Kelley Lynch - Appeal Reply Brief - Leonard Cohen Fraud Upon the Court Matter

B265753

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

CASE NO. BC338322
JUDGE ROBERT HESS

APPELLANT’S REPLY BRIEF

Kelley Lynch

1754 N. Van Ness Avenue

Hollywood, California  90028

323.331.4250

In Propria Persona

TABLE OF CONTENTS

TABLE OF AUTHORITIES …………………………………………………………… 2

APPELLANT’S REPLY BRIEF     ……………………………………………………… 6

INTRODUCTION ……………………………………………………………………… 6

STATEMENT OF FACTS AND PROCEDURAL HISTORY …………………………. 7

ARGUMENT…………………………………………………………………………….10

CONCLUSION ………………………………………………………………………… 35

CERTIFICATE OF WORD COUNT ………………………………………………….. 38

TABLE OF AUTHORITIES

CASES

Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1119-20, 1122 (1st Cir. 1989)

Baggett v. Gates (1982) 32 Cal.3d 128 [185 Cal.Rptr. 232, 649 P.2d 874]

Bauguess v. Paine (1978) 22 Cal. 3d 626, 635 [150 Cal. Rptr. 461, 586 P.2d 942]

Bennett v. Wilson (1898) 122 Cal. 509, 513-514, 55 P. 390

Burkle v. Burkle (2006) 135 Cal. App. 4th 1045

Carlson v. Eassa (1997) 54 Cal.App.4th 684, 691

Carr v. Kamins (2007) 151 Cal.App.4th 929, 933

Chambers v. NASCO, Inc., 501 U.S. 32, 46 (1991)

City of Sacramento v. Drew, 207 Cal.App.3d 1287, 1297 (1989)

Clark v. United States, 298 U.S. 1 – 1933

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985)

Conseco Marketing, LLC v. IFA & Ins. Services, Inc. (2013) 221 Cal.App.4^th 831, 841

County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1226

County of Ventura v. Tillett (1982) 133 Cal.App.3d 105, 110, 183 Cal.Rptr. 741

Cruz v. Fagor America, Inc. (2006) 146 Cal.App.4th 488, 502

Dill v. Berquist Construction Co., 24 Cal.App.4th at p. 1444, 29 Cal.Rptr.2d 746

Hazel-Atlas Glass Co. v. Hartford Empire Co., 322 U.S. 238 (1944)

Hurtado v. Statewide Home Loan Company, 167 Cal.App.3d 1019, 1022 (1985)

In re Margarita D. (1999) 72 Cal.App.4th 1288, 1295

In re Marriage of Davenport (2011) 194 Cal.App.4^th 1507

In re Marriage of Lopez, 38 Cal.App.3d 93, 114 (1974)

In re Marriage of Melton (1994) 28 Cal.App.4th 931, 937

In re Marriage of Park (1980) 27 Cal.3d 337, 342

Kulchar v. Kulchar (1969) 1 Cal.3d 467, 472

Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 651

Mathews v. Eldridge (1976) 424 U.S. 319, 333

McGuinness v. Superior Court (1925) 196 Cal. 222 [237 P. 42, 40 A.L.R. 1110]

Moghaddam v. Bone (2006) 142 Cal.App.4th 283, 290-291, 47 Cal.Rptr.3d 602

 

Mooney v. Holohan, 294 U.S. 103 (1935)

NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal.4^th 1187, 1208 & n.25; 1211 n.27, 1218-19(1999)

New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212

Nixon v. Warner Communications, Inc., 435 U.S. 589, 596–97 (1978)

Olivera v. Grace (1942) 19 Cal.2d 570, 574, 122 P.2d 564

Plaza Hollister Ltd. Partnership v. County of San Benito (1999) 72 Cal.App.4^th, 1, 20

Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981, 35 Cal.Rptr.2d 669, 884 P.2d 126

Reifler v. Superior Court (1974) 39 Cal.App.3d 479

Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 (1980)

Rochin v. Pat Johnson Manufacturing Co., (1998) 67 Cal.App.4th 1228. 51

Rosenthal v. Great W. Fin. Securities Corp. (1996) 14 Cal.4th 394, 18 414

Robb v. Connolly, 111 U. S. 624, 111 U. S. 637

Scott v. McNeal, 154 U.S. 34, 154, U.S. 46

Security Pac. Nat. Bank v. Lyon (1980) 165 Cal.Rptr. 95, 105 Cal.App.3d Supp. 8, 13

