MEMORANDUM OF POINTS & AUTHORITIES
INTRODUCTION
This Motion seeks to put an end to Leonard
Cohen’s intentional and unrelenting pattern of misconduct and litigation
abuse. The misconduct in this case
includes the excessive and knowing use of perjured statements, fabricated
financial data, concealed evidence, and fraudulent misrepresentations. Plaintiffs, together with their legal counsel
(specifically officers of the court Robert Kory and Michelle Rice), have
severely undermined the integrity of this Court and caused substantial
prejudice and harm to Kelley Lynch.
Dismissal is warranted where perjury and
fraud upon the court is systemic and designed to sabotage and enhance a
case. Terminating sanctions, and other
relief, would restore order and dignity to the judicial process. No sanction short of dismissal is
appropriate.
PROCEDURAL
& FACTUAL
BACKGROUND
On
August 15, 2005, Leonard Cohen filed the Summons and Complaint in this
matter. See Complaint on file. Defendant
denies all allegations in Plaintiffs’ Complaint; contends that she was not
served the Summons & Complaint; continues to maintain that this Court lacks
jurisdiction over her (including with respect to the denial of Defendant’s
Motion to Vacate; and, has prepared a Proposed Answer to the exceedingly
disturbing Complaint. Exhibit
1: Proposed Answer to Complaint,
attached hereto and made a part hereof.
Plaintiffs’ use of litigation tactics and egregious
misconduct, throughout these proceedings, are addressed more fully in the
declarations and exhibits attached hereto and made a part hereof. See also Lynch’s Case History attached to her
Motion to Vacate. Some of the tactics
used against Lynch were also memorialized in Natural Wealth’s June 2005 lawsuit
against Leonard Cohen and his lawyer, Robert Kory, in the District Court in
Denver, Colorado. A copy of that lawsuit
was attached as Exhibit A to Tactical Allocation Services, LLC’s Ex Parte
Application in Intervention for Order Protecting & Preserving Documentary
Evidence filed in Related Case No. BC341120 on November 14, 2005, made a part
hereof, and addressed further in Lynch’s Summary of Factual Allegations &
Statements attached hereto and made a part hereof. Exhibit 2: Kelley Lynch’s Summary of Factual
Allegations & Statements Re: Natural Wealth Real Estate, Inc., et al. v.
Leonard Cohen, et al., Case No. Case
1:05-cv-01233-LTB.
Cohen’s ultimate goal was to crush and
destroy Lynch; bring her to her knees by rendering her financially incapable of
defending against his lurid allegations; seal her fate through the use of
salacious, inflammatory slander; and, undermine her credibility as a witness in
this and other matters. Exhibit 3: Summary of Fraudulent Misrepresentations in
Plaintiffs’ Complaint attached hereto and made a part hereof.
On
May 15, 2006, the Court entered a default judgment against Defendant.
On
August 9, 2013, Lynch filed a Motion to Vacate and set aside the default
judgment due to lack of service of the Summons & Complaint.
On January 17, 2014, without obtaining
jurisdiction over Defendant, the Court denied Lynch’s request to vacate the
default judgment.
Plaintiffs have acted in bad faith and with improper purpose in a manner that
degrades, offends, and jeopardizes the integrity of the judicial system. Manufactured evidence, fraudulent
misrepresentations, and perjured testimony have continuously been introduced
into this case. When a litigant's
conduct abuses the judicial process, the United States Supreme Court has
recognized dismissal of a lawsuit as the remedy within the inherent power of
the court. Chambers
v. NASCO, Inc. (1991) 501 U.S. 32. Exhibit 4:
Declaration of Kelley Lynch; Exhibit 5:
Declaration of Joan Lynch; Exhibit 6:
Declaration of John Rutger Penick; Exhibit 7: Declaration of Paulette Brandt; Exhibit
8: Declaration of Clea Surkhang; Exhibit
9: Declaration of Palden Ronge; Exhibit
10: Declaration of Dan Meade, all
attached hereto and made a part hereof.
LEGAL ARGUMENT
This
Motion argues that Plaintiffs’ fraud on the court forms the basis for dismissal
with prejudice. Dismissal with prejudice
has long been available as a sanction against litigation misconduct.
