Plaintiff, on the other hand, has failed to timely serve
Defendant on multiple occasions, has filed false
declarations, has abused the discovery process, and
has made bizarre and convoluted arguments to justify its
demands that Defendant's Constitutional rights be
violated by the Superior Court.
< < < meaning of injunction
Plaintiff states, "During the April 6, 2009 hearing on the stipulated
injunction, Larkins was admonished by the Court as to rights she
was giving up."
The Reporter's Transcript ( RT ), proves that the
Court did not say one single word to Defendant
about any rights she was giving up, Constitutional or
otherwise. The judge did not make any effort to
clarify the meaning of the injunction.
Defendant was relying on the respresentations of
James Holtz during negotiations regarding the
meaning of the agreement.
The judge said, "We go through this exercise in
making sure that everybody understands what
they're doing" but, in fact, the judge did no such
thing.
The judge clearly made no effort to clarify the
meaning. She later decided that it meant that if
Maura Larkins reported a simple, true fact about
Stutz, without accusing Stutz of illegal, unethical,
intimidating or incompetent behavior, AND THE
JUDGE THEN DETERMINED THAT STUTZ' BEHAVIOR
WAS INDEED ILLEGAL, UNETHICAL, ETC, then
Maura Larkins was in violation of the agreement for
having reported it.
The judge has never explained her permanent
injunction during the four and a half years since she
issued it, even though Maura Larkins has asked, in
writing and in court, how she is to determine
whether or not she can say something.
For example, Defendant does not believe that "Dan
Shinoff trains school attorneys" is an accusation of
unethical behavior. It is simply a true fact. It is legal
and ethical to train school attorneys. It is
incomprehensible that Defendant has been forbidden
to make this statement. It is an outrageous violation
of Constitutional Rights, and no one in his or her
right mind would claim that it is a violation of the
injunction.
< < < Enormous changes have occurred in the past three
years. The injunction has been misinterpreted and abused by
Plaintiff and the Court to achieve outcomes that could not have
been conceived of three years ago when there was still reason to
expect that the trial court would clarify its permanent injunction.
The instant case contains a large
number of instances of abuse of
discretion,
Under the "abuse of discretion" standard of review, appellate courts
will disturb discretionary trial court rulings only upon a showing of "a
clear
PAGE 12
case of abuse" and "a miscarriage of justice." (Blank v. Kirwan (1985)
39 Ca1.3d311, 331 ("Blank"); Denham v. Super. Ct. (Marsh & Kidder)
(1970)
2 Ca1.3d 557, 566 ("Denham ").) On appeals challenging discretionary
trial
court rulings, it is appellant's burden to establish an abuse of discretion.
(Blank v. Kirwan, supra, 39 Ca1.3d at 331; Denham, supra, 2 Ca1.3d at
566.)
The "abuse of discretion" standard is not met simply by arguing a
different ruling would have been "better." Discretion is "abused" only
when,
in its exercise, the trial court "exceeds the bounds of reason, all of the
circumstances before it being considered." (Denham, supra, 2 Ca1.3d
at 566
(internal quotes and citation omitted); Walker v. Super. Ct. (Residential
Construction Enterprises) (1991) 53 Ca1.3d 257,272,279.)
< < < page 12 Respondent's Brief
It is indeed absolutely necessary to resolve Constitutional issues in this
case since the injunction is permanent. Assuming that the Court of
Appeal throws out the Default, the injunction itself must be addressed.
< < < page 11
The trial court had no jurisdiction to throw out Defendant's Answer
and grant Default since the Answer had already been adjudicated.
The March 10, 2010 sanction was based on the Dec. 11, 2009
modified injunction that was found to be unconstitutional. The trial
court, however, has made no attempt to reverse the
unconstitutional harm it inflicted on Appellant.
< < < In fact, an Answer has already been adjudicated. Any
new Answer would be moot.
The injunction prohibited specific statements that had
been found by a technicality of law, NOT BY A TRIAL IN
WHICH EVIDENCE WAS CONSIDERED, to be defamatory.
