Date: Fri, Sep 18, 2015 at 10:18 AM
Subject: Fwd: Pending motion to vacate renewal of J; this case alters my formerly expressed view of your motion
To: "*IRS.Commisioner" <*IRS.Commisioner@irs.gov>, Washington Field <washington.field@ic.fbi.gov>, ASKDOJ <ASKDOJ@usdoj.gov>, "Division, Criminal" <Criminal.Division@usdoj.gov>, "Doug.Davis" <Doug.Davis@ftb.ca.gov>, Dennis <Dennis@riordan-horgan.com>, MollyHale <MollyHale@ucia.gov>, nsapao <nsapao@nsa.gov>, fsb <fsb@fsb.ru>, rbyucaipa <rbyucaipa@yahoo.com>, Robert MacMillan <robert.macmillan@gmail.com>, a <anderson.cooper@cnn.com>, wennermedia <wennermedia@gmail.com>, Mick Brown <mick.brown@telegraph.co.uk>, "glenn.greenwald" <glenn.greenwald@firstlook.org
IRS, FBI, and DOJ,
I've asked Rice, rather than Criminal Stalker Gianelli, to respond to the issues raised in my motion to vacate the renewal of judgment. Who cares what the criminal thinks. I've already addressed Fidelity v. Brown in my motion. Rice, in keeping with her predictable behavior, will serve the Opposition precisely 9 days before the October 6th hearing. Gianelli appears to be assisting her with research on these issues. I already advised Hess that his January 2014 order wasn't filed with the court and I wasn't served the order either. Jeffrey Korn promised he would serve it and failed to do so. I also didn't receive the proposed order, with request to comment, when that was sent. I am aware that the final order wasn't registered. So what's the criminal's point? I am aware that there is no finding re. proper service due to all of this. These people have a lot of nerve insulting someone who is pro per for the sole reason that Cohen bankrupted me and stole my share of intellectual property via default while withholding commissions due me for services rendered. LA Superior Court seems to also condone slave labor.
Kelley
---------- Forwarded message ----------
From: Stephen R. Gianelli <stephengianelli@gmail.com>
Date: Fri, Sep 18, 2015 at 2:47 AM
Subject: Pending motion to vacate renewal of J; this case alters my formerly expressed view of your motion
To: kelley.lynch.2010@gmail.com
From: Stephen R. Gianelli <stephengianelli@gmail.com>
Date: Fri, Sep 18, 2015 at 2:47 AM
Subject: Pending motion to vacate renewal of J; this case alters my formerly expressed view of your motion
To: kelley.lynch.2010@gmail.com
See the attached case, Fidelity Creditor Service, Inc. v. Browne, FYI. Under its reasoning:
1. A motion to vacate the renewal of a judgment is NOT CONSIDERED to be a motion to vacate the judgment and is therefore not governed by time limits for motions to vacate the judgment such as those provided by section 473.5. This is because the motion does not seek to affect the judgment itself but only the renewal period. For the same reasons one would have AN ARGUMENT that a motion to vacate the renewal of a judgment is not a motion to reconsider a previously denied motion to vacate the judgment itself, but the case does not address that issue.
2. The moving party need not demonstrate the existence of a meritorious defense.
3. There is no “due diligence” requirement in filing the motion “earlier” (e.g., after learning of the judgment) because the legislature has explicitly provided for a 30-day time window from the date mailing of notice of renewal of the motion to file it, and the motion is either filled within that statutory time or it is not.
4. Unlike in the cited case (attached), the fact of valid service is DISPUTED – so the moving party still needs to overcome the presumption of valid service created by the proof of service filed by the registered process server. And Judge Hess could still defeat the motion by weighing the evidence and concluding that the moving declarations failed to overcome the presumption in favor of proper service.
5. Res judicata should not be a factor because NO ORDER SETTING FORTH JUDGE HESS’ JANUARY 17, 2014 RULING DENYING THE MOTION TO VACATE was ever signed or filed – let alone served. (See the on-line docket “case summary”.) A proposed order was lodged, but NO SIGNED ORDER WAS EVER FILED AND IT WOULD APPEAR THAT NO ORDER WAS EVER SIGNED. Since there was no ORDER DENYING THE MOTION entered, no final, appealable order was ever entered – and (arguably) therefore there was no prior finding of proper service.
