09-04-21 Fine V Sheriff (2:09-cv-01914) DKT #12: April 21, 2009 Sheriff Baca's Motion To Dismiss

Case 2:09-cv-01914-JFW-CW Document 12 Filed 04/21/2009 Page 1 of 41
II
1 II ~~~B·l~~ta~~o~ate Bar No. 166265
""
L
II ~AAARO@'
A
I'\l IV!. FO"1l..T'
K
I'\llI'AlNA A C1,
,~TaTe
, . T 24A~
B ar "1ll'\lO. ~;)qU
AA
afontana@lbaclaw.com
3 LAWRENCE BEACH ALLEN & CHOI, PC
100 West Broadway, Suite 1200
4 Glendale, California 91210= 1219
Telephone No. (818) 545-1925
5 Facsimile No. (818) 545-1937
6 Attorne~s
for Res120ndent
SHERIFF LEROY D. BACA [erroneously named as Sheriff of Los Angeles
7 County]
8
UNITED STATES DISTRICT COURT
9
CENTRAL DISTRICT OF CALIFORNIA
10
11
RICHARD 1. FINE, Case No. CV 09-1914 GW (CW)
12
Petitioner, RESPONDENT'S NOTICE OF
13 MOTION AND MOTION TO
vs. DISMISS PETITIONER'S
14 PETITION FOR WRIT OF
SHERIFF OF LOS ANGELES HABEAS CORPUS OR IN THE
15 COUNTY, ALTERNATIVE~REOUEST THAT
THIS COURT DIRECT THE REAL
16 Respondent. PARTIES IN INTEREST TO
RESPOND TO PETITIONER'S
17 HABEAS CORPUS PETITION;
MEMORANDUM OF POINTS AND
18 AUTHORITIES AND
DECLARATION OF PAUL B.
19 BEACH IN SUPPORT THEREOF
20 Date: May 19, 2009
Time: 10:00 a.m.
21 Courtroom: 640
22 Honorable Carla M. Woehrle
23
24 TO THE HONORABLE COURT, ALL INTERESTED PARTIES, AND THEIR

25 ATTORNEYS OF RECORD:
26 PLEASE TAKE NOTICE that on May 19,2009, at 10:00 a.m., or as soon
27 thereafter as counsel may be heard, in Courtroom 640 of the above-referenced
28 Court, located at 312 North Spring Street, Los Angeles, California 90012-4793,
1
Fine\Motion to Dismiss or in the Alternative, Request That This Court Direct the Real Parties In Interest To Respond
1 Respondent Sheriff Leroy D. Baca will move this Court for dismissal of Petitioner
2 Richard 1. Fine's ("Petitioner") Petition for Writ of Habeas Corpus by a Person in
3 State Custody under 28 U.S.C. § 2254 or, in the alternative, request that this Court
4 direct the real parties in interest in this matter - Superior Court of California, Los
5 Angeles County, Judge David P. Yaffe, and Del Rey Joint Venture and Del Rey
6 Joint Venture North - to respond to Petitioner's Petition for Writ of Habeas Corpus,
7 upon the following grounds:
8 1. Named Respondent, Sheriff Leroy D. Baca 1, is not a real party in
9 interest in this matter.
10 This Motion will be based upon this Notice, the attached Memorandum of
11 Points and Authorities, the Declaration of Paul B. Beach, and upon such further
12 evidence as may be presented at or before the hearing. Due to Petitioner's status as
13 a party appearing pro se, pursuant to Central District of California Local Rule 16-
14 12, this case is exempt from the requirement of Local Rule 7-3.
15
16 Dated: April 21, 2009 LAWRENCE BEACH ALLEN & CHGI, PC

17
18
19 BY_-L2~~
Aaron M. Fontana
20 Attorneys for Respondent
21 Sheriff Leroy D. Baca
22
23
24
25
26
1 Sheriff Baca does not dispute that he is correctly named as Respondent in this
27
matter, however, as discussed below, he should not be required to respond to
28 Petitioner's Petition for Writ of Habeas Corpus because he is not a real party in
interest. 2
1 MEMORANDUM OF POINTS AND AUTHORITIES

2 I. Introduction.
3 Petitioner Richard 1. Fine ("Petitioner"), proceeding pro se, is currently in
4 custody in the Los Angeles County jail pursuant to a contempt order issued by Judge
5 David P. Yaffe ("Judge Yaffe") of the Superior Court of California, County of Los
6 Angeles. Before this Court is Petitioner's Petition for Writ of Habeas Corpus,
7 pursuant to 28 U.S.C. § 2254 ("Petition"), which names Sheriff Leroy D. Baca
8 ("Sheriff Baca"} as the only Respondent. Prior to filing his Petition in this Court,
9 Petitioner filed for habeas relief in the California Court of Appeals and the
10 California Supreme Court, naming as Respondent the Superior Court of California,
11 Los Angeles County.
12 While Petitioner may have correctly named SheriffBaca as Respondent in
13 this matter, and while Sheriff Baca does not contest that he has been properly
14 named, Sheriff Baca is not the real party in interest here. This is because Sheriff
15 Baca is only the custodian of Petitioner and he had no knowledge or involvement in,
16 or knowledge of, Petitioner's contempt proceedings in the Superior Court of
17 California, Los Angeles County ("Superior Court of California"). Accordingly,
18 Sheriff Baca should not be required to respond to Petitioner's Petition.
19 As discussed further below, the real parties in interest here are Judge Yaffe;
20 the Superior Court of California; and Del Rey Joint Venture and Del Rey Joint
21 Venture North. As such, this Court should dismiss the Petition to the extent that the
22 Petitioner urges Sheriff Baca to defend the real parties in interest in this matter. In
23 the alternative, Sheriff Baca respectfully requests that this Court direct the real
24 parties in interest to respond to Petitioner's Petition as appropriate.
25 II. Procedural Background.
26 The underlying matter in this case is Marina Strand Colony IL Homeowners
27 Association v. County ofLos Angeles, Los Angeles Superior Court of California,
28 Case No. BS 109420, Judge David P. Yaffe presiding. According to documents
1
1 submitted with Petitioner's Petition, Petitioner was the counsel for Marina Strand in
2 said action. (See Exhibit C of Petitioner's Petition, p. 5:1-3.) The real parties in
3 interest were Del Rey Joint Venture and Del Rey Joint Venture North. (Id. at 2:1.)
4 While the lv/arina Strand Colony IL Homeowners Association v. County of
5 Los Angeles proceedings were ongoing, the State Bar of California issued an order
6 recommending the disbarment of Petitioner. (Id. at 5:4.) The Bar also involuntary
7 classified Petitioner as inactive. (Id.) Soon after, Petitioner was removed as counsel
8 in the Marina Strand case. (See, Exhibit "C" of Petitioner's Petition, p. 5:4.)
9 Subsequently, on December 15, 2008, Judge Yaffe dismissed the case and
10 ordered Petitioner to pay reasonable compensatory legal fees of$46,329.01 to the
11 real parties, Del Rey Joint Venture and Del Rey Joint Venture North. (See, Exhibit
12 "C" of Petitioner's Petition, p. 5-6.) After Judge Yaffe's ruling, Petitioner allegedly
13 failed to submit to several judgment debtor examinations pertaining to this award of
14 fees against him. (Id. at 6-7.)
15 Because of this failure, real parties in interest Del Rey Joint Venture and Del
16 Rey Joint Venture North sought an order to show cause as to why Petitioner should
17 not be found in contempt of court. (See generally, Exhibit "C" of Petitioner's
18 Petition.) Subsequently, Judge Yaffe found Petitioner in contempt of court and, on
19 March 4, 2009, ordered Petitioner sentenced to confinement in the Los Angeles
20 County jail until Petitioner agreed to submit to a judgment debtor examination. (Id.
21 at 14:~.)
22 Prior to being incarcerated, Petitioner filed a habeas petition in the California

23 Court of Appeals, Second District, in an attempt to avoid the contempt sentencing.
24 The California Court of Appeals docket lists the following parties and attorneys:
25 • Petitioner, representing himself;
26 • Attorney Frederick Bennett, representing the Superior Court of Los
27 Angeles, named as respondent; and
28
2
1 • Attorney Joshua L. Rosen, representing Del Rey Shores Joint Venture and
2 Del Rey joint Venture North, named as real parties in interest.
3 (See Exhibit "A" herewith, a true and correct copy of the docket from the California
4 Court of Appeal as to Petitioner's first state habeas petition.)
5 On March 3, 2009, the Court of Appeals denied the petition. (Id.) On March
6 4, 2009, Petitioner filed a habeas petition in the California Supreme Court, which
7 was denied on March 5, 2009. (See, Exhibit "E" of Petitioner's Petition.) In both of
8 Petitioner's state habeas petitions, Petitioner named the Superior Court of California
9 as the respondent. (Id.; and see Exhibit "A".) Sheriff Baca, however, was neither a
10 party nor a respondent to these state court habeas filings.
11 Petitioner filed his Petition in the instant court on March 19, 2009. As the
12 Petition named Sheriff Baca as Respondent, representatives for Sheriff Baca were
13 served and, through County Counsel for the County of Los Angeles, the law firm of
14 Lawrence Beach Allen & Choi, PC, was retained to represent Sheriff Baca.
15 (Declaration ofPaulB. Beach (hereafter "Beach Decl."), ,-r 2.) Subsequently,
16 attorneys for Sheriff Baca contacted counsel for the Superior Court of California and
17 Judge Yaffe, two of the real parties in interest in this matter. (Beach Decl., ,-r 3.)
18 Counsel for the Superior Court of California and Judge Yaffe has informed counsel
19 for Sheriff Baca that, if required by this Court, counsel for the Superior Court of .
20 California and Judge Yaffe is prepared to respond to Petitioner's Petition on behalf
21 of those two parties in interest. (Id.)
22 Counsel for Sheriff Baca has also been in contact with counsel for Del Rey
23 Shores joint Venture and Del Rey Joint Venture North. (Beach Decl., ~ 4.) Counsel
24 for these parties also informed counsel for Sheriff Baca that Del Rey Shores Joint
25 Venture and Del Rey Joint Venture North are prepared to respond to Petitioner's
26 Petition should this Court require it. (Id.)
27 As discussed below, while Petitioner has correctly named Sheriff Baca as a
28 respondent, the Petition should be dismissed as to Sheriff Baca to the extent the
3
1 Petitioner expects Sheriff Baca to litigate the legalities of the contempt finding as to
2 Petitioner, which is the underlying reason for Petitioner's incarceration. In the
3 alternative Sheriff Baca respectfully requests that this Court enter an order asking
4 the real parties in interest to respond to Petitioner's Petition.
5 III. Sheriff Baca Is Not A Real Party In Interest And Thus He Cannot
6 Substantively Respond To Petitioner's Habeas Petition.
7 Sheriff Baca does not dispute that he is properly named here, however,
8 because Sheriff Baca is not a real party of interest, Petitioner's Petition should be
9 dismissed to the extent Petitioner urges Sheriff Baca to substantively respond to the
10 Petition. In the alternative, Sheriff Baca requests that this Court direct the real
11 parties in interest to respond to Petitioner's Petition.
12 Real parties in interest are those persons or entities possessing the right or
13 interest sought to be enforced through the litigation. Karras v. Teleydyne Industries,
14 Inc., 191 F.Supp.2d 1162 (S.D. Cal. 2002). Real parties in interest are expected to
15 litigate their own matters. Coalition ofClergy v. Bush, 189 F.Supp.2d 1036, 1040-
16 41 (C.D. Cal. 2002); see also, Wilson v. US. Dist. Courtfor the Eastern Dist. of
17 California, 103 F.3d 828 (9th Cir. 1996) (in which the real parties submitted briefs
18 and there was no appearance as to the named respondent); U-Haul Int'l, Inc. v.
19 Jartran, Inc., 793 F.2d 1034, 1038 (9th Cir. 1986) (the real party in interest is the
20 person who has the right to sue under substantive law, rather than others who may
21 merely be interested in or benefit from the litigation). The real parties in interest in
22 this matter are: (1) the Superior Court of California, County of Los Angeles; (2)
23 Judge Yaffe; and (3) Del Rey Joint Venture and Del Rey Joint Venture l~orth. This
24 is because it is these real parties who sought to enforce (or entered) Petitioner's
25 contempt finding. Indeed, while Petitioner requests to be released from jail by
26 Sheriff Baca, it is only by virtue of these parties that Petitioner is in jail in the first
27 place. Said another way, Petitioner does not actually seek his redress from Sheriff
28 Baca. Rather, so that he may be allowed release from jail, Petitioner seeks redress
4
II
1 I as to Del Rey Joint Venture and Del Rey Joint Venture North, for their filing of the
2 I motion for contempt in the first place, and as to Superior Court Judge Yaffe, for
3 finding contempt and ordering Petitioner to jail.
4 1\1oreover, it should be noted that Judge Yaffe is an officer of the State of
5 California, and the Superior Court is administered by the State of California. See,
6 Cal. Gov't Code § 811.9. As such, these parties would be represented by State
7 counsel. Id. Sheriff Baca, on the other hand, is contracted by the County of Los
8 Angeles, not the State of California. Cal. Gov't Code § 53069.8; and Streit v.
9 County o.,fLos Angeles, 236 F.3d 552,562 (9th Cir. 2001). Del Rey Joint Venture
10 II and Del Rey Joint Venture North, meanwhile, are private parties, represented by a
11 private attorney. (Beach Decl., ,-r 4.) Sheriff Baca is not represented by State of
12 California attorneys or Del Rey Joint Venture's attorney, but by the County Counsel
13 for the County of Los Angeles and Lawrence Beach Allen & Choi, PC. (Beach
14 Decl.,,-r 2.) Thus, in addition to the fact that Sheriff Baca had nothing to do with the
15 decision to actually incarcerate Petitioner save carrying out a court order that was
16 lawful on its face (See, Exhibit "C" of Petitioner's Petition), neither Sheriff Baca
17 nor his counsel are in the position to defend Petitioner's incarceration by the
18 Superior Court of California as a result of the urging of the private parties in the
19 underlying matter. At most, Sheriff Baca is only in a position to continue to detain
20 Petitioner should this Court· find that Petitioner is rightly incarcerated, or release
21 Petitioner should this Court find that Petitioner is wrongfully incarcerated.
22 This matter is nearly identical to Diaz v. Lee Baca, 203 Fed.Appx. 884 (9th
23 eire 2006), in which an attorney was held in contempt by the Superior Court of
24 California and he filed a habeas petition, naming Sheriff Baca as the respondent.
25 (See, Exhibit "B" hereto, which is a true and correct copy of the Ninth Circuit Court
26 opinion, Diaz v. Lee Baca.) The attorneys representing the Superior Court of
27 California, and not attorney for Sheriff Baca, filed the responsive brief.
28 Additionally, while the docket reflected that the respondent was SheriffBaca, the
5
II
1 only real party in interest to actually respond to the petitioner's habeas petition was
2 "Superior Court of Los Angeles County California." (Id.; and see Exhibit "c"
3 hereto, a true and correct copy of the court docket for Ninth Circuit case, Diaz v. Lee
4 Baca.)
5 Here, likewise, while SheriffBaca may be properly named as Respondent, he
6 is not the proper party to respond to the Petition. Sheriff Baca simply was not and is
7 not privy to the facts underlying the contempt proceeding and thus not in a position
8 to respond to the Petition. Judge Yaffe and the Superior Court of California, among
9 other parties, have such information, and, indeed, it appears that the counsel for
10 II these parties are prepared to respond ifrequired by this Court. Moreover, the
11 private real parties in this matter are also prepared to respond to Petitioner's
12 Petition. Accordingly, to the extent Petitioner asserts Sheriff Baca should actually
13 put forth a responsive brief as to Petitioner's Petition, this matter should be
14 dismissed. Alternatively, Sheriff Baca respectfully requests that this Court order the
15 real parties in interest to file a response to Petitioner's Petition.
16 IV. Conclusion.
17 As discussed above, Sheriff Baca respectfully requests that the Court dismiss
18 the Petition or, in the alternative, order the real parties in interest Superior Court of
19 California, Judge David P. Yaffe, Del Rey Joint Venture and Del Rey Joint Venture
20 North to respond to Petitioner's Petition.
21
22 Dated: April 21, 2009 LAWRENCE BEACH ALLEN & CHOI, PC