Selma Auto Mall v. Appellate Department (1996) 33 Cal.App.4^th 1672, 1683 

Shamblin v. Brittain, 44 Cal.3d 474, 478 (1988)

Sporn v. Home Depot USA, Inc., 126 Cal.App.4th 1294, 1300

United States v. Throckmorton, 98 U. S. 61, 68 (1878)

Walker v. Superior Court (1991) 53 Cal. 3d 257, 267 [279 Cal. Rptr. 576, 807 P.2d 418]

Western Steel & Ship Repair, Inc. v. RMI, Inc. (1986) 176 Cal. App. 3d 1108, 1116-1117 [222 Cal. Rptr. 556]

Westside Community for Independent Living, Inc. v. Obledo (1988) 33 Cal. 3d 348, 355 [188 Cal. Rptr. 873, 657 P.2d 365], citing to 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 244

STATUTES

Code of Civil Procedure Sections 415.20, 416.60, 416.70, 416.80, and 416.90

Code of Civil Procedure section 1008

Evidence Code Section 956 

CONSTITUTION

United States Constitution, Fourteenth Amendment

California Constitution

MISCELLANEOUS REFERENCES

3 Moore, FEDERAL PRACTICE, (1st ed. 1938), § 60.03; 126 A.L.R. 386

7 Witkin, Cal. Procedure, supra, Judgment, § 286, p. 828

9 Witkin, Cal. Procedure, supra, Appeal §§ 198–201, pp. 274–278

Cf. RESTATEMENT, JUDGMENTS, § 126 with § 121

FREEMAN, JUDGMENTS, § 1233

APPELLANT’S REPLY BRIEF

            Appellant Kelley Lynch was Leonard Cohen’s personal manager, and worked in other capacities (although never as his business manager), for approximately seventeen years.  As of October 2004, Cohen understood that Lynch had or planned to report allegations related to tax fraud to Internal Revenue Service, and demanded that she meet with him and his personal tax and corporate lawyer, Richard Westin, privately hand over corporate books and records, and assist with the unraveling of certain entities and transactions. Lynch refused.  Lynch addressed the background information, and blatant retaliation, quite specifically in the declaration she submitted to the trial court supporting her motion for terminating sanctions (fraud upon the court).  (Cohen Aug. 29 – 147, Unredacted.)  The record includes:  a six-volume clerk’s transcript (“CT”), two volume supplemental clerk’s transcript (“Supp. CT”), one volume augmented record (“Aug. CT”), Cohen’s motion to augment granted July 26, 2016 (“Cohen Aug.”), Lynch’s Opposition to Cohen’s Motion to Augment (“Lynch’s Opposition”), and all documents and records on file with this Court.

INTRODUCTION

In this appeal, Lynch challenges the June 23, 2015 order denying her 2015 Motion (fraud upon the court), and contests the trial court’s May 29, 2015 order redacting her declaration and a portion of the evidence she filed in support of her 2015 Motion.  Lynch supported her motion with extensive evidentiary submissions.  (AOB 3; 6 CT 1359-1374; Aug. CT 35-155.)  Lynch’s opening brief argued that the trial court abused its discretion when it wrongfully mischaracterized her motion for terminating sanctions (fraud upon the court) as a motion to reconsider and, in a separate hearing, improperly sealed evidence.  (AOB 1-3).  Lynch’s opening brief argued that extrinsic and intrinsic fraud are not mutually exclusive.  (AOB 10).  The fact of the matter, with respect to this so-called case, is that both types of fraud are present and have been used to tamper with the administration of justice while depriving Lynch of her right to due process.  (AOB 12.)  Lynch was not served the summons and complaint, the proof of service is evidence of extrinsic fraud, there is now perjury with respect to service, the documents Respondents submitted to the trial court in response to her motion to vacate were replete with fraudulent misrepresentations and perjured statements, the court had no jurisdiction over her, the legal pleadings have been used to obtain fraudulent federal and state tax refunds – fraudulently and falsely accusing Lynch of “misappropriation,” Lynch was deprived of a fair and meaningful hearing, and Lynch was not notified of entry of the default judgment.  Lynch’s opening brief satisfactorily set forth and argued that the Court’s denial of her motion for terminating sanctions (fraud upon the court) and sealing order were an abuse of discretion.  (AOB 4.)