COURT’S
INHERENT POWER & AUTHORITY
TO
DISMISS ACTION
Courts have inherent equitable
powers to dismiss actions or enter default judgments for failure to prosecute,
contempt of court, or abusive litigation practices. See Roadway Express,
Inc. v. Piper, 447 U.S. 752, 764, 100 S.Ct. 2455, 2463,
65 L.Ed.2d 488 (1980); Link v. Wabash R.R., 370 U.S. 626, 632, 82 S.Ct. 1386, 632, 8
L.Ed.2d 734 (1962); United States v. Moss-American, Inc., 78 F.R.D. 214,
216 (E.D.Wis.1978).
It is well-established that these equitable powers
include the authority to dismiss the claims or defenses against a litigant who
engages in dishonest conduct, obstructs the discovery process, abuses the
judicial process, or otherwise seeks to perpetrate a fraud on the court. See Link v. Wabash Railroad Co.
See also Aoude v. Mobil Oil Corp, 892 F.2d 1115, 1118 (1st Cir. 1989); McDowell v. Seaboard Farms of Athens, Inc., 1996 WL 684140, 2-3 (M.D. Fla.
1996) (cases cited therein); Sun
World, Inc. v. Lizarazu Olivarria, 144 F.R.D. 384, 389 (E.D. Cal. 1992) (holding that, when a
litigant commits a fraud upon the court, “the inherent powers of the court
support the sanction of dismissal and entry of default judgment”); Pope v. Federal Express Corp., 974 F.2d 982, 984 (8 Cir. 1992) (dishonest
conduct that “threatens the integrity of the judicial process” is grounds for
dismissal with prejudice); Amway
Corp. v. Shapiro Express Co.,
102 F.R.D. 564, 569–70 (S.D.N.Y. 1984);
Cox v. Burke, 706 So.2d 43, 47 (Fla. 5th DCA 1998); Kornblum v. Schneider, 609 So. 2d 138 (Fla. 4th DCA 1992); Figgie Int’l, Inc. v. Alderman, 698 So. 2d 563, 567–68 (Fla. 3d DCA
1997); O’Vahey v. Miller, 644
So.
2d
550, 551 (holding that “the ultimate sanctions of dismissal
or default are justified by the repeated presentation of false testimony under
oath”).
The
United States Supreme Court held that a court need not endure the indignity of
a fraud being perpetrated upon it and concluded that a court possesses the
“inherent power” to manage its affairs in such a way as to ensure that cases
are not resolved by vexatious or oppressive tactics, or through conduct that
skirts the legal obligations that bind all litigants and their attorneys to use
the courts in a fair, honest, and open manner.
The equitable power also allows a court to vacate its own judgment upon
proof that a fraud has been perpetrated upon the court. “Courts have inherent power to fashion and
impose appropriate sanctions for conduct that abuses the judicial
process.” Chambers v. NASCO, Inc.
This
“historic power of equity to set aside fraudulently begotten judgments,” is
necessary to the integrity of the courts, for “tampering with the
administration of justice in [this] manner ... 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.” Hazel-Atlas Glass Co. v. Hartford-Empire
Co., 322 U.S. 238, 64 S.Ct. 997, 88 L.Ed. 1250 (1944). See also Universal Oil Products Co. v.
Root Refining Co., 328 U.S. 575, 580, 66 S.Ct. 1176, 1179, 90 L.Ed. 1447
(1946).
The
integrity of the litigation process depends on truthful disclosure of facts. Dismissal with prejudice has
long been available as the ultimate civil sanction against litigation
misconduct. “A system that
depends on an adversary’s endless ability to uncover falsehoods is doomed to
failure, which is why this kind of conduct must be discouraged in the strongest
possible way.” Cox
v. Burke. The need for the orderly administration of justice does not
permit violations of due process. Phoceene
Sous Marine, S.A. v. U.S. Phosmarine, Inc., 682 F.2d 802, 805-06 (9th Cir.1982).
