Kelley
Lynch
REDACTED
SUPERIOR COURT OF THE
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
LEONARD
NORMAN COHEN, an individual Case No. BC338322
LC
INVESTMENTS, LLC, a Delaware Limited Related Case:
Liability
Company
Plaintiffs
vs.
KELLEY
LYNCH, an individual, et al.
Defendants
OPPOSITION
TO EX PARTE APPLLICATION
FOR
CONTINUANCE ON HEARING ON
MOTION TO
VACATE DEFAULT JUDGMENT
STATEMENT
OF FACTS
Defendant Kelley Lynch worked as Leonard Cohen’s personal
manager from April 1988 through October 2004.
In the fall of 2004, they had a falling out due to the fact that Leonard
Cohen understood that Kelley Lynch was reporting his tax fraud to the Internal
Revenue Service. After spending months
attempting to force or coerce her into a settlement, and with the full
understanding that she had reported the allegations he committed criminal tax
fraud to the Internal Revenue Service on or about April 15, 2005, Cohen
retaliated with the lawsuit in this matter.
He also moved offensively against Lynch in the news media. That is the actual background to the instant
matter.
Plaintiffs
Leonard Cohen and LC Investments, LLC filed this lawsuit against Lynch on
approximately August 15, 2005. No
responsive pleading was filed by Lynch due to the fact that she was not served
the summons and complaint, was dealing with inconceivably outrageous obstacles
directly related to Leonard Cohen, and was unable to read the actual allegations
until a man by the name of Stephen Gianelli posted the complaint and a handful
of documents online on or around April 10, 2010. This individual has been engaged in what
appears to be a highly coordinated campaign of harassment with respect to
Lynch, as well as a proxy war, that involves numerous parties including, but
not limited to, Leonard Cohen’s fan, Susanne Walsh, who frequently copied Cohen
lawyer Michelle Rice in on emails to Lynch, members of her family, and
others.
Plaintiff
LC Investments, LLC does not appear to exist and until sometime after Lynch
filed her Motion to Vacate, on August 9, 2013, the State of California listed
Lynch as the Registered Agent and her former P.O. Box as the business entity
address. At some point thereafter, the
Registered Agent was changed to Robert Kory and the business entity address to
Kory’s office address in Beverly Hills, California. Lynch does not believe that LC Investments,
LLC had legal standing to sue her as the corporation appears to be nothing
other than a sham entity with no actual business purpose. Lynch briefly addressed the fact that two
entities, Blue Mist Touring Company, Inc. and Traditional Holdings, LLC, were
inserted into the default judgment in this matter although neither entity was
named as a party to the lawsuit.
Furthermore, Blue Mist Touring Company, Inc. had forfeited its right to
transact business as a foreign entity in California and Traditional Holdings,
LLC did not have even minimal ties to the State of California. All three entities appear to be nothing other
than sham entities created for the sole benefit of Leonard Cohen.
On May
15, 2006, a default judgment was entered against Lynch who, by that time, was homeless. She was never served or notified that a
default would be entered against her. On
August9, 2013, Lynch filed a Motion to Vacate the lawsuit and default judgment contending
that the proof of substitute service filed on August 15, 2005 is evidence of
fraud, she was not served the summons and complaint, she was not notified or
served notice of the default, and the court has no personal jurisdiction over
her or two entities inserted into the default judgment yet not named as parties
to the suit.
On November
18, 2013, Plaintiff filed an Ex Parte Application for Continuance of
Hearing. While Lynch does not
theoretically object to the Continuance, she does feel that the manner in which
it was handled was deceitful, particularly as she was advised by Jeffrey Korn
that no other issue, including and specifically with respect to service, would
be addressed in connection with the Continuance. This was misleading to Lynch who advised Korn
that, if this was the case – that he would not raise any other issue but his
need to continue the hearing until another date, she would not object to the
continuance and would not attend the hearing.
She was given his assurances.
However, the document filed with the court on November 18, 2013 raises
the following issues, in addition to the request for a continuance: lack of service of the motion to vacate and
criminal restraining order. These are
both service related issues. Korn
advised Lynch that he would provide her with a copy of the Continuance over the
weekend. On Monday, November 18, 2013,
Lynch emailed Korn to advise him that she had not received this document. At approximately 8:30 AM, Korn emailed Lynch
the Continuance and she was shocked to learn that not only had he raised
service issues, he also attempted to argue that a restraining order (that is
being vehemently contested in the related probation violation matter) prevented
Lynch from having a third party serve legal notice on Plaintiffs.
MEMORANDUM OF POINTS & AUTHORITIES
LACK OF
SERVICE OF THE MOTION TO VACATE
&THE
CRIMINAL RESTRAINING ORDER
Plaintiffshave argued that a restraining order,
fraudulent or otherwise, can be used to prevent someone from participating in
litigation and essentially serve to subvert the Due Process Clause of the
United States Constitution.
Lynch is presently challenging the validity of the 2008
Boulder, Colorado civil harassment restraining order she requested that was
fraudulently registered as a domestic violence order in Los Angeles, California
on May 25, 2011. This order is based on
Leonard Cohen’s declaration that is replete with perjured statements. Leonard Cohen seems to think it is completely
acceptable to lie, perjure himself, and fraudulently misrepresent matters to
courts, jurors, law enforcement, the news media, and the Internal Revenue
Service. When backed into a corner with
respect to his own lies, his pattern and habit it to blame Lynch. The Boulder, Colorado order was wrongfully
modified and Lynch and Cohen were never in an intimate dating sexually relationship. Furthermore, Lynch has repeatedly been
advised by the Boulder County Court that the original 2008 order expired. Most recently, the Boulder County Court
Clerk’s office advised Lynch that this restraining order expired on February
15, 2009. Exhibit A - Declaration of
Paulette Brandt
Lynch
addressed the extensive fraud and perjury contained in Leonard Cohen’s Boulder,
Colorado Declaration in the Motion to Quash she filed following the hearing. She was unaware of the existence of Leonard
Cohen’s declaration at the time of the hearing and found his accusations and
false allegations shocking and appalling.
It is Lynch’s personal belief that Leonard Cohen’s extraordinary flight
from Europe to Boulder, Colorado, in yet another attempt to obtain a fraudulent
restraining order against Lynch, had to do with the fact that Ann Diamond
posted her draft article for Rolling Stone online and Leonard Cohen was keenly
aware that Lynch refuted his slanderous allegations and malicious lies online. Lynch has been advised on at least three
separate occasions that the Boulder, Colorado order expired. Most recently, Lynch was advised that this
order expired on February 15, 2009.
Lynch never knowingly or willingly violated any court order. She was advised by the Boulder County Clerk’s
order that the order expired and she relied on that information. Lynch is concurrently challenging LA Superior
Court’s jurisdiction over her with respect to her related 2012 trial. Exhibit B – Declaration of Kelley Lynch
Personal service of process has been an issue throughout
this and other Leonard Cohen related proceedings. In fact, while Lynch was aware of the
Boulder, Colorado hearing, the process server lied and was essentially running
around Boulder, Colorado advising various parties (who then repeated this to
Lynch) that he had a check representing settlement in connection with the
gruesome loss of her son’s fingers. That
should shock the conscience of anyone with any sense of decency whatsoever. Leonard Cohen also evidently had a private
investigator in Boulder, Colorado also.