MEMORANDUM OF POINTS & AUTHORITIES
INTRODUCTION
On December 5, 2005 and May 15, 2006, default judgments were entered against Defendant in this action brought by Plaintiffs, Leonard Cohen and LC Investments, LLC. Plaintiffs failed to serve Lynch the summons and complaint. She has attempted to address this matter for over 10 years. Exhibit A: Declaration of Kelley Lynch, Exhibit B: Declaration of John Rutger Penick, Exhibit C: Declaration of Paulette Brandt, all attached hereto and made a part hereof.
The May 15, 2006 default judgment wrongfully imposed a constructive trust on Lynch based upon fraudulent allegations, misrepresentations, concealment of evidence, and perjured statements in the declarations used to support the May 15, 2006 default judgment. Lynch’s property, including monies due her, intellectual property she owns, and her ownership interest in numerous corporate entities, was fraudulently transferred to Leonard Cohen. The individual who took unconscionable advantage of any fiduciary relationship between Lynch and Cohen was Leonard Cohen.
On August 9, 2013, Lynch filed a motion to vacate. In that motion, Lynch argued that the judgment was void; dismissal mandatory; and the Court had no jurisdiction because she was not served the summons and complaint. The motion was denied with prejudice on a variety of grounds. The Court found the pleadings procedurally deficient and concluded the motion was not served on Plaintiffs; Lynch’s declaration was not signed; she did not act diligently after discovering the Complaint in April 2010; and Lynch did not carry the burden of persuasion that the proof of service was false. The Court also addressed the fact that Lynch’s son, John Rutger Penick, submitted a meaningless declaration. The Court concluded that Lynch failed to demonstrate extrinsic fraud. See Motion to Vacate, declarations and Case History attached thereto and incorporated herein by reference.
In response to Lynch’s motion to vacate, Plaintiffs submitted pleadings, declarations, and exhibits to the Court. See Plaintiffs’ Opposition to Lynch’s Motion to Vacate and declarations/exhibits attached thereto and incorporated herein by reference.
On March 17, 2015, Lynch filed a motion for terminating sanctions addressing egregious fraud upon the court, litigation misconduct, and the use of perjured statements to obtain the denial of the January 17, 2014 order. Given the fact that Plaintiffs’ response declarations attempted to reargue the underlying merits of the case, Lynch was forced to confront and refute those false accusations. See Motion for Terminating Sanctions, declarations, and evidence attached thereto and incorporated herein by reference.
Lynch’s Motion for Terminating Sanctions (fraud upon the court) argued that the fraud was intentional; included officers of the court; the fraud was directed at the court itself; and in fact deceived the court. Plaintiffs continue to display a reckless disregard for the truth. In their reply documents, Plaintiffs continued to deceive this Court about effecting service upon Lynch, reintroduced their case, attempted to argue the merits of the underlying case, and Lynch requested terminating sanctions as a remedy for the all-pervasive and egregious litigation misconduct that included harassment of her, her family members, friends, and witnesses who submitted declarations to this court. See Motion for Terminating Sanctions, declarations and exhibits attached thereto and incorporated herein by reference.
In Lyons v. Wickhorst (1986) 42 Cal.3d 911, 915, 231 Cal.Rptr. 738, 717 p.2d 1019, the Court implicitly acknowledged that “a court has inherent power to dismiss an action for misconduct that violates established procedures or a court order.” The court in Televideo Systems, Inc. vs. Heidenthal (9th Cir. 1987) 826 F.2d 915, 917) held that an “elaborate scheme involving perjury clearly qualifies as a willful deceit of the court” and noted that “it infected all of the pretrial procedures and interfered egregiously with the court’s administration of justice.” Plaintiffs, together with their legal representatives, have engaged in an elaborate scheme that involves perjury and is clearly meant to deceive the Court. Lynch sought terminating sanctions with respect to the January 17, 2014 order. Plaintiffs have now requested sanctions against Lynch with respect to her fraud upon the court motion and request for terminating sanctions. See Motion for Sanctions, declarations and exhibits attached thereto, and incorporated herein by reference
On May 29, 2015, Plaintiffs filed an Ex Parte Application Sealing corporate and other evidence Lynch submitted to this Court. Lynch is concurrently filing a Notice of Appeal with respect to that matter.