No case law exists allowing a court to enjoin statements found
defamatory WITHOUT A JURY TRIAL.
The technicality of law was that Appellant had put
statements in the wrong column in her Opposition to
Summary Adjudication, and so the trial judge threw out
the Opposition and granted Summary Judgment.
Balboa Island v. Lemen states that only statements found to
be defamatory at a jury trial may be enjoined. The the trial
court in the instant does not have the right to enjoin any
statements because there was no trial.
In Balboa Island, 40 Cal. 4th at 1144 he Court stated in the
very first paragraph: “[W]e hold 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.”
Lest there be any doubt, the Court reiterated:
[P]reventing a person from speaking or publishing something
that, allegedly, would constitute a libel if spoken or published is
far different from issuing a posttrial injunction after a statement
that already has been uttered has been found to constitute
defamation. Prohibiting a person from making a statement or
publishing a writing before that statement is spoken or the
writing is published is far different from prohibiting a defendant
from repeating a statement or republishing a writing that has
been determined to be defamatory and, thus, unlawful. This
distinction is hardly novel.
This case is about the public's right to know and discuss the
actions of school officials and their lawyers who keep the
electorate ignorant about what is going on in schools as
education takes a back seat to jockeying for personal power.
The injunction did not prohibit defamatory statements. But the
law does prohibit defamatory statements, so such a prohibition
in an injunction would be redundant.
I was shocked to learn that the District would support illegal actions
and hire attorneys to cover them up. I witnessed abusive actions
by Stutz law firm, but it wasn't long before I became aware that
other education attorneys were also being paid large amounts of
taxpayer money to conceal wrongdoing in other school districts. I
worked to inform the public of what was going on. My concern was
for the public good, particularly the good of children, not Mr. Shinoff
personally. I stated this in my
declarations.......
I removed hundreds of statements. I still have scores of de-published
blog posts that I haven't reposted since the Aug. 5, 2011 Court of
Appeal decision.
page 20
1. A Knowing Waiver Of Rights Is Valid only if there is due
process--as Mr. Holtz' co-counsel in this case knows full well--
see AOB--and not always then. Would the trial court be allowed
to execute me if I knowingly waived my right against cruel and
unusual punishment?
I did not, knowingly or otherwise, sign a waiver of
my right to discuss Plaintiff's actions. The only
thing I agreed not to say was my opinion that
Plaintiff's behavior is unethical, illegal, intimidating
or incompetent.
But the court has no right to issue a prior restraint
injunction to this effect. I believe it would have
been legal as an agreement between two parties if
it had not been achieved by fraud, but the
injunction is unconstitutional. Obviously, there
was no due process since the court threw out
Appellant's Opposition and Evidence for the
summary adjudication.
The Sanchez v. County of San Bernardino (2009) reference is
inappropo as it discusses "whatever rights" the party had to
disclose a specific piece of information discussed in an
agreement, not the permanent gagging of a citizen by an
infinitely broad injunction against political speech.
The meaning of the injunction is obvious: Appellant is not
allowed to say that Plaintiff's behavior is illegal, unethical,
intimidating or incompetent.
I perfectly well understood the agreement.
Plainitff has pretended that the agreement means
something other than what it says, and something
other than what Plaintiff discussed and agreed to.
If "standard settlement procedure" had been
followed, the meaning of the agreement would
have been discussed.
To his credit, in his response Mr. Holtz does not
deny that he personally assured me during
negotiations that our agreement would allow me
to report any and all facts, as, indeed, it does.
Plaintiff implicitly admits to having committed extrinsic fraud,
but simply can't break an old habit of plying the court with words to the
contrary.
Quite a few public officials have been actively supporting his law firm in
this case, and will be sorely disappointed if Plaintiff fails to shut down
my website and every other avenue of public speech that I have,
including any oral discussion of the actions of Plaintiff and its clients.
The April 6, 2009 agreement states that Defendant (yes, that's what it
says) 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)
Here is the introductory section of the injunction of the April 6, 2009
order:
“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)
In fact, the injunction contains a glaringly false statement by the court,
to the effect that it had "considered the moving papers and evidence
therein, and all other records, pleadings and files contained
herein when, in fact, the court had thrown out Defendant's
opposition and all defendant's evidence.