23
24 By_~ . . ,.
Aaron M. Fontana
25
Attorneys for Respondent
26 Sheriff Leroy D. Baca
27
28
6
1 DECLARATION OF PAUL B. BEACH

2 I, Paul B. Beach, declare as follows:
3 1. I am an attorney at law duly licensed to practice before this Court and
4 all the courts of the State of California. I ani a shareholder with the law firm of
5 Lawrence Beach Allen & Choi, PC, attorneys of record for Respondent Sheriff
6 Leroy D. Baca ("Sheriff Baca") in the above-referenced matter. I have personal
7 knowledge of the facts stated herein except those stated upon information and belief
8 and as to those matters I believe them to be true. If called to testify to the matters
9 herein, I could and would competently do so.
10 2. Shortly after my firm was retained in this matter by the County counsell
11 for the County of Los Angeles, we received and reviewed Petitioner Richard 1.
12 Fine's ("Petititioner") Petition for Writ of Habeas Corpus, pursuant to 28 U.S.C. §
13 2254 ("Petition"), as well as the exhibits attached to Petitioner's Petition. The
14 Petition names Sheriff Baca because he is the custodian of Petitioner. From the
15 Petition papers, it is also clear that he seeks release from his incarceration stemming
16 from his contempt proceedings before Judge David P. Yaffe ("Judge Yaffe") in the
17 underlying state case, Marina Strand Colony IL Homeowners Association v. County
18 ofLos Angeles, Los Angeles Superior Court, Case No. BS 109420. Accordingly,
19 while we understand that Sheriff Baca is necessarily named as Respondent in the
20 Petition, Sheriff Baca is simply not in a position to substantively respond to
21 Petitioner's Petition. This is because Sheriff Baca was not a party of the contempt
22 proceedings below that resulted in Petitioner's incarceration.
23 3. Subsequent to receipt of this case, counsel for Sheriff Baca have been
24 in contact with Frederick R. Bennett, counsel for the Superior Court of California,
25 County of Los Angeles ("Superior Court of California") and Judge Yaffe. I
26 understand that counsel for the Superior Court of California and Judge Yaffe is
27 aware that two of the real parties in interest in this matter are the Los Angeles
28 Superior Court, which is a state agency separate and independent from the
7
1 County of Los Angeles, and Judge Yaffe, an employee of the State of California,
2 who issued the order of contempt as to Petitioner. I also understand that counsel for
3 the Superior Court of California and Judge Yaffe knows of the Petition and intends
4 to respond if asked to do so by this Court.
5 4. Additionally, on April 20, 2009, I was contacted by Joshua Rosen, the
6 attorney representing the private real parties in interest in the underlying state case,
7 Marina Strand Colony IL Homeowners Association v. County ofLos Angeles.
8 These parties are Del Rey Joint Venture and Del Rey Joint Venture North. Counsel
9 for these parties is aware of Petitioner's Petition and intends to respond if asked to
10 I do so by this Court. In fact, I was informed that counsel for these parties were
11 preparing a response and intend to file it in the near future, although he cannot file it
12 by the current deadline because Petitioner did not serve him with a copy of the
13 Petition.
14 5. Attached and incorporated herein as Exhibit "A" is a true and correct
15 copy of the docket of the California Court of Appeals as to Petitioner's state habeas
16 petition.
17 6. Attached and incorporated herein as Exhibit "B" is a true and correct
18 copy of the Ninth Circuit Court opinion in Diaz v, Lee Baca, 203 Fed.Appx. 884
19 (9th Cir. 2006).
20 7. Attached and incorporated herein as Exhibit "C" is a true and correct
21 copy of the court docket for the Ninth Circuit case of Diaz v. Lee Baca, 203
22 Fed.Appx. 884 (9th Cir. 2006).
23 I declare under penalty of perjury under the laws of the State of California
24 and the United States of America that the foregoing is true and correct.
25 Executed on April 21, 2009, at Glendale/' lifornia.
26 .//"""';7 \,
27
V \
,l·······v-··\
28 Paul B. Be~ch \
8 U
EXHIBIT "A"
2nd Appellate District
Court data last updated: 04/15/200901 :05 PM
Case Summary Docket

Disposition Parties and Attorneys
Parties and Attorneys

In re RICHARD
Division 4
Case Number
Fine, Richard: Petitioner Richard I. Fine

468 North Camden Drive #200
Beverly Hills, CA 90210
Superior Court Los Angeles County : Frederick Bennett

Respondent S.C.L.A.
111 North Hill Street
Room 546
Los Angeles, CA 90012
Marina Strand Colony II Homeowners Rose M Zoia

Association : Real Party in Interest 50 Old Courthouse Square
Suite 600
Santa Rosa, CA 95404
Del Rey Shores Joint Venture: Real Joshua L. Rosen

Party in Interest Law Offices of Joshua L. Rosen
5905 Sherbourne Dr.
Robert James Comer

Armbruster & Goldsmith LLP
10940 Wilshire Blvd.
I~~:~~~~~s, CA 90024
FD-e-I-R-ey:"-"""S-h-or-e-S-J-O-in-tv-en-t-ur-e-N-o-r-th-:-·_·····_mjJOShUa L. Rosen
. ~~ ~~t automatic e-mail Qtffi~OO§~tbi~.cRMen
5905 Sherbourne Dr.
Robert James Comer

Armbruster & Goldsmith LLP
10940 Wilshire Blvd.
Suite 2100
. .• .' .
.~ ~.~ ~ ~~:I:~ ~.~ ~.~ (~bib.it ~~.A .~. ~. 1
f1 4/15/20092:04 PM
LaUIUillla Louns Appellate Loun Lase lIllOITIIallOIl rage 1 01 1
2nd Appellate District

------
Court data last updated: 04/21/2009 11 :05 AM
Case Summary Docket Scheduled Actions

DisRosition Partie~~nd Attorl'1ID'Ji
Docket (Register of Actions)

In re RICHARD FINE on Habeas Corpus
Division 4
Case Number 8214321
Date Description Notes
03/02/2009 Petition for a writ of habeas Request for Immediate Stay/1
corpus filed. Volume of Exhibits
03/03/2009 Order denying petition filed.

03/03/2009 Case complete.
Click here to request automatic e-mail notifications about this case.
Exhibit"A" 2
httn://annellatecases.comiinfo.ca.fIov/search/case/dockets.cfin?dist=2&doc id=1387745&... 4/21/2009

EXHIBIT "B"
2006 WL 2365431 (C.A.9) Page 1
For Opinion See 203 Fed.Appx. 884
United States Court of Appeals,