The California Supreme Court
has recognized that California courts have inherent powers, independent of
statute, derived from two distinct sources: the courts’ “equitable power
derived from the historic power of equity courts” and “supervisory or administrative
powers which all courts possess to enable them to carry out their duties.” Bauguess v. Paine (1978) 22 Cal. 3d
626, 635 [150 Cal.Rptr. 461, 586 P.2d 942].
“Such power is part of the inherent power of the superior court (and of
courts generally) to control litigation before it, to prevent abuse of its
process, and to create a remedy for a wrong even in the absence of specific
statutory remedies.” Western Steel
& Ship Repair, Inc. v. RMI, Inc. (1986) 176 Cal. App. 3d 1108,
1116-1117 [222 Cal.Rptr. 556].
The Peat, Marwick Court, in a highly
relevant California decision on the inherent authority of courts, affirmed that
judges are empowered to act when a party seeks to take unfair advantage of “the
integrity of the judicial system.” This
decision directly addressed the fact that a court’s inherent powers include the
authority to terminate a case for litigation misconduct. It is the responsibility of courts to
preserve the integrity of the adversary process and the fair and efficient
administration of justice. Peat,
Marwick, Mitchell & Co. v. Superior Court, 200 Cal. App. 3d 272, 287
(1988).
Plaintiffs’
serial misconduct cannot be remedied by any sanction other than a terminating
sanction. The misconduct, involves a deliberate and elaborate
scheme of perjury, fraudulent misrepresentations, and abusive tactics, and,
clearly qualifies as a willful deceit that has irreparably harmed Lynch
and the integrity of the Court itself.
Sanctions should be imposed to redress the misconduct that severely
undermines the integrity of the judicial system.
FRAUD UPON THE COURT
Fraud
upon the Court, an equitable remedy, deals with the integrity of courts and
justice. The concept of fraud upon the
court correctly challenges a preferential judicial legal principle: the finality of a judgment. A “fraud on the court” as that term has been defined by the
9th Circuit is “an unconscionable plan or scheme which is designed to
improperly influence the court in its decision.” England v. Doyle, 281 F.2d 304, 309 (9th Cir. 1960).
A party who is guilty of fraud or misconduct, in
the prosecution or defense of a civil proceeding, should not be permitted to
continue to employ the very institution it has subverted to achieve his or her ends. Carter
v. Carter, 88 So.2d 153, 157 (Fla. 1956). Thus, egregious and irreparable
misconduct should result in the case being dismissed with prejudice. The power of a court to grant such relief not only deters
improper actions by a party, but offers the defendant an opportunity
to remedy the fraud through appropriate and available sanctions.
The
inherent power allows a court to vacate its own judgment upon proof that fraud
has been perpetrated upon the court. See Hazel-Atlas Glass Co. v. Hartford-Empire
Co; Universal Oil Products Co. v. Root
Refining Co. It is a well-recognized
principle that a court of general jurisdiction has the inherent power to set
aside a judgment obtained through fraud practiced upon the court. McKeever v. Superior Court, 85
Cal.App. 381 [259 P. 373]; McGuinness v. Superior Court, 196 Cal. 222
[237 P. 42, 45, 40 A.L.R. 1110]. “There
can be no question as to the inherent power of the court to set aside the final
decree if obtained by fraud.” Miller
v. Miller, 26 Cal. 2d 119, 121 [156 P.2d 931].
To constitute fraud on the court, the alleged
misconduct must “harm the integrity of the judicial
process.” Alexander v. Robertson,
882 F.2d 421, 424 (9th Cir.1989). Fraud
upon the court should embrace only that species of fraud which does or attempts
to, defile the court itself, or is a fraud perpetrated by officers of the court
so that the judicial machinery cannot perform in the usual manner its impartial
task of adjudging cases that are presented for adjudication. Gumport v. China International Trust and
Inv. Corp. (In re Intermagnetics America, Inc.), 926 F.2d 912, 916
(9th Cir.1991) (quoting 7 James Wm. Moore et al., Moore's Federal
Practice ¶ 60.33, at 515 (2d ed. 1978)). Fraud upon the
court includes both attempts to subvert the integrity of the court and fraud by
an officer of the court.
7 J. Moore & J. Lucas,
Moore's Federal Practice p 60.33, at 515 (2d ed. 1978) [hereinafter Moore],
quoted in Alexander v. Robertson, 882 F.2d 421, 424 (9th Cir.1989).