He must have a great deal at stake to go to such extreme lengths to
monitor, discredit, and relentlessly target Lynch, members of her family, and
others. Leonard Cohen has been actively
monitoring Lynch since approximately 2005.
Personal
service has been the hallmark for initiating and participating in litigation
since the inception of our system of jurisprudence. Plaintiffs raise a critical issue that demands
a response: the fact that Leonard Cohen,
and others, have used fraudulent restraining orders in an attempt to silence
Kelley Lynch, prevent her from requesting tax documents such as a 1099 (that
Cohen still refuses to provide her and which the IRS is not in receipt of), discredit
and undermine her, and to prohibit her from participating in litigation. The argument set forth in the Continuance
Motion bolsters Plaintiff’s theory. It
is relevant to note that Leonard Cohen is a Canadian citizen who, on at least
two occasions, has availed himself of U.S. residence status while evidently
concluding that he is personally exempt from certain obligations that would
include, but are not limited to, paying one’s taxes, adhering to corporate laws
(while represented by an endless succession of professional advisers),
respecting one’s commitments and obligations, and abiding by one’s oath not to
commit perjury in legal documents or on the witness stand. Perhaps Leonard Cohen, due to his wealth and
ability to hire lawyers, feels he is entitled to conduct himself in this
manner. It is Plaintiff’s understanding
that Leonard Cohen cannot live in Canada due to tax and residence issues.
Lynch remains convinced that Leonard Cohen’s attempt to
subvert the Due Process Clause of the United States Constitution, through the
use of fraudulent restraining orders, fails miserably. Plaintiffs’ argument fails to address issues
uniquely inherent to service of process and adherence to the constitutionally
mandateddue process requirements of notice and an opportunity to be heard. Given the fact that process of service is
necessary to ensure compliance with due process requirements of notice and the
opportunity to be heard, Lynch cannot imagine how Plaintiffs anticipate
advancing this fatally defective argument.
Lynch has no interest, whatsoever, in Leonard Cohen personally. She has an extreme interest in litigating
these issues on their merits. She has
been advised by Detective Viramontes, LAPD’s Threat Management Unit, that the
restraining order prevents her from requesting IRS required form 1099 for the
year 2004 and other relevant information.
While she completely disagrees with this position legally, she has
absolutely followed his advice NOT to contact Leonard Cohen with respect to any
tax documentation she requires or with respect to other information. That would include with respect to a number
of business entities.
For some reason, Leonard Cohen
seems to believe that an absurd narrative about a disgruntled ex-lover who may
have had sex with Oliver Stone and is evidently interested in attending one of
his concerts is a defense to a variety of allegations raised against him,
including those related to alleged criminal tax fraud, conspiracy, extortion, theft,
and so forth and so on.
Defendant has not engaged in any conduct toward
Plaintiffs’ attorneys that resulted in a criminal conviction. Leonard Cohen’s lawyers, Robert Kory and
Michelle Rice, have behaved shamelessly towards Lynch and have spent years
targeting her. All of Cohen’s lawyers
have refused to speak with Lynch including with respect to litigation
matters. This is apparently one of their
so-called strategies. She was not on
trial with respect to Robert Kory and/or Michelle Rice who were not named in
the 2008 Boulder restraining order. Their
physical office, ,where Cohen evidently has an office, was added to the
restraining order as a place Lynch was advised to avoid. Lynch has not contacted Robert Kory and/or
Michelle Rice directly since Judge Robert Vanderet simply decided, without a
trial in the matter, to grant them a restraining order. Paulette Brandt served Kory/Rice who have
recently changed the Registered Agent of Plaintiff LC Investments, LLC from
Kelley Lynch c/o her former P.O. Box to Robert Kory c/o his law firm. Nothing in any restraining order states that
an individual may not effect service of process upon an agent of LC
Investments, LLC.
Paulette Brandt served Scott Edelman, attorney of record,
and Robert Kory/Michelle Rice of Kory Rice due to the fact that Defendant
Kelley Lynch was listed as the Registered Agent for LC Investments, LLC at the
time the motion to vacate was filed on August 9, 2013 and her former P.O. Box
was listed as the corporation’s business address. Lynch included evidence of that fact in her
Declaration/Case History. Given the fact
that Lynch should not have been listed as the Registered Agent, and the
corporation does not appear to actually have a place of business, Paulette
Brandt served Kory/Rice in an attempt to actually effect service upon this
entity. Furthermore, Lynch and Brandt
received an email from Scott Edelman, who continued to be listed as attorney of
record as of the date the motion to vacate was filed, advising them to contact
Robert Kory as he would be handling this matter. Approximately three months later, Lynch heard
from Jeffrey Korn who advised her that he would be handling this matter. She also received a substitution of counsel
form.
Jeffrey Korn has repeatedly
advised Lynch that he would provide her with all legal documents in this and
the related case including, but not limited to, mediation information and the
settlement agreement between Cohen and
Westin. Jeffrey Korn advised this Court
that he needed additional time to familiarize himself with this matter. However, he does not seem to believe that
Lynch should be offered the same consideration when, in fact, she is the
individual who was ruthlessly maligned and whose property was wrongfully
conveyed to Leonard Cohen.
Plaintiffs evidently fail to understand the importance of
process of service and jurisdiction with respect to this matter. Many jurisdiction issues have arisen. They include, but are not limited to, the
fact that Lynch was not served the summons and complaint; the fact that she was
not served or notified of the entry of default; the fact that Plaintiff LC
Investments, LLC does not appear to exist; and, the fact that two entities,
Blue Mist Touring Company, Inc. and Traditional Holdings, LLC, were inserted
into the default judgment but were not named as parties to the lawsuit. Leonard Cohen has essentially taken the legal
position that he is the alter ego of both Blue Mist Touring Company, Inc. and
Traditional Holdings, LLC. Lynch has a
valid and legal ownership interest in both of these entities and the corporate
books and records are evidence of that fact.
The
Fifth and Fourteenth Amendments to the U.S. Constitution prohibit the federal
and state governments from depriving any person of life, liberty, or property
without due process of law. The process
server is “serving” the recipient with notice of their constitutional right to
due process of law. Personal service
upon a business entity is achieved by serving the documents to the Registered
Agent of the business entity. There is
perhaps no set of acts more important in furtherance of commencing an action
before a court than the filing of a complaint and the service of process on a
defendant. Without service of process, a
court has no jurisdiction over a defendant and may not proceed to
judgment. Furthermore, any such judgment
rendered would be void from inception. A
critical underlying rationale for the strict requirements relating to service
of process is for a court to obtain jurisdiction over the parties, to give a
defendant reasonable notice as to the pendency of a claim, and to provide a
meaningful opportunity to respond. Lynch
was unable to read the actual allegations against her until a handful of
documents, including the complaint, were posted online in or around April 2010. At that point, she phoned Judge Freeman’s
Clerk, spoke to her about transcripts, evidence, mediations, and was advised
that there was a second related case.
