| 05/25/2016 | Association of attorneys filed for: | Respondent Leonard Cohen's counsel of record associates in Wendy Lascher as co-counsel. |
| 06/15/2016 | Appellant's opening brief. | Defendant and Appellant: Kelley A Lynch Pro Per |
| 06/15/2016 | Request for judicial notice filed. | Appellant's request for judicial notice of unpublished case of Jordan v. O'Connor Hospital CAL, H038107 (CAL Ct. App. 2013) |
http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=2&doc_id=2115981&doc_no=B265753
B265573
IN THE CALIFORNIA COURT OF APPEAL
SECOND APPELLATE DISTRICT
DIVISION SEVEN
________________________________________________________________________
LEONARD
NORMAN COHEN,
LC
INVESTMENTS, LLC
Plaintiff
and Respondent,
v.
KELLEY
A. LYNCH
Defendant
and Appellant
________________________________________________________________________
APPEAL
FROM LOS ANGELES COUNTY SUPERIOR COURT
JUDGE
ROBERT HESS • CASE No. BC338322
APPELLANTS' OPENING BRIEF
Kelley
Lynch
1754
N. Van Ness Avenue
Hollywood,
California 90028
323.331.4250
In
Propria Persona
TABLE
OF CONTENTS
TABLE OF AUTHORITIES
…………………………………………………………….. ii
STATEMENT OF THE CASE ……………………………………………………………. 1
STATEMENT OF APPEALABILITY ……………………………………………………. 3
ARGUMENT ………………………………………………………………………………. 4
CONCLUSION …………………………………………………………………………….15
CERTIFICATE OF COMPLIANCE ………………………………………………………16
TABLE OF AUTHORITIES
CASES
Anheuser-Busch, Inc. v. Natural Beverage
Distribs., 69 F. 3d 337, 348 (9th Cir. 1995)
Bennett
v. Wilson
(1898) 122 Cal. 509, 513-514, 55 P. 390
Caldwell v. Coppola
(1990) 219 Cal.App.3d 859, 863
Carlson v. Eassa
(1997) 54 Cal.App.4th 684, 691
Combs v. Rockwell Int’l
Corp., 927 F.2d 486 (9th Cir. 1991)
Cooter & Gell v.
Hartmarx Corp., 496 U.S . 384, 395-96 (1990)
County of San Diego v. Gorham
(2010) 186 Cal.App.4th 1215, 1228-1229
County of Ventura v. Tillett
(1982) 133 Cal.App.3d 105, 110
Dixon v. C.I.R.,
316 F.3d 1041, 1046-47 (9th Cir. 2003)
Ferguson v. Keays (1971) 4 Cal.3d 649, 654-655,
94 Cal.Rptr. 398, 484 P.2d 70
Hazel-Atlas Glass Co. v. Hartford-Empire Co.,
322 U.S. 238, 246 (1944)
In re Levander,
180 F.3d 1114 (9th Cir. 1999)
In re Marriage of Burkle (2006) 135 CA4th 1045, 37 CR3d 805)
In re Marriage of Goddard (2004) 33 Cal.4th 49, 56
In re Marriage of Melton (1994)
28 Cal.App.4th 931, 937
In re Marriage of Park
(1980) 27 Cal.3d 337, 342
In
re Providian Credit Card Cases, 96 Cal. App. 4th 292, 297 n.2 (2002)
Insurance Corp. of Ireland, Ltd. v.
Compagnie des Bauxites de Guinee, 456 U.S.
694, 102 S.Ct. 2099 (U.S. 1982).
Jordan v. O’Connor
Hospital CA6, H038107 (Cal. Ct. App. 2013)[unpublished]
Kappel v. Bartlett (1988)
200 Cal. App.3d 1457, 1464, 246 Cal. Rptr. 815
Kulchar v. Kulchar
(1969) 1 Cal.3d 467, 470
M. Lowenstein & Sons, Inc. v. Superior
Court (1978) 80 Cal.App.3d 762, 770
Marshall v. Holmes, 141 U.S. 589 , 12 Sup. Ct. 62
McGuinness v.
Superior Court, 196 Cal.
222
McKeever v.
Superior Court, 85 Cal.
App. 381
Meadows
v. Bakersfield Savings & Loan Assoc.,
(1967) 250 Cal. App.2d 749, 753, 59 Cal. Rptr. 34, 37
Mercury
Interactive Corp. v. Klein,
158 Cal. App. 4th 60, 77 (2007)
Mullane v. Central Hanover Bank
& Trust Co. 339 U.S. 306, 314, 70 S.Ct.