Ninth Circuit.
Frances L. DIAZ, Petitioner and Appellant,
v.
Lee BACA, Sheriff; Superior Court of California, County of Los Angeles, Respondents and Appellees.
No. 04-56652.
January 24,2006.
Appeal from the United States District Court, Central District of California, Central Division, Case No. CV 03-
07625-RSWL
Answering Brief of Appellees, Superior Court of California, County of Los Angeles
Kevin M. McConnick - Casbn 115973, Benton, Orr, Duval &Buckingham, 39 North California Street, Post Office
Box 1178, Ventura, California 93002, Telephone: (805) 648-5111; Facsimile (805) 648-3718, Attorneys for Re-
spondent/Appellee, Superior Court of California, County of Los J\ng,eles.
*i TABLE OF CONTENTS
I. STATEMENT OF JURISDICTION ... 1
II. STATEMENT OF INTERESTED PARTIES ... 1
III. STATEMENT OF ISSUES PRESENTED ... 2
IV. STATEMENT OF THE CASE ... 2
V. STATEMENT OF FACTS ... 9
A. Moore v. Kaufman .., 10
B. December 30,2002 Judgment Debtor Examination ... 12
C. March 25,2003, Order to Show Cause and April 21, 2003, Finding of Contempt Against Diaz ... 12
D. Diaz' June 17,2003, Motion for a New Trial re the Apri121, 2003, Finding of Contempt ... 13
E. July 22,2003, Hearing re Status of Compliance with April 21, 2003, Judgment of Contempt ... 14
F. July 29, 2003, Order to Show Cause and September 15, 2003, Hearing ... 14
Exhibit "B" 3
© 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
2006 WL 2365431 (C.A.9) Page 2
G. September 19,2003, Hearing on July 29,2003, Order to Show Cause Re Contempt ... 15
H. October 3,2003, Hearing on July 29,2003, Order to Show Cause Re Contempt ... 15
I. October 2003, Petitions for Writ of Habeas Corpus (California Court of Appeal and California Supreme Court) ...
16
*ii J. Denial of Diaz' Petition for Writ of Habeas Corpus (United States District Court) and Subsequent Certificate of
Appealability ... 17
VI. STANDARD OF REVIEW ... 17
VII. SUMMARY OF ARGUMENT ... 22
VIII. ARGUMENT ... 22
A. DIAZ WAS NOT DENIED DUE PROCESS OF LAW DURING HER CONTEMPT PROCEEDINGS ... 22
1. Due Process Was Satisfied as Diaz' Failure to Pay the Previously Imposed Sanction Was a Direct Contempt
Committed in the View and Presence of the Superior Court, the Superior Court Made an Order Reciting the Facts
Constituting the Contempt, [ ] Diaz Had Notice of That Order, and Diaz Failed to Pay the Sanction or Establish Why
She Could Not Comply with the Sanction Order ... 22
2. Under California Law, Diaz Had the Burden of Proof as to the Affirmative Defense of Inability to Comply with
the Sanction Order ... 25 .
B. DIAZ WAS NOT DENIED HER RIGHT TO COUNSEL IN VIOLATION OF THE SIXTH AMENDMENT ...
28
C. THERE WAS SUFFICIENT EVIDENCE TO SUPPORT THE SUPERIOR COURT'S FINDING THAT DIAZ
WAS IN CONTEMPT OF VALID STATE COURT ORDERS ... 34
*iii 1. The Voluntary Dismissal of Moore v. Kaufman Did Not Divest the Superior Court of Jurisdiction to Rule on
the Anti-SLAPP Motion and Award of Costs and Attorney's Fees Against Diaz ... 34
2. The September 7,2001, Order of the Superior Court Awarding Attorney's Fees and Costs Against Diaz, and the
Subsequent Order Setting the Amounts Thereof, Was Proper under State Law.... 35
IX. CONCLUSION ... 39
X. STATEMENT OF RELATED CASES ... 39
XI. CERTIFICATE OF COMPLIANCE ... 40
*iv TABLE OF AUTHORITIES
UNITED STATES SUPREME COURT CASES
Exhibit "B" 4
2006 WL 2365431 (C.A.9) Page 3
Bell v. Cone, (JOO?) 535 U.S. 685. I?? S.Ct. 1843. 15? T.Ed.2d 914 ... 19,20
Brecht v. Abrahamson, (1993) 507 U.S. 619,113 S.Ct. 1710, L.Ed.2d 353 ... 19
Earl)! v. Packer, (2002) 537 U.S. 3. 123 s.et. 362, 154 LEd.2d 263 ... 19.20
Estelle v. McGuire, (1991) 502 U.S. at 67-68 ... 18
Faretta v. California, (1975) 422 U.S. 806,95 S.Ct. 2525,45 L.Ed.2d 562 ... 28
Hicks v. Feiock, (1988) 485 U.S. 624.108 S.Ct. 1423,99 L.Ed.2d 721 ... 23
Kotteakos v. United States. (1946) 328 U.S. 750, 66 S.Ct. 1239,90 L.Ed.1557 ... 19
Lockver v. Andrade, (2003) 538 U.S. 63. 123 S.Ct. 1166, 155 L.Ed.2d 144 ... 20. 21
Martin v. Ohio (1987) 480 U.S. 228 [107 S.Ct. 1098, 94L.Ed.2d 267J ... 26,27
Mullanev v. Wilbur, (1975) 421 U.S. 684, L.Ed.2d 508 ... 18
*v Patterson v. New York (1977) 432 U.S. 197 [97 S.Ct. 2319,53 L.Ed.2d 281J ... 27
Williams v. Tavlor, (2000) 529 U.S. 362, 120 S.Ct. 1495. 146 L.Ed.2d 389 ... 19.20
Woodford v. Visciotti, (2002) 537 U.S. 19, 123 S.Ct. 357,154 L.Ed.2d 279 ... 20,21
NINTH CIRCUIT COURT OF APPEALS CASES
Alcala v. Woodford. (9th Cir. 2003) 334 F.3d 862 ... 17
Bonin v. Calerone. (9th Cir. 1996) 77 F.3d 1155 ... 18
Delgado v. Le'wis, (9th Cir. 2000) 223 F.3d 976 ... 21
Jackson v. Ylst, (9th Cir. 1990) 921 F.2d 882 ,.. 28
Kates v. Nelson, (9th Cir. 1970) 435 F. 2d 1085 ... 33
Peltier v. Write, (9th Cir. 1993) IS'F.3d 862 ... 18
Shackleford v. Hubbard. (9th Cir. 2000) 234 F.3d 1072 ... 21
United States v. Akins, (9th Cir. 2002) 276 F.3d 1144 .. , 29, 30
*vi UnitedStates v. Balough. (9th Cir. 1987) 820 F.2d 1485 ... 29, 30
United States v.Farhad, (9th Cir. 1999) 190 F.3d 1097 ... 29
Exhibit "B" 5
2006 WL 2365431 (C.A.9) Page 4
United States v. George. (9th Cir. 1995) 56 FJd 1078 ... 28.29
United States v. Harris. (9th Cir. 1982) 683 F.2d 322 ... 29
United States v. Kimmel. (9th Cir. 1982) 672 F.2d 720 ... 30
United States v. Mohawk, (9th Cir. 1994) 20 F.3d 148 ... 29
OTHER CIRCUIT COURT OF APPEALS CASES
Davis v. A1cMann. (2nd Cir. 1968) 386 F. 2d 611 ... 33
United States v. GalloJJ. (4th Cir. 1988) 838 F.2d 105 ... 32
United States v. Willie. (10thCir. 199?) 941 F.2d 1384 ... 32
FEDERAL DISTRICT COURT CASES
Metabolife International, Inc. V. Wornick, 213 F.Supp.2d 1220, (SD CA 2002) ... 36
*vii CALIFORNIA STATE CASES PAGE
Brandt v, Superior Court (1985) 37 Ca1.3d 813,210 Ca1.Rptr. 211 ... 38
Cal-Vada Aircraft. Inc. v. Superior Court, (1986) 179 CatApp.3d 435, 224 Cal.Rptr. 809 ... 35
Deckerv. U.D. Registrv.lnc.. (2003) 105 CatAppAth 1382, 129 Ca1.Rptr.2d 892 ... 37
Grant v. List & Lathrop (1992) 2 Ca1.AnpAth 993 ... 11
Hanson v. Superior Court. (2001) 91 Cal.AppAth 75, Cal.Rptr.2d 782 ... 23
In re Rubin. (2001) 24 Ca1.4th 1176, 108 Cal.Rptr.2d 593 ... 25
Ketchum v. Moses (2001) 24 Ca1.4th 1122, 104 Ca1.Rptr.2d 377 ... 36
A10ss v. Superior Court, (1988) 17 Ca1.4th 396, 71.Ca1.Rptr.2d 215 ... 25,26,27
Tokio Marine & Fire Ins. Corp. v. Western Pacific Roofing Corp.(1999) 75 Ca1.App. 4th 110 ... 11
Warner v. Superior Court. (1954) 126 Ca1.App.2d 821, 273 P.2d 89 ... ?3
Zapanta v. Universal Care. Inc.. (2003) 107 Ca1.AppAth 1167, 132 Cal.Rptr.2d 842 ." 34
*viii FEDERAL STATUTES, RULES AND REGULATIONS
Exhibit "B" 6
2006 WL 2365431 (C.A.9) Page 5
~-===="--,=,-,==-==:..:::c.=,,,---,,-,=-:. ... 1; 17
28 United States Code §2254(a) ... 18
28 United States Code §2254(d) ... 18,20
28 United States Code §2254(d)(l) ... 19
28 United States Code §2254(e)(l) ... 18
Federal Rules ofAppellate Procedure
Rule 22 ... 1
CALIFORNIA STATE ACTS, STATUTES, RULES AND REGULATIONS
California Code of Civil Procedure
Section 128.5 ... 36, 38
Section 128.5(a) ... 37
Section 128.7 ... 6, 7,36
Section 425.16 ... 4,10,14,37
Section 425.16(c) ... 35,36
Section 4 73(b) ... 6
Section 1008 ... 6
Section 1209.5 ... 26
Section 1218(2) ... 7, 13
*1 1.
STATEMENT OF JURISDICTION
This appeal is taken after the District Court denied appellant's petition for writ of habeas corpus from a state court
order and judgment finding appellant in contempt. See 28 u.s.
C. § 2254. This Court subsequently issued a Certifi-
cate of Appealability pursuant to F.R.A.P.. Rule 22.
II.
STATEMENT OF INTERESTED PARTIES
Exhibit "B" 7
2006 WL 2365431 (C.A.9) Page 6
The interested parties to this appeal are appellant, Francis L. Diaz (hereinafter "Diaz"), Andrew E. Rubin, attorney
for appellant, appellee, Lee Baca, Sheriff of the County of Los Angeles, State of California, appellee, the Superior
Court of California, County of Los Angeles (hereinafter the "Superior Court"), and the offices of Benton, Orr, Duval
& Buckingham, by Kevin M. McCormick, attorneys for appellee, the Superior Court. [FNl]
FN1. Appellant's Opening Brief is incorrect insofar as it represents that the firm of Benton, Orr, Duval &
Buckingham represents appellee, Lee Baca. Mr. Baca, is not represented by the firm of Benton, Orr, Duval
& Buckingham.
III.
STATEMENT OF ISSUES PRESENTED
On July 20,2005, this Court issued its order specifying the issues on appeal as follows:
A. Whether Appellant was denied due process during her contempt proceedings;
B. Whether Appellant was denied the right to counsel in violation of the Sixth Amendment of the United States
Constitution during her April 2003 contempt hearing; and
C. Whether there was sufficient evidence to support the Superior COUli of California, County of Los Angeles' find-
ing that Appellant was in contempt of valid court orders.
IV.
STATEMENT OF THE CASE
This matter concerns repeated, concerted and frivolous tactics by a licensed attorney to avoid satisfying a valid
judgment awarding attorney's fees and costs, culminating in multiple findings of contempt and, ultimately, the impo-
sition of a three day jail sentence. The protracted history of the underlying state matter is set forth in detail be-
low.[FN2]
FN2. The following procedural history regarding the underlying state court proceedings is taken, in large
part, from the California COUli of Appeal, Second Appellate District's February 3, 2005, opinion, Moore v.
Diaz, Case No. B 165018 (2005WL 249336). This appeal, one of many, dealt with Diaz' appeal of two or-
ders of the Superior Court denying Diaz' motions for correction of the September 7,2001 Order and Judg-
ment to delete all references to Diaz' contained therein and a February 5, 2003 order granting additional
monetary sanctions against Diaz and Moore for their frivolous attempts to block Kaufman's attempts to col-
lect on the judgment. In its decision, the Court of Appeal reviewed the long procedural history of the matter
ultimately resulting in the September 7, 2001 Order and Judgment against Moore and Diaz. (Supplemental
Excerpts of Record on Appeal, hereinafter "SER", pp. 001-005.)
In April 2000, Sheila G. Moore (hereinafter "Moore"), represented by Diaz, sued Bany B. Kaufman (hereinafter
"Kaufman") for intentional interference with her employment contract with the Cedars-Sinai Imaging Medical
Group, but did not serve Kaufman with the summons or the complaint. When the cOUli set a status conference for
October 2000, Moore dismissed her complaint without prejudice.
In April 2001, Moore, through Diaz, filed an ex parte application for an order vacating her prior dismissal of this
action and for leave to serve the complaint. The ex parte application was denied, and Moore was ordered to proceed
by way of noticed motion. Moore then filed a motion, but did not serve it on Kaufman, and instead served another
Exhibit "B" 8
2006 WL 2365431 (C.A.9) Page 7
lawyer who also represented Moore. In Kaufman's absence, Moore's motion was granted and the action was rein-
stated. In May of 2001, Moore filed and served a first amended complaint. In June of 2001, Kaufman found out
about the order relieving Moore from her dismissal. On July 9, 2001, Kaufman moved for reconsideration of the
order reinstating Moore's action on the ground that Diaz had concealed from the court the fact that Kaufman had not
been served with the motion to vacate the dismissal, or with notice of the order granting that motion. On July 10,
2001, Kaufman filed a motion to strike the first amended complaint pursuant to Cal. Code o(Civ. Pro. § 425.16.
On July 16,2001, :Moore filed a second amended complaint in which (in addition to her claim of intentional inter-
ference with contract) she charged Kaufman with legal malpractice, breach of fiduciary duty, breach of contract, and
fraud by concealment. On July 25,2001, Kaufman filed a motion to strike the second amended complaint, pursuant
to Cal. Code ofCiv. Fro. §' 425.16. On July 27,2001, Moore filed an opposition to Kaufman's motion for reconsid-
eration ofthe reinstatement order.
On August 8, 2001, the Superior Court granted Kaufman's reconsideration motion, finding that Diaz's intent was to
mislead the court. (Excerpts of Record on Appeal, hereinafter "ER", p. 323.) Diaz was ordered to file and serve a
noticed motion and she clearly had knowledge of Kaufman's address to give notice. The court neveliheless deferred
the issue of dismissal to September 7, 2001, the date set for the hearing on Kaufman's motion to strike.[FN3]
FN3. Moore v. KauOnan. Case No. B165018 (2005 WL 249336). (See "SER", p. 003.)
On August 14, 2001, Moore applied ex parte for an order restoring the case to its dismissed status, claiming the
court lacked jurisdiction to grant her earlier motion to reinstate the case because the order of dismissal had been en-
tered at her request. Her ex parte application was denied, and the matter was set for hearing on September 27, 2001.
On August 15,2001, Moore applied ex parte for an order staying the September 7,2001, hearing on Kaufman's mo-
tion to strike until after the September 27,2001, hearing. Diaz' application was denied, and the California Court of
Appeal, Second Appellate District summarily denied Diaz' petition for relief from that order. (SER, pp. 003.)
On September 7, 2001, the trial court granted Kaufman's motion to strike, dismissed the action with prejudice,
awarded attorney's fees and costs to Kaufman, found that these orders constituted an adjudication on the merits of
the action within the meaning of the anti-SLAPP statute, and deemed the relief sought by Kaufman's motion for re-
consideration moot. A judgment of dismissal was entered the same day, awarding fees and costs of $42,223.75 to
Kaufman, payable jointly and severally by :rVloore and Diaz.[FN4] 1'-.1oore, but not Diaz, filed a notice of appeal from
that order. The state COUli of Appeal affirmed, and awarded costs to Kaufman, including attorney's fees in an
amount to be determined by the trial court. (ER, pp. 317-328.)
FN4. The attorney's fees and costs added by the clerk to the September 7, 2001 Order and Judgment were
decided in response to Kaufman's motion to set those amounts filed November 5,2001 and decided January
8,2002 (ER, pp. 041,049,087,088-090.) Diaz was present at the time of the hearing and argued against
the amounts set as fees and costs.
On December 9, 2002,Diaz filed a motion seeking relief from the September 7,2001, Order and Judgment, pursuant
to Cal. Code of Civil Froc. § 473(b). That motion was denied by the Superior Court on January 22, 2003, on the
basis that Diaz' motion was actually an untimely motion for reconsideration pursuant to Cal. Code of Civ. Fro. §
1008 and that there was no clerical error in terms of Diaz being named on the September 7,2001 Order and Judg-
ment. (SER, pp. 004-005.)
At the time of the debtor's examination on December 30, 2002, before the Honorable Murray Gross, Superior COUli
Commissioner, Diaz simply refused to answer any questions regarding her financial ability to comply with the
award of costs and fees to Kaufman in connection with the September 7,2001 Order and Judgment. (ER, 117-120.)
On February 5, 2003, the Superior Court granted Kaufman's motion for. sanctions, pursuant to Cal. Code of Civil
Fro. § 128.7, based upon Diaz' frivolous motion to quash the examination, previously filed September 30,2002, in a
Exhibit "B" 9
2006 WL 2365431 (C.A.9) Page 8
concerted effort to block Kaufman's legitimate attempts to enforce his jUdgment. (SER, p. 003-004.)
On February 6,2003, and almost eighteen months after the September 7,2001, judgment was entered, Diaz filed a
notice of appeal from two post-judgment orders, the first entered on January 22,2003, denying Diaz' motion to cor-
rect the September 7,2001, judgment by deleting all references to her, and the other entered on February 5, 2003,
granting Kaufman's Cal. Code o(Civ. Pro. § 128.7 motion for sanctions payable by Diaz and Moore for their frivo-
lous efforts to block his attempts to collect his judgment. (SER, pp. 001-005.)
On April 23, 2003, and resulting from a March 25,2003, Order to Show Cause based upon Diaz' failure to answer
questions regarding her financial condition at the time of the December 30,2002, judgment debtor's examination,
and, after a two day hearing, the Superior Court found Diaz in contempt as she had wilfully failed to obey the lawful
and valid order of the Superior Court made by Commissioner Gross, to answer certain relevant questions during her
judgment debtor examination. In addition, the Superior Court, pursuant to Code of Civil Procedure, § 1218(2), im-
posed a $1,000 fine against Diaz, and awarded reasonable attorney's fees and costs to Kaufman in an amount that
was later set on noticed motion at $14,339.95. (ER, pp. 311,329-330.)
After the April 21, 2003, Order and Judgment of Contempt was issued, Diaz filed a motion seeking a new trial on
that order. That motion was denied by the Superior Court on June 17,2003. (SER, pp. 006-022.) On that same date,
Diaz advised the Superior Court that she still had not paid the attorney's fees and costs, nor the $1,000 fine imposed
by the April 23, 2003, Order and Judgment of Contempt. (SER, pp. 018-019.)
Ultimately, and after several continuances and extensions were provided for Diaz to comply, Diaz, through her at-
torney, Rubin, appeared for the October 3,2003, hearing on the Order to Show Cause re Contempt. (ER, pp. 342-
347, 348-377, 378-405.) The Superior Court found that Diaz had previously represented thatshe had not paid the
fine and that she lacked the money to pay the fine. The Superior Court also found that no evidence had been pre-
sentedby Diaz to substantiate her claim of inability to pay. Based upon the foregoing, the Superior Court found Diaz
in contempt. (ER, pp. 465-471.) As a result of the October 3,2003, Order and Judgment of criminal contempt, Diaz
was sentenced to three days in jail and assessed $6,927.80 in fines. The Superior Court stayed the imposition of the
sentence until October 24, 2003, to allow Diaz an opportunity to seek appellate review of the order of criminal con-
tempt.
After exhausting her state law remedies, Diaz surrendered herself to the Superior Court on October 24, 2003, and
thereafter served the sentence in full.
On October 24, 2003, Diaz sought an immediate stay of sentence and habeas corpus relief from the United States
District Court, Central District of California, Western Division, Francis L. Diaz v. Lee Baca (SherifJ), Case No. CV
03-7625-RSWL (SH). The request for immediate stay of sentence was denied by the District Court and the petition
for habeas relief, after full briefing by Diaz and the Superior Court, was ultimately denied. (ER, pp. 475-498.)[FN5]
FN5. Diaz states in her Opening Brief that she objects to the "Procedural History" and "Eactual Back-
ground" contained in the District Court's order denying habeas relief. (AOB, p. 2, ft. 1.) Diaz further states
that she has filed objections to such findings; however, no such objections were served with the Opening
Brief. In any event, Diaz' objections to the "Procedural History" and "Factual Background" are without
merit as the District Court's findings in this regard are part of the record on appeal.
The instant appeal is from the District Court's denial ofDiaz' Petition for a Writ of Habeas Corpus.
V.
STATEMENT OF FACTS
Exhibit "B" 10
2006 WL 2365431 (C.A.9) Page 9
This appeal arises from the October 3, 2003, Superior Court Order ,md *10 JUdgment of Contempt entered against
Diaz in the underlying state cOUli matter of Sheila G. Moore v. BarTy B. Ka u.fin an, Superior Court of California,
County of Los Angeles, Case No. BC228943 (hereinafter "Moore v. Kaufman "). (ER, pp. 472-474.)
The October 3, 2003, Order and Judgment of Contempt was the culmination of numerous prior hearings and orders
as described below.
A.Moorev.Kaufman
This state court lawsuit was filed by Diaz on behalf of her then-client, Moore.[FN6J On September 7,2001, and upon
motion by Kaufman, the mater was dismissed pursuant to the anti-SLAPP provisions of California Code of Civil
Procedure. §425.16. (ER, pp. 001 -004,041-042,317-328.) Judgment was ultimately entered in Kaufman's favor and
against Moore and Diaz in the amount of$42,223.75, in attorney's fees and costs. The amount of fees and costs were
set bythe Superior COUli on January 8, 2002. (ER, pp. 041, 049, 087, 088-090.)
FN6. According to the factual summary provided by the California Court of Appeal in its April 24, 2003
unpublished opinion (ER, pp. 328), in affirming the granting of the anti-SLAPP motion and dismissal of the
Moore v. Kau.{1nan lawsuit,in April 2000, Moore, a radiologist, shareholder, director and employee of Ce-
dars-Sinai Imaging Medical Group, Inc. sued Barry Kaufman, attorney for the Group, alleging intentional
interference with her employment contract with the Group. The origin of the lawsuit, and numerous others,
appears to be a dispute which arose in 1999, when the Group initiated a "peer review investigation" into al-
legations that Moore had disclosed confidential corporate information to a former employee who was suing
the Group. Throughout the subsequent litigation, Diaz represented Moore.
*11 Although Diaz did not directly appeal the award of costs and attorney's fees against her personally, by way of
her appeal of two subsequent orders issued by the Superior Court, the California Court of Appeal, Second Appellate
District reviewed the award of fees as against Diaz, finding that the award was proper and supported by California
law.[FN7J
FN7. In its February 3, 2005 opinion, Moore v. Kaufman. Case No. B 165018 (2005 WL 249336). and spe-
cific to Diaz' argument that the September 7, 2001 award of costs and fees against her was without notice