At the June 23, 2015 hearing on the Motion for Terminating Sanctions, the Court concluded that there was no basis to act; the motion was not a proper motion for reconsideration (although it was a fraud upon the court motion); and informed Lynch that she should have acted sooner. The Court did not address the fraud and perjury that formed the basis for Lynch’s motion which was most certainly not a motion for reconsideration. At the hearing, Lynch raised issues related to due process and the failure of Plaintiffs to serve her the summons and complaint. The Court denied Lynch’s motion noting that she claimed not to have been served but failed to demonstrate that there was extrinsic fraud. Lynch is concurrently filing a Notice of Appeal with respect to that order and maintains she was not served, the court failed to obtain jurisdiction over her, and extrinsic fraud was demonstrated in the documents and declarations submitted to this Court. See original declarations of Joan Lynch, John Rutger Penick, Paulette Brandt, Clea Surkhang, Palden Ronge, and Daniel Meade submitted to this Court with Lynch’s Motion for Terminating Sanctions, and her Reply to Plaintiffs’ Opposition, all exhibits and declarations attached thereto and incorporated herein by reference. Exhibit C: Schedule of Exhibits & Declarations attached to Lynch’s Motion for Terminating Sanctions and Reply to Plaintiffs’ Opposition, attached hereto and made a part hereof.
Due to the fact that Plaintiffs falsely alleged that Lynch forged or fabricated declarations attached to her Motion for Terminating Sanctions, Lynch is now submitting the original limited powers of attorney provided to her by John Rutger Penick, Clea Surkhang, Palden Ronge, and Daniel J. Made. Exhibit D: Limited Powers of Attorney, attached hereto and made a part hereof.
On July 13, 2015, Plaintiffs’ filed an Application for Renewal of Judgment and Memorandum of Costs. On July 14, 2015, the notice of renewal of the judgment was served on defendant. See Application for Renewal of Judgment and Memorandum of Costs incorporated herein by reference.
LEGAL ARGUMENT
Lynch’s motion to vacate the renewal of the judgment is brought pursuant to CCP Section 683.170. Lynch was never served with the summons and complaint and the December 5, 2005 default judgment, May 15, 2006 judgment (and imposition of constructive trust), together with the July 13, 2015 renewal of that judgment are void for lack of jurisdiction. The Court’s denial of Lynch’s Motion to Vacate and Motion for Terminating Sanctions (fraud upon the court re. the January 17, 2014 denial) are void for lack of jurisdiction as well.
Kelley Lynch contends that lack of personal jurisdiction would be a defense in an independent action on the judgment, and therefore, under Section 683.170, subdivision (a), she may assert that defense in support of this motion to vacate the renewal of judgment. Lack of personal jurisdiction, rendering the judgment void, is a defense in an independent action on the judgment. Therefore, lack of personal jurisdiction may be raised in a motion to vacate. In an independent action on a judgment, the debtor may challenge the judgment” in accordance with the rules and principles governing collateral attack,” (Kirkpatrick v. Harvey (1942) 51 Cal.App.2d 170, 172 124 P.2d 367; See also Cradduck v. Financial Indem. Co. (1966) 242 Cal.App.2d 850, 855, 52 Cal.Rptr. 90), including “lack of personal or subject matter jurisdiction.” Armstrong v. Armstrong (1976) 15 Cal.3d 942, 950, 126 Cal.Rptr. 805, 544 P.2d 941. Such a collateral attack challenges the jurisdiction of the court to enter the original judgment. In making a statutory motion, under Section 683.170, subdivision (a), to vacate a renewal of judgment, the debtor may contend that the court lacked personal jurisdiction at the time of the initial judgment. See Fidelity Creditor Service, Inc. v. Browne (2001) 89 Cal.App.4th 195, 201-202, 106 Cal.Rptr.2d 854 [failure to have ever served process on a defendant is a defense to an action on the judgment and therefore can be raised on a Section 683.170 motion.]
“Jurisdiction over the parties is necessary for the validity of any judgment in personam. California Code Civil Procedure Section 1917; Pennoyer v. Neff (1877) 95 U.S. 714 722; Allen v. Superior Court (1953) 41 Cal.2d 306, 309; Restatement, Judgments Sections 6, 14, and Intro. Note p. 79.) Such jurisdiction depends upon three factors: (1) Jurisdiction of the state, based upon there being sufficient minimum contacts existing between this state and the parties or their property or other interests (See Section 410.10); (2) Notice and opportunity for a hearing (Sections 412.10-412.30, 473.4; (3) Compliance with statutory jurisdictional requirements for service of process (See Sections 413.10-417.30). See Goldman v. Simpson, Case No. B200082 (2d Dist. Feb. 20, 2008). Lynch was not provided notice and an opportunity to be heard.