652, 657 (U.S. 1950)
NBC Subsidiary (KNBC-TV), Inc. v. Superior
Court, 20 Cal. 4th 1187, 1208 & n.25;
1211 n.27, 1218-19 (1999)
NHL v. Metropolitan Hockey Club,
427 U.S. 639, 643 (1976)
Neumann v. Melgar (2004) 121 Cal.App.4th 152, 164
Omni Capital Intern., Ltd. v.
Rudolf Wolff & Co., Ltd. 484 U.S. 97,
104, 108 S.Ct. 404, 409 (U.S.1987)
Peat, Marwick, Mitchell & Co. v. Superior
Court (1988) 200 Cal.App.3d 272, 286-291, 245
Cal.Rptr. 873
Peralta v. Heights Medical Center, Inc. (1988)
485 US 80, 86–87, 108 S.Ct. 896, 900.
Primus Auto. Fin. Servs., Inc. v. Batarse,
115 F.3d 644, 648 (9th Cir. 1997)
Pumphrey v. K.W. Thompson Tool Co.,
62 F.3d 1128, 1131 (9th Cir. 1995)
Rea v. Workers’ Comp. Appeals Bd.
(2005) 127 Cal.App.4th 625, 643
Rooney
v. Vermont Investment Corp. (1973) 10. Cal.3d 351, 359
Rutherford v. Owens-Illinois, Inc.
(1997) 16 Cal.4th 953, 967, 67 Cal.Rptr.2d 16, 941 P.2d 1203
Security
Pac. Nat. Bank v. Lyon (1980) 165 Cal.Rptr. 95, 105 Cal.App.3d Supp. 8, 13)
Stephen Slesinger, Inc. v. Walt Disney Co.,
155 Cal. App. 4th 736 (2007)
Sprague v. Taconic
National Bank, 59 S.Ct. 777, 83
L.Ed. 1184
Strathvale Holdings v. E.B.H. (2005) 126 Cal.App. 4th 1241, 1249.
United States v.
Throckmorton, 98 U.S. (8
Otto) 61, 25 L.Ed. 93
Universal Oil
Products Co. v. Root Refining Co., 329 U.S. 575, 66 S.Ct. 1176, 90 L.Ed. 1447
Walker v. Superior Court
(1991) 53 Cal.3d 257, 267, 279 Cal.Rptr. 576, 807 P.2d 418
CONSTITUTIONS
United States Constitution, Amendment I,
Amendment XIV
California Constitution, Article VI, Section 1
STATUTES
California Family Code § 7643(a)
California Rules of Court, Rule 2.550(c)
California Welf. & Inst. Code § 827(a)(1); Cal.
Civ. Code § 56.10.
STATEMENT OF THE CASE
In the present case, Respondents
brought an entirely fraudulent, baseless lawsuit against Kelley Lynch. CT 62. The Complaint and default judgment obtained
were ultimately transmitted to IRS (CT 936), used to file and amend Cohen’s
personal federal and state tax returns, obtain fraudulent tax refunds, and
tamper with the administration of justice in a case before the U.S. District
Court of Colorado (CT 932, 1026) and elsewhere.
Cohen’s Complaint against Lynch was filed with LA Superior Court on
August 15, 2005. It fraudulently alleged
breaches of fiduciary duty, common law fraud, breach of contract, accounting,
conversion, imposition of constructive trust, injunctive relief, and
professional negligence. On May 15,
2006, a fraudulent default judgment was entered against Lynch. CT 197.
The default judgment was supported by perjured declarations. The proof of service with respect to the
summons and complaint, which falsely alleged that service was effected upon
Lynch, was evidence of extrinsic fraud.
CT 149 (Supplemental Transcript, Volume II or II). Lynch was not served the summons and
complaint or legally notified of the entry of default judgment. The Complaint and default judgment were
ultimately used to defend Leonard Cohen with respect to allegations that he
committed criminal tax fraud.
On August 9, 2013,
after relocating to Los Angeles, Lynch diligently filed a motion to vacate the
fraudulently obtained default judgment. CT
001 (Supplemental Transcript, Volume I of II).
The judgment [CT 225, Supplemental Transcript Volume III of II], which
unlawfully transferred the property of suspended corporations (under section
23302 of the Revenue and Taxation Code) to Leonard Cohen and his wholly owned
LLC, wrongfully converted Lynch’s property and corporate property to Leonard
Cohen. On January 17, 2014, Lynch’s
motion to vacate was denied. CT 1149
Although ordered by the
Court to do so, Plaintiffs failed to file an order for the Court to execute and
enter into the record. CT 5. On March 17, 2015, due to the use of
extensive fraudulent misrepresentations and perjured statements in their
response documents – including those specifically related to service of process
- Lynch filed a motion for terminating sanctions (fraud upon the court) and
asked the court to vacate the January 17, 2014 decision procured through fraud,
issue terminating and/or other sanctions, and refer Leonard Cohen and his legal
representatives, Michelle Rice and Robert Kory, to the District Attorney for
perjury prosecutions (CT 985) and the California State Bar for disciplinary
action. CT 6 – 984 (Volumes I through
IV).