and violated due process, the Court of Appeal stated: "First, Diaz is wrong when she claims the motion did
not seek fees and costs payable by her as well as her client. The motion, filed on July 25, 2001, expressly
sought fees and costs from "plaintiff Moore and her attorney of record ..., Frances L. Diaz, Esq., jointly and
severally." Thetrial court's order, signed and entered on September 7,2001, "granted [that motion to strike]
in its entirety" and awarded fees and costs to Kaufman as the prevailing party. (§ 425.16.subd. (c).) As a
result, there was no "clerical error." (Tokio Marine & Fire Ins. Com. v. Western Pacific Roofing Corp.
(1999) 75 CaI.App.4th 110. 117-118.) Second, Diaz--who filed a notice of appeal on Moore's behalf--did
not file a notice of appeal from the September 7, 2001, judgment for herself, notwithstanding that she knew
that judgment made her jointly and severally liable for the award of fees and costs. Since the time to seek
reconsideration of or apneal from the iudgment had expired long before Diaz filed her motion to correct a
"clerical error," and lodg' before she filed this appeal from the order denying that motion (Cal. Rules of
Court. rule 2; Grant v. List & Lathrop (1992) 2 CaI.App.4th 993. 998; Eisenberg et aI., Cal. Practice
Guide: Civil Appeals and Writs (The Rutter Group 2003) § § 3:4 to 3:6, pp. 3-1 to 3-2), Diaz' motion to
correct a "clerical error" must be viewed as what it is--a transparent effort to do indirectly that which she
forfeited the right to do directly. For this reason too, her motion was properly denied. (Betz v. Pank01;JJ
(1993) 16 Cal.App.4th 93 L 937-938.)" (SER, pp: 004-005.)
*12 B. December 30,2002, Judgment Debtor Examination
The contempt proceedings that are the subject of this appeal initially arose from Kaufman's attempts to conduct a
Exhibit "B" 11
2006 WL 2365431 (C.A.9) Page 10
judgment debtor examination of Diaz as part of his efforts to collect the costs and fees aWarded in connectio!1 ',x/lth
the judgment entered on the order granting the Anti-SLAPP motion. Notwithstanding a court order requiring Diaz to
fully answer questions regarding her financial status in connection with a debtor's examination, at the time of that
examination on December 30, 2002, before the Honorable Murray Gross, Superior Court Commissioner, Diaz sim-
ply refused to answer any questions regarding her financial ability to comply with the award of costs and fees to
Kaufman. (ER, pp. 117-120.)
C. March 25,2003, Order to Show Cause and April 21 ,2003, Finding of Contempt Against Diaz
Following Diaz' willful failure to respond to questions during the Judgment Debtor Examination on December
30,2002, Kaufman sought an order to show cause why Diaz should not be held in contempt for that wilful failure to
comply. On March 25,2003, the Superior Court issued an order to show cause as to why Diaz should not be ad-
judged in contempt of court for willfully disobeying the order of the Superior Court to answer questions regarding
her financial ability to satisfy the award of costs and fees in favor of Kaufman. (ER, 127-128.)
*13 On April 21, 2003, and after a two-day bench trial, an Order and Judgment of Contempt was entered against
Diaz by the Superior Court. (ER, pp. 137-310 and 3-11-316.) Pursuant to Code of Civil Procedure, § 1218(2), the
Superior Court imposed a $1,000 fine against Diaz, and awarded reasonable attorney's fees and costs to Kaufman in
an amount that was later set on noticed motion at $14,339.95. (ER, 329-330.)
D. Diaz' June 17,2003, Motion for a New Trial re the April 21, 2003, Finding of Contempt
After the April 21, 2003, Order and Judgment of Contempt was issued, Diaz filed a motion seeking a new trial on
that order. That motion was denied by the Superior Court on June 17,2003. (SER, pp. 017-018.) On that same date,
Diaz advised the Superior Court that she had not paid the attorney's fees and costs, nor the $1,000 fine imposed by
the April 21,2003, Order and Judgment of Contempt. (SER, pp. 018-021.) In response, the Superior Court granted
Diaz an additional thirty day extension to comply with the April 21, 2003, Order and Judgment of Contempt, setting
the matter for hearing on July 22, 2003, to confirm whether Diaz had made payment or obtained a stay of the April
21,2003, Order and Judgment of Contempt from the state appellate court. (SER, pp. 018-020.)
*14 E. July 22,2003, Hearing re Status of Compliance with April 21,2003, Judgment of Contempt
On July 22,2003, Diaz advised the Superior Court that she had failed to obtain a stay. She also confirmed that she
had not paid the $1,000 fine or the attorney's fees award. (ER, p. 332-334.) The Superior Court directed that a new
Order to Show Cause re Contemptbe prepared. (ER, pp.337-340.)
F. July 29,2003, Order to Show Cause and September 15, 2003, Hearing
On July 29,2003, Kaufman filed a Declaration in Support of the Order to Show Cause Re Contempt. (ER, pp. 344-
347.) The Superior Court then issued a second Order to Show Cause Re Contempt on July 29, 2003. (ER, pp. 342-
343.)
In response, Diaz filed a "SLAPP" motion, pursuant to Cal. Code of Civ. Pmc. ~ 425.16 directed to the declaration
filed in support of the Order to Show Cause Re Contempt. Diaz' motion was set for hearing on September 15. 2003.
As a result,the Superior Court continued the July 29, 2003, hearing on the second Order to Show Cause Re Con-
tempt to September 15, 2003, for the purpose of hearing hoth matters on the same date. (ER, p. 478,11. 23-28.)
On September 15, 2003, the Superior Court concluded that Diaz' "SLAPP" motion was meritless and was presented
for the purpose of delay. (ER, p. 478, 11. 25-27.) The Superior COUli granted Diaz a continuance to allow her more
time to obtain *15 counsel and prepare for the contempt trial. As a result, the second Order to Show Cause Re Con-
Exhibit "B" 12
© 2009 Thomson Reuters/West. No Claim toOrig. US Gov. Works.
2006 WL 2365431 (C.A.9) Page 11
tempt was continued to September 19, 2003, (ER, p. 478,1 L 27-'28.)
G. September 19,2003, Hearing on July 29,2003, Order to Show Cause Re Contempt
On September 19,2003, Ganett Zelen, an attorney, appeared for Diaz and requested a further continuance, to allow
counsel an opportunity to prepare. Zelen represented that Diaz would provide evidence that she could not pay the
fine or the fee award. The Superior Court again continued the matter to October 3,2003. (ER, pp. 399-404.)
H. October 3,2003, Hearing on July 29,2003, Order to Show Cause Re Contempt
On October 3, 2003, Diaz appeared for the continued hearing with attorney, Andrew Rubin (hereinafter "Rubin").
The Superior Court informed Rubin that Diaz had previously represented that she had not paid the fine and that she
lacked the money to pay the fine. The court also found that no. evidence had been presented by Diaz to substantiate
her claim of inability to pay. (ER, pp. 431-432.)
Rubin represented to the Superior Court that Diaz would not present any evidence to show an inability to pay. (ER,
p. 432.) Rubin did not object to the state of the evidence recited by the Superior Court, nor did he offer any further
evidence, notwithstanding the cOUli's invitation to do so. (ER, p. 429-432.) Rubin's only effort *16 at this hearing
was to present oral argument as to why Diaz could not be held in contempt of court. (Commencing at ER, p. 432 and
continuing through p. 464.)
On October 3,2003, the Superior Court found that the evidence proved beyond a reasonable doubt that Diaz was in
willful violation of the April 21,2003, Order and Judgment of Contempt and that Diaz had proved no valid defense
for the refusal to comply with the court's order. Additionally, the Superior Court found Diaz in contempt for refusing
to pay the fine and fees she had been ordered to pay as part of the April 21 , 2003, Order and Judgment of Contempt.
Diaz was ordered to serve three days in county jail and to pay $6,297.80 in attorneis fees and costs incun-ed by
Kaufman in connection with the second contempt proceeding. The Superior Court stayed the imposition of the sen-
tence to allow Diaz the opportunity to seek appellate intervention. (ER, pp. 465-471.)
I. October 2003, Petitions for Writ ofHabeas Corpus (California Court of Appeal and California Supreme Court)
On October 21, 2003, Diaz filed a Petition for Writ of Habeas Corpus in the California COUli of Appeal, Second
Appellate District, challenging the second contempt finding. This petition was summarily denied on October 22,
2003. (ER, p. 476,11. 1-2.) A subsequent petition to the California Supreme Court was summarily denied on Octo-
ber 23,2003. (ER, p. 476, 11. 2-4.) On October 24,2003, Diaz *17 appeared in Department 50 and was taken into
custody to serve the jail term imposed by way of the October 3,2003, Order and Judgment of Contempt.
1. Denial of Diaz' Petition for Writ of Habeas Corpus (United States District Court) and Subsequent Certificate of
Appealability
Contemporaneously with her servi'ng of the three-day sentence imposed by way of the October 3, 2003, Order and
Judgment of Contempt, Diaz filed a petition seeking federal habeas relief. This petition was ultimately denied by the
District Court on July 15,2004. (ER, pp. 498-500.)
Diaz then sought a certificate of appealability from this Court, said certificate issuing on July 20, 2004. (ER, pp.
501-522,523-524.)
VI.
Exhibit "B" 13
2006 WL 2365431 (C.A.9) Page 12
SEANDARD OF R.EVIEWFN8 ]
FN8. Section VI., above, is taken from the Magistrate Judge's April 27, 2004, Report and Recommenda-
tion. (ER, 480-483.)
The standard of review of an order denying a Petition for Writ of Habeas Corpus, pursuant to 28 U.S.C. §2254, is de
novo. Alcala v. Woodford, 334 FJd 862. 868 (9th Cir. 2003). Further, and as the petition was filed after 1996, the
review of the *18 order will also be subject to the provisions of the Antiterrorism and Effective Death Penalty Act of
1996 ("AEDPA,,).[FN9]
FN9. Under the AEDPA, a federal court may not grant habeas relief on any claim adjudicated on its merits
in state court, unless that adjudication "(1) resulted in a decision that was contrary to, or involved an unrea-
sonable application of clearly established Federal law, as determined by the Supreme Court of the United
States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding." 28 Us.c. § 2254(d)(as amended by the AEDPA).
Moreover, a state court factual determination must be presumed to be correct unless rebutted by clear and
convincing evidence to the contrary. 28 Us. C. § 2254(e)(1) (as amended).
Notwithstanding the foregoing, a federal court may entertain a habeas petition on behalf of person in state custody
only when the petitioner's claim is based upon a violation of the Constitution, laws or treaties of the United States.
=--::::...:..~~-=-==-.:.~' Estelle v. McGuire, 502 U.S. 62,68,112 S.Ct. 475. 116 L.Ed.2d 385 (1991). A petitioner is not
entitled to habeas relief based upon state court en'or in interpreting statutes or applying state law. Estelle v.McGuire,
502 U.S. at 67-68; Bonin v. Calderone, 77 F.3d1155, 1161 (9th Cir. 1996) (no federal habeas relief for state law
error not amounting to a denial of a federal constitutional right). If a state law issue must be decided by the federal
court in order to decide the federal habeas claim, the state's own construction of that law is binding on the federal
court. Pettier v. Wright, 15 F.3d 860.862 (9th Cir. 1993), citing *19Mullanev v. TYilbur, 421 U.S. 684, 691, 95 S.Ct.
1881. 44 L.Ed.2d 508 (1975) (state courts as the ultimate expositors of state law).
With respect to a federal claim subject to the "harmless error" analysis, habeas relief is available only when the the
violation in question "had substantial and injurious effect or influence" in determining the the result in the matter.
Brecht v. Abrahamson, 507 U.S. 619, 637-638, 113 S.Ct. 1710. 123 L.Ed.2d 353 (1993); Kotteakos v. United States,
328 U.S. 750, 764, 66 S.Ct. 1239.90 L.Ed.1557 (1946)(the issue to be determined is "what effect the etTOr had or
reasonably may be taken to have had").
The standard of "clearly established Federal law" set forth in § 2254(d)(1) refers to the actual holdings of Supreme
Court decisions "as of the time of the relevant state court decision." Williams v. Tavlor, 529 U.S. 362,412,120 S.Ct.
1495,146 L.Ed.2d 389 (2000); see also Bell v. Cone, 535 U.S. 685,698,122 S.Ct. 1843,152 L.Ed.2d 914 (2002). A
state court is not required to set forth the controlling Supreme COUli cases in denying habeas relief "so long as nei-
ther the reasoning nor the result of the state-coUli decision contradicts them." Earlv v. Packer, 537 U.S. 3, 1)3 S.Ct.
362,365. 154 L.Ed.2d 263 (2002) (per curiam).
A federal habeas court is not required to "adopt anyone methodology" in determining "whether a state court deci-
sion is contrary to, or involved an *20 unreasonable application of, clearly established Federal law." Lockyer v.
Andrade, 538 U.S. 63,123 S.Ct. 1166, 1172, 155 L.Ed.2d 144 (2003). Although a particular decision may be both
"contrary to" and "an unreasonable application of' controlling law, the phrases have independent meanings. Wil-
liams v. Taylor, supra, 529 U.S. at 391,413.
A state cOUli decision is "contrary to clearly established federal law if the decision either applies a rule that contra-
dicts governing Supreme COUli law, or reaches a result different from which the Supreme Court reached on "materi-
ally indistinguishable" facts. Earl)? v. Packer, supra, 123 S.Ct. at 365; Bell v. Cone, supra, 535 U.S. at 694; Williams
Exhibit "B" 14
2006 WL 2365431 (C.A.9) Page 13
v Tavlnr, SUlJra, 529 H.S, at 405·--406, State court decisions which are nat "contrary to" Supreme Court law may ouly
be set aside on federal habeas review "if they are nat merely erroneous, but 'an unreasonable application' of clearly
established federal law, or are based on 'an unreasonable determination of the facts.' " Early v. Packer, supra, 123
U.S. at 366 (citing 28 U.S.c. § 2254(d); emphasis added).
A state court decision involves an "unreasonable application" of clearly established federal law if the decision cor-
rectly identifies the governing legal rule, but unreasonably applies it to the facts of a particular case. Tt711iams v.
ravlor, supra, 529 U.S. at 406-410,413; *21 Woodford v. Visciotti, 537 u.s. 19,123 S.Ct. 357,360-361. 154 L.Ed.2d
279 (2002) (per curriam). i>.. federal habeas court may notreject a state court decision based upon the federal court's
independent determination that the state court decision was incorrect, en'oneous, or even "clear error." Lockyer v.
Andrade, supra, 123 S.Ct. at 1175. A federal habeas cOUli may only reject a state court decision as an "unreasonable
application" if the state court's application of Supreme Court precedent was "objectively unreasonable." ld.;
TP"oodford v. Visciotti. supra, 123 S.Ct. at 360-361; Bell v. Cone. supra. 535 U.S. at 699; Williams v. ravlar, supra.
529 U.S. at 413.
In reviewing a state court adjudication, a federal habeas court looks to the last reasoned state decision as the basis
for the state court's final judgment. Schackleford v: Hubbard, 234 F.3d 1072, fn. 2 (9th Cir. 2000),citing Ylst v.
Nunnemaker, 501 U.S. 797, 803-804, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991). Thus, a federal court may "look
through" a summary denial by a state supreme court to a reasoned lower court decision to find the basis for the the
final judgment. ld. However, when there is no state court decision atiiculating the rationale for the judgment, a fed-
eral habeas court "has no basis other than the record" for determining whether a state court adjudication of a claim
was contrary to, or an unreasonable application of, controlling law. Delgado ·V. Lewis, 223 F.3d 976. 981-982 (9th
Cir.2000).
VII.
SUMMARY OF ARGUMENT
A. Diaz was not denied due process of law during her contempt proceedings.
B. Diaz was not denied her right to counsel in violation of the Sixth Amendment during the April 2003 hearing.
C. There was sufficient evidence to support the Superior Court's finding that Diaz was in contempt of valid state
court orders.
The district court's decision should be affirmed in its entirety.
VIII.
ARGUMENT
A. DIAZ WAS NOT DENIED DUE PROCESS OF LAW DURING HER CONTEMPT PROCEEDINGS
1. Due Process Was Satisfied as Diaz' Failure to Pay the Previously Imposed Sanction Was a Direct Contempt
Committed in the View and Presence of the Superior Court, the Superior COUli Made an Order Reciting the Facts
Constituting the Contempt, Diaz Had Notice of That Order, and Diaz Failed to Pay the Sanction or Establish Why
She Could Not Comply with the Sanction Order.
Diaz contends that she was denied due process and a fair trial at the time of the October 3,2003, contempt hearing.
Exhibit "B" 15
2006 WL 2365431 (C.A.9) Page 14
*23 Where the sentence for a finding of contempt is "a determinate one, then the punishment is criminal in nature,
and it may not be imposed unless federal constitutional protections are applied in the contempt proceedings." Hicks
v. Feiock. 485 U.S. 624,637, 108 S.Ct. 1423.99 L.Ed.2d 721 (19881. As the sentence imposed by way of the October
3, 2003, contempt hearing included a jail sentence of three days, federal constitutional protections attach; however,
there was no violation ofDiaz' rights.
In California, a direct contempt is "that which is committed in the immediate view and presence of the court or of
the judge in chambers; all other contempts,... which occur outside the presence of the court are indirect. Hanson v.
Superior Court. 91 Cal.App.4th 75, 81, 109 Cal.Rptr.2d 782 (2001). Moreover, in a case involving a direct con-
tempt, where there is no requirement that the charging documents be filed and served to present a prima facie show-
ing of the elements of contempt, the "court must make an order reciting the facts that constituting the contempt." Id.
at 81. The elements of contempt are that the court made a lawful order; the person cited for contempt had knowledge
or notice of the order; and the person was able to comply, yet wilfully disobeyed the order. Warner v. Superior
Court. 126 Cal.App.2d 821. 824, )73 P.2d 89 (1954).
*24 The specific contempt at issue was Diaz' refusal to comply with the Superior Court's April 23,2003, contempt
order, which required her to pay a $1,000 fine and costs. (ER, p. 472.) On October 3, 2003, the Superior Court re-
cited the evidence constituting the contempt finding that it had been proved beyond a reasonable doubt. (ER, p. 472-
473.) Diaz had previous notice and knowledge of the underlying order to pay the fine of $1 ,000. (ER, p. 472.) Diaz'
refusal to comply took place in the immediate view and presence of the trial judge. (ER, p. 473.) Diaz failed to prove
that she was unable to pay the fine, notwithstanding the Superior Court providing numerous opportunities to do so.
(ER, p. 473.) Under California law, such a failure to comply is considered a direct contempt of cOUli. See
Rubin. 24 Ca1.4th 1176, 108 Ca1.Rptr.2d 593 (2001) (appointed attorney's wilful failure to comply with deadline for
filing criminal defendant's brief after the sixth extension of time was "direct contempt" on appeal in capital case; the
failure to comply with the order occurred within the immediate view and presence of the Supreme Court). As a re-
sult, and contrary to Diaz' contention, California law did not require the admission of the charging affidavit during
the October 3,2003, contempt hearing, as it was a direct contempt under the applicable state law.
On October 3, 2003, and after the Superior Court's rendition of the facts constituting the contempt, Diaz, in the full
view and presence of the Superior COUli, *25 represented that she had not paid the sanction. Thereafter, Diaz re-
fused to offer any evidence to establish that she was unable to pay the sanction. (ER, pp. 429-432.)
As specifically found by the District Court, the "review of the trial judge's October 3,2003, contempt order indicates
that he recited the facts constituting the contempt and found that the elements had been proven beyond a reasonable
doubt, as required under state law for a finding of criminal contempt. The foregoing record of evidence suggests no
error rising to the level ofa federal constitutional violation." (ER, p. 484,11. 7-11.)
2. Under California Law, Diaz Had the Burden of Proof as to the Affirmative Defense of Inability to Comply with
the Sanction Order.
Diaz contends that her ability to comply with the sanction order is an element of the contempt that must be proved
by the Superior Court beyond a reasonable doubt. Diaz further contends that both the Superior Court and the District
COUli erred in finding that the burden of proof rested with Diaz in the fonn of an affirmative defense to the charge of
contempt. (AOB, pp. 24-27.)
Diaz urges that the case of AIoss v. Superior Court. 17 Ca1.4th 396, 71 Cal.Rptr.2d 215 (1988), relied on by both the
Superior Court and the District COUli, should be more narrowly construed, i.e., that the holding should be limited to
the *26 context olCa!. Code ofCiv. Pro. § 1209.5.[FN10J Review of the Moss v. Superior Court decision reflects that
Exhibit "B" 16
2006 WL 2365431 (C.A.9) Page 15
the California Supreme Court began its analysis by reviewing the history of the shifting the burden of proof from the
state to a criminal defendant. In multiple settings far beyond the subject code section, the California Supreme Court
stated:
FN10. Cal. Code of Civ. Pro. § 1209.5 provides in relevant part: "When a court of competent jurisdiction
makes an order compelling a parent to furnish support· or necessary food, clothing, shelter, medical atten-
dance, or other remedial care for his or her child, proof that the order was made, filed, and served on the