STATEMENT OF FACTS AND PROCEDURAL HISTORY

            Respondents’ argument, with respect to their attempt to reargue and misrepresent the issues on appeal, is entirely flawed.  Lynch did not present, as Respondents have alleged in their Reply Brief, “a one-sided recitation of the facts favorable to her without regard to Cohen’s evidence or the trial court’s findings.”  Her Opening Brief set forth the following facts:

On August 15, 2005, Respondents filed a Complaint with LA Superior Court, Case No. BC338322.  (1 Supp. CT 137.)  On May 15, 2006, a default judgment was entered against Lynch.  (CT 197.)  The proof of service (CT 149) was evidence of extrinsic 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).  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 and failed to serve Lynch any such proposed order.  (CT 5.) 

On March 17, 2015, due to the use of extensive fraudulent misrepresentations, blatantly false accusations, 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 March 1, 2015, Lynch submitted a declaration, supported by extensive evidence, to Internal Revenue Service and other authorities.  CT 40.  She ultimately decided to submit that declaration to the trial court with her motion for terminating sanctions as it specifically addressed a great deal of the fraudulent and perjured legal pleadings and declarations, submitted to LA Superior Court in Case No. BC 338322.  Many of the LA Superior Court legal pleadings and declarations subsequently transmitted to Internal Revenue Service and other tax authorities which then relied on them to issue Leonard Cohen fraudulent tax refunds.  (CT 6.) 

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, Augmentation Volume 1 of 1.)

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.)

Respondents simply used their disingenuous argument, falsely alleging that Lynch did not “accurately present the record,” as an opportunity to reframe and reargue their case and the underlying merits of the motion for terminating sanctions itself.  Additionally, Respondents’ Reply Brief was submitted to this Court a week late following two separate requests for extensions of time and should be disregarded in its entirety.  With respect to Respondents position that Lynch did not present facts favorable to Respondents, Lynch will remind this court that her appeal relates to a motion addressing fraud upon the court.  That fraud has now infested the appeal process itself.  Lynch is under no legal or ethical obligation to advance fraudulent misrepresentations, perjured statements, or any type of deception into a legal proceeding.  This is an unconscionable abuse of process.   

Respondent’s Brief:  Lynch has twice attacked the 2006 default judgment.  The first time was a motion to vacate filed in 2013, in which claimed that she was never served with Cohen’s summons and complaint.  (1 Supp. 1-100 [“2013 Motion”].)  The trial court denied the motion with prejudice because Lynch did not establish that Cohen’s proof of service was false and did not demonstrate extrinsic fraud (1 CT 5; 5 CT 1159B, 1159G; Cohen Aug. 150, 153.)  Lynch repackaged the same arguments in a 1,100 page “Motion for Terminating Sanctions” that she filed in 2015 (“2015 Motion”).  (1 CT 6 – 5 CT 1133.)  The court granted Cohen’s motion to seal some of Lynch’s evidence, and denied the 2015 Motion as “fundamentally flawed” because it was, in effect, a motion for reconsideration filed fourteen months after the court denied her 2013 Motion seeking equitable relief from the 2006 default judgment.  The court concluded that Lynch did not show new or different facts, circumstances, or law, and without showing extrinsic fraud.  (Cohen Aug. 150-156, 164.)  RB 8-9.

            Lynch did not “repackage” the arguments made in her 2013 Motion to Vacate when she submitted her 2015 Motion for Terminating Sanctions to the Court.  Lynch’s 2013 Motion to Vacate argued that she was not served Cohen’s summons and complaint, the proof of service was evidence of extrinsic fraud, the court lacked jurisdiction over her, and the judgment was void.  While these facts with respect to service, lack of jurisdiction, and the void judgment remained the same at the time Lynch filed her 2015 Motion for Terminating Sanctions, that motion addressed Respondents, and their attorneys, use of fraudulent misrepresentations, fabricated evidence, perjured statements, and other misconduct – committing fraud upon the court – in the legal pleadings and declarations submitted to the trial court in response to Lynch’s 2013 Motion to Vacate.  (CT 6 – 34; 5 CT 34 – 1133).  Void judgments are ineffective and unenforceable. County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1226.  For that reason, an order incorrectly denying relief from a void judgment is also void, as it gives effect to the judgment.  Carlson v. Eassa (1997) 54 Cal.App.4th 684, 691.

Respondents’ themselves have argued:  “A factual presentation that is ‘but an attempt to reargue on appeal those factual issues decided adversely to the trial level … is doomed to fail.”  In re Marriage of Davenport (2011) 194 Cal.App.4^th 1507.  Nevertheless, twenty-three pages out of the forty-two page Reply Brief restate and reargue Respondents’ case and attempt to argue the merits of the underlying case. 