On October 11, 2005,
Leonard Cohen personally filed a Complaint against Lynch in related writ of
possession case no. BC341120. The
sealing order at issue herein relied on arguments related to that case. On October 13, 2005, a writ of possession was
issued in Cohen’s favor with respect to certain property he had abandoned at
Lynch’s home. On May 9, 2006, default
judgment was entered against Lynch. Lynch
was unaware of this case or entry of default against her. In or around April 2010, this case was
brought to Lynch’s attention by Judge Ken Freeman’s court reporter. The writ of possession was limited to Leonard
Cohen’s personal property and the legal pleadings and declarations submitted to
the court are replete with fraudulent misrepresentations and perjured
statements. Nevertheless, Los Angeles
Sheriff’s Department wrongfully seized corporate books and records, corporate
tax and financial documents, Kelley Lynch’s personal property, Phil Spector’s
master tape, Elton John’s master tape (related to a tribute album Lynch
executive produced), Machat & Machat files, and other property not addressed
in the writ or named as parties to the Complaint. RT 607.
The corporations themselves were not mentioned in the writ of possession
documents or named as parties to the lawsuit.
At the time Cohen filed this particular Complaint, his legal representatives
understood that Lynch intended to ship the evidence at issue to Internal
Revenue Service in Washington, DC. This
was well documented, including with Cohen’s legal representatives copied on
emails to IRS Commissioner’s Staff at the time, yet Cohen argued in his
pleadings that he believed Lynch would destroy or sell property allegedly
belonging to him. In reality, Lynch
responded to Scott Edelman’s letter with respect to Cohen’s abandoned property but
he – as was and is the custom of Cohen and his legal representatives – refused
to speak with her and hung up on her.
On or about April 15,
2005, Lynch had reported allegations that Cohen committed criminal tax fraud to
IRS and used certain corporations to evade and/or defeat income taxes. On March 1, 2015, Lynch submitted a
declaration, and extensive evidence, to IRS.
CT 74. She ultimately decided to
submit that declaration to the Court with her motion for terminating sanctions
as it extensively addressed a great deal of the fraud transmitted to Internal
Revenue Service, and other tax authorities, via pleadings and declarations
submitted to Los Angeles Superior Court in Case No. BC338322. On May 29, 2015, Leonard Cohen and LC
Investments, LLC filed an ex parte order to seal corporate property, property
belonging to Lynch, evidence submitted to the U.S. District Court in Colorado,
evidence submitted to the U.S. District Court for the Southern District of New
York, documents available for purchase on Pacer, and other evidence. On May 29, 2015, Los Angeles Superior Court
granted the ex parte application to seal portions of the court record. CT 1,
36, 150
On July 28, 2015,
Kelley Lynch filed appeals with respect to the denial of her motion for
terminating sanctions (fraud upon the court) and the order sealing portions of
the court record. The appeals were
consolidated. CT 1371, 1373.
STATEMENT OF APPEALABILITY
This appeal is from the
Los Angeles Superior Court June 23, 2015 denial of Lynch’s motion for
terminating sanctions (fraud upon the court) and the Los Angeles Superior Court
May 29, 2015 ex parte sealing of portions of the court record. The appeals are authorized by Code of Civil
Procedure sections 904.1(a)(3)-(13) and 904.1(a)(2), respectively.
The Court’s decision
with respect to the motion for terminating sanctions (fraud upon the court) is
void because the trial court lacked jurisdiction to enter it. See, e.g., Carlson v. Eassa (1997) 54
Cal.App.4th 684, 691 [proper to appeal from denial of a motion to vacate if the
underlying judgment is void because the denial gives effect to a void
judgment]. “A judgment is void on its
face if the court which rendered the judgment lacked personal or subject matter
jurisdiction or exceeded its jurisdiction in granting relief which the court
had no power to grant.” County of
Ventura v. Tillett (1982) 133 Cal.App.3d 105, 110. Furthermore, the issues raised in Lynch’s
fraud upon the court motion differed from the motion to vacate although the
facts with respect to the extrinsic fraud related to the proof of service
remained the same. See Rooney v. Vermont
Investment Corp. (1973) 10. Cal.3d 351, 359.
A state trial court's decision regarding a motion to seal is appealable
as a collateral order. Mercury
Interactive Corp. v. Klein,
158 Cal. App. 4th 60, 77 (2007) (a sealing order is appealable "because it
is a 'final determination of a collateral matter in that it directs the
performance of an act—i.e., unsealing—against defendants'"); In re Providian Credit
Card Cases, 96 Cal. App. 4th
292, 297 n.2 (2002).