parent or proof that the parent was present in court at the time the order was pronounced and proof that the
parent did not comply with the order is prima facie evidence of a contempt of court."
"We initially observe that assigning the burden to prove an affirmative defense by a preponderance of the evidence
to a defendant in a criminal proceeding, and thus to an alleged contemner (sic) in a criminal· contempt proceeding, is
constitutionally permissible. The Supreme Court so held in Martin V. Ohio (1987) 480 U.S. 228 [107 S.Ct. 1098, 94
L.Ed.2d 267], when it considered the validity under the due process clause of the Fourteenth Amendment of an Ohio
statute pursuant to which self-defense was an affirmative defense in a prosecution for murder. Affirmative defenses
under Ohio law were those in which " 'an excuse or justification [was] peculiarly within the knowledge of the ac-
cused, on which he can befairly required to adduce supporting evidence.' "(Citation omitted.) The high court held
that since the state did not preclude the jury from considering self-defense evidence in determining whether there
was a reasonable doubt that the element of the offense had been proven, it was permissible to impose on the [crimi-
nal] defendant the burden of proving self-defense by a preponderance of the evidence. (Citations omitted.)"
*27 "The rule applied by the high court was consistent with the court's earlier decision in Patterson v. Ne-J,v
Yorl(1977) 432 1).S.197 [97 S.Ct. 2319, 53 L.Ed.2d 2811. There the court considered a New York law that placed
the burden on a murder defendant to prove an affirmative defense of extreme emotional disturbance by a preponder-
ance of the evidence in order to reduce the offense to manslaughter. The court emphasized, as it did again in Martin
v. Ohio, supra, 480 U.S. at page 232 [107 S.Ct. at page 110 1], that defining the elements of an offense and the pro-
cedures, including the burdens of producing evidence and of persuasion, are matters committed to the state. A state's
decision in that regard does not offend the due process clause "unless 'it offends some principle of justice so rooted
in the traditions and conscience of our people as to be ranked as fundamental.' "(Citations omitted.) Thus the state
may not label as an affirmative defense a traditional element of an offense and thereby make a defendant presump-
tively guilty of that offense unless the defendant disproves the existence of the element. (Citations omitted.) Due
process does not require that the state prove the nonexistence of a constitutionally permissible affirmative dEfense,
however. (Citations omitted.)" (Emphasis added.)
Diaz' contention that the Moss V. Superior Court decision should be limited to the application of section 1209.5 is
without support and contrary to the analysis engaged in by the California Supreme Court in terms of the shifting of
the burden of proof of ability to comply to a contemnor. Moreover, and as noted in the above quote, the evidence
regarding Diaz' ability to pay the $1,000 sanction, among all others, was "peculiarly within the knowledge of the
accused, on which [she] can be fairly required to adduce supporting evidence.,,[FNll]
FNll. The District Court, in analyzing the shifting of the burden of proof of ability to comply, held in ac-
cordance with the analysis set forth in Moss V. Superior Court, noting that Diaz "has not demonstrated that
the state court's decision placing the burden on her to prove, by a preponderance of the evidence, her inabil-
ity to comply with the April 21,2003, contempt order was contrary to, or an unreasonable application of
federal law." (ER, p. 485,11. 12-15.)
*28 If Moss v. Superior Court were interpreted as Diaz suggests, then every alleged contemnor who claimed an in-
ability to pay (whether true or not), but refused to provide proof as to that inability, would not be subject to an ulti-
mate finding of contempt. Clearly, this is not the result intended by the California Supreme Court in the Moss V.
Superior Court decision.
B. DIAZ WAS NOT DENIED HER RIGHT TO COUNSEL IN VIOLATION OF THE SIXTH AMENDMENT
Exhibit "B" 17
2006 WL 2365431 (C.A.9) Page 16
Diaz, a licensed attorney in the State of California since 1992, contends that she was denied the effective use of
counsel at the time of the hearings on April 18 and 21,2003. (AOB, p. 28.) Diaz bases this on a citation to one ex-
change during the course of the April 18,2003, hearing wherein she requested a continuance to obtain counsel, that
request being denied by the Superior Court. (AOB, p. 28; ER, 215-216~)
The Sixth Amendment provides a defendant in state court criminal proceedings with the right to counseL Faretta v.
California, 422 U.S. 806, 807,95 S.Ct. 2525,45 L.Ed.2d 562 (1975); Jackson v. Ylst, 921 F.2d 88'), 888 (9th Cir.
1990). Conversely, the Sixth Amendment implicitly guarantees a corresponding right to self-representation. F m'etta,
422 U.S. at 821, 832.; *29 United States v. George, 56 F.3d 1078,1084 (9th Cir. 1995). A defendant must knowingly
and intelligently waive their right to counsel in order to satisfy due process concerns regarding self-representation.
United States v. Akins, 276 F.3d 1141, 1146 (9th Cir. 2002)(as amended), citing United States v. Balough, 820 F.2d
1485,1487 (9th Cir. 1987). A waiver is considered knowing and intelligent only ifit comes after the defendant has
been "made aware of the dangers and disadvantages of self-representation, so that the record will establish that [s]he
knows the dangers of what [s]he is doing and [her] choice is made with eyes open." Faretta. 422 U.S. at 835.
This Court has consistently held that in order for a defendant to make a knowing and intelligent waiver of the right
to counsel, the defendant must be made aware of the following: 1) the nature of the charges against the defendant; 2)
the possible penalties; and 3) the dangers and disadvantages of self-representation. United States v. Farhad, 190
F.3d 1097. 1099 (9th Cir. 1999); United States v. Moha1'vk. 20 FJd 1480. 1484 (9th Cir. 1994); Unites States v.
J-Iarris, 683 F.2d322, 324 (9th Cir. 1982).
The trial court is generally in the best position to explicitly communicate the risks of self-representation to the de-
fendant in open court; however, in the circumstance where the cOUli has not so explicitly communicated those risks,
the reviewing cOUli must look to "the patiicular facts and circumstances surrounding the *30 case, including the
background, experience and conduct of the accused" to determine whether the record, as a whole, supports a finding
that the waiver was knowing and intelligent. United States v. Kimmel, 672 F.2d 720, 722 (9th Cir. 1982; see also
Johnson v. Zerbst. 304 U.S. 458.464. 58 S.Ct. 1019,82 L.Ed. 1461 (1938); United States v. Akins, supra, 276 F.3d
at 1146-47; United States v. Balough, supra, 820 F.2d at 1487 (noting that a limited exception to the requirement of
the on-the-record discussion exists "when the record as a whole reveals a knowing and intelligent waiver"). "In
evaluating \\lhether a v/aiver is valid, courts adopt 'ever; reasonable presumption against \ivaiver.' " GTnitecl States ,}.
Akin. supra, 276 F.3d at 1147, citing Johnson v. Zerbst. 304 U.S. at 464.
It is clear from review of the transcripts regarding the April 18 and 21, 2003 hearings that although the Superior
COUli did not explicitly discuss the dangers of self-representation with Diaz, the record as a whole reveals that Diaz,
and based upon those warnings given by the Superior Court, in addition to Diaz' own statements and conduct, know-
ingly and intelligently waived her right to counsel as follows:
• At the commencement of the April 18, 2003 hearing, Diaz was advised as to the quasi-criminal nature of the con-
tempt proceeding, which she stated she understood. (ER, p. 140,11.18-24.)
*31 • Ms. Diaz stated that she understood that she could be jailed if found in contempt and had been so advised by
legal counsel prior to the hearing on April 18, 2003. (ER, p. 141, 12-24.)
• Diaz again stated to the cOUli that she understood that the cOUli had the power to jail her. (ER, p. 143, 11. 6-9.)
• Diaz stated to the cOUli that she was there to defend herself on a contempt charge. (ER, p. 146,11. 13-28.)
• Diaz argued that the basis of the order for which she was now being cited for contempt (the September 7, 2001,
Order and Judgment awarding attorney's fees and costs to Kaufman, ER, p. 043) is invalid. (ER, pp. 146-158.)
• Diaz stated that she would take the stand to provide testimony in her own defense (ER, pp. 158-159.)
• Diaz took the stand and admitted that she had the court's earlier admonitions in mind. (ER, p. 166,11. 5-17.)
• Diaz provided testimony in defense of the contempt charge without asking for a continuance or the assistance of
counsel, including the cross-examination of the process server regarding the service of the subject OSC re Contempt
(ER, pp. 166-192.)
*32 • Diaz submitted on the issue of service on the evidence with no request fora continuance or the assistance of
Exhibit "B" 18
2006 WL 2365431 (C.A.9) Page 17
• Even after the court found the service of the OSC to be valid, Diaz still proceeded with the hearing requesting a
continuance or the assistance of counsel. (ER, pp. 198-211.)
The fact that Diaz admitted that she had consulted with counsel regarding the contempt charge establishes her un-
derstanding of the seriousness of the charge. More importantly, Diaz did not request a continuance or counsel until it
was clear that the matter was going against her. (ER, pp. 198,214.) Diaz' comments during the hearing clearly indi-
cate her understanding of the risk of self-representation, and that she had simply avoided obtaining counsel in the
hopes that the matter would be continued due to the filing of the undertaking. ld. "[T]here must be some limit to the
defendant's ability to manipulate the judicial system." United States v. PVillie, 941 F.2d 1384, 1391 (lOth Cir. 1992),
citing United States v. Gallop. 838 F.2d ]05, 111 (4th Cir. 1988). While the courts have recognized a defendant's
right to proceed without counsel and to refuse appointed counsel, "[sh]e may not use this right to playa 'cat and
mouse' game with the cOUli ... or by ruse or stratagem fraudulently seek to have the trial judge placed in a position
where, in moving along the business of the *33 court, the judge appears to be arbitrarily depriving the defendant of
counsel." Kates v. Nelson, 435 F.2d ]085, 1088-89 (9th Cir. 1970), citing United States ex reI. Davis v. McMann,
386 F.2d 611, 618-19 (2d Cir. 1968).
In fact, and notwithstanding Diaz' protestations as to the requested continuance and the assistance of counsel, when
given the continuance of the matter to April 21, 2003, to allow the filing of points and authorities in support of her
defense, Diaz still did not obtain counsel. (ER, p. 255, 261.) In addition, and as noted by the District Court, Diaz'
background and experience as an attorney establish that her decision to represent herself at the time of the April
2003, hearings was the product of a knowing and intelligent waiver of her right to counsel.
Based 'upon the foregoing, Diaz has failed to demonstrate a deprivation of her constitutional right to counsel, as
guaranteed by the Sixth Amendment, in connection with the April 2003, contempt order. As a result, the October 3,
2003, order of contempt is not lacking the required element of a]awful order, and the California Supreme Court's
rejection ofDiaz' due process claim is not contrary to, or an unTeasonable application of federal law.
*34 C.THERE WAS SUFFICIENT EVIDENCE TO SUPPORT THE SUPERIOR COURT'S FINDING THAT
DIAZ WAS IN CONTEMPT OF VALID STATE COURT ORDERS
1. The Voluntary Dismissal ofMoore v. Kaufinan Did Not Divest the Superior COUli of Jurisdiction to Rule on the
Anti-SLAPP Motion and Award of Costs and Attorney's Fees Against Diaz
Diaz contends that as a result of the dismissal of the Moore v. Kaufman matter, the Superior Court was divested of
jurisdiction to conduct fmiher proceedings, such as the September 7,2001, hearing on the anti-SLAPP motion.
(AOB, pp. 35-43.) In its April 24, 2003, opinion, the California Court of Appeal dealt directly with this contention
by stating "[t]he unique history of this case makes it unnecessary for us to consider Dr. Moore's contention that her
request for dismissal deprived the trial comi of jurisdiction to make its subsequent orders. (Citation omitted.)" (ER,
p. 324, fn. 4.) The Court of Appeal cited the case of Zapanta v. Universal Care, Inc.. 107 Cal.AppAth 1167.
l1Z:tl.:t~ CaLRptr.2d 842 (2003) in connection with this finding, distinguishing the Superior Court's dismissal. In-
Zapanta v. Universal Care, Inc., the Court of Appeal held that, generally, a voluntary dismissal will deprive a trial
court of jurisdiction to act; however, in a situation where the plaintiffs right to dismissal clearly conflicts with pub-
lic policy, the trial court may retain jurisdiction to act and enter additional orders in a matter. Id. at 1174 (stating that
the purpose behind the right of a plaintiff to voluntarily dismiss a case under section 581 "is to allow a *35 plaintiff
a certain amount of freedom of action within the limits prescribed by the Code," and that such a dismissal is valid
where this right does not conflict with other statutory provisions, judicial procedures or public policy) citing Cal-
Vada Aircraft, Inc. v. Superior COurt, 179 Cal.App.3d 435,446,224 Cal.Rptr. 809 (1986).
As stated by the District COUli, "the trial court made a finding that [Diaz'] tactics were designed to mislead the
Exhibit "B" 19
2006 WL 2365431 (C.A.9) Page 18
court." (ER, p. 491.) As a result, the "against public policy" exception under Zapanta v, Universal Care, Inc., was
applied and the trial court was not divested of jurisdiction to enter the subsequent orders. There is no indication from
either the Court of Appeal or the California Supreme Court that this exception to the general rule was improperly
applied. As a result, and notwithstanding Diaz' contention to the contrary, the Superior Court did retain jurisdiction
to enter orders subsequent to the voluntary dismissal of Moore v. Kaufman, including the September 7,2001, Order
and Judgment.
2. The September 7, 2001, Order of the Superior Court Awarding Attorney's Fees and Costs Against Diaz, and the
Subsequent Order Setting the Amounts Thereof, Was Proper under State Law.
Cal. Code of Cillo Pmc. § 425.16(c) provides in relevant part: "If the court finds that a special motion to strike is
frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney's fees
to a prevailing *36 plaintiff on the motion, pursuant to section 128.5." Moore v. Shaw, 116 Cal.AppAth 182, 199, 10
Cal.Rptr.3d 154 (2002),EFNI2]
FN12. Diaz' argument that the "safe harbor" provisions of Cal. Code ofCiv. Pro. § 128.7 were not satisfied
prior to the granting of the motion to strike and the award of attorney's fees and costs is simply wrong.
(AOB, pp. 40-41.) The statutory basis of an award of attorney's fees in connection with a successful anti-
SLAPP motion is pursuant to Cal. Code o(Civ. Pro. §§ 128.5 and 425.16(c). See also Ketchum v. Moses 24
Ca1.4th 1122. 1132-1136, 104 Cal.Rptr.2d 377 (2001). Section 128.5(a) provides: "Every trial court may
order ... the party's attorney ... to pay any reasonable expenses, including attorney's fees, incurred by an-
other party as a result of bad-faith actions or tactics ...." Unlike Section 128.7, Section 128.5 has no "safe
harbor" provision. Moreover, and as setforth previously, the Court of Appeal found that the September 7,
2001 award of attorney's fees and costs against Diaz' was "correct on the merits." (SER, p. 004-005, fn. 3.)
The California Legislature passed the anti-SLAPP statute specifically recognizing, "the public interest to encourage
continued participation in matters of public significance ... and [finding] that this participation should not be chilled
through abuse of the judicial process." Metabolife International, Inc. V. Wornick. 213 F.Supp.2d 1220, 1221 (SD
CA 2002). The California Legislature amended the anti-SLAPP statute in 1997, mandating that section 425.15 be
"construed broadly." Metabolite International. Inc. v. Warnick, 213 F.Supp.2d at 1223, citing Briggs v. Eden Coun-
cil for liope and Opportunity, 19 Ca1.4th 260, 1119, 81 CaLRptr. 471 (2001); see also Rosenauer v. Schere, 88
Cal.AppAth 260, 286. 105 Ca1.Rptr. 674 (2001) (specifically stating, in the context of attorney's fees, that the anti-
SLAPP *37 statute "shall be construed broadly.") Although the above citation provides for an award of costs and
fees in the context ofa fi~ivolous anti-SLAPP motion, the Superior Court broadly construed the legislative purpose of
the statute in order to effectuate its stated purpose with respect to the multiple complaints filed by Diaz on behalf of
Moore. The Superior Court did so based upon the harassing nature of Diaz' litigation tactics as evidenced by the
unpublished decision of the California Court of Appeal, Second Appellate District, affirming the September 7,2001;
judgment against Moore. The Court of Appeal states within that decision that "the history of the litigation demon-
strates that Dr. Moore and Ms. Diaz are pursuing a vendetta against Mr. Kaufman, and that it will continue unless
and until it becomes economically infeasible for them to go on. (Citation omitted.)" (ER, p. 326, fn. 5.)
California courts have held that attorney's fees and costs may be assessed against a ,paliy, the party's attorney, or
both. Cal. Code of Cillo Pro. § 425.16. See also !I;[oore V. Shmv. supra. 116 Cal.AppAth at 177-200, citing Cal. Code
of Cillo Pro. section 128.5(a); see also Decker ll. UD. Registry. Inc.. 105 Cal.AppAth 1382, 1392, 129 Cal.Rptr.2d
892 (2003) (in deciding attorney's fees awards in SLAPP cases, the court must use section 128.5 standards).
Diaz was aware that the attorney's fees and costs had been awarded against her. The above establishes that there is
substantial case law and statutory support for the ~:38 Superior Court's September 7,2001, Order and Judgment, and
the subsequent setting of the amount of attorney's fees and costs thereon. [FN13] In light of the foregoing, the Superior
Court acted appropriately in applying California law with respect to the award of attorney's fees and costs, pursuant
to § 425.16, as against Diaz.[FN14]
Exhibit "B" 20
2006 WL 2365431 (C.A.9) Page 19
FN13. Although Diaz contends that she had no notice that fees and costs were sought against her by way of
the motion that resulted in the September 7, 2001, Order and Judgment and, further, that the motion to set
the amount of the fees and costs to be added to the September 7, 2001. Order and Judgment did not name
her specifically, this is mere sophistry in that the motion itself sets forth that the fees and costs were spe-
cifically sought against Diaz (ER, p. 002); that Diaz was present at the hearing on September 7, 2001, (ER,
p. 008); and that the motion to set fees and costs in regard to the September 7, 2001, Order and Judgment
was just that, a motion to set the amount of fees and costs, not a separate motion to have fees awarded
against Diaz (ER, pp. 067-069). In fact, Diaz, during the January 8, 2002, hearing setting the amount of
fees and costs, admitted that the fees and costs to be added to the September 7, 2001, Order and Judgment
were against her, in addition to Dr. Moore. (ER, p. 079-080.) Iv1oreover, the California Court of Appeal
found Diaz' arguments in this regard to be without merit. (SER,pp. 004-005, it. 3.)
FN14. Although Diaz argues that attorney's fees may only be awarded pursuant to contract or statute (AOB,
p. 39), California case law has expressly recognized circumstances where attorney's fees are recoverable in
the absence of a contractual provision or express statutory authority. Cf Brandt v. Superior Court (1985)
37 Ca1.3d 813, 210 CaLRptr. 211, wherein the California Supreme Court held: "When an insurer's tortious
conduct reasonably compels the insured to retain an attorney to obtain the benefits due under a policy, it
follows that the insurer should be liable in a tort action for that expense. The attorney's fees are an eco-
nomic loss-- damages--proximately caused by the tort. In any event, Diaz' argument in this regard is irrele-
vant as attorney's fees may be awarded against a party's attorney pursuant to the statutory authority set forth
in Cal. Code o(Civ. Pro. §§ 128.5 and 425.l6(c).
*39 IX.
Il, f,
CONCLUSION
Based upon the foregoing, it is respectfully submitted that Diaz was not denied due process of law during the con-
tempt proceedings occurring in the state court lawsuit of Moore v. Kaufinan, that Diaz was not denied her right to
counsel as guaranteed by the Sixth Amendment during the April 2003, contempt hearing, and that there was suffi-
cient evidence to support the trial court's finding that Diaz was in contempt of valid court orders.
As a result, it is further respectfully submitted that the District Court's Order and Judgment adopting the conclusions
and recommendations of the Magistrate Judge be affirmed in its entirety.
x.
STATEMENT OF RELATED CASES
Appellee, the SuperiorCourt of California, County of Los Angeles is unaware of any related cases within the mean-
ing of Circuit Rule 28-2.6.
Frances L. DIAZ, Petitioner and Appellant, v. Lee BACA, Sheriff; Superior Court of California, County of Los An-
geles, Respondents and Appellees.
2006 WL 2365431 (C.A.9 ) (Appellate Brief)
END OF DOCUrvfENT
Exhibit "B" 21
EXHIBIT "C"
194, APPEAL, REOPENED
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF" CALIFORNIA