The casual manner in which Plaintiff sought and obtained the
cooperation of the trial court in violating Defendant's
constitutional rights is astounding. Even the date is wrong
(February 6, 2009 instead of April 6, 2009). Very little effort
seems to have been expended by Plaintiff during this litigation.
Both Plaintiff and the trial judge appear to have assumed that a
third-grade teacher, whom Plaintiff had deprived of a full
pension and health care benefits, would not have the
resources to bring this case to the attention of the Court of
Appeal.
If Plaintiff had given much thought to this case as it began to take
shape in 2001, it would have told its public entity client to apologize to
Defendant, and transfer the ringleaders of the teacher clique that had
committed crimes against Defendant out of their small elementary
school. Instead, the clique went further out of control after Defendant
had left, and five members were transferred out of the school in 2005.
But by that time the school had been virtually destroyed, with a
$20,000 PTA embezzlement and large numbers of students who had
voted with their feet for any other school they could get to. The district
always admitted that Defendant was a fine teacher. Shamefully, the
policy of Superintendent Libia Gil and Assistant Superintendent
Richard Werlin was to rely on teacher cliques to control schools so
that the top brass could relax at the district office, and Plaintiff's policy
was to support school officials rather than to admonish them for illegal
actions.
Appellant has since repeatedly requested the jury
trial to which she is entitled. Plaintiff has
consistently sought to avoid the risks of a jury
trial since April 6, 2009 when it entered into a
fraudulent agreement with Defendant in order not
only to permanently avoid jury trial, but also to
create a tool that the court would use to violate
Appellant's rights to free speech, due process and
equal access to the law.
The court's prior ruling did NOT indicate that the
April 6, 2009 injunction was valid, only that it had
not been challenged in that appeal.
< < < Respondent states, "The Court of Appeal in its decision
on August 5, 2011, did not hold the April 6, 2009 stipulated
injunction unconstitutional, and specifically noted it was not
subject to appeal. (See 5AA 1041.)"
The April 6, 2009 injunction was not addressed in the decision
of Aug. 5, 2011 because Appellant did not ask the
Court of Appeal to consider it.
This bizarre, unreasonable new meaning should
have been clarified. No reasonable person would
ever have thought that the agreement forbade
Appellant from saying, "Dan Shinoff trains school
attorneys" or "DEVANEY WAS THE NUMBER 2
OFFICIAL IN THE OFFICE OF CITY ATTORNEY until
Mike Aguirre took office." And certainly no
reasonable person would think that Leslie Devaney
is not a public figure.
< < < "may consider whether to exercise its
statutory and inherent authority to coerce
compliance"
Exactly. But clearly, the trial judge was on autopilot, and seems
to have ignored the Court of Appeal's suggestion that she give the
matter some consideration.
< < < The Aug. 5, 2011 decision made clear that Plaintiff and
the trial judge either did not understand the constitution, or had
wilfully ignored it. The Court of Appeal ruled that the trial court
had abused its discretion.
The Court of Appeal can be assumed to have expected that the
trial court would have felt somewhat chastened by the decision.
Clearly, this was not the case. The trial court has continued to
thumb its nose at the Constitution.
< < < The circumstance is that the trial court has abused its
authority in several instances since the August 5, 2011 decision
of the Court of Appeal.
refusing to clarify
From the day this case was filed, its purpose has been to misuse
the legal system to remove true reports about public entities from
public forums. The purpose has been to deny the benefits of the
First Amendment to the students, teachers, voters and taxpayers
of San Diego and elsewhere.
Castillo says court can always reconsider
In People v. Castello (1998) 65 Cal.App.4th 1242, 1248, this court
addressed the
inherent powers of a court to correct erroneous rulings, noting:
"A court's inherent
powers are wide. [Citations.] They include authority to rehear or
reconsider rulings: '[T]
he power to grant rehearings is inherent,—is an essential
ingredient of jurisdiction, and
ends only with the loss of jurisdiction.' [Citations.]" (Accord,
Bernstein v. Consolidated
American Ins. Co. (1995) 37 Cal.App.4th 763, 774 [court has
complete power before
entry of judgment to correct its own erroneous rulings and may
change conclusions of
law or findings of fact].)