There are
evidently no maxims of the law more firmly established, or of more value in the
administration of justice, than those which were designed to prevent repeated
“litigation” between the same parties in regard to the same subject of
controversy. However, according to United States v. Throckmorton, 98 U.S. 61
(1878), there is an admitted exception to this
general rule in cases where, by reason of something done by the successful
party to a suit, there was in fact no adversary trial or decision of the issue
in the case. Where the unsuccessful party has been prevented from exhibiting
fully his case, by fraud or deception practiced on him by his opponent, as by
keeping him away from court, a false promise of a compromise; or where the
defendant never had knowledge of the suit, being kept in ignorance by the acts
of the plaintiff; or where an attorney fraudulently or without authority
assumes to represent a party and connives at his defeat; or where the attorney
regularly employed corruptly sells out his client's interest to the other
side,—these, and similar cases which show that there has never been a real
contest in the trial or hearing of the case, are reasons for which a new suit
may be sustained to set aside and annul the former judgment or decree, and open
the case for a new and a fair hearing. See
U.S. v. Throckmorton. Relief has
also been granted, on the ground that, by some fraud practiced directly upon
the party seeking relief against the judgment or decree, that party has been
prevented from presenting all of his case to the court.
There is no statute of limitations for bringing a fraud on the court claim. As the 7th Circuit Court of
Appeals explained: “a decision produced
by fraud on the court is not in essence a decision at all and never becomes
final.” Kenner v. Commissioner of
Internal Revenue Service, 387 F.2d 689, 691 (7th Cir. 1968).
Due to the
irreparable prejudice accruing to Defendant by reason of the misconduct,
interference with the Court's adjudicatory function, the public interest in the
integrity of the judicial system, dismissal is warranted.
TERMINATING
SANCTIONS
Defendant seeks
sanctions for litigation abuses and misconduct.
Plaintiffs’ conduct warrants dismissal sanctions under the Court’s
inherent equitable power. California
courts retain flexibility to exercise historic inherent authority in modern
circumstances, fashioning procedures and remedies as necessary to protect
litigants’ rights. See Board of
Supervisors v. Superior Court (1994) 23 Cal.App.4th 830, 848, 28
Cal.Rptr.2d 560; Cottle v. Superior Court (1992) 3 Cal.App.4th
1367, 1377-1378, 5 Cal.Rptr.2d 882.
Dismissal is an
available sanction in extraordinary circumstances. Valley Engineers, Inc. v.
Electric Engineering Co., 158 F.3d 1051, 1057 (9th Cir. 1998). Dismissal is appropriate where a “pattern of deception
and discovery abuse made it impossible” for the district court to conduct a
trial “with any reasonable assurance that the truth would be available.” Anheuser-Busch, Inc. v. Natural Beverage Distributors, 69 F.3d 337, 352 (9th Cir.1995).
According to the 9th
Circuit, “extraordinary circumstances exist where there is a pattern of
disregard for Court orders and deceptive litigation tactics that threaten to
interfere with the rightful decision of a case.” Valley Engineers, Inc. v. Electric
Engineering Co.
Terminating sanctions are appropriate when a
party seeks to take unfair advantage; the integrity of the judicial system is
at risk; and as punishment or redress for grossly improper
litigation behavior. Federal courts, and
their state counterparts, have a “well-acknowledged inherent power to levy
sanctions in response to abusive litigation practices.” DLC Mgmt. Corp. v. Town of Hyde Park,
163 F.3d 124, 135 (2d Cir. 1998). When
the offending party has engaged in truly willful or bad faith egregious
litigation practices, the Supreme Court has affirmed that “outright dismissal
of a lawsuit . . . is within the court's discretion.” Chambers v. Nasco, Inc.
The
court in Stephen Slesinger, Inc. v. Walt Disney Co. (2007) 155 Cal.App.4th 736, held
that a trial court has inherent power to impose a terminating sanction where a
plaintiff's litigation abuse and misconduct was deliberate and egregious. It is well settled that dismissal is
warranted where a party has engaged deliberately in deceptive practices that
undermine the integrity of judicial proceedings: “courts have inherent power to
dismiss an action when a party has willfully deceived the court and engaged in
conduct utterly inconsistent with the orderly administration of justice.” Wyle
v. R.J. Reynolds Tobacco Company, 709 F.2d (9th Cir. 1983).