(Western Division - Los Angeles)
CIVIL DOCKET FOR CASE #: 2:03-cv-07625-RSWL-SH
Frances L Diaz v. Lee Baca Date Filed: 10/24/2003

Assigned to: Judge Ronald S.W. Lew Date Terminated: 07/15/2004
Referred to: Magistrate Judge. Stephen J. Hillman Jury Demand: None
Demand: $0 Nature of Suit: 530 Habeas Corpus
Case in other court: 9th CCA, 04-56652 (General)
Cause: 28:2254 Petition for Writ of Habeas Corpus (State) Jurisdiction: Federal Question
Petitioner
Frances Diaz represented by Andrew E Rubin
Andrew E Rubin Law Offices
12304 Santa Monica Blvd, Ste 300
3.10-442-1116
LEAD ATTORNEY
ATTORNEYTO BE NOTICED
V.
Respondent
Lee Baca represented by Brenda L McCormick
SheriffLos Angeles County Benton Orr Duval & Buckingham
39 N California St
POBox 1178
Ventura, CA 93002
805-648 7 5111
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Date Filed # Docket Text

10/24/2003 1 PETITION FOR WRIT OF HABEAS CORPUS by petitioner Frances Diaz in
State Custody referred to Magistrate Judge Stephen J. Hillman. (jag) (Entered:
10/28/2003)
10/24/2003 2 NOTICE OF REFERENCE to Magistrate Judge Stephen J.Hillman (jag)