Appellant's reply brief (ARB)
Covers: tan
20 days from filing of RB
original & 4 copies to Court of Appeal an electronic copy
4 copies on Supreme Court or 1 electronic copy
1 copy on superior court
1 copy on each opposing party
PAGE 3
RESPONSIBILITY
Stutz sued rather than take responsibility for its actions
Desperately trying to hide the truth about previous cases. I am
not surprised that one of its clients burned documents.
Stutz has history of winning through intimidation and dishonesty,
willful failure to comply with the law, such as showing up for
deposition and producing documents. Stutz encourages clients
to commit defamation rather than take responsibility for their
actions.
"Larkins could not accept
personal responsibility for her acts which led
to her termination"
Respondent does not mention what those "acts" might be, but clearly
states that Appellant did something that caused her termination. In
most terminations, this would be true, so it's understandable that Stutz
would think it could make this statement without contradiction.
In fact, Appellant was the target of a group of teachers hostile to
bilingual education, who managed to get two out of a total of four
bilingual teacher fired in a period of six years. The ringleaders of the
group committed criminal acts as part of a campaign of harassment
against Defendant, and a rogue administration asked Stutz to protect
the wrongdoers. The asst. supt of human resources caused an even
worse fiasco in West Contra Costa District, and is now unemployable as
a school administrator. He now works in interior design. But the board
members who approved his actions remained in office since few
members of the voting public were aware of how they supported
destructive and illegal shenanigans by employees that harmed students
directly by giving them a string of substitute teachers during their critical
final semester of transition to English-only instruction, and indirectly by
wasting district funds.
11 principals in 11 years
Well, maybe it would help if Stutz would produce the documents
prepared by CVESD employees about those events. Why has Stutz
been hiding those documents for ten years?
Stutz must have been very confident when it sued that it could avoid
producing documents and being deposed and having a jury trial. How
could it have been so confident that Judge Hayes would ignore the
basic tenets of justice, and even the Constitution, on Stutz' behalf?
Stutz seems to possess extrasensory perception. Surely it didn't have
any interactions with Judge Hayes outside the courtroom regarding this
case.
I most certainly did accept responsibility for the two action that
led to my termination: I refused to go to work, and I sued the district.
Stutz is clearly trying to imply that there was some justification for the
illegal acts of a group of teachers at my school who ended up being
transferred out of the school because of their extreme aggressiveness
and hostility. But it is telling that for ten years Stutz has refused to
produce documents prepared by teachers and administrators involved
in illegal actions against Appellant.
The meaning of the injunction is obvious:
Appellant is not allowed to say that Plaintiff's
behavior is illegal, unethical, intimidating or
incompetent.
Beyond the instant case, which is certainly a good example of the
unnecessary burden that Stutz places on the court system,
Stutz has litigated countless cases for the purpose, as the Ninth
Circuit says, of "counsel fees".
show quote
PAGE 2
Dan Shinoff gets away with refusing to show up for his
deposition two times, but Appellant got terminating sanctions
when Stutz pulled off a dirty trick on her deposition date. Stutz has a
history of willful failure to comply with the law, and because it works
with powerful public entities and public officials, it gets away with it. In
fact, Stutz got the court to change the date for the deposition to a date
when it knew Appellant could not attend, AFTER Appellant had agreed
to a date Stutz offered. Stutz is accustomed to getting away with
wrongful actions. The Superior Court protects the public entities that
hire Stutz.
Again, no fact-finding by the court, although the court offered to rule
on Motions for Summary Judgment.