The United States Supreme Court has concluded: “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under the circumstances, to apprise interested parties of the pendency of the action and afford them the opportunity to present their objections.” Failure to give notice violates “the most rudimentary demands of due process of law.” Peralta v. Heights Medical Center, Inc. (1988) 485 U.S. 80, 86-87, 108 S.Ct. 896, 99 L.Ed.2d 75.
VACATE THE RENEWAL OF THE JUDGMENT
At least two default judgments in this case have been obtained without service upon Defendant Kelley Lynch. The initial default entered on December 5, 2005 and default entered on May 15, 2006. There was, and continues to be, no service of summons & complaint upon or authorized appearance by the defendant and these judgments are therefore void. The Court has denied Lynch’s Motion to Vacate (filed August 9, 2013) and her Motion for Terminating Sanctions that addressed egregious fraud upon the court and requested terminating sanctions (filed March 17, 2015).
Renewal of a judgment is a ministerial act performed by a court clerk upon receipt of an application for renewal. See Code Civ. Proc., § 683.120, subd. (b), 683.150, subd. (a); Beneficial Financial, Inc. v. Durkee (1988) 206 Cal.App.3d 912, 915, 254 Cal.Rptr. 351. Section 683.150, subdivision (a) states: “Upon the filing of the application, the court clerk shall enter the renewal of the judgment in the court records.” Section 683.170 allows a judgment debtor to move to vacate the renewed judgment.
A judgment may be collaterally attacked when it is void upon the face of the record or it has been entered without jurisdiction. In an independent action on a judgment, the debtor may challenge the judgment in accordance with the rules and principles governing collateral attack, Kirkpatrick v. Harvey and Cradduck v. Financial Indem. Co., including “lack of personal or subject matter jurisdiction.” A collateral attack challenges the jurisdiction of the court to enter the original judgment. Therefore, in making a statutory motion under Section 683.170, subdivision (a), to vacate a renewal of judgment, the debtor may contend the court lacked personal jurisdiction at the time of the initial judgment. See Fidelity Creditor Service, Inc. v. Browne (2001) 89 Cal.App.4th 195, 201-202, 106 Cal.Rptr.2d 854 (failure to have ever served process on a defendant is a defense to an action on the judgment and therefore can be raised on a Section 683.170 motion). “Renewal does not create a new judgment or modify the present judgment. Renewal merely extends the enforceability of the judgment.” Jonathan Neil & Associates, Inc. v. Jones, 94 P.3d 1055, 16 Cal. Rptr. 3d 849, 33 Cal. 4th 917. “The renewal judgment ‘has no independent existence’ from the original judgment.” Id. at p. 1490, 42 Cal.Rptr.3d 350.
A money judgment is enforceable for 10 years from the date of its entry. (§§ 683.020, 683.030; Green v. Zissis (1992) 5 Cal.App.4th 1219, 1222, 7 Cal.Rptr.2d 406.) There are two alternative methods to extend the life of a money judgment. A judgment creditor may bring an independent action on a judgment even after the 10 year enforceability period has expired if the 10-year statute of limitations in section 337.5 has not yet run. (§ 683.050; Green v. Zissis, supra, 5 Cal. App.4th at p. 1222, 7 Cal.Rptr.2d 406; Pratali v. Gates (1992) 4 Cal.App.4th 632, 636-639, 5 Cal.Rptr.2d 733; Cal. Law Revision Com. com., 17 West's Ann. Code Civ. Proc. (1987 ed.) foll. § 683.020, p. 72.). Alternatively, a judgment creditor may renew a judgment for an additional 10 years. (§ 683.110 et seq.) Plaintiffs elected to renew the judgment.