Jeffrey Korn did provide Lynch with documents related to that case but,
although she has requested and was promised same, has not provided Lynch with
the proof of service with respect to the summons and complaint. At this time, Korn appears unwilling to
communicate with Lynch. She is well
aware of this legal tactic which allows lawyers and others to claim that
someone is harassing them at a later date.
The entire complaint in related matter is absolutely fraudulent. Leonard Cohen was well aware that Lynch
stored boxes of older business documents (including many she transported from
NYC to LA when she relocated in 1990) in the garage of her Brentwood,
California home. Cohen renovated his
garage to create a recording studio and guest suite for his sister and could
not store anything there any longer.
Lynch’s office was filled with Cohen’s property which he most certainly
picked up. He and/or his daughter, Lorca
Cohen, went into Lynch’s office and removed whatever they felt entitled to
take. Lynch did not move anything belonging
to Leonard Cohen when she ultimately moved her office from mid-Wilshire to
Santa Monica. And, by that time, Cohen
had already retrieved all of his property and items belonging to Lynch. Leonard Cohen was the last individual in
possession of his water color notebook.
He had it at his home and scanned the entire book. This man will simply say anything to further
his devious ambitions. On or about
October 27, 2004, Lynch’s lawyers advised Richard Westin that Leonard Cohen
(whose conduct became increasingly aggressive and outrageous) should make
arrangements to pick up all personal property.
Cohen was well aware that Lynch had a home office. He made no attempts whatsoever to retrieve
the property Lynch stored at her home as a courtesy. Lynch’s property, including partnership
documents, were also removed by the Los Angeles Sheriff’s Department who
advised her that they had the authority to take anything with Leonard Cohen’s
name on it. Cohen is an entirely
vindictive man who is consumed with thoughts of revenge and retaliation. In any event, as of this date, Lynch has not
had an opportunity to review most of the documents in this case or certain
documents in the related case. For
instance, declarations and exhibits or attachments are missing. She has yet to review the proof of service in
the related case. Her younger son’s
father, Steven Clark Lindsey, provided a declaration to Cohen although he
hadn’t seen Lynch for approximately 7 months and had no idea what Lynch stored
for Cohen and no access to her home office. His
conduct is an absolute disgrace and has, with Cohen and others, led to the
absolute destruction of Defendant’s sons’ lives.
It is
long established that personal jurisdiction by a court over the parties is a
pre-requisite to the adjudication of disputes brought before it. Lynch maintains that LA Superior Court does
not have jurisdiction over her in a number of proceedings, including with
respect to her 2012 trial, the present outrageous probation violation matter,
and this case. A court ordinarily
obtains personal jurisdiction by the service of a summons. A judgment is void if a court acts without
personal jurisdiction. While Lynch was
aware that Leonard Cohen filed a lawsuit against her, she was completely
unaware of the allegations against her and was shocked when she was finally
able to read the complaint in or around April 2010. Leonard Cohen has had ample time to properly
serve her and both he and his representatives were aware that Lynch was not
served the summons and complaint in this and other matters.
The underlying rationale for personal service of process,
as a prerequisite to the valid exercise of a judicial tribunal over a defendant,
finds its source in the Due Process Clause of the Amendment: This “notice and opportunity to be heard” was
succinctly addressed by the U.S Supreme Court in Mulane v. Central Hanover
Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 662, 657 (U.S. 1950): “An elementary and fundamental requirement of
due process in any proceeding which is to be accorded finality is notice
reasonably calculated, under all the circumstances, to apprise interested
parties of the pendency of the action and afford them an opportunity to be
heard.” The Court defined “notice” and
an “opportunity to be heard” as a requirement that a potential defendant be
apprised of the nature of the proceedings against him or her, and that he or
she have adequate time to mount objections thereto. “The notice must be of such nature as
reasonably to convey the required information … and it must afford a reasonable
time for those interested to make their appearance.” Ibid.For over one hundred
years, personal service has been the sine qua non for compliance with the
constitutional requirements to the U.S. Constitution and decisional
authority. Based upon their argument,
Plaintiffs (including LC Investments, LLC, an entity that does not appear to
actually exist) have now attempted to use a fraudulent state restraining order
in an attempt to subvert this constitutional requirement.“The fundamental
requisite of due process of law is the opportunity to be heard. This right to be heard has little reality or
worth unless one is informed that the matter is pending and can choose for
himself whether to appear or default, acquiesce or contest … An elementary and
fundamental requirement of due process in any proceeding which is to be
according finality is notice reasonably calculated, under all the circumstances,
to apprise interested parties of the pendency of the action and afford them an
opportunity to present objections.” Mulane v. Central Hanover Bank & Trust
Co.
Only exceptional circumstances justify departure from the
personal service norm in the United States, a narrow carve-out to the
constitutional due process requirements of notice and opportunity to be heard
has long been recognized. This
exception, however, is granted neither automatically nor easily but it does
afford alternate or substitute service.
Lynch has addressed this issue in her Motion to Vacate and will further
address it below.
Paulette Brandt served attorney of record, Scott Edelman,
as well as Robert Kory/Michelle Rice of Kory Rice a copy of the Motion to
Vacate and attached Declarations. She
asked all three parties to notify her if they were opposed to email service
with respect to the Motion to Vacate.
After receiving Scott Edelman’s email acknowledging hers and advising
her to contact Robert Kory, Paulette Brandt also followed up by placing a phone
call to Robert Kory and leaving a message that she would appreciate hearing
from him if he had any objections to service by email. No such objection was received by Scott
Edelman, Robert Kory, or Michelle Rice and, therefore, the agreement to accept
service via email was implicit in their decision not to advise Ms. Brandt that
they objected or found email service unacceptable. Furthermore, Paulette Brandt specifically
advised these parties that should would mail copies to each of them if they so
required. It is also overwhelmingly
obvious, by Jeffrey Kron’s mere appearance in this matter, that Plaintiffs have
been effectively served Lynch’s Motion to Vacate. The actual service issue in this case
revolves around the absolute lack of service of the summons and complaint. “Service of summons is the procedure by which
a court having venue and jurisdiction of the subject matter of the suit asserts
jurisdiction over the person of the party served.” Omni Capital Intern.,
Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104, 108 S.Ct. 404, 409
(U.S. 1987). Lynch continues to maintain
that the court does not have jurisdiction over her and the two business
entities inserted into the default judgment.
Plaintiff LC Investments, LLC does not exist. In fact, none of the Cohen related entities
in this matter appear to actually exist.
LC Investments, LLC is an LLC created and organized under the laws of
the state of Delaware.At the time Plaintiffs filed this lawsuit against Lynch,
she was listed as the Registered Agent and her former business P.O. Box was
used as the business address. Lynch was
very clear, in many emails with Cohen tax lawyer Richard Westin, that her
office and P.O. Box were not the business address of LC Investments, LLC or any
other Cohen-related business entity. She
has provided copies of these emails to the Internal Revenue Service.