(Entered: 10/28/2003)
10/24/2003 l MINUTES (IN CHAMBERS) by Judge Ronald S. W. Lew: The Court having
..
ExhIbIt " C " 22
httns://ecf.cacd.uscourts.Q"ov/cQ"i-hin/DktRnt.nl?97()9()099,)72'i'i'i'i-T, gOl 0-1 4/1 fl/?OOq

vlYl.I Lv.!. - vClll.lVllllCl vC,lHICll lJl;:,)Ulvl rage; L UI .J
i
read and considered all documents submitted in this matter hereby DENIES the
Emergency Request for Immediate Relief from Incarceration. terminating case
(MD JS-6) . CR: Not Present (dw) (Entered: 10/28/2003)
I 10/24/2003 4 Enlergency REQUEST filed by petitioner for relief from incarceration (dmjr)
(Entered: 10/29/2003)
10/24/2003 5 NOTICE by petitioner of lodgmentof petition filed in CA Supreme Court

(dmjr) (Entered: 10/29/2Q03)
11/04/2003 6 NOTICE OF APPEAL by petitioner Frances Diaz to 9th C/A from Dist. Court
minutes order filed 10/24/03 [3-2] (cc: Andrew Rubin; State .A..ttomey
General) Certificate of Appealability Pending. (ghap) (Entered: 11/05/2003)
1 11/07/2003 1 MINUTES: [in chambers] respondent shall file an opposition to notice of

appeal and request for certificate of appealability not later than 11/21/03 by
Magistrate Judge Stephen J. Hillman CR: none (dmjr) (Entered: 11/10/2003)
112/24/2003 8 1Opposition of Real Party in Interest Ban)' Kaufman filed to notice of appeal [6-
1] and request for certificate of appealability of petitioner Frances L. Diaz.
(fvap) (Entered: 12/24/2003)
12/24/2003 9 DECLARATION of J. Patick Felming, Jr. re exhibits in suppor of opposition

[8-1]. (fvap) (Entered: 12/24/2003)
12/24/2003 15 PROOF OF SERVICE filed by Real Party In-Interest re 8 Objections - non-
motion, was served on Opposition of Real Party in Interest Barry Kaufman to
Notice of Appeal and Request. for Certificate of Appealability of petitioner
Frances L. Diaz and Declaration of 1. Patrick Fleming, Jr. Re Exhibits in
support of opposition.(rm, ) (Entered: 01/24/2004)
01/05/2004 lQ MINUTES OF In Chambers before Judge Stephen J. Hillman :Couli is in
receipt of Barry B. Kaufman's Opposition to Notice of Appeal, filed on
December24, 2003. A reply shall be filed no later than January 20, 2004. Couli
Repolier: not present. (sbu, ) (Entered: 01/07/2004)
01/08/2004 14 AMENDED proof of service re opposition of real pariy in interest, Barry

Kaufman to notice of appeal and request for certificate of appealability of
petitioner Frances L Diaz. 8 (sv) (Entered: 01/15/2004)
01/09/2004 .u NOTICE OF CLERICAL ERROR. Document #3 (minutes denying emergency
request) inadvertently JS6 the case. The petition for writ of habeas corpus is
pending before Judge Hilhnan. This case \vill be adn1inistratively reopened.
MD JS-5.(gk, ) (Entered: 01/14/2004)
01/12/2004 11 ORDER REQUIRING ANSWER TO PETITION by Magistrate Judge Stephen
1. Hillman that Respondent Lee Baca file answer to the petition not later than
2/1/2003'. Return to be filed not later than 30 days after the filing of the
Answer. Traverse due 20 days after filing of the Retum.(sbu, ) (Entered:
01/13/2004)
01/12/2004 12 MINUTES OF In Chambers before Judge Stephen J. Hillman: All future
pleading and correspondence shall be address to Sandra Butler, Clerk to Mag
Judge Hillman 255 East Ten1ple Street, Roybal Federal Building, U.S. District
Exhibit "C" 23
httns://ecfcacd.nsconrts.p"ov/cQ"1-hin/DktRnt.nl?97n9n0991 771111-T, R01 0-1 4/1 f)/7009

vlVl.I L v . ! ' - vaH.!Vll11a vl:llHlal Lll~l.11vl rage .J V1 .)
ICourt, Los Angeles, CA 90012: Couli Reporter: not present. (sbu, ) (Entered:
01/13/2004)
I
01/20/2004 16 IREQlTESI IO FILE REPLY and REPLY filed by Petitioner Frances Diaz to
I
I
Opposition of Real Pariy 8 to t~otice of Appeal and request for celiificate of
appealability 6 .(gk, ) (Entered: 01/27/2004)
01/29/2004 17 REQUEST to Extension ofTen Days to File A Response re Petition for Writ of
Habeas Corpus 1 filed by Defendants, Superior Court of California, County of
Los Angeles re Lee Baca. Lodged order. (pbap, ) (Entered: 01/31/2004)
01129/2004 18 Notice of Interested Paliies filed by Superior Court of Califonlia, County of

Los Angeles (pbap, ) (Entered: 01/31/2004)
01130/2004 12 ORDER by Judge Stephen J. Hillnlan: granting 17 Request for Extension of

Time by Ten Days to file an Answer to the Petition for Habeas Corpus. The
Superior Court's Answer shall be filed and served on or before 2/11/04. (pbap, )
(Entered: 02/03/2004)
02/11/2004 20 ANSWER to Petition for Writ of Habeas Corpus 1 filed by respondent Superior
Court of Los Angeles County California.(dmjr, ) (Entered: 02/12/2004)
02/11/2004 21 EXHIBITS Filed filed by Unknown Superior Court of Los Angeles County
Califolnia. as to Answer to Complaint 20 . (dmjr, ) (Entered: 02/12/2004)
02/20/2004 22 RETURN RECEIPT OF CERTIFIED MAIL showing delivery of petition,

order upon CA Attorney General on 1/15/04. (dmjr, ) (Entered: 02/25/2004)
03/12/2004 23 AMENDED RETURN TO 20 filed by respondent Superior Couli of California,

County afLos Angeles. (gk, ) (Entered: 03/15/2004)
03/12/2004 24 NOTICE of Lodging Certified Transcript of Proceedings OSC in re Contenlpt

Friday, 4/18/2003 filed by respondent Superior Court of California, County of
Los Angeles. (gk, ) (Entered: 03/15/2004)
03/12/2004 25 NOTICE of Lodging State Couli records (Volunle I) filed by respondent

Superior Court of California, County of Los Angeles. (gk, ) (Entered:
03/15/2004)
03/12/2004 26 NOTICE of Lodging State Court Records (Volume II) filed by respondent
Superior Court of California, County of Los Angeles County. (gk, ) (Entered:
03/15/2004)
04/08/2004 ""'"'7
L/ N'OTICE of filing certified copies of State Court Records Voume 1. Superior
Court of Los Angeles County California. (rnl, ) (Entered: 04/09/2004)
04/08/2004 28 NOTICE of filing certified copies of state court records volume II. Superior
Court of Los Angeles County California. (rm, ) (Entered: 04/09/2004)
04/08/2004 29 NOTICE OF FILING OF CERTIFIED COPIES OF STATE COURT