Due to the fact that Leonard Cohen and his legal team have transmitted the extensive fraudulent and perjured legal pleadings and declarations in this case to Internal Revenue Service, Franchise Tax Board, and other authorities, Lynch will privately address the fraudulent misrepresentations and blatantly false statements that now infest this appeal with those authorities.  Respondents have also used their new case statement to insert unrelated matters, such as the settlement with Richard Westin, into their Brief.  Lynch assumes they are attempting to include that and other unrelated matters in future res judicata and/or claims preclusion arguments.  This is another tactic Respondents have used against Lynch.

ARGUMENT

I.                   Respondents Are Bad Faith Litigants Who Have Engaged in Fraud Upon the Court

In addition to wielding its inherent power, there are other vehicles – including dismissal - by which a court may sanction a bad faith litigant.  Cases involving such nefarious litigation conduct have been decided by the United States Supreme Court.  For example, in Hazel-Atlas Glass Co. v. Hartford Empire Co., 322 U.S. 238 (1944), the plaintiff obtained a patent by concocting a fraudulent trade journal article praising its glass-making device as “revolutionary.”  The article was used to persuade the Patent Office to issue a patent. The plaintiff then relied on the fraudulent article to obtain a judgment for patent infringement against a business competitor.  In the instant case, Respondents have used their complaint, other legal pleadings and declarations signed under the oath of perjury, to fraudulently persuade the court to enter default judgment against Lynch.  The default judgment wrongfully converted Lynch’s property, the property of corporations (including at least two suspended corporations), to Leonard Cohen and his wholly owned LC Investments, LLC.  Leonard Cohen then used the fraudulent legal pleadings and declarations to persuade Internal Revenue Service and Franchise Tax Board to accept Cohen’s tax returns, amend others, and apply for and obtain fraudulent tax refunds.  However, in this case, Lynch was not served the summons and complaint and there is indeed extrinsic fraud, and now perjury, with respect to the proof of service.

When the fraud in Hazel Atlas was uncovered, the U.S. Supreme Court set aside the judgment. Justice Hugo Black, addressing the plaintiff’s manipulation of the judicial process, explained the legal rationale as follows: 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. Hazel-Atlas, 322 U.S. at 246.  For approximately 80 years now, the U.S. Supreme Court has illuminated the appropriate legal remedy for holding the unscrupulous litigant accountable.  The opinion did not refer to the distinction between extrinsic or intrinsic fraud.

It is well established that a trial court may use its inherent power to sanction parties that intentionally abuse the litigation process, such as those who perpetrate fraud on the court. See Chambers v. NASCO, Inc., 501 U.S. 32, 46 (1991). Because this kind of fraud is so insidious, the penalties a court may impose on a bad faith litigant who attempts to defile the sanctity of the judicial process are justifiably stiff and include sanctions of dismissal and default. See Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1119-20, 1122 (1st Cir. 1989) (“Appellant chose to play fast and loose with [defendant] and with the district court. He was caught out . . . Appellant’s brazen conduct merited so extreme a sanction . . . and the court, jealous of its integrity and concerned about deterrence, was entitled to send a message, loud and clear”). 

When fraud has been discovered and exposed, the consequences ought to be severe enough to inhibit and repel repetition rather than serving to reward the abusive litigant.   The United States Court of Appeals for the First Circuit skillfully defined the concept of fraud upon the court in Aoude, supra at 1118, as follows:  A ‘fraud on the court’ occurs where it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party's claim or defense.

When fraud upon the court is demonstrated, a trial court has the inherent power to take action in response to the fraudulent conduct.  As the U.S. Supreme Court concluded, in Hazel Atlas, dismissal of claims or an entire action may be warranted by the fraud.

II.               A Void Order, Issued Without Jurisdiction, Is Appealable

Lynch did not file a motion to reconsider.  She filed a motion for terminating sanctions

specifically addressing fraud upon the court. Her motion addressed the egregious use of fraudulent misrepresentations, perjured statements, and blatantly false accusations in the documents and declarations submitted to the trial court in response to Lynch’s motion to vacate.  Lynch has continuously maintained that she was not served the summons and complaint, the proof of service is evidence of extrinsic fraud, the court did not obtain jurisdiction over her, and the original default judgment is void.  She has also maintained that all judgments emanating from the original void order are void as well.  That would include, but is not limited to, the trial court’s January 17, 2014 decision.  A void judgment is appealable.  