Lynch
continues to be listed, on the State of California’s website, as the Registered
Agent for Blue Mist Touring Company, Inc.
The business entity address is her former P.O. Box. Traditional Holdings, LLC has its sole place
of business c/o Leonard Cohen’s personal tax lawyer. None of these entities appear to have an
actual business purpose, business addresses, or any form of existence apart
from the fact that they were created to benefit Leonard Cohen who is clearly
the “alter ego” of these corporate fictions.
THE COURT
LACKS PERSONAL JURISDICTION
& THE
DEFAULT JUDGMENT IS VOID
Where “a motion to vacate a default judgment is made”
beyond the statutory deadline for relief, it is directed to the court’s
inherent equity power.”Gibble v. Car-Lene Research, Inc. (1998) 67
Cal.App.4th 295, 314. The
party seeking equitable relief “must satisfy three elements: ‘First, the defaulted party must demonstrate
[that he or she] has a meritorious case.
Secondly, the defaulted party … must articulate a satisfactory excuse
for not presenting a defense to the original action. Lastly, the moving party must demonstrate
diligence in seeking to set aside the default once … discovered.” See Gibble v. Car-Lene. Defendant Kelley Lynch has a meritorious case
as evidenced in the case history included with her declaration in support of
the Motion to Vacate. Her new
declaration articulates the reasons for not presenting a defense to the
original action. And, Lynch’s
declaration demonstrates her diligence in seeking to set aside the default
judgment.Exhibit C - Proposed Answer to
Complaint.
While the Supreme Court has held that “a motion to vacate
a judgment should not be granted where it is shown that the party requesting
equitable relief has been guilty of inexcusable neglect or that laches should
attach” (In re Marriage of Park (1980) 27 Cal.3 337, 345), there are
extraordinary and exceptional circumstances for the tardiness of her Motion to
Vacate.
In County
of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, the Court of
Appeal held that “When a judgment or order is obtained based on a false return
of service, the court has the inherent power to set it aside [citation], and a
motion brought to do so may be made on such ground even though the statutory
period has run.” (Id. At p. 1229). The
Court also said that “Because of the strong publicly policy in favor of the
finality of judgments, equitable relief from a default judgment or order is
available only in exceptional circumstances.”
(Id. At pp. 1229-1230.) In Gorham, the exceptional circumstances
involved a process server who committed “perjury” in his declaration of
service. He falsely claimed he served Gorham at one address at a time when Gorham was actually incarcerated. Lynch’s circumstances are not dissimilar to the
facts in Gorham due to the fact that
the process server stated, under the penalty of perjury, that he attempted to
serve Lynch numerous times, stated that he served Lynch’s female co-occupant
Jane Doe, and, actually described the individual he allegedly served. Lynch’s circumstances are, therefore,
identical to Gorham’s in that the proof of service is evidence of fraud. Lynch and her son, John Rutger Penick, had no
female co-occupant at any time during the period referred to in the proof of
service. The Court in Gorham also held that “Because of the
strong public policy in favor of the finality of judgments, equitable relief
from a default judgment or order is available only in exceptional
circumstances.” (Id. at pp. 1229-1230.) Lynch
believes that public policy does not favor a default judgment being entered
against an individual where there is not only a lack of service and personal
jurisdiction but where the Plaintiff corporation lacked a business address, two
entities inserted into the default judgment were not named as parties to the
lawsuit, and the judgment was obtained using documents and declarations replete
with fraud, intentional misrepresentations, and entirely perjured
statements. Lynch believes there is a
strong public policy favoring adhering to the United States Constitution and,
in particular, due process concerns implicated in the Fourteenth Amendment.
The
process server in the instant matter falsely claimed that he attempted to serve
Lynch for six straight days and then allegedly served co-occupant Jane
Doe. Lynch was in two serious automobile
accidents that left her car destroyed.
She had no means of transportation and was home at all times between
August 17 through 24, 2005. Furthermore,
Lynch had no reason to evade service and repeatedly attempted to address this
issue with both Scott Edelman and Robert Kory to no avail. Edelman refused to speak to Lynch and
repeatedly advised her that he would be happy to speak with her attorney. She was and remains self-represented. Kory, with whom Lynch spoke after becoming
aware of a subpoena issued to City National Bank, advised her to raise her
concerns with respect to lack of service of the summons and complaint directly
with City National Bank and then promptly hung up on her.
The
court said that the circumstances in Gorham
constituted “evidence of an intentional false act that was used to obtain
fundamental jurisdiction over Gorham.” (Id. at p. 1232.) The process server clearly committed at least
one false act with respect to this matter because Lynch was home every day
during this period of time, does not resemble Jane Doe, and had no female
co-occupant. Therefore, this case is
analogous to Gorham because Lynch,
her son, and others have provided evidence that the process server committed
perjury and Plaintiffs filed a falsified return of service.
Code of Civil Procedure Section 415.20, subdivision (b)
provides, in relevant part, that “a summons may be served by leaving a copy of
the summons and complaint at the … usual mailing address …in the presence of a competent member of the household or a person
apparently in charge of his or her office, place of business, or usual mailing
address … at least 18 years of age, who shall be informed of the contents
thereof, and by thereafter mailing a copy of the summons and complaint … at the
place where a copy of the summons and complaint were left.” The alleged
substitute service does not comply with Code of Civil Procedure Section
415.20. Code of Civil Procedure Section
417.10, subdivision (a) states, in relevant part, that “Proof that a summons
was served on a person within this state shall be made: (a) If
served under Section … 415.20 … by the affidavit of the person making the
service showing the time, place, and manner of service and showing that the
service was made in accordance with this chapter. The affidavit shall recite or in other manner
show the name of the person to whom a copy of the summons and complaint were
delivered, and, if appropriate, his or her title or the capacity in which he or
she is served.” (Ibid.) The process server fails to list Lynch’s
neighbor’s name and/or address (an individual who was allegedly willing to
speak to the process server and went so far as to advise him that he/she had
not seen her for some time but who evidently failed to provide their name) as
well as the name of Lynch’s co-occupant.
The person’s name is required. It
seems to defy logic that an individual would answer the door, confirm that they
were a “co-occupant,” and then fail to provide their name.
A
party who has not actually been served with a summons and complaint has threeavenues
of relief from a default judgment.
First, Code of Civil Procedure section 473.5, subdivision (a)
provides: ‘When service of a summons has
not resulted in actual notice to a party in time to defend the action and a
default or default judgment has been entered against him or her in the action,
he or she may serve and file a notion of motion to set aside the default or
default judgment and for leave to amend the action … in no event exceeding the
earlier of (i) two years after entry of a default judgment against him or her,
or (ii) 180 days after service on him or her of a written notice that the
default or default judgment has been entered.”
Section 473.5 does not offer Lynch an avenue of relief because her motion
was filed over two years after the entry of judgment. Second, the party can show that extrinsic
fraud or mistake exists, such as a falsified proof of service, and such a
motion may be made at any time, provided the party acts with diligence upon
learning of the relevant facts. (See Manson,
Iver & York v. Black (2009) 176 Cal.App.4th 36, 47-49
(Manson); Gibble, supra, 67 Cal.App.4th at pp. 314-315; Munoz v.