The statutory renewal procedure enacted in 1982 (Stats.1982, ch. 1364, § 2, pp. 5073 et seq.) was not intended to replace the then existing method to extend the life of a judgment—an independent action on the judgment. The statutory renewal procedure was intended to save time and money while remaining fair to the judgment debtor by affording him or her the opportunity to assert any defense that could have been asserted in an independent action. Tom Thumb Glove Co. v. Han, 78 Cal. App. 3d 1, 144 Cal. Rptr. 30; Silbrico Corp. v. Raanan (1985) 170 Cal.App.3d 202, 206, fn. 3, 216 Cal.Rptr. 201. Accordingly, the Legislature directed that a trial court may vacate renewal of a judgment “on any ground that would be a defense to an action on the judgment ...” (§ 683.170, subd. (a); In re Marriage of Thompson (1996) 41 Cal.App.4th 1049, 1058, 48 Cal.Rptr.2d 882.
A complete failure to have ever served process on a defendant is a defense to an action on the judgment and therefore can be raised on a section 683.170 motion. Fidelity Creditor Service, Inc. v. Browne.
The United States Supreme Court has held that the failure to serve the summons and complaint is a defense to an action on a judgment. Hill v. City Cab etc. Co. (1889) 79 Cal. 188, 190-191, 21 P. 728. Under Hill, the failure to have served process is a defense to a separate action on a judgment. (§ 683.170, subd. (a).) The failure to serve a summons and complaint is a defense to an independent action on a judgment. Likewise, the failure to serve a summons and complaint is a basis for a motion to vacate the renewal of a judgment. CCP Section 683.170 provides: (a) The renewal of a judgment pursuant to this article may be vacated on any ground that would be a defense to an action on the judgment, including the ground that the amount of the renewed judgment as entered pursuant to this article is incorrect.”
FAILURE TO SERVE SUMMONS & COMPLAINT
“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 present their objections.” Mullane v. Central Hanover Bank & Trust Co. (1950) 339 U.S. 306, 314; In Re Marriage of Lippel (1990) 51 Cal.3d 1160, 1166 [“It is a fundamental concept of due process that a judgment against a defendant cannot be entered unless he was given proper notice and an opportunity to defend”]; U.S. Constitution art. XIV, § 1. Thus, a “plaintiff may not take a default against a defendant without giving the defendant actual notice as required by statute.” Schwab v. Rondel Homes, Inc. (1991) 53 Cal.3d 428, 430.
When a plaintiff or the court fails to comply with the applicable statutes regarding service a judgment is void, not merely voidable. County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1226 [“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.”] When a court lacks “fundamental jurisdiction” over the parties or subject matter, any ensuing judgment is void and vulnerable to collateral or direct attack at any time. Id. at p. 1225; Rochin v. Pat Johnson Manufacturing Co. (1998) 67 Cal.App.4th 1228, 1239. A judgment that is acquired in violation of due process rights is void and must be set aside regardless of the merits of the underlying case. Peralta v. Heights Medical Center, Inc. (1988) 485 U.S. 80, 86–87. Prejudice is not a factor in setting aside a void judgment or order. Sindler v. Brennan (2003) 105 Cal.App.4th 1350, 1354.
The default judgment obtained by Plaintiffs in this case is not merely voidable, it is void for lack of jurisdiction because there was no fulfillment of the constitutional due process requirement that a defendant be served with a summons and complaint. “Where 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.’ 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.” “Because [respondent] was never served with the complaint and summons, . . . the trial court never obtained personal jurisdiction over him, and the resulting default judgment was, and is, therefore void, not merely voidable, as violating fundamental due process.” County of San Diego v. Gorham.
“‘Extrinsic fraud occurs when a party is deprived of the opportunity to present his claim or defense to the court; where he was kept ignorant or, other than from his own negligence, fraudulently prevented from fully participating in the proceeding. Examples of extrinsic fraud are: . . . failure to give notice of the action to the other party, and convincing the other party not to obtain counsel because the matter will not proceed (and then it does proceed). The essence of extrinsic fraud is one party’s preventing the other from having his day in court.’ Extrinsic fraud only arises when one party has in some way fraudulently been prevented from presenting his or her claim or defense.” Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1300.
A filed proof of service creates only a rebuttable presumption that service was proper. Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1441; M. Lowenstein & Sons, Inc. v. Superior Court (1978) 80 Cal.App.3d 762, 770; Evid. Code, § 647.
To set aside a judgment based on extrinsic fraud or extrinsic mistake, the moving party must satisfy three elements: “First, the defaulted party must demonstrate that it has a meritorious case. Secondly, the party seeking to set aside the default 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 it had been discovered.” Stiles v. Wallis (1983) 147 Cal.App.3d 1143, 1147-1148; see also Gibble v. Car-Lene Research, Inc. (1998) 67 Cal.App.4th 295, 314. Lynch satisfied all three elements.
