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Stutz v. Larkins Appeal 5
March 28, 2013 Appeal re Strike Answer, Default, injunction
March 28, 2013 Appeal re Strike Answer, Default, injunction
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rescinded the finding of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.
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.
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 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
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 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
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 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
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 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
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
Why This Website
Stutz Artiano Shinoff
& Holtz v. Maura
Larkins defamation
SDCOE
CVESD
Castle Park Elem
Law Enforcement
CTA
CVE
Stutz Artiano Shinoff
& Holtz
Silence is Golden
Schools and Violence
Office Admin Hearings
Larkins OAH Hearing
Stutz Artiano Shinoff
& Holtz v. Maura
Larkins defamation
SDCOE
CVESD
Castle Park Elem
Law Enforcement
CTA
CVE
Stutz Artiano Shinoff
& Holtz
Silence is Golden
Schools and Violence
Office Admin Hearings
Larkins OAH Hearing
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
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