Lopez (1969) 275 Cal.App.2d 178, 181; 8 Witkin, supra, Section 209, at
p.815.)”And, finally, third avenue of relief is a motion to set aside the
default judgment on the ground that it is facially void … “A judgment or order
that is invalid on the face of the record is subject to collateral attack … It
follows that it may be set aside on motion, with no limit on the time within
which the motion must be made.” (8 Witkin, supra, Section 207, p. 812.) “This does not hinge on evidence: A void judgment’s invalidity appears on the
face of the record, including the proof of service.” (See Morgan Clapp (1929) 207 Cal. 221,
224-225; Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th
488, 496.) The purpose of including the
name of the individual served by substitute service is to enable the recipient
to be located in the future, should the claim of service be challenged.
Lynch’s appearance is for the sole purpose of questioning
the jurisdiction of the court.
THE DEFAULT JUDGMENT IS VOID
County
of San Diego v.Gorham, 186 Cal.App.4th 1215 (2010), 113
Ca. Rptr. 3d 147
Gorham’s
argument was quite straightforward. He claimed the court lacked personal
jurisdiction over him because he was never served with the summons and
complaint and the default judgment was entered purely on a false return of
service, which constituted extrinsic fraud for which the court had authority to
set aside at any time by motion or an independent action in equity. It was Gorham’s contention that the default
judgment should be set aside as void.
Lynch
brought her motion to vacate the judgment on grounds that the trial court never
acquired jurisdiction over her in this case because she was never served with a
summons and complaint contrary to the fraudulent representation of the process
server’s return and, therefore, the judgment is void. Because the summons and complaint were not
served on her within three years of the date this action was commenced, Lynch
also moved for mandatory dismissal of the case under sections 583.210 583.260
of the Code of Civil Procedure. The
trial court never acquired fundamental jurisdiction over Lynch in this
case.
On August 15, 2005,
Leonard Cohen and LC Investments, LLC filed a complaint against Kelley Lynch, Richard
Westin, and Does 1-50 alleging breaches of fiduciary duty, common law fraud,
breach of contract, accounting, conversion, imposition of constructive trust
and injunctive relief, and, professional negligence. On August 25, 2005, Leon Moore (First Legal
Support Services), under penalty of perjury, filed a substitute proof of
service with respect to the summons and complaint in this matter. Moore alleged that he attempted to serve
Defendant on August 17, 19, 20, 21, 22, and 23, 2005 but no one was home. On August 24, Moore allegedly served
Defendant’s co-occupant Jane Doe. On May
12, 2006, Irma Guerra (Gibson Dunn) served the Notice of Default Judgment on
Lynch at 2648 Mandeville Canyon Road, Los Angeles, CA. Lynch had not lived at this residence since
December 28, 2005.
Courts generally prefer that cases be resolve on their
merits. See Wright, Miller & Kane,
Federal Practice an Procedure Civil 3d
Section 2693, 2696. A recent California
decision, Fasuyi v. Permatex, Inc. instructs that a plaintiff’s
counsel’s failed to warn defendant or its attorney that a default was about to
be entered against them and provides additional grounds for a court to grant
relief from a default. 84 Cal.Rptr. 3d
351 (Cal Ct. App. 2008). Plaintiff’s
counsel’s duty to warn about the default arose from professional and ethical
obligations. The California Court of
Appeal found that all legal principles favored Permatex. The most fundamental of those principles is
that the law’s policy “is to have every case litigated upon the merits, and it
looks with disregard upon a party, who, regardless of the merits of the case,
attempts to take advantage of the mistake, surprise, inadvertence, or neglect
of his adversary. Id. (Quoting Au-Yang v. Barton, 90 Cal.
Rptr. 2d 227 (1999)). The Fasuyi court
held that the ethical duty to warn was owed to someone besides known counsel
for a party that plaintiff sued. A
failure to warn constitutes a “professional discourtesy to opposing counsel.”
Id. The obligation to be civil extends
beyond counsel’s dealings with opposing counsel – the duty also extends to
opposing parties, the judiciary, and the public. See, e.g., California Attorney Guidelines of
Civility and Professionalism, p. 3 (“attorneys have an obligation to be
professional with clients, other parties an counsel, the courts and the
public.”) The Fasuyi Court noted that the “most fundamental principle” that
favored defendant was the law’s policy to try cases on the merits and, in
accord with that policy preference, courts disdain a party’s effort “to take
advantage of the mistake, surprise, inadvertence, or neglect of his adversary.”
Fasuyi, 84 Cal. Rptr. 3d at 361. “Adversary” includes both opposing counsel
and the opposing party. Given that the
civility and fairness obligations of Fasuyi’s counsel extended to more than
just known opposing counsel, it makes sense that the duty about an impending
default should extend to others to ensure that a defendant obtains fair notice.
Lynch reasserts her argument that her constitutional
rights to due process were never met because the court did not obtain personal
jurisdiction over her in the complete absence of being served a summons. Lynch does not believe there is a public
policy that permits plaintiffs to evade service, gutter serve a defendant, and
avoid having a case heard on its merits.
Furthermore, the complaint is replete with fraud; Cohen’s declaration
contains many perjured statements which are addressed in Lynch’s declaration
The
defect with respect to service is not apparent from the record but, given the
fact that the judgment is void, it is not untimely and Lynch is not bound by
Code of Civil Procedure (Section 473.4, subdivision (a)). Lynch has acted promptly in moving to vacate
this judgment, particularly given the circumstances and hardships she has
endured. Lynch has addressed some of
this in her attached declaration and will address this matter with the court at
the hearing on her motion. Setting the
judgment aside will not significantly impair the substantial interests of both
parties and the due process issues that are implicated are far more
significant. Lynch’s motion to
vacate/dismiss under Code of Civil Procedure Section 583.210 is not
untimely.
County
of San Diego v.Gorham, 186 Cal.App.4th 1215 (2010), 113
Ca. Rptr. 3d 147 essentially addresses numerous issues related to jurisdiction,
statutory background and standard of review:
1. Courts
generally refer to jurisdiction over the parties and subject matter in any
action as “fundamental jurisdiction” and where this is lacking there is an
entire absence of power to hear or determine the case. Thompson Pacific Construction, Inc. v.
City of Sunnyvale (2007) 155 Cal.App.4th 525, 538 [66
Cal.Rptr.3d 175]. Under such
circumstances, “an ensuing judgment is void, and, ‘thus vulnerable to direct or
collateral attack at any time.’” People
v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 660
[16 Cal.Rptr.3d 76, 93 P.3d 1020].
