Defendant in pro per

                      COUNTY OF SAN DIEGO

& HOLTZ, APC,        


MAURA LARKINS,                    

Defendant offers this motion to
set aside default and dissolve the April
6, 2009 injunction.
This motion is based on the arguments below and the
attached declaration and exhibits, and the complete record in this case.

I.   STATEMENT OF FACTS                         
A.  Summary Adjudication

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

Striking the answer has no effect on the case at this point.  No
default can be taken because summary adjudication has already

The case has already been decided, and all that is left is to determine damages.  
Defendant is entitled to a jury trial, and striking her answer doesn’t take away that right
because the answer is not at issue any longer.  

2.        Plaintiff’s Motion for Summary Adjudication was granted on February 20, 2009.  The
court signed Plaintiff’s proposed order regarding Summary Adjudication on March 26,

3. On April 6, 2009 this court rescinded the finding of malice in the summary adjudication
order prepared by Plaintiff and signed on March 26, 2009.

3.  On April 6, 2009 this court directed Plaintiff to prepare an Amended Summary
Adjudication Order.        

4.  Plaintiff submitted its proposed Amended Summary Adjudication Order in January

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

6.  There can be no default by way of Striking Defendant’s Answer
when adjudication of the Complaint and Answer have already taken

7.  Striking the Defendant’s Answer is moot since summary adjudication has
taken place.

No summary adjudication had taken place in Del
Junco v. Hufnagel, the case that this court has relied
upon repeatedly.  Also, Hufnagel relied on a different
code.  The trial court’s actions in the instant case
seems to be unprecedented

B.  Not only summary adjudication has 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)
[IRONY ALERT: "Looking at the filing date [OCT. 5, 2007), it is getting a little old”--said
by Judge Hayes on April 6, 2009, almost four years ago!!!]

A court-sanctioned settlement precludes a default.  

There should have been a dismissal or jury trial three and a half
years ago;
the judge clearly admitted that the case had been settled.

 "THE COURT: “In addition to that, we have that pesky issue of the
        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

                       (Exhibit 7, April 6, 2009 Page 93 lines 24 through page 94
line 22)

C.        Constitution

The purpose of the lawsuit was to silence one of the few voices of
criticism of Plaintiff that had not already been silenced.   Court has
several options, but they are limited by the doctrines of Collateral
estoppel and res judicata.

The trial court has discretion to choose among various paths to final
but those choices are not unlimited.  

At this point, the trial court must choose between a few options:

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

2) allow a jury trial for damages; or

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

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

5.        The court can set aside the summary adjudication and settlement and
then grant the default.  

6.        But if the answer is stricken, so is everything else that followed from it,
including summary judgment and injunction.  It is as if I never appeared.  It is
just wishful thinking on the part of the court.  

7.        The court can, of course, set aside the summary judgment and the
fruit of the summary judgment.  The court may choose to do this because
Plaintiff’s request to throw out the entire Declaration of Defendant, who had
sat for a full six-hour deposition, was granted by the court, which relied
instead on the declarations of Plaintiff partners Ray Artiano, who had walked
out of his deposition, and Daniel Shinoff, who had never shown up for his
deposition.  They also claimed that they couldn’t find Bate-stamped
documents originally collected by Daniel Shinoff.  Indeed, the court also
threw out Defendant’s entire Opposition, apparently due to improper format,
although the court made a far more serious breach of CCP§ 437c(g) when it
failed to specify its reasons for granting summary adjudication, as required
by law:

“Upon the grant of a motion for summary judgment, on the ground that there
is no triable issue of material fact, the court shall, by written or oral order,
specify the reasons for its determination. The order shall
specifically refer to the evidence proffered in support of, and
if applicable in opposition to, the motion which indicates that
no triable issue exists. The court shall also state its reasons
for any other determination. The court shall record its
determination by court reporter or written order.”  CCP § 437c

[In this case, the court
failed to state any reason at all for
granting summary adjudication.


A.          A court has inherent power to dissolve or amend an

Code Civ. Proc. §533 provides that in any action, the court may on notice
modify or dissolve an injunction on a showing that the ends of justice would
be served by the modification or dissolution of the injunction or temporary
restraining order.  Also, the court may modify or dissolve a final injunction on
these same grounds [Civ. Code § 3424].  

Code Civ. Proc. §533 and §3424 codify a case law rule based on the court’s
inherent power to amend an injunction [see Sontag Chain Stores Co. v.
Superior Court (1941) 18 Cal. 2d 92, 94-95, 113 P.2d 689; New Tech
Developments v. Bank of Nova Scotia (1987) 191 Cal. App. 3d 1065, 1072,
236 Cal. Rptr. 746].  Thus, courts 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. Defendant is entitled to 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 First Amendment of the US Constitution and Article 1, Sec.
2 of the California Constitution make illegal the court’s misinterpretation of a
simple injunction to such an extent that it has violated Defendant’s right to
free speech.              