RECORDS VOLUME III Superior Court of Los Angeles County California.
(pj, ) (Entered: 04/19/2004)
04/08/2004 30 DECLARATION of BRENDA L MCCORMICK; lodging of celiified copies of

state court records filed by Unknown Superior Couli of Los Angeles County
I
..
ExhIbIt " C " 24
httns://ecfcaco.lJSC011rts, !Jov/co-i -hin/DktR nLnl ?97f19f)099i 7?i i i i-T, gO 1 0-1 4/1 (-)nnnq
vlY.l1 Lvl. - v a l l l . U l l l l a v v l l l l a l l.Jl'::>lll.vl
! i i
I I California. (pj,) (Entered: 04/19/2004) .
04/16/2004 31 TRAVERSE to 1 MEMORANDUM OF POINTS AND AUTHORITIES

ICorpus filed by Petitioner Frances Diaz. (pj,) (Entered: 04/21/2004)
04/16/2004 35 DECLARATION of ANDREW E RUBIN re MISSING SUPERIOR COURT
DOCUMENTS SEPARATELY FILED IN SUPPORT OF PETITIONERS
Traverse 31 filed by Petitioner Frances Diaz. (pj, ) (Entered: 04/28/2004)
04/19/2004 36 NOTICE OF ERRATA filed by Unknown Superior Court of Los Angeles
County California regarding certified copy of notice of entry of order (pj, )
(Entered: 04/30/2004)
04/21/2004 32 PETITIONER'S ERRA. TA.. to Traverse 31 Served 4/15/04 filed by Petitioner
FrancesDiaz (dw, ) (Entered: 04/23/2004)
04/27/2004 33 REPORT AND RECOMMENDATION issued by Magistrate Judge Stephen 1.
Hilln1an re Petition for Writ of Habeas Corpus 1 Objections to R&R due by
5/11/2004(sbu, ) (Entered: 04/27/2004)
04/27/2004 34 r~OTICE OF FILING REPORT AND RECOlvfMENDATIOl\T by Iv1agistrate
Judge Stephen 1. Hillman and Lodging of Proposed Judgment and Order.
Objections to R&R due by 5/11/2004(sbu, ) (Entered: 04/27/2004)
05/12/2004 38 OBJECTION to Report and Recommendation (Issued) 33 filed by petitioner
Frances Diaz.(kca, ) (Entered: 05/19/2004)
05/13/2004 37 MINUTES OF In Chambers before Judge Stephen 1. Hilhnan :This court is in
receipt ofpetiitoner's objections to the repoli and recomn1endation. Respondent
shal reply to the objection no later than 5-27-04: Court Reporter: not present.
(sbu, ) (Entered: 05/13/2004)
OS/27/2004 39 REPLY TO Petitioner's Objection to Report and Recommendation of US
- Magistrate Judge 33 filed by Respondent Superior Couli of Los Angeles
County California.(dw, ) (Entered: 06/01/2004)
07/15/2004 40 ORDER by Judge Ronald S.W. Lew ADOPTING REPORT AND
RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
(Issued) 33 (pbap,) (Entered: 07/19/2004)
07/15/2004 41 JUDGMENT, ADJUDGED by Judge Ronald S.W. Lew that the Petition for
Writ of Habeas Corpus 1 is dismissed with prejudice, (Made JS-6. Case
Terminated.)(pbap, ) (Entered: 07/19/2004)
07/28/2004 42 NOTICE OF APPEAL and Request for Certificate of Appealability to 9th CCA
filed by petitioner Frances Diaz. Appeal of Judgment 41 Filed On: 07/15/04;
Entered On: 07/19/04. Certificate of Appealability Pending. cc: Andrew E.
Rubin; Brenda L. McCormick, Benton, Orr, Duvan and Buckinghan1; J. Patrick
Fleming, Case, Knowlson, Jordan and Wright, LLP. (cbr,) (Entered:
07/29/2004)
08/12/2004 43 MINUTES (In Chambers) by Magistrate Judge Stephen 1. Hillman: Respondent
shall file any opposition to plaintiffs request for certificate of appealability
within 21 days of the date of this Order. Couli Reporter: N/A. (gk,) (Entered:
..
ExhIbIt " C " 25
4/1 f)!?()()q
r a.ge; .J V1 ..J
I i i
I I 08112/2004)
09/02/2004 44 OBJECTIONS to petitioner's request for certificate of appealability 42 filed by

I Superior CQurt of Los Angeles County California. (bp, ) (Entered: 09/13/2004)
I I I
09110/2004 45 Order by Judge Ronald S.W. Lew Denying Certificate of Appealability. i\,ppeal
to Circuit Court, 42 . (cbr, ) (Entered: 09/15/2004)
09/20/2004 46 CERTIFICATE OF RECORD Transnlitted to USCA re Appeal to Circuit Court

6 filed by Frances Diaz, Appeal to Circuit Court, 42 filed by Frances Diaz;
(ghap, ) (Entered: 09/20/2004)
09/20/2004 47 RECORD ON APPEAL sent to Circuit Court re: Record consists of 1 through 2
volumes; 6 brown folders B0005, B0021, B0025, B0026, B0027, B0028; 2
brown folders of state lodged docun1ents. (ghap, ) (Entered: 09/20/2004)
09/20/2004 Transn1ission of Notice of Appeal and Docket Sheet to US Court of Appeals re:
Appeal to Circuit Court 6 , Appeal to Circuit Court, 42 . (ghap, ) (Entered:
09/20/2004)
10/05/2004 48 NOTIFICATION by Circuit Couli of Appellate Docket Nun1ber 04-56652, 9th,
CCA regarding Appeal to Circuit Court, 42 filed by Frances Diaz. (wdc, )
(Entered: 10/05/2004)
08110/2005 APPEAL FEE PAID: re Appeal to Circuit Couli, 42 as to Petitioner Frances
Diaz; Receipt Number: 76820 in the an10unt of $255. (cbr, ) (Entered:
0811 0/2005)
07/26/2007 49 APPEAL RECORD RETURNED from 9th CCA Received: Volume(s): 1
through 2;BF: 5,21,25,26,27,28 and 2 brown folders of state lodged
documents RE: Appeal Record Sent to USCA (A-26) 47 (car) (Entered:
07/27/2007)
I PACER Service Center I

I Transaction Receipt I
I 04116/2009 13:08:47 I
PACER
Login: I[SOI21 1 Client Code: I
IDescri p tion: II~ocket "~e~rc~ 112:03-CV-07625-RSWL-SB

I ~ IIKepOlt IlcrIterIa: I End date: 4/16/2009 I
Billable
Pages: Dlcost: 11
0032
1
Exhibit "C" 26
4/1 {)nOOO
1 PROOF OF SERVICE
2
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
3
4 I, Selina Small, am employed in the aforesaid County, State of California; I
5 am over the age of 18 years and not a party to the within action; my business
address is 100 West Broadway, Suite 1200, Glendale, CA 91210.
6
On April 21, 2009;.} served the foregoin~RESPONDENT'S NOTICE OF
7 MOTION AND MOTIuN TO DISMISS PETITIONER'S PETITION FOR
WRIT OF HABEAS CORPUS O~~ IN THE ALTERNATIVE..:,REOUEST
8 THAT THIS COURT DIRECT Tl1E REAL PARTIES IN INIEREST TO
RESPOND TO PETITIONER'S HABEAS CORPUS PETITION·
9 MEMOB~4.NDUM OF POINTS ..t \ND AUTHORITIES AND DECLARATION
OF PAUL B. BEACH IN SUPPORT THEREOF on the interested Rarties in this
10 II ac~ion by placing a true copy thereof, enclosed in a sealed envelope, aodressed as
11 fOllows:
12 Richard 1. Fine Petitioner

13 Booking No. 1824367
Twin Towers Correctional Facility
14 450 Bauchet Street
15 Los Angeles, CA 90012
16 Frederick Bennett
17 S.C.L.A.
111 North Hill Street, Rrn. 546
18 Los Angeles, CA 90012
19 (Courtesy Copy)
20
Joshua L. Rosen, Esq.
21 Law Offices of Joshua L. Rosen
22 5905 Sherbourne Drive
23 (Courtesy Copy)
24
25 BY MAIL: I am "readily familiar" with the firm's practice of collection and
processing correspondence for mailing. Under that practice, it would be deposited
26 with the U.S. Postal Service on the same day with postage thereon fully prepaid at
27 Glendale, California, in the ordinary course of business. I am aware that on motion
of the party service, service is presumed invalid if postal cancellation date or
28 postage meter date is more than one day after date of deposit for mailing in affidavit.
9
2 I declare under penalty of perjury that the foregoing is true and correct, and
that I am employed in the office of a member of the bar of this Court at whose
3 direction the service was made.
4
Executed on April 21, 2009, at Glendale, California.
5
7
Declarant
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
10

09-04-21 Fine V Sheriff (2:09-cv-01914) DKT #12: April 21, 2009 Sheriff Baca's Motion To Dismiss

Загружено:

Сведения о документе

Оригинальное название

Авторское право

Доступные форматы

Поделиться этим документом

Поделиться или встроить документ

Параметры публикации

Этот документ был вам полезен?

Это неприемлемый материал?

Авторское право:

Доступные форматы

09-04-21 Fine V Sheriff (2:09-cv-01914) DKT #12: April 21, 2009 Sheriff Baca's Motion To Dismiss

Загружено:

Авторское право:

Доступные форматы

Case 2:09-cv-01914-JFW-CW Document 12 Filed 04/21/2009 Page 1 of 41

24 TO THE HONORABLE COURT, ALL INTERESTED PARTIES, AND THEIR

16 Dated: April 21, 2009 LAWRENCE BEACH ALLEN & CHGI, PC

1 MEMORANDUM OF POINTS AND AUTHORITIES

22 Prior to being incarcerated, Petitioner filed a habeas petition in the California

22 Dated: April 21, 2009 LAWRENCE BEACH ALLEN & CHOI, PC

1 DECLARATION OF PAUL B. BEACH

2nd Appellate District

Court data last updated: 04/15/200901 :05 PM

Case Summary Docket

Parties and Attorneys

Fine, Richard: Petitioner Richard I. Fine

Superior Court Los Angeles County : Frederick Bennett

Marina Strand Colony II Homeowners Rose M Zoia

Del Rey Shores Joint Venture: Real Joshua L. Rosen

Robert James Comer

Robert James Comer

2nd Appellate District

Case Summary Docket Scheduled Actions

Docket (Register of Actions)

03/03/2009 Order denying petition filed.

Click here to request automatic e-mail notifications about this case.

httn://annellatecases.comiinfo.ca.fIov/search/case/dockets.cfin?dist=2&doc id=1387745&... 4/21/2009

2006 WL 2365431 (C.A.9) Page 1

For Opinion See 203 Fed.Appx. 884

United States Court of Appeals,

Answering Brief of Appellees, Superior Court of California, County of Los Angeles

I. STATEMENT OF JURISDICTION ... 1

II. STATEMENT OF INTERESTED PARTIES ... 1

III. STATEMENT OF ISSUES PRESENTED ... 2

IV. STATEMENT OF THE CASE ... 2

V. STATEMENT OF FACTS ... 9

A. Moore v. Kaufman .., 10

B. December 30,2002 Judgment Debtor Examination ... 12

VI. STANDARD OF REVIEW ... 17

VII. SUMMARY OF ARGUMENT ... 22

VIII. ARGUMENT ... 22

IX. CONCLUSION ... 39

X. STATEMENT OF RELATED CASES ... 39

XI. CERTIFICATE OF COMPLIANCE ... 40

*iv TABLE OF AUTHORITIES

UNITED STATES SUPREME COURT CASES

Estelle v. McGuire, (1991) 502 U.S. at 67-68 ... 18

Mullanev v. Wilbur, (1975) 421 U.S. 684, L.Ed.2d 508 ... 18

NINTH CIRCUIT COURT OF APPEALS CASES

Alcala v. Woodford. (9th Cir. 2003) 334 F.3d 862 ... 17

Bonin v. Calerone. (9th Cir. 1996) 77 F.3d 1155 ... 18

Delgado v. Le'wis, (9th Cir. 2000) 223 F.3d 976 ... 21

Jackson v. Ylst, (9th Cir. 1990) 921 F.2d 882 ,.. 28

Kates v. Nelson, (9th Cir. 1970) 435 F. 2d 1085 ... 33

Peltier v. Write, (9th Cir. 1993) IS'F.3d 862 ... 18

Shackleford v. Hubbard. (9th Cir. 2000) 234 F.3d 1072 ... 21

United States v. Mohawk, (9th Cir. 1994) 20 F.3d 148 ... 29

OTHER CIRCUIT COURT OF APPEALS CASES

Davis v. A1cMann. (2nd Cir. 1968) 386 F. 2d 611 ... 33

United States v. Willie. (10thCir. 199?) 941 F.2d 1384 ... 32

FEDERAL DISTRICT COURT CASES

*vii CALIFORNIA STATE CASES PAGE

Brandt v, Superior Court (1985) 37 Ca1.3d 813,210 Ca1.Rptr. 211 ... 38

Grant v. List & Lathrop (1992) 2 Ca1.AnpAth 993 ... 11

Hanson v. Superior Court. (2001) 91 Cal.AppAth 75, Cal.Rptr.2d 782 ... 23

In re Rubin. (2001) 24 Ca1.4th 1176, 108 Cal.Rptr.2d 593 ... 25

Ketchum v. Moses (2001) 24 Ca1.4th 1122, 104 Ca1.Rptr.2d 377 ... 36