2. Although
courts have often also distinguished between a judgment void on its face, i.e.,
when the defects appear without going outside the record or judgment roll,
versus a judgment shown by extrinsic evidence to be invalid for lack of
jurisdiction, the latter is still a void judgment with all the same attributes
of a judgment void on its face. Los
Angeles v. Morgan (1951) 105 Cal.App.2d 726, 7332-733 [234 P.2d 319]. “Whether the want of jurisdiction appears on
the face of the judgment or is shown by evidence aliunde, in either case the judgment is for all purposes a nullity
– past, present and future. [Citation.]
… All acts performed under it and all
claims flowing out of it are void … No action upon the part of the plaintiff,
no inaction upxon the part of the defendant, no resulting equity in the hands
of third persons, no power residing in any legislative or other department of
the government, can invest it with any of the elements of power or of vitality.’
[Citation.](Id. At p. 732.) In such
cases, the judgment or order is wholly void, although described as
“voidable”because court action is required to determine the voidness as a
matter of law, and is distinguishable from those judgments merely voidable due to
being in excess of the court’s jurisdiction.
(Ibid.) Consequently, once proof
is made that the judgment is void based on extrinsic evidence, the judgment is
said to be equally ineffective and unefforceable as if the judgment were void
on its face because it violates constitutional due process. (See Peralta v. Heights Medical Center,
Inc. (1988) 485 U.S. 80, 84 [99 L.Ed.2d 75, 108 S.Ct. 896].)
3. Consistent
with these general principles, “a judgment is void for lack of jurisdiction of
the person where there is no proper service of process on or appearance by a
party to the proceedings.” (David B.
v. Superior Court (1994) 21 Cal.App.4th 1010, 1016 [26
Cal.Rptr.2d 586].) Knowledge by a defendant of an action will not satisfy the requirement
of adequate service of a summons and complaint. (Waller v. Weston (1899) 125 Cal. 201
[57 P. 892]; Renoir v. Redstar Corp. (2004) 123 Cal.App.4th
1145, 1152-1153 [20 Cal.Rprt.3d 603.])
It has been said that a judgment of a court lacking such personal
jurisdiction is a violation of due process (Burnham v. Superior Court of
Cal., Marin County (1990) 495 U.S. 604, 609 [109 L.Ed.2d 631, 110 S.Ct.
2105]), and that “a default judgment entered against a defendant who was not
served with a summons in the manner prescribe by statute [to establish personal
jurisdiction] is void.” (Dill v.
Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444 [29
Cal.Rptr.2d 746.)
4. If the
invalidity does not appear on its face, the judgment or order may be attacked
either in an independent equitable action without time limits (Grove v.
Peterson (2002) 100 Cal.App.4th 659, 670, fn. 5 [123 Cal.Rptr.2d
164]), or by motion in the action in which the judgment or order was entered,
usually made under a statute providing for such relief within certain time
limits or a reasonable time. “A motion
to vacate a void judgment is a direct attack.” [Citations.] “On direct attack, lack of jurisdiction may
be shown by extrinsic evidence, i.e., evidence outside the judgment roll.” (Strathvale Holdings v. E.B.H. (2005)
126 Cal.App.4th 1241, [25 126 Cal.App.3th 1241, 1249 [25 Cal.Rptr.
3d 372].)
5. Moreover,
even where relief is no longer available under statutory provisions, a trial
court generally retains the inherent power to vacate a default judgment or
order on equitable grounds where a party establishes that the judgment or order
was void for lack of due process (Ansley v. Superior Court (1986) 185,
Cal.App.3d 477, 488 [299 Cal.Rptr. 771]).
Extrinsic fraud occurs when a party is deprived of the opportunity to
present a claim or defense to the court as a result of being kept in ignorance
or in some other manner being fraudulently prevented by the opposing party from
fully participating in the proceeding. (Home
Ins. Co. v. Zurich Ins. Co. (2002) 96 Cal.App.4th 17, 26-27 [116
Cal.Rptr.2d 583].) “Extrinsic mistake is
found when [among other things] … a mistake led a court to do what it never
intended …” (Kulchar v. Kulchar
(1969) 1 Cal.3d.467, 471-472 [82 Cal.3d 467, 471-472 [82 Cal.Rptr. 489, 462
P.2d 17].)
6. In
addition to providing proof that a judgment or order is void, a false return of
summons may constitute both extrinsic fraud and mistake. (See Munoz v. Lopez (1969( 275
Cal.App.2d 178, 181 [79 Cal.Rptr. 563].)
When a judgment or order is obtained based on a false return of service,
the court has the inherent power to set it side (In re Marriage of Smith
(1982) 135 Cal.App.3 543, 555 [185 Cal.Rptr. 411]), and a motion brought to do
so may be made on such grounds even though the statutory period has run (Munoz, supra, 275 Cal.App.2d at pp.
182-183 [an equitable attack to set aside3 a judgment or order “for lack of
jurisdiction of the cause where that jurisdiction is in turn dependent on
personal service on the defendant who at the later dates seeks to question that
service” is not precluded by any set time]).
7. As
already noted above, here it is shown that there has been a complete failure of
service of process upon a defendant, he generally has no duty to take
affirmative action to preserve his right to challenge the judgment or order
even if he later obtains actual knowledge of it because “what is initially void
is ever void and life may not be breathed into it by lapse of time.” Morgan,
supra, 105 Cal.App. 2d at p. 731.)
Consequently, under such circumstances, “neither laches nor the ordinary
statutes of limitation may be invoked as a defense” against an action or
proceeding to vacate such a judgment or order.
(Id. A p. 732.) And, where
evidence is admitted without objection that shows the existence of the
invalidity of a judgment or order valid on its face, “t is the duty of the
court to declare the judgment or order void.”
(Thompson v. Cook [1942] 20 Cal.2d 564, 569 [127 P.2d
909](Cook).)
Lynch
is not seeking relief from the default judgment pursuant to any statutory
scheme, but rather, directly attacking it for lack of personal jurisdiction due
to fraudulent service. The trial court
never acquired personal jurisdiction over Lynch in this action. The cases above have shown that the filing of
a false proof of service based on perjury by the process server to acquire
personal jurisdiction over a party is different than other forms of fraudulent
acts that may lead to a judgment in the action.
Because Lynch was never served with the complaint and summons or other
documents and notices as required by statutory procedures the trial court never
obtained personal jurisdiction over her and the resulting default judgment was,
and is, therefore void, not merely voidable, as violating fundamental due
process. The judgment should be vacated
and complaint and summons dismissed.
Lynch has established through extrinsic evidence that the default
judgment was void for want of personal jurisdiction over her and it had the
same effect as if it had been void on its face and the court had the inherent
power to set it aside even though any statutory periods had run. (Cook,
supra, 20 Cal. 2d at p. 569; Munoz,
supra, 205 Cal.App.2d at p. 732.)Lynch was home at all times during this period
and she had no female co-occupant even vaguely resembling Jane Doe and no one
at Lynch’s home was ever advised to evade service. In fact, Lynch spoke to Robert Kory about the
fact that she was not served. He told
her to contact City National Bank. She
made repeated attempts to speak to Scott Edelman who advised her that he would
speak to her attorney. She was and
remains self-represented. Kory appeared
to take great offense when Lynch asked him why Leonard Cohen had not gone to
the Internal Revenue Service with her if anything he had to say resembled
anything known as the truth.