ARGUMENT
Appellant contends
denial of the motion seeking terminating sanctions (fraud upon the court) was
an abuse of discretion. The motion was
not time-barred; the original judgment and all decisions emanating therefrom
were void due to defects in service of the summons and complaint; the Court
lacked jurisdiction over Lynch; and extrinsic fraud – as well as extensive
intrinsic fraud presented in documents responding to Lynch’s motion to vacate -
was used to perpetrate a fraud upon the court.
The January 17, 2014 decision of the Court’s was procured by fraud. These issues violated Kelley Lynch’s right to
due process. Appellant argues that the court has the inherent equitable power
to vacate a judgment (decision) that has been obtained through fraud on the
court. Additionally, the court
mischaracterized Lynch’s motion for terminating sanctions (fraud upon the
court) as a motion for reconsider. The
Appellate Division consolidated the two appeals. This consolidated appeal also addresses the
improper sealing of portions of the court record related to evidence submitted
with the motion for terminating sanctions (fraud upon the court).
Motion
for Terminating Sanctions Based on the Ground of Fraud
A motion to vacate the
judgment on the ground of fraud is generally authorized. The California Supreme Court has instructed
that “under certain circumstances a court, sitting in equity, can set aside or
modify a valid final judgment.” Kulchar
v. Kulchar (1969) 1 Cal.3d 467, 470.
“A final judgment may be set aside by a court if it has been established
that extrinsic factors have prevented one party to the litigation from presenting
his or her case. The grounds for such
equitable relief are commonly stated as being extrinsic fraud or mistake. However, those terms are given a broad
meaning and tend to encompass almost any set of extrinsic circumstances which
deprive a party of a fair adversary hearing.”
In re Marriage of Park (1980) 27 Cal.3d 337, 342 (Park).
A
Court’s Inherent Powers
The doctrine of inherent judicial power-that is, the
existence of power vested in courts by their creation, and independent of
legislative grant-developed early in English common law … From their creation
by article VI, section 1, of the California Constitution, California courts
received broad inherent power “not confined by or dependent on statute.” Walker
v. Superior Court (1991) 53 Cal.3d 257, 267, 279 Cal.Rptr. 576,
807 P.2d 418; see also Civil Code section 22.2; Ferguson v.
Keays (1971) 4 Cal.3d 649, 654-655, 94 Cal.Rptr. 398, 484 P.2d 70 … This
inherent power includes “fundamental inherent equity, supervisory, and
administrative powers, as well as inherent power to control litigation.” Rutherford v. Owens-Illinois, Inc.
(1997) 16 Cal.4th 953, 967, 67 Cal.Rptr.2d 16, 941 P.2d 1203. It has been held that California courts have
inherent authority to impose evidentiary sanctions as a remedy for litigation
misconduct. See Peat, Marwick,
Mitchell & Co. v. Superior Court (1988) 200 Cal.App.3d 272, 286-291,
245 Cal.Rptr. 873 (Peat ). These
powers are “not confined by or dependent on statute” [Walker v. Superior Court] and include the power to “fashion
procedures and remedies as necessary to protect litigants’ rights.” See Stephen Slesinger, Inc.
v. Walt Disney Co., 155 Cal. App. 4th 736 (2007).
Redressing Litigation Misconduct & Terminating
Sanctions
The court exercised its inherent power to sanction
Peat, Marwick for conduct that the court deemed an “abuse of the litigation
process” and to “preserve the integrity of the judicial process.” See generally id. at 275 - 289. The Peat, Marwick court recognized that
inherent powers “have been flexibly applied in response to the many vagaries of
the litigation process” and reasoned that there is no “intrinsic limitation”
that would justify restricting their application to redressing only specific
types of litigation abuse. Id. at
287-89. The Court concluded that when a
party seeks to take unfair advantage or “the integrity of the judicial system”
is at risk, judges are empowered to act.
Id. at 289.
Stephen
Slesinger, Inc. v. Walt Disney Co. directly tackled the question of whether
the arsenal of inherent powers includes the authority to terminate a case for
litigation misconduct. The trial court
imposed a terminating sanction against Stephen Slesinger, Inc., based on its
finding that Slesinger engaged in severe and irremediable litigation
misconduct. Id. at 755-56. In granting the terminating sanction, the
trial court made clear that it was “exercising its inherent powers to preserve
and protect the integrity of the judicial process.” Id. At 756.
The Slesinger court concluded that California courts necessarily must
have the power to dismiss cases for pervasive litigation abuse.