Lynch provided evidence of a meritorious case by filing with her motion to set aside the renewal of the judgment a proposed verified answer denying the material allegations of the first amended complaint. It has long been established that merely attaching a verification to a proposed answer is sufficient to demonstrate meritoriousness. Gudarov v. Hadjieff (1952) 38 Cal.2d 412 [240 P.2d 621]; Beard v. Beard (1940) 16 Cal.2d 645 [107 P.2d 385]. Exhibit E: Proposed Answer to Complaint, attached hereto and made a part hereof.
In addition to demonstrating that a case has merit and that the defaulted party has an adequate excuse for filing to defend, the party seeking relief from a default must produce evidence that he acted diligently to set aside the judgment. The Supreme Court has indicated that original negligence in allowing the default to be taken will be excused if the aggrieved party makes a strong showing of diligence in seeking relief soon after discovering entry of the judgment. Hallett v. Slaughter (1943) 22 Cal.2d 552 [140 P.2d 3].
Leonard Cohen’s Complaint, willful failure to serve Lynch the summons & complaint, and the decision to ignore her continual attempts to address the failure to serve Lynch were part of a carefully crafted and executed scheme to defraud not only Lynch but the Internal Revenue Service, Franchise Tax Board, other tax authorities, and willfully run statutes of limitations and prevent Lynch from having a meaningful opportunity to be heard on the merits of the case. Leonard Cohen also willfully bankrupted Lynch. This prevented Lynch from defending herself properly, obtaining proper legal representation, forcing her to represent herself, and moving more diligently then she did with respect to the Motion to Vacate. He has gone to inconceivable lengths to target Lynch and the custody matter related to her younger son most definitely appears to have been coordinated with the May 25, 2005 SWAT and King Drew incidents. Fraudulent restraining orders have been used as tactics to discredit Lynch.
In Hazel-Atlas Glass Co. v Hartford-Empire Co., 322 U.S. 238 (1944), the Circuit Court did not hold that Hartford’s fraud fell short of that which prompts equitable intervention, but thought Hazel had not exercised proper diligence in uncovering the fraud and that this should stand in the way of obtaining relief. The U.S. Supreme Court opinion addressed this issue: “We cannot easily understand how, under the admitted fact, Hazel should have been expected to do more than it did to uncover the fraud. But even if Hazel did not exercise the highest degree of diligence Hartford’s fraud cannot be condoned for that reason alone. This matter does not concern only private parties. There are issues of great moment to the public in a patent suit. The Mercoid Corporation v. Mid-Continent Investment Company, 320 U.S. 661, 64 S.Ct. 268; Morton Salt Co. v. G. S. Suppiger Co., 314 U.S. 488, 62 S.Ct. 402. Furthermore, tampering with the administration of justice in the manner indisputably shown here involves far more than an injury to a single litigant. It is a wrong against the institutions set up to protect and safeguard the public, institutions in which fraud cannot complacently be tolerated consistently with the good order of society. Surely it cannot be that the preservation of the integrity of the judicial process must always wait upon the diligence of litigants. The public welfare demands that the agencies of public justice be not to impotent that they must always be mute and helpless victims of deception and fraud. Hazel Atlas should be read as an expansion of the limits set by United States v. Throckmorton, 98 U.S. 61, 25 L.Ed. 93 (1878) in attacking judgments generally. See also Josephine C. Toscano a.k.a. Josephine C. Zelasko v. Commissioner, 441 F. 2d 930 (1971).
VOID JUDGMENT
A judgment void on its face because rendered when the court lacked personal or subject matter jurisdiction or exceeded its jurisdiction in granting relief which the court had no power to grant, is subject to collateral attack at any time. County of Ventura v. Tillett (1982) 133 Cal.App.3d 105, 110, 183 Cal.Rptr. 741; see also Security Pacific Nat. Bank v. Lyon (1980) 165 Cal.Rptr. 95, 105 Cal.App.3d Supp. 8, 13. An attack on a void judgment may also be direct, since a court has inherent power, apart from statute, to correct its records by vacating a judgment which is void on its face, for such a judgment is a nullity and may be ignored. Olivera v. Grace (1942) 19 Cal.2d 570, 122 P. 2d 564.