In Hazel-Atlas Glass Co. v.
Hartford Empire Co., the U.S. Supreme Court granted relief based on the
introduction of fraudulent evidence. The
Court explained that the inquiry as to whether a judgment should be set aside
for fraud upon the court focused on whether the alleged fraud harmed the
integrity of the judicial process: “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
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 so impotent that they must always be mute and helpless victims
of deception and fraud.” The policy of
finality is not absolute.
When the plaintiff has engaged in misconduct
during the course of the litigation that is deliberate, that is egregious, and
that renders any remedy short of dismissal inadequate to preserve the fairness
of the trial, the trial court has the inherent power to dismiss the
action. Such an exercise of inherent
authority is essential for every court to remain “a place where justice is
judicially administered.” Von Schmidt
v. Widber (1893) 99 Cal. 511, 512, 34 p. 109, quoting 3 Blackstone
Commentary 23.
PERJURY
Plaintiffs
willfully deceived the court and engaged in misconduct utterly inconsistent
with the orderly administration of justice, requirements of due process, and
severe sanctions are the appropriate remedy.
The
court in Televideo Systems, Inc. vs. Heidenthal (9th Cir. 1987) 826 F.2d
915, 917) concluded that the appellant’s “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.” The Court
sanctioned Heidenthal not merely to punish him, but to enable the court to
proceed to hear and decide the case untainted by further interference and
possible further perjury on the part of Heidenthal.
Dismissal
is an appropriate sanction for perjury because committing perjury is tantamount
to acting in bad faith. Arnold v.
County of El Dorado, No. 2:10-CV-3119 KJM-GGH, 2012 WL 3276979, at *4 (E.D.
Cal. Aug. 9, 2012) report and recommendation adopted, No. 2:10-CV-3119 KJM-GGH
(E.D. Cal. Sep. 27, 2012).
California Penal Code Section 118 defines “perjury”
as deliberately giving false information while under oath. The U.S.
Supreme Court concluded that “a witness testifying under oath or affirmation violates
this statute if she gives false testimony concerning a material matter with the
willful intent to provide false testimony, rather than as a result of
confusion, mistake, or faulty memory.” United States
v. Dunnigan, 507 U.S. 87, 94 (1993). All perjured relevant testimony is at war with justice, since
it may produce a judgment not resting on truth.
In re Michael, 326 U.S. 224, 228 (1945).
Plaintiffs, together
with officers of the court Robert Kory and Michelle Rice, have obstructed the
judicial process by repeatedly providing false statements and testimony under
oath, through fraudulent misrepresentations, by concealing evidence, providing
misleading and deceptive statements to the Court, and submitting fraudulent
financial and accounting data to the Court (which was referred to, with respect
to Lynch’s Motion to Vacate, in Robert Kory’s declaration that attached Kevin
Prins’ declaration in support of the default and “expense ledger.”
“In
order to lawfully hold a person to answer on the charge of perjury under
California Penal Code section 118, evidence must exist of a “willful statement,
under oath, of any material matter which the witness knows to be false.” Cabe
v. Superior Court, (1998) 63 Cal.App.4th 732. The statements were material and used to
affect the outcome of the proceedings and most certainly had the probability of
influencing the outcome. In Ex Parte
Davis, (1921) 52 Cal.App. 631 the Court held that: “The matter sworn to need not be directly and
immediately material. It is sufficient if it be so connected with the fact
directly in issue as to have a legitimate tendency to prove or disprove such
fact by giving weight or probability to the testimony of a witness testifying
thereto, or otherwise.”
Perjury is a criminal offense and an affront to
the judicial system. Sanctions should be
imposed to redress the misconduct that severely undermines the integrity of the
judicial system. In the instant matter,
Plaintiffs have engaged in a deliberate deception of this Court by the continuous
presentation of statements known to be perjured and through other means.