The
federal courts also recognize a court’s inherent power to dismiss. For example, the Ninth Circuit has stated
that federal 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.” Anheuser-Busch,
Inc. v. Natural Beverage Distribs., 69 F. 3d 337, 348 (9th Cir. 1995).
Federal courts have
held that courts have the inherent power to issue sanctions in order to
“protect the due and orderly administration of justice and maintain the
authority and dignity of the court.” Primus Auto. Fin. Servs., Inc. v.
Batarse, 115 F.3d 644, 648 (9th Cir. 1997) (quoting Cooke v. United
States, 267 U.S. 517, 539, 45 S. Ct. 390, 395-96, 69 L. Ed. 767 (1925)).
The Court has an obligation to ensure that parties do not make a mockery of the
justice system. This duty does not end with the entry of judgment. As the U.S. Supreme Court has held, “The
imposition of sanctions under the bad-faith exception depends not on which
party wins the lawsuit, but on how the parties conduct themselves during the
litigation.” Chambers v. Nasco, Inc., 501
U.S. 32 (1991).
According to the U.S. Supreme Court: “The most severe in the spectrum of sanctions
provided by statute or rule must be available to the district court in
appropriate cases, not merely to penalize those whose conduct may be deemed to
warrant such a sanction, but to deter those who might be tempted to such
conduct in the absence of such a deterrent.”
NHL v. Metropolitan Hockey Club, 427 U.S. 639, 643 (1976). The U.S. Supreme Court has made clear that
sanctions may be awarded after the termination of a suit. See Cooter &
Gell v. Hartmarx Corp., 496 U.S . 384, 395-96 (1990).
Inherent Power Sanctions Are Appropriate for Fraud
Practiced Upon the Court
Inherent power
sanctions are also particularly appropriate for fraud practiced upon the court.
See Chambers, 501 U.S. at 54. Fraud
upon the court “includes both attempts to subvert the integrity of the court
and fraud by an officer of the court” and “must involve an unconscionable plan
or scheme which is designed to improperly influence the court in its decision.”
Pumphrey v. K.W. Thompson Tool Co., 62 F.3d 1128, 1131 (9th Cir. 1995).
In Pumphrey, for example, the court found that the parties in question had
“engaged in a scheme to defraud the jury, the court, and [their opponent],
through the use of misleading, inaccurate and incomplete responses to discovery
requests, the presentation of fraudulent evidence, and the failure to correct
the false impression created by [a witness’ testimony].” Id. The Ninth Circuit
held that “the end result of the scheme was to undermine the judicial process,
which amounts to fraud upon the court.” Id. See also Combs v. Rockwell Int’l
Corp., 927 F.2d 486 (9th Cir. 1991) (district court did not err in
dismissing case as sanction for falsifying a deposition).
Dismissal for Fraud Upon the Court
The Supreme Court has
described fraud on the court as “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, 246 (1944). Courts
are empowered to deal harshly with plaintiffs who act in underhanded ways to
improperly influence the judicial system. Sufficient flexibility exists to
respond to whatever scheme a misbehaving litigant might concoct, whether it
involves perjury, fabrication of evidence, destruction of evidence, suppression
of evidence, witness tampering, or a combination of these.
"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].
It is beyond question that a court may investigate
a question as to whether there was fraud in the procurement of a judgment. Universal Oil Products Co. v. Root
Refining Co., 329 U.S. 575, 66 S.Ct. 1176, 90 L.Ed. 1447. The inherent power of a court to investigate
whether a judgment was obtained by fraud is beyond question. This is to be done in adversary
proceedings as in the case before the Court. See Hazel-Atlas
Glass Co. v. Hartford-Empire Co.; Sprague
v. Taconic National Bank, 59 S.Ct. 777, 83 L.Ed. 1184; and United
States v. Throckmorton, 98 U.S. (8 Otto) 61, 25 L.Ed. 93. Fraud on the court is fraud which is directed
to the judicial machinery itself. It is thus fraud where the impartial
functions of the court have been directly corrupted. The basic decisions
of the Supreme Court with respect to judgments procured through fraud are Throckmorton, Hazel-Atlas, and Universal Oil Products.
These cases considered the basic issues involved in setting aside judgment and
demonstrate, with Marshall v. Holmes, 141 U.S. 589 , 12 Sup. Ct. 62, the nature of
the fraud and the proof required for relief.
The United States Supreme Court has also
addressed the inherent power of courts to vacate judgments on basis of fraud
upon the court. See Chambers v. NASCO, Inc. The Hazel-Atlas opinion did not refer to the distinction between
extrinsic or intrinsic fraud. Importantly, the U.S. Supreme Court concluded
that the case was about “far more than an injury to a single litigant,” but
rather it was about “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.” Hazel-Atlas Glass Co. v. Hartford-Empire Co.