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.Rptr.3d 603].) Because the “total absence of notice in any form cannot comport with the requirements of due process,” In re B. G. (1974) 11 Cal.3d 679, 689 [114 Cal.Rptr. 444, 523 P.2d 244], 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 prescribed by statute [to establish personal jurisdiction] is void.” See Dill v. Berquist Construction Co.; County of San Diego v. Gorham.
The trial court’s order January 17, 2014 order denying defendant’s motion to vacate the judgment, in that it gives effect to a void judgment, is itself void. County of Ventura v. Tillett. Defendant’s failure to appeal from it, thus essentially allowing it to become final, makes no difference. A “final” but void order can have no preclusive effect. “A void judgment [or order] is, in legal effect, no judgment. By it no rights are divested. From it no rights can be obtained. Being worthless in itself, all proceedings founded upon it are equally worthless. It neither binds nor bars any one.” Bennett v. Wilson (1898) 122 Cal. 509, 513-514, 55 P. 390.
LEONARD COHEN HAD NO STANDING
TO BRING THIS SUIT OR ENTER THE JUDGMENT
AGAINST LYNCH
The concept of the corporation as a separate “person,” with a legal identity distinct from its shareholders and the ability to sue and be sued in its own name, is the cornerstone of the corporate form of business organization. The essential corporate attribute of limited liability and the attendant imposition of fiduciary duties of loyalty and care on those entrusted to manage the corporation’s affairs, could not comfortably exist without corporate separateness. Leonard Cohen, who has argued that he is the alter ego of numerous corporate entities, brought derivative claims. A corporate shareholder has no individual cause of action for personal damages caused solely by an alleged wrong done to the corporation and particularly so when that individual is the primary cause of the injury to corporate property. Leonard Cohen has no separate and independent right of action for alleged wrongs to the corporation and the value of his stock was not depreciated due to the actions of Kelley Lynch. To recover for wrongs done to the corporation, the shareholders must bring the suit derivatively in the name of the corporation. “Generally, a stockholder may not maintain an action in his own behalf for a wrong done by a third person to the corporation … for such an action would … ignore the corporate entity.” Sutter v. General Petroleum Corp., 28 Cal.2d 525, 530 [170 P.2d 898, 167 A.L.R. 271]. It is a well-established general rule that a stockholder of a corporation has no personal or individual right of action against third persons, including the corporation's officers and directors, for a wrong or injury to the corporation which results in the destruction or depreciation of the value of his stock, since the wrong thus suffered by the stockholder is merely incidental to the wrong suffered by the corporation and affects all stockholders alike. Since the corporate assets were not Leonard Cohen’s personal assets, his claim actually appears to conclude that Lynch’s alleged conduct destroyed or depreciated the value of his stock. “It is only where the injury sustained to one's stock is peculiar to himself alone, and does not fall alike upon other stockholders, that he can recover as an individual.” Shenberg v. DeGarmo, 61 Cal.App.2d 326, 332 [143 P.2d 74]); otherwise stated, “to obtain a personal right of action there must be relations between him [the shareholder] and the tort-feasor independent of those which the shareholder derives through his interest in the corporate assets and business.” Shenberg v. DeGarmo, supra. Blue Mist Touring Company, Inc. and Traditional Holdings, which was never registered to do business in California and had no contacts with this state, have been suspended and/or administratively dissolved and the May 6, 2005 judgment and July 13, 2015 renewal of judgment should, at the very least, be modified to specifically exclude them. Old Ideas, LLC was not registered to do business in California until 2011 and should also be specifically excluded from the May 6, 2005 judgment and July 13, 2015 renewal of judgment. Furthermore, these entities were not actually named as parties to this matter and the Court failed to obtain jurisdiction over them.
CONCLUSION
Based upon the foregoing facts and authorities, Defendant Kelley Lynch respectfully requests that the Court grant her motion to set aside and vacate the renewal of judgment.
Dated: 27 July 2015
SCHEDULE OF EXHIBITS
Exhibit A: Declaration of Kelley Lynch
Exhibit B: Declaration of John Rutger Penick
Exhibit C: Declaration of Paulette Brandt
Exhibit D: Limited Powers of Attorney (John Rutger Penick, Clea Surkhang, Daniel J. Meade, and Palden Ronge)
Exhibit E: Proposed Answer to Complaint