CONCLUSION
Lynch did not, contrary to Cohen’s testimony,
“decline” to participate in litigation.
There is no prejudice with respect to Leonard Cohen due to the fact that
he has used fraud, concealment, conversion, and other methods to deprive Lynch
of her property. When there is no trial,
formal notice becomes critical.
The court has the inherent power to set aside a judgment
or order obtained through extrinsic fraud or extrinsic mistake. A court of general jurisdiction has inherent
equity power, aside from statutory authorization to vacate and set aside default
judgments obtained through extrinsic fraud or mistake. (Weitz v. Yankosky, (1966) 63 Cal.2d
849, 855 [Cal.Rptr. 620, 409 P.2d 700];
Hallett v. Slaughter (1943) 22 Cal.2d 552, 557 [140 P.2d 3]; Olivera
v. Grace (1942) 19 Cal. Civil Appellate Practice (Cont. Ed. Bar) Sections
4.30-4.35; 30A Am. Jur., Judgments, Sections 755, 769, 783-784.) This power may be invoked by motion or by an
independent action in equity. (Olivera v. Grace; Shields v. Siegel
(1966) 246 Cal.App.2d 334, 337 [54 Cal.Rptr. 577].) Relief from default is predicated u the
assumption that personal jurisdiction of the defendant has not been
obtained. Defendant Kelley Lynch seeks
relief due to fact that the court had no jurisdiction over her and the default
judgment is void. The motion herein made
was primarily on the ground that the service, the default and the default
judgment were void on their face. The
motion is not within the purview of Sections 473 or 473(a); the time
limitations of that section do not apply; the default and default judgment are
void and motion can be made at any time; and, the court has the right and power
at any time to vacate and set aside a void entry of default and a void default
judgment (Morgan v. Clapp, 207 Cal. 221, 224 [277 P. 490]; Miller v.
Cortesse, 110 Cal. App. 2d 101, 103-105 [242 P.2d 84]; People v. One
1941 Chrysler Sedan, 81 Cal. App. 2d 18, 31 [183 P.2d 268]; and,
collaterally, Pennell v. Superior Court, 87 Cal.App. 375, 378 [262 P.
48].)
Dated: December 24. 2013
_________________________________
Kelley
Lynch
Kelley
Lynch
c/o
Paulette Brant
1754
N. Van Ness Avenue
Hollywood,
California 90028
Phone: 323.331.4250
SUPERIOR COURT OF THE
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
LEONARD
NORMAN COHEN, an individual Case
No. BC338322
LC
INVESTMENTS, LLC, a Delaware Limited
Liability
Company
Plaintiffs
vs.
KELLEY
LYNCH, an individual, et al.
Defendants
PROPOSED
ORDER
HAVING
CONSIDER DEFENDANT’S OPPOSITION, THE COURT ORDERS:
That Plaintiffs provide Kelley
Lynch with all legal documents filed in this and the related matter, with
attached proofs of service, exhibits, and evidence, by
___________________________________.
That would include, but is not
limited to, all information related to mediations between Leonard Cohen and his
tax lawyer, Richard Westin, including the settlement agreement between these
parties.
Dated:
__________________________________________
Judge
Robert Hess
Exhibit A
Declaration
of Paulette Brandt
I, Paulette Brandt, declare as follows:
1. I
personally served Kelley Lynch's Motion to Vacate upon attorney of record,
Scott Edelman, and Robert Kory/Michelle Rice of the Kory Rice law firm. As of the date Kelley Lynch filed her Motion
to Vacate, the State of California's website listed Kelley Lynch as the
Registered Agent of LC Investments, LLC and her former P.O. Box as the business
entity address. I, therefore, served
Kelley Lynch. At some point after filing
the Motion to Vacate, the State of California's website listed a new Registered
Agent and business address for LC Investments, LLC. I effected service upon the new Registered
Agent, Robert Kory, by email. I also
phoned Robert Kory to advise him that if he objected to service by email, I
would be more than happy to mail a copy of the Motion to Vacate. I heard nothing back.
2. At no
point did Kelley Lynch personally contact either Robert Kory or Michelle Rice
with respect to service of these legal documents.
3. I have
known Kelley Lynch for nearly 25 years.
I was in touch with Kelley Lynch in the summer and fall of 2005. At no time did she have a female
co-occupant.
I declare under penalty of
perjury, under the laws of the State of California, that the foregoing is true
and correct. This Declaration was signed
this 24th day of December 2013 at Los Angeles, California.
___________________________________
Paulette
Brandt
Exhibit B
Declaration
of Kelley Lynch
I, Kelley Lynch, declare as
follows:
1. I did not
contact either Robert Kory or Michelle Rice with respect to service of the
Motion to Vacate filed in this matter.
2. I have
suffered inconceivable hardships since parting ways with Leonard Cohen and
refusing to enter into any type of settlement agreement or deal with him. That would include with respect to his offer
of 50% community property. I felt that
Leonard Cohen and his representatives were attempting to engage me in illegal
conduct and Boies Schiller confirmed this for me.
3. On
December 28, 2005, my son, Rutger Penick, and I were evicted from our home in
Brentwood, California. I ended up
homeless in Santa Monica, California from approximately December 2005 through
November 2006.
4. On
February 3, 2007, my son, Rutger Penick, was involved in a horrifying accident
at Whole Foods. While Leonard Cohen
testified that I blame him for this accident, that is a bald-faced lie. I am well aware that someone at Whole Foods
removed the safety guard and Rutger was not trained to use this machine. However, Leonard Cohen owes me a tremendous
amount of money and has made many fraudulent misrepresentations to a number of
courts and provided perjured declarations and testimony. Following Rutger's accident, I stayed with
him for a period of time.
5. For years,
I have been relentlessly harassed, threatened, slandered, and targeted by
Leonard Cohen, his representatives, and others.
It was not until April 2010 that I was finally able to read the
complaint in this matter. It was posted
online by Stephen Gianelli, a man who continues to engage in an outrageous
campaign of harassment with respect to me, my sons, family members, Paulette
Brandt, and others. He works in tandem
with, among others, Leonard Cohen's fan, Susanne Walsh, who frequently copied
in Cohen's co-counsel in this matter, Michelle Rice. After reading the complaint in this matter, I
contacted Judge Freeman's court for information, and publicly announced my
intention to move to vacate Leonard Cohen's lawsuit against me and the
attendant default judgment. Stephen
Gianelli, Susanne Walsh, and others, promptly began threatening me over that
issue.
6. I have acted
diligently in moving to vacate this lawsuit and default judgment and the
judgment, due to lack of personal service, was and remains void. I will address the Court directly with
respect to any other issues related to the hardships I have endured since
parting ways with Leonard Cohen and reporting his alleged criminal tax fraud to
the Internal Revenue Service and others.
7. Although
Jeffrey Korn promised to provide me with all legal documents in this and the
related case, he has suddenly stopped communicating with me. This is an all too familiar tactic that I
believe has been used in the past to entrap me.