UNCLEAN HANDS
Defendant
additionally argues that Plaintiffs should be precluded from seeking relief due
to its own unclean hands. The underlying
aim of the unclean hands doctrine is to promote justice by making a plaintiff
answer for his own misconduct. Kendall-lackson
Winery, Ltd. v. Superior Court, 76 Cal. App. 4th 970, 978-79
(1999). This doctrine arises from
long-standing legal principles rooted in fairness. As the U.S. Supreme Court
noted regarding the unclean hands doctrine, “This maxim is far more than a mere
banality. It is a self-imposed ordinance that closes the doors of a court of
equity to one tainted with inequitableness or bad faith relative to the matter
in which he seeks relief. That doctrine is rooted in the historical concept of
a court of equity as a vehicle for affirmatively enforcing the requirements of
conscience and good faith.” Precision
Instrument Mfg. v. Automotive Maint. Mach. Co. 324 U.S. 806, 814 (1945).
The clean hands doctrine allows courts to
refuse relief to any plaintiff who has acted inequitably. Judicial integrity, justice, and the public interest form the basis
for the doctrine. The defense of unclean
hands arises from the maxim, “‘He who comes into equity must come with clean
hands.’” Blain v. Doctor’s Co.
(1990) 222 Cal.App.3d 1048, 1059. The
doctrine demands that a plaintiff act fairly in the matter for which he seeks a
remedy. He must come into court with
clean hands, and keep them clean, or he will be denied relief, regardless of
the merits of his claim. Precision
Co. v. Automotive Co. (1945) 324 U.S. 806, 814-815; Hall v. Wright
(9th Cir. 1957) 240 F.2d 787, 794-795.
California has
long recognized the maxim that “No one can take advantage of his own wrong.”
(Civ. Code. § 3517.) “He who comes into equity must come with clean hands.” See
Wilson v. S.L. Rey, Inc. (1993) 17 Cal. App.4th 234, 244; Kendall-Jackson Winery, Ltd v. Superior
Court. The
doctrine promotes justice and prevents “a wrongdoer from enjoying the fruits of
his transgression.” Precision Co. v.
Automotive Co.; Keystone Co. v. Excavator Co. (1933) 290 U.S. 240,
245. See also London
v. Marco, 229 P.2d 401,
402 (Cal. Dist. Ct. App. 1951)(misleading statements made to the court
constitutes unclean hands); Lazaro v. Lazaro (In re Marriage of Lazaro), No. A107473, 2005 WL 1332102, at *3
(Cal. Ct. App. June 6, 2005) (finding that presenting false testimony in a
court proceeding goes to the core of the unclean hands doctrine).
Under
the “unclean hands” doctrine, a party is barred from relief if he has engaged
in any unconscientious conduct directly related to the transaction or matter
before the court. Burton v. Sosinsky
(1988) 203 Cal. App. 3d 562, 573 [250 Cal.Rptr. 33]; California Satellite
Systems, Inc. v. Nichols (1985) 170 Cal. App. 3d 56, 70 [216 Cal.Rptr.
180].
The authority to
dismiss a lawsuit for litigant misconduct is a creature of the “clean hands
doctrine” and is applicable to both equitable and legal damages claims. Buchanan Home & Auto Supply Co v
Firestone Tire & Rubber Co.,
544 F.Supp. 242, 244-245 (D SC,
1981). See also Mas v Coca-Cola Co., 163 F.2d 505, 507 (CA 4, 1947).
Plaintiffs
have come before this Court with unclean hands.
They have engaged in extreme and abusive litigation misconduct. They have taken advantage of Dependent due to
the fact that she has been self-represented since the Complaint in this matter
was filed. The Court should not aid or reward
Plaintiffs for their egregious misconduct.
Cohen’s very presence before this Court is the result of his own
wrongful conduct, retaliation, fraud, and inequity.
THE
JUDGMENT IS VOID & SHOULD BE VACATED
The judgment is void to the extent
it provides relief “which a court under no circumstances has any authority to
grant.” Plaza Hollister Ltd. Partnership
v. County of San Benito (1999) 72 Cal.App.4th 1, 20 [84 Cal. Rptr. 2d 715]; Selma Auto Mall II v. Appellate Department (1996)
44 Cal.App.4th 1672, 1683 [52 Cal. Rptr. 2d 599]. “No judgment of a court is due
process of law, if rendered without jurisdiction in the court, or without
notice to the party.” Scott v.