Schulman should have demanded the Bate-stamped
documents that are still missing, and she should have told the OAH
panel that the District had committed a crime, but she wanted to
protect Richard Werlin. She and Werlin schmoozed during hearing
breaks. She refused to ask him the questions I had prepared for his
deposition and for the hearing. She told Appellant Werlin had
suffered enough by not being promoted to Superintendent, although
why she thought he was a viable candidate is a mystery. She told me
it would hurt me if I told the OAH that Werlin had committed a crime.
Trial court is unreliable when it comes to honoring the constitution and
the administration of justice.
Stutz thought that by abusing the court system it could make the truth
go away, but Appellant took her case to the court of public opinion.
She had a huge amount of evidence of wrongdoing by Stutz and its
clients. How can voters know who to vote for when this information is
kept secret? Children were harmed by a power-hungry group of
rogue teachers and administrators. The teacher called themselves
the "Castle Park family".
The damages are excessive. The punitive damages are completely
illegal, and the ???? damages are at the very least $42,999.17 too
great. Plaintiff's own exhibits show a maximum claim would be 86
cents.
Plaintiff and the court have falsely accused
Defendant.
Plaintiff is pretending that the record does not contain Plaintiff's own
repeated arguments that Defendant may not report TRUE, simple facts
IF IT HAPPENS THAT THOSE FACTS SHOW THAT PLAINTIFF
BEHAVED UNETHICALLY. PLAINTIFF CLAIMS THAT IT DID BEHAVE
UNETHICALLY IN THE Dr. B. J. Freeman case. Defendant merely
reported the facts (and has asked the court for judicial notice of the
documents in the B.J. Freeman case).
Vista Unified School District v. B.J. Freeman
Plaintiff’s Opposition to Demurrer, 8 pages
Request for Dismissal by Shinoff/Abed, 2 pages
Case Management Statement, 5 pages
Reply in Support of Demurrer
Motion to strike portions of amended complaint, 8 pages
Demurrer
(IX AA 1880-1927)
"The statements made against
Plaintiff allege unprofessional conduct and are therefore
libelous."
First of all, they are only libelous if they're untrue. But
statements that merely state facts without the opinion that the
facts demonstrate lack of ethics, etc. are neither libelous nor
are they violations of the agreement as written.
Plaintiff and the trial court argue that Defendant may not report the
simple, unvarnished truth in those cases, apparently legion, in which
Plaintiff and the court find that Plaintiff actually behaved unethically.
Leslie Devaney called the newspaper
It is Plaintiff and the trial court, not Defendant, who have stated that
Plaintiff's actions were unethical, even when those actions consisted
merely of training school attorneys. Plaintiff's pleadings in this case,
and the trial court's decisions, are bizarre in the extreme.
This was all covered in Appellant's Opening Brief.
This Response has few references to the record,
and those it has are largely misrepresentations or
completely irrelevant. It is largely a narrative
without documentation or legal significance.
PAGE 16
In fact, I was fired over a year after I refused to go back to work until
the district conducted an investigation into the harassment and
accusations against me. No investigation was ever completed,
although Dan Shinoff did initiate an investigation. However, Mr.
Shinoff's investigation ended with no findings and no report, and half of
the Bate-stamped documents he collected missing.
It should be noted that I was fired right after I filed suit against the
district. It is illegal, of course, to fire an employee for filing a lawsuit,
but apparently Dan Shinoff does not admonish school districts to worry
about such things.
Plaintiff's Response is remarkable for its deafening silence regarding
major issues, such as whether the trial court can grant a default when
a summary adjudication judgment is in effect, and has been in effect
for four years.
Also, whether a trial court can legally deprive a party of a jury trial by
issuing such a default.
And whether a court can enjoin an infinitely broad swath of political
speech.
Whether a trial court can enjoin statements found to be defamatory by
a technicality of law rather than a jury trial.
Plaintiff seems to be working on the assumption that the Court of
Appeal will ignore Appellant's entire Opening Brief, just as the trial
court ignored Appellant's pleadings.
page 10
Simply false.
page 9
It was impossible. The judge refused to give me permission to say
"Daniel Shinoff trains school attorneys" not by explaining why it was
a violation of the injunction, but by saying "it could well be."
See exhibits of deposition trick