Under Ninth Circuit authority,
motions addressing fraud upon the court are granted if the defendants can, by
clear and convincing evidence, establish “that species of fraud which does or
attempts to defile the court itself, or is a fraud perpetuated 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.” In
re Levander, 180 F.3d 1114 (9th Cir. 1999) (finding that perjury and
nondisclosure that defiled the bankruptcy court amounted to a fraud on the
court) (quoting 7 James Wm. Moore et al., Moore’s Federal Practice ¶ 60.33, at
515 (2d ed. 1978)). A party can be found to have engaged in a scheme to defraud
the court and “improperly influence” its decisions through “the use of
misleading, inaccurate, and incomplete responses to discovery requests, the
presentation of fraudulent evidence, and the failure to correct false
impressions created by [witness] testimony.” Pumphrey v. K.W. Thompson Tool
Co., 62 F.3d 1128, 1132 (9th Cir. 1995) (finding that defendant committed a
fraud on the court by failing to disclose the existence of favorable evidence
to the plaintiff and other violations of the rules of discovery and
professional responsibility). The Ninth
Circuit has faithfully followed the Supreme Court’s mandate that misconduct
resulting in a fraud on the court shall not be tolerated. It has recognized
that such fraud “corrupts the legitimacy of the truth-seeking process” and
“defiles the sanctity of the court and the confidence of all future litigants.”
Dixon v. C.I.R., 316 F.3d 1041, 1046-47 (9th Cir. 2003) (finding of
fraud on the court).
Fraud upon the court
causes grave damage to the integrity of the judicial process.
A
Fraud Upon the Court Motion Is Not A Motion to Reconsider
This court has
previously distinguished between a fraud upon the court motion and motion to
reconsider. See Jordan v. O’Connor
Hospital CA6, H038107 (Cal. Ct. App. 2013).
The court erred when it mischaracterized Lynch’s motion for terminating
sanctions as a motion to reconsider.
Lack
of Jurisdiction
Appellant’s motion
argued that the default judgment was void because she was never properly served
with the summons and complaint and hence any further decisions emanation from
that judgment were void. See Caldwell
v. Coppola (1990) 219 Cal.App.3d 859, 863
[“Proper service is a requirement for a court’s exercise of personal
jurisdiction;” “An order entered without personal jurisdiction over the
defendant is void.] The proof of service
alleged that personal service was attempted and appellant was served via
substitute service. M. Lowenstein
& Sons, Inc. v. Superior Court (1978) 80 Cal.App.3d 762, 770.
A motion to set aside a
judgment may be brought at any time despite a statutory time bar where a party
is able to establish that default was obtained through extrinsic fraud. In re Marriage of Melton (1994) 28
Cal.App.4th 931, 937. “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.” County
of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1228-1229.
"Chaos would
result if the legal community could not depend on the truthfulness of
declarations of service of process. Public policy requires that it be regarded
as serious, with consequences sufficiently adverse to act as deterrence . . . .
Service of process is the means by which a court having jurisdiction over the
subject matter asserts its jurisdiction over the party and brings home to him
reasonable notice of the action. It is an indispensable element of due process
of law." Kappel v. Bartlett (1988) 200 Cal. App.3d 1457, 1464, 246
Cal. Rptr. 815 (citing Judicial Council of Cal. com., 14 West's Ann. Code Civ.
Proc. (1973) ed.) 413.10, p. 541, and 2 Witkin, Cal. Procedure (3d ed. 1985)
Jurisdiction, 84, p. 454). A false,
fraudulent, or perjurious declaration of service of process misuses "the
power of the court; it is an act done in the name of the court and under its
authority for the purpose of perpetrating an injustice." Meadows
v. Bakersfield Savings & Loan Assoc., (1967) 250 Cal. App.2d
749, 753, 59 Cal. Rptr. 34, 37.
On
January 4, 2014, Leonard Cohen submitted a declaration to the Court fraudulently
arguing that Lynch – not the alleged Jane Doe named in the proof of service –
was the individual served the summons and complaint. Cohen’s declaration included photographs of
Lynch allegedly from the early 2000s and possibly 2006. CT 292A, Supplemental Transcript, Volume II
of II. Michelle Rice, Cohen’s litigation
counsel, also argued that Lynch was the individual who was served and falsely
informed the Court that Lynch had previously attempted to evade service in
another related case when in fact Lynch expressed her concerns about attempts
to obstruct justice and cover up criminal tax fraud with the court itself in
that matter. CT 203. Robert Kory’s declaration argued federal tax
matters. CT 259. Lynch submitted approximately six (6)
declarations rebutting the allegations that she resembled the individual in the
proof of service, was in fact the Jane Doe, had a female co-occupant, or was
served and/or subserved. Lynch’s
declarations further addressed the intrinsic fraud with respect to other
allegations but addressing extrinsic and intrinsic fraud are not mutually
exclusive and Lynch did request the Court to refer the case to the District
Attorney for perjury prosecutions. Leonard
Cohen’s own testimony (March 23, 2012 hearing) proved perjury with respect to
the allegations of misappropriation. The
“gist of Cohen’s complaint against Lynch was that she had misappropriated well
in excess of the 15% management compensation …”
CT 131, 384. Perjury is generally
considered intrinsic fraud. It is
relevant to note that Lynch was not permitted to present witnesses, or
cross-examine witnesses, at the hearing on the motion to vacate or with respect
to the motion for terminating sanctions.