It is utterly despicable.
I declare under penalty of
perjury, under the laws of the State of California, that the foregoing is true
and correct. This Declaration was signed
this 24th day of December, 2013 at Los Angeles, California.
________________________________
Kelley
Lynch
Exhibit C
Proposed
Answer to Complaint
Kelley Lynch
c/o Paulette Brandt
1754 N. Van Ness Avenue
Hollywood, California 90028
Phone:
323.331.4250
In Propria Persona
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
LEONARD
NORMAN COHEN, an individual, Case No.
BC338322
LEONARD
COHEN INVESTMENTS, LLC, a
Delaware
Limited Liability Company,
ANSWER OF DEFENDANT KELLEY LYNCH
Plaintiffs
Department
64
Judge
Ken Freeman
vs.
KELLEY ANN
LYNCH, an individual, Complaint Filed August 15, 2005
Defendant
DEFENDANT,
KELLEY ANN LYNCH, answers Plaintiffs’ Complaint as follows:
Pursuant to Code of Civil
Procedure Section 431.30(d), this answering Defendant denies the
allegations of the Complaint, and each and every part thereof, and further
denies that Plaintiffs have sustained or will sustain injuries, damages, or
loss in any amount, or at all, by reason of any act or omission, fault,
negligence, or conduct on the part of or attributable to this answering
defendant.
FOR A FIRST, SEPARATE, AND AFFIRMATIVE DEFENSE
(Failure to State a Cause of Action)
This
answering Defendant alleges that Plaintiffs’ Complaint fails to state facts
sufficient to sustain a claim for relief or a cause of action against this
answering Defendant.
FOR A SECOND, SEPARATE, AND AFFIRMATIVE DEFENSE
(Failure to Mitigate Damages)
This
answering Defendant alleges that Plaintiffs, with actual or constructive
knowledge of the facts alleged in the Complaint, were under a duty to mitigate
damages, if any, and Plaintiffs failed to fulfill such duty; as a consequence
thereof, this answering Defendant is exonerated from liability to Plaintiffs,
and all damages alleged are the sole and proximate cause of Plaintiffs’ failure
to mitigate their damages.
FOR A THIRD, SEPARATE, AND AFFIRMATIVE DEFENSE
(Plaintiffs’ Comparative Fault)
The
answering Defendant alleges that Plaintiffs are barred from recovery herein in
that conduct of Plaintiffs and/or their agents was the sole proximate cause of
the act or acts, or event or events, alleged in the Complaint, and damages, if
any, must be reduced in proportion to Plaintiffs’ own conduct.
FOR A FOURTH, SEPARATE, AND AFFIRMATIVE DEFENSE
(Comparative Fault of Others)
The
answering Defendant alleges that the conduct of other persons not sued and
served herein, proximately contributed to the act or acts, or event or events,
which are the subject of the complaint on file herein, and that if any judgment
is rendered in favor of Plaintiffs herein, the conduct of said other parties be
determined and allocated in proportion, and that any judgment entered against
this answering Defendant be reduced in the amounts thereof.
FOR A FIFTH, SEPARATE, AND AFFIRMATIVE DEFENSE
(Intervening and Superseding Causes)
This
answering Defendant alleges the injuries and damages of which Plaintiffs
complain were proximately caused by the acts or omissions of other parties,
persons and/or entities in that said acts or omissions were intervening and
superseding causes of injuries and damages, if any, of which Plaintiffs
complain, thus barring Plaintiffs from any recovering against this answering
Defendant.
FOR A SIXTH, SEPARATE, AND AFFIRMATIVE DEFENSE
(Proposition 51 - Civil Code
Section 1431.2)
This
answering Defendant denies that she was responsible for the damages as alleged
by Plaintiffs in the complaint. However, if liability is found, this
answering Defendant may may be held liable only in the amount of non-economic
damages allocated to her in direct proportion to her percentage of fault,
pursuant to Civil Code Section 1431.2.
FOR A SEVENTH, SEPARATE, AND AFFIRMATIVE DEFENSE
(Ratification)
This
answering Defendant alleges that Plaintiffs are barred from recovery herein in
that Plaintiffs, being fully informed of the act or acts, event or events, of
which Plaintiffs now complain, ratified and affirmed all conduct with respect
to the act or acts, event or events, and therefore Plaintiffs have waived any
and all causes of action against this answering Defendant and are barred from
asserting the same.
FOR AN EIGHTH, SEPARATE, AND AFFIRMATIVE DEFENSE
(Voluntary Consent)
This
answering Defendant alleges that Plaintiffs are barred from any recovery in the
present action in that Plaintiffs willingly and voluntarily consented,
expressly or impliedly, after full and complete disclosure by this answering
Defendant of all relevant and material facts, to any and all such act or acts,
event or events, as may be shown on the part of this answering Defendant, of
which Plaintiffs now complain. Plaintiffs have, therefore, waived any and
all causes of action against this answering Defendant and are barred from
asserting same.
FOR A NINTH, SEPARATE, AND AFFIRMATIVE DEFENSE
(Estoppel)
This answering Defendant alleges that the acts of
Plaintiffs and/or their agents are acts which estop Plaintiffs from asserting
any cause of action against this answering Defendant.
FOR A TENTH, SEPARATE, AND AFFIRMATIVE DEFENSE
(Unclean Hands)
This
answering Defendant alleges that Plaintiffs’ entire action is barred pursuant
to the doctrine of unclean hands.
FOR AN ELEVENTH, SEPARATE, AND AFFIRMATIVE DEFENSE
(Waiver)
This
answering Defendant alleges that the acts and statements of Plaintiffs, and/or
their agents, constitute a waiver of Plaintiffs’ claims against this answering
Defendant.
FOR A TWELFTH, SEPARATE, AND AFFIRMATIVE DEFENSE
(Assumption of Risk)
This
answering Defendant alleges that Plaintiffs are barred from recovery herein
because Plaintiffs knowingly assumed all risks incident to the conduct alleged
in the complaint.
FOR A THIRTEENTH, SEPARATE, AND AFFIRMATIVE DEFENSE
(Punitive Damages Unconstitutional)
This
answering Defendant alleges that punitive damages, as sought against her in
this action, are unconstitutional under the United States and California
Constitutions.
WHEREFORE, Defendant Kelley Lynch prays as follows:
1. That Plaintiffs’ Complaint be dismissed
with prejudice, and that Plaintiffs take nothing thereby;
2. That
judgment be entered in favor of this answering Defendant;
3. That this answering Defendant be awarded
costs of suit incurred herein;
4. For
attorneys fees to the extent allowable by law;
5. For a full accounting (that includes
corporate ownership interests, asset valuations, equity liabilities - including
Plaintiffs’ loans from various entities) of all monies, commissions, and assets
owed Defendant;
6. For a copy of the settlement
negotiation transcripts and the agreement between Plaintiffs and Defendant
Richard Westin; and,
7. For such other and further relief as
this court deems just and proper under the circumstances.
Dated: August 3,
2013
_____________________________________
Kelley
Lynch, In Propria Persona