McNeal,154 U. S. 34,154 U. S. 46.
CLARIFICATION OF AMBIGUOUS JUDGMENT
For the past 10 years, Leonard Cohen
and his representatives have steadfastly refused to provide Lynch with IRS
required form 1099 for the year 2004, corporate tax documents for the years
2004 and 2005, rescind K-1s issued to Lynch by Leonard Cohen’s wholly owned LC
Investments, LLC, provide intellectual property valuations and information (including
royalty statements, evidence of royalty payments, all contracts and agreements,
federal and state tax returns), she requires to have a complete and proper accounting
prepared. This information is required
for Lynch’s 2004 and 2005 federal and state tax returns. At Lynch’s March 12, 2012 bail hearing, Cohen
testified that Lynch “failed” to file her tax returns. Nothing could be further from the truth. Leonard Cohen, and his legal representatives,
have knowingly and willfully refused to provide me with the required
information and are obstructing justice with respect to Lynch’s ability to file
these returns. In fact, rather than
providing this information to Lynch, Cohen testified that he reported these
requests for tax information to the police.
Cohen’s lawyer, Michelle Rice, testified that a fraudulent restraining
order prevents her from transmitting this information to Lynch and informed
Lynch that she should have obtained this information during the discovery
process in the instant case. The May
2006 judgment does not appear to be retroactive and Lynch would like
clarification of the issues raised in Exhibit 11, Clarification of
Ambiguities in Default Judgment, attached hereto and
made a part hereof.
State
and local government agencies may not encumber the exercise of federal
authority. Pursuant to the Supremacy Clause, Art. VI, cl.2, “a state is without
power ... to provide conditions on which the federal government will effectuate
its policies.” United States v.
Georgia Public SefVice Comm'n, 371 U.S. 285, 293 (1963). Leonard Cohen’s argument, with respect to
Lynch’s request for IRS filing and reporting requirements, essentially
concludes that a state judgment negates his (and “Cohen” related corporate
entities which is not an IRS classification) tax obligations, and those of the
corporate entities addressed in Exhibit 11, vis a vis Internal Revenue Service rules
and requirements and those of the federal government and other tax authorities
such as the Franchise Tax Board and equivalent State of Kentucky authorities. There are
matters of local concern within the scope of federal power which, in the
silence of Congress, may be regulated in such manner as does not impair
national uniformity. There are federal
activities which, in the absence of specific Congressional consent, may be
affected by state regulation.
“Since the United States is a government of delegated powers,
none of which may be exercised throughout the Nation by any one state, it is
necessary for uniformity that the laws of the United States be dominant over
those of any state. Such dominancy is required also to avoid a breakdown of
administration through possible conflicts arising from inconsistent
requirements. The Supremacy Clause of the United States Constitution states
this essential principle. Article VI. A corollary to this principle is that the
activities of the federal government are free from regulation by any
state. No other adjustment of competing
enactments or legal principles is possible. Mayo v. United States, 319 U.S. 441
(1943).
As the
activities of the federal government are presumptively free from state
regulation, unless Congress has clearly authorized state regulation in a
specific area (See Hancock v. Train, 426 U.S. 167, 178-79 (1976)), it
would seem self-evident that a state or local municipal court’s judgment does
not subvert IRS reporting and filing requirements.
After
the entry of a state judgment, federal law dictates the consequences for
federal tax purposes. Thus, under the
doctrine of preemption, which is based upon the Supremacy Clause of the United
States Constitution, federal law must control
The trial court has continuing
jurisdiction to effectuate its prior judgments, either by summarily ordering
compliance with a clear judgment or by interpreting an ambiguous judgment and
entering orders to effectuate the judgment as interpreted. This authority is grounded in its inherent
powers.