See Declaration of Joan Lynch Declaration CT 184-255, John Rutger Penick
CT 257-260, Paulette Brandt CT 262-274, Clea Surkhang (Westphal) CT 276-277,
Palden Ronge CT 279-281, and Daniel J. Meade CT 283 – 287, and CT 1215 - 1345. It is abundantly clear that absent the use of
fraud to obtain court decisions, the outcome of the January 17, 2014 hearing
would have been different. The fraud prejudiced
and harmed Lynch. It prevented her from
fully and fairly presenting her case and defense. It also significantly tainted the
proceedings.
Void
Judgment
The
default judgment in this case is void as a matter of law due to the Court’s
lack of personal jurisdiction arising from the failure to serve Lynch the summons
and complaint.
“A court can
lack fundamental authority over the subject matter, question presented, or
party, making its judgment void, or it can merely act in excess of its
jurisdiction or defined power, rendering the judgment voidable.” In re Marriage of Goddard (2004)
33 Cal.4th 49, 56. A judgment is void if
the court lacked jurisdiction over the subject matter or parties, for example,
if the defendant was not validly served with summons. Neumann v. Melgar (2004) 121
Cal.App.4th 152, 164. 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.
See also County of Ventura v. Tillett (1982) 133 Cal.App.3d 105,
110, 183 Cal.Rptr. 741; disapproved of on other grounds
by County of Los Angeles v. Soto (1984) 35 Cal.3d 483, 198 Cal.Rptr.
779, 674 P.2d 750; Security Pac. 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, 574,
122 P.2d 564.
A California Court of Appeal has
ruled that lack of personal jurisdiction renders a default judgment void: “Lack of personal jurisdiction renders a
default judgment void, so that it may be vacated at any time.” Strathvale Holdings v. E.B.H. (2005) 126 Cal.App. 4th 1241, 1249.
The trial court’s denial of
Lynch’s motion for terminating sanctions is void itself as it gives effect to a
void judgment. County of Ventura v. Tillett, 133 Cal.App.3d at p. 110, 183 Cal.Rptr. 741.) 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.
The United States Supreme Court
has ruled that a void judgment must be set aside regardless of the merits of the
underlying lawsuit. This was in a case where there was never a valid service of
summons: “Where a person has been
deprived of property in a manner contrary to the most basic tenets of due
process, it is no answer to say that in his particular case due process of law
would have led to the same result because he had no adequate defense upon the
merits.” Peralta v.
Heights Medical Center, Inc. (1988)
485 US 80, 86–87, 108 S.Ct. 896, 900.
Due Process Violations
Lynch’s right to due
process and a fair trial were violated due to the defects in service, lack of
jurisdiction, extrinsic fraud, and extensive litigation misconduct. Due process requires notice and a meaningful
opportunity to present evidence in regards to the issues. Rea v. Workers’ Comp. Appeals Bd.
(2005) 127 Cal.App.4th 625, 643.
The Fourteenth
Amendment to the Constitution bars states from depriving “any person of life,
liberty, or property without due process of law.” 1 U.S. Const. amend. XIV, § 1. “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). Any
such judgment rendered without jurisdiction would be deemed void. It is long established that personal
jurisdiction by a court over the parties is a prerequisite to the
adjudication of disputes brought before it.
Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee,
456 U.S. 694, 102 S.Ct. 2099 (U.S. 1982).
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 14th Amendment. This
rationale, most often characterized as “notice and opportunity to be
heard.” was discussed by the U.S. Supreme Court in a 1950 decision: “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. 339 U.S. 306, 314, 70 S.Ct. 652,
657 (U.S. 1950).
Sealing
of Portions of Court Record
The First Amendment to
the United States Constitution and the common law provide a presumptive right
of public and press access to civil court proceedings and documents. NBC Subsidiary (KNBC-TV), Inc. v. Superior
Court, 20 Cal. 4th 1187, 1208 & n.25; 1211 n.27, 1218-19
(1999). These rights do not disappear
merely because the proceedings involve wealthy, powerful public figures.