A.        Extrinsic fraud was committed against Defendant by Plaintiff when
Plaintiff deceived Defendant regarding its true intention of not abiding by the
agreement made on April 6, 2009.  Defendant was ready for the jury trial
scheduled that day, but she has been denied that jury trial through the fraud
and deceit of Plaintiff (see Declaration of Defendant).
“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.

The fraud during settlement talks resulted in Defendant agreeing to delay
her jury trial for damages in the expectation that the settlement would make it
unnecessary.  But Plaintiff revealed shortly thereafter that it planned to
prevent Defendant from even mentioning the name of Plaintiff.  resulted in
extrinsic fraud by Plaintiff on Defendant.  Plaintiff agreed that the injunction
meant that Defendant would not be allow to express the opinion that Plaintiff
or any of its attorneys had committed illegal, unethical, incompetent or
intimidating acts.  It was clearly agreed that Defendant would continue to
report facts about Plaintiff and its attorneys, but would refrain from
expressing any opinion that Plaintiff or any of its attorneys were intimidating,
unethical, incompetent or had committed illegal acts.

B.                But Plaintiff never intended to honor this agreement.

      It is clear that Defendant would have prevailed in a jury trial.  The judge
has tacitly admitted that it was necessary to throw out all of Defendant’s
evidence and her entire opposition to summary adjudication in order for the
court to find in Plaintiff’s favor.

      Defendant produced hundreds of documents to Plaintiff, and sat through
a 6-hour deposition, while Plaintiff and Dan Shinoff either walked out of their
depositions or never showed up.  But the two hour deposition of Plaintiff
provided Defendant with adequate evidence to prove that she did not commit
defamation, but rather told the truth in every statement on her website.        

      Plaintiff believed Defendant would prevail in jury trial, that’s why it went
so far as to commit fraud to avoid the jury trial.  It fought hard to keep
evidence out of the jury trial.  It was my first and last opportunity to present
evidence had been thwarted by Plaintiff’s successful effort to throw out my
evidence for summary adjudication, showing plaintiff’s motive and fears of my

E.  The manipulation and pretense is obvious when you have plaintiff
claiming its own behavior was illegal or unethical

The manipulation and pretense involved in the court’s interpretation of the
injunction is obvious when you have plaintiff claiming its own behavior was
illegal or unethical, and the judge finding this to be true, and this finding
being used as a reason to silence defendant!  

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

G. The stipulated injunction was NOT an agreement to cover up

It is clear that Plaintiff never intended the April 6, 2009 injunction to be
interpreted as written, but rather intended it, as did the court, as an
unconstitutional restriction of Defendant’s speech, forbidding even such
legitimate questions as "Who trains school attorneys?"  Stutz and the court
always intended the April 6, 2009 injunction to function exactly like the Dec.
11, 2009 injunction that was ruled unconstitutional by the Court of Appeal.

C.        No litigation privilege exists for extrinsic fraud.

D.        An agreement obtained through fraud is null and void.  

E.         Defendant is entitled to Due Process, Equal Protection of the Law,
Trial by Jury and Freedom of Speech.

F.        Defendant can only give up her Constitutional Rights, or have them
involuntarily taken from her, after due process of law.

A.        This Court has inherent authority to reconsider, correct and change
its interim orders.

In Karl E. Fischer et al v First International Bank (2003), the trial court never
entered any final judgment with respect to ITC and thus retained inherent
authority to reconsider, correct, and change its interim orders.  In Kerns v.
CSE Ins. Group (2003), the court cited cases holding that trial courts have
inherent constitutional power to reconsider, correct and change their own
interim decisions sua sponte before entry of final judgment.

G.        The court must set aside summary adjudication and
settlement/stipulated injunction if it wants to strike Defendant’s Answer.

H.         Also, SA should be set aside in interest of justice.  Defendant wasn’t
allowed to fix it.  

I.        In its minute order, the court declared that Defendant’s ex parte
questions about the PERMANENT injunction were moot!  Perhaps the court is
right about this, since it is implying that the injunction itself must be thrown
out, as well as the summary adjudication, in order to Strike Defendant’s
Answer.  The court needs to put its intention clearly on the record.  Either we
have a summary adjudication and resultant settlement/injunction, or we have
a stricken answer and default.  We can’t have all the above.

J.        From the very first hearing in April 2008 to the most recent hearing
four and a half years later, the court has conducted this case in an abusive
manner for the purpose of denying Defendant her right to confront her
accusers.  Defendant was wrongfully denied the right to depose Dan Shinoff
and to have him produce Bate-stamped documents he collected that had a
direct bearing on the disputed statements on my website.

K.        After throwing out Defendant’s opposition to summary adjudication,
along with all her evidence, the court granted summary adjudication.  But the
problem facing the trial court was that Defendant still had a right to confront
her accusers at a jury trial for damages.  The court didn’t want to allow
Defendant to confront her accusers.  So a three-year circus of bizarre
decisions ensued.