CONCLUSION
Based on the foregoing, Kelley Lynch
respectfully requests that the Court sustain the Motion, impose terminating and
other sanctions upon Plaintiffs and their counsel (Robert Kory and Michelle
Rice), and grant such other or further relief as the Court may deem just and
appropriate. That would include, but is
not limited to, in the alternative, permitting Lynch to be heard on the actual
merits of the case, referring this matter to the local prosecutor for perjury
charges and the state disciplinary board. Additionally, Lynch asks this Court to
clarify the ambiguous judgment entered against Lynch. Finally, Defendant Lynch asks the Court to
overturn and invalidate the settlement agreement entered into by Cohen and
former co-defendant, Richard Westin, and order Plaintiffs to provide Lynch with
transcripts of all mediation proceedings and a copy of the settlement agreement
itself. According to Leonard Cohen’s
testimony, during the mediation, Richard Westin rectified a “mistake” with
respect to Traditional Holdings, LLC (and possibly other matters) and this
issue raises federal tax implications that remain unresolved. That would include, but is not limited to,
the inclusion of Lynch as a partner on Traditional Holdings, LLC 2001, 2002,
and 2003 federal tax returns.
Dated: 13 March 2015
__________________________________
Kelley
Lynch
In
Propria Persona
MOTION
EXHIBITS
Case No.
BC338322
Exhibit
1: Defendant’s Proposed Answer to
Complaint.
Exhibit
2: Kelley Lynch’s Summary of Factual Allegations & Statements Re: Natural
Wealth Real Estate, Inc., et al. v. Leonard Cohen, et al., Case No. Case 1:05-cv-01233-LTB.
Exhibit
3: Summary of Fraudulent
Misrepresentations in Plaintiffs’ Complaint.
Exhibit
4: Declaration of Kelley Lynch.
Exhibit
5: Declaration of Joan Marie Lynch.
Exhibit
6: Declaration of John Rutger Penick.
Exhibit
7: Declaration of Paulette Brandt.
Exhibit
8: Declaration of Clea Surkhang.
Exhibit
9: Declaration of Palden Ronge.
Exhibit
10: Declaration of Dan Meade.
Exhibit
11: Clarification of Ambiguities in Default Judgment.
EXHIBIT 1
DEFENDANT’S
PROPOSED ANSWER
TO
COMPLAINT
EXHIBIT 2
KELLEY
LYNCH’S SUMMARY OF FACTUAL
ALLEGATIONS
& STATEMENTS
RE: NATURAL WEALTH V. LEONARD COHEN
CASE NO. 1:05-cv-01233-LTB
EXHIBIT 3
SUMMARY
OF FRAUDULENT MISREPRESENTATIONS
IN
PLAINTIFFS’ COMPLAINT
EXHIBIT 4
DECLARATION
OF KELLEY LYNCH
EXHIBIT 5
DECLARATION OF JOAN MARIE LYNCH
EXHIBIT 6
DECLARATION
OF
JOHN RUTGER PENICK
EXHIBIT 7
DECLARATION
OF PAULETTE BRANDT
EXHIBIT 8
DECLARATION OF CLEA SURKHANG
EXHIBIT 9
DECLARATION OF PALDEN RONGE
EXHIBIT
10
DECLARATION
OF
DANIEL J. MEADE
EXHIBIT 11
CLARIFICATION
OF AMBIGUITIES
IN DEFAULT
JUDGMENT
CERTIFICATE OF SERVICE
I, Paulette Brandt,
certify as follows:
1. At the time of service I was over 18 years of age and not a party to
this action.
2. My residence address is: 1754
N. Van Ness Avenue, Los Angeles, California
90028.
4. On March 13, 2015, I served the following documents:
NOTICE OF MOTION
FOR TERMINATING SANCTIONS
MEMORANDUM OF POINTS & AUTHORITIES
DECLARATIONS & EXHIBITS
5. I served the documents on the person below, as follows:
a.
Name of person served: JEFFREY KORN, ESQUIRE
(Attorney of record for Leonard Cohen and LC Investments, LLC)
b.
Residential address where person was served:
714 W. Olympic Blvd.
Suite 450
Los Angeles, California
90015
I declare under penalty
of perjury under the laws of the State of California that the foregoing is true
and correct.
Executed on March 16,
2015.
____________________________________
Paulette
Brandt
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