The presumptive
openness that applies to civil court proceedings and records includes disputes
involving personal relationships – as in the Eastwood/Locke trial in NBC
Subsidiary – as well as those involving personal financial matters, as is the
case at hand. Despite this well
established right of public access, respondent Leonard Cohen has asked the Court
to issue an extensive sealing order to remove from public scrutiny records that
were available in the Court files for approximately three (3) months. Many of the documents under seal are presently
available for purchase through Pacer; were attached unsealed as evidence in a case
before the U.S. District Court, District of Colorado (CT 622, CT 625, 631, );
were submitted as evidence to the Southern District of New York (CT 514, 530,
534, 709) by respondent himself; available through the State of Kentucky’s
website (CT 654, 678), are evidence of potentially unlawful conduct; and/or
belong to Kelley Lynch (CT 856, 881) and/or the corporations themselves. These documents are most certainly not
Leonard Cohen’s personal property.
Leonard Cohen, a public
figure, relied on arguments related to attorney client privilege (CT 1); the related
writ of possession case (BC341120) which unlawfully authorized the seizure of
corporate property and property belonging to Lynch and others; Lynch’s personal
tax information and stock certificates (CT 697); and extremely general
statements, without any evidence to support them, that he has an overriding
interest in keeping these documents confidential. The proceedings that have involved Cohen and
Lynch relied heavily on fraudulent allegations that corporate assets are
Leonard Cohen’s personal property. At no
time did Lynch hold attorney/client privilege, all parties – including Cohen –
understood this, and there was no discussion of or understanding with respect to
the so-called confidential nature of the records.
A party
requesting that a record be filed under seal must file a motion or an
application for an order sealing the record, accompanied by a memorandum and a
declaration with facts sufficient to justify the sealing. Cal Rules of Ct
2.551(b)(1). These facts include (Cal Rules of Ct 2.550(d)(1)-(5)): an overriding interest that overcomes the
First Amendment right of public access to the record; the overriding interest
supports sealing the record; a substantial probability exists that the
overriding interest will be prejudiced if the record is not sealed; the
proposed sealing is narrowly tailored; and, no less restrictive means exist to
achieve the overriding interest.
In California state court, unless “confidentiality
is required by law, court records are presumed to be open.” California Rules of
Court (“CRC”), Rule 2.550(c). Under California law, only certain narrow
categories of information, like certain family law or juvenile records, or
medical information, are automatically excluded from the public record. See, e.g., Cal. Fam. Code § 7643(a);
Cal. Welf. & Inst. Code § 827(a)(1); Cal. Civ. Code § 56.10.
Respondent did not make a particularized showing of
harm supported by evidence showing that prejudice would result if the information
is disclosed. Harm to a reputation,
embarrassment and blanket assertions of “confidential” business records are
insufficient to overcome the presumption favoring the public right of access.
Courts have
held that the personal finances of the rich and famous are not worthy of
sealing (see In re
Marriage of Burkle (2006) 135 CA4th
1045, 37 CR3d 805), but they have found overriding interests in instances such
as the protection of minor victims of sex crimes from further trauma and
embarrassment; the protection of witnesses from embarrassment or intimidation
so extreme as to render them unable to testify; the protection of trade secrets;
attorney-client communications; national security; binding contractual
obligations not to disclose; and the anonymity of juvenile offenders in
juvenile court. See also NBC Subsidiary, Inc. v Superior Court (1999) 20 C4th 1178, 87 CR2d
778.
Overriding Interest
Overriding Interest
Respondent has
argued that he has an “overriding interest” in keeping the documents under seal
but has failed to demonstrate a “substantial probability” that he would be
prejudiced if the information was made public.
In any event, the mere possibility of prejudice does not overcome the
presumption of an open record and does not overcome the presumption that people
should be free to speak about the details of their lives or address those
relevant and material details in declarations submitted to the court.
Lynch is the
individual who has been harmed by the sealing of these documents due to the
fraudulent misrepresentations and perjured declarations used to obtain the
fraudulent default judgment, court decisions procured through fraudulent means,
fraudulent pleadings and other documents transmitted to Internal Revenue
Service` and other tax authorities, and false and defamatory arguments advanced
in the news media by Respondent, his lawyers, and publicists, and the media
itself.
CONCLUSION
In view of the
prejudicial nature of the errors addressed in this appeal, the errors should
not be found harmless. Appellant
respectfully requests that the Trial Court’s January 17, 2014 decision be
reversed and the portions of the trial record that have been sealed be
unsealed.
Dated: 15
June 2016 Respectfully
submitted,
____________________________________________
Kelley
Lynch, in Propria Persona
C