Although certain post-judgment orders are appealable (see § 904.2, subd. (a)(2)), “not every post-judgment order that follows a final appealable judgment is appealable.”  Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 651.  A post-judgment order is appealable if it satisfies two additional requirements, one of which is “that the issues raised by the appeal from the order must be different from those arising from an appeal from the judgment” … “The reason for this general rule is that to allow the appeal from [an order raising the same issues as those raised by the judgment] would have the effect of allowing two appeals from the same ruling and might in some cases permit circumvention of the time limitations for appealing from the judgment.” (Ibid.)  There was no appeal from either the original default judgment or the January 17, 2014 decision. 

Witkin describes four exceptions to the general rule that an order denying a motion to vacate is non-appealable.  (9 Witkin, Cal. Procedure, supra, Appeal §§ 198–201, pp. 274–278.)  An order may be appealable if (1) there is no effective appeal from the judgment, (2) the appellant was not an original party to the action, (3) the motion to vacate is authorized by statute, or (4) the motion seeks to vacate a void judgment.  (Ibid.)  At least two of the exceptions apply in this case.

A judgment is void if the court rendering it lacked jurisdiction over the parties.  Lack of jurisdiction in this “fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties.”  Carlson v. Eassa (1997) 54 Cal.App.4th 684, 691 (Carlson).  “In a broader sense, lack of jurisdiction also exists when a court grants ‘relief which [it] has no power to grant.’”  (Ibid.)

In Carr v. Kamins (2007) 151 Cal.App.4th 929, 933, an order denying a motion to vacate a judgment was held to be appealable where the appellant claimed the judgment was void because she was not personally served and the respondent committed extrinsic fraud by obtaining an order reflecting service by publication.  Moreover, in Carlson, supra, 54 Cal.App.4th at p. 696, an order denying a motion to vacate a judgment was held to be appealable where the trial court lacked authority to enter a judgment based upon a purported stipulation to which both parties had not agreed, as the trial court’s action was “not merely a mistaken application of the law or a grant of excess relief, but a complete absence of power to accord relief, a judgment ‘completely outside the scope of the court’s jurisdiction to grant. . . .’”  (Ibid.)

In her motion for terminating sanctions (fraud upon the court), Lynch moved to set aside the May 15, 2006 default judgment and all resulting judgments.  She argued the original default judgment, and all decisions emanating therefrom, were void due to lack of service.  Lynch’s argument, in her Opening Brief, set forth the fact that the trial court lacked fundamental jurisdiction to act and/or that it acted outside the scope of its jurisdiction.  Therefore, Lynch has presented arguments that the order is appealable which include the trial court’s lack of jurisdiction.

III.            Lynch’s Opening Brief Cites the Evidence Fairly, Accurately, and Provides Meaningful Argument; She Has Not Waived Any Claim of Error

A.     The Abuse of Discretion Standard

An important consideration in any appeal is the applicable standard of review.  The California Supreme Court has described the standard as “whether the trial court exceeded the bounds of reason.” See Shamblin v. Brittain, 44 Cal.3d 474, 478 (1988). Other courts have offered similar definitions—as one court put it, an abuse of discretion occurs only when “it can fairly be said that no judge would reasonably make the same order under the same circumstances.” In re Marriage of Lopez, 38 Cal.App.3d 93, 114 (1974). The varying definitions have evidently led to heavy criticism. One appellate court complained that the abuse of discretion standard is “so amorphous as to mean everything and nothing at the same time and be virtually useless as an analytic tool.” Hurtado v. Statewide Home Loan Company, 167 Cal.App.3d 1019, 1022 (1985). Another court noted that such “pejorative boilerplate is misleading since it implies that in every case in which a trial court is reversed for abuse of discretion its action was utterly irrational.” City of Sacramento v. Drew, 207 Cal.App.3d 1287, 1297 (1989).

The court in City of Sacramento v. Drew, concluded:  very little of general significance can be said about discretion.  The discretion of a trial judge is not a whimsical, uncontrolled power, but a legal discretion, which is subject to the limitations of legal principles governing the subject of its action, and to reversal on appeal where no reasonable basis for the action is shown.  Westside Community for Independent Living, Inc. v. Obledo (1988) 33 Cal. 3d 348, 355 [188 Cal. Rptr. 873, 657 P.2d 365], citing to 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 244.