L.        The court has made many false and prejudicial
assertions, such as saying Appellant’s longer version
of her 8-page brief regarding the Motion to Strike was
“a violation”.  

In fact, Appellant only filed the 8-page version; the
longer version was attached as an exhibit.  

However, the court revealed how upset it was about
the mere existence of the longer version.

Interestingly, in yet another abuse of discretion,
exhibit and many others have been destroyed by the
court without proper approval.
 Denise Jones, a
supervisor of the court, called up Appellant and said
the exhibits were missing and there was nothing the
court could do.

Under Code of Civil Procedure sections 473, subdivision (b)  a motion to set
aside default must be made within six months from the entry of the default or
the default judgment. Thus, this motion for relief from the default is timely.  
CCP § 473 clearly states that its purpose is to allow issues to be brought to
trial rather than default.

II. The April 6, 2009 permanent injunction as
written is unconstitutional on its face.

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

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

F. The April 6, 2009 injunction was created by Plaintiff with a
fraudulent purpose.  
The crafting and interpretation of the injunction were
a trick by Plaintiff in which the court has been complicit.  Court and Plaintiff
agreed Defendant would get a jury trial regarding damages if she were
dissatisfied with the injunction, but the court has reneged on that promise.

The court has been far too anxious to take away Defendant’s free speech
rights, and was found to have violated Defendant’s free speech rights when it
issued the December 11, 2009 modified injunction.  The manner in which the
court has interpreted the April 6, 2009 injunction is actually just as
unconstitutional as the modified injunction which was overturned by the Court
of Appeal on August 5, 2011; in fact, the modified injunction was merely a
verbalization of the interpretation that the court had already imposed on the
April 6, 2009 injunction.

(starting at paragraph 3):

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 their hours of discussion with me on April 6, 2000,
neither Mr.
Holtz nor Mr. Wade gave any inkling that he did not agree that the
injunction forbids Defendant from expressing certain opinions Plaintiff,
namely that she believed that Plaintiff’s behavior was unethical, illegal,
intimidating or professionally incompetent.

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

Injunction must be constitutional or it may not be instituted by the court
The judge is bound by the constitution in a way that the parties are not
bound, as stated by Defendant on Aug. 24, 2012 in court transcript:


C. Defendant is entitled to Due Process, Equal
Protection of the Law, Trial by Jury and Freedom of

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.

III.   ARGUMENT        
The April 6, 2009 injunction was the fruit of the summary adjudication.  It can
not stand if the summary adjudication does not stand.  It was obtained by the
pressure of the summary adjudication decision.

Unequal protection of the laws

This court has decided two similar cases in dissimilar manners.  The
Kevin Carmony case honored the First Amendment, even though
Carmony bought a deceptive URL and made money on the site.

Decisions in the Stutz v. Larkins case have flagrantly violated the First
Amendment.  Also, Plaintiff and Defendant have been treated very differently
in Stutz v.  Larkin, with extreme bias in favor of Stutz and against Larkins.
The court can’t have it both ways

The court can’t have it both ways, to abusively reach SA decision to get
stipulated injunction and then deny jury trial on damages and strike answer.   
The judge has to choose between the summary adjudication/settlement and
the Striking of the Answer.


1.        Defendant requests that the court set aside default and dissolve the
injunction of April 6, 2009.

Defendant also asks the court to rule on Defendant’s Motion
for Jury Trial
that was originally set for March 9, 2012 and continued
several times, most recently by the court on May 30, 2012, when it was
continued to July 27, 2012.  However, on July 27, 2012, the court did not rule
on the motion.

3.          If the court decides 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.

4.        Defendant asks the court to give up the special jurisdiction it claimed
in its April 6, 2009 injunction.

5.        Defendant requests that this Court dissolve the April 6, 2009
injunction and the first three paragraphs of the December 11, 2009 modified
injunction, especially paragraph 3,  since the injunctions are constitutionally
and legally defective, and to limit its injunctions to specific statements made
by Defendant that were found to be defamatory at trial.  DATED: February 4,
                              Maura Larkins, Defendant in pro per
) Case No.   37-2007-00076218-CU-DF-CTL
) Judge:              Hon. Judith F. Hayes
) Dept:                68
) Date                 March 1, 2013   10:30 a.m.

San Diego Education
Report Blog
Why This Website

Stutz Artiano Shinoff
& Holtz v. Maura
Larkins defamation
San Diego Education Report
San Diego
Education Report
Stutz v. Larkins Motion to Set Aside Default
March 1, 2013
Maura Larkins' motion to set aside default
Maura Larkins' REPLY to Stutz
Oppositon to this Motion
(I'll put up Stutz' Opposition as
soon as I get a scanner that feeds
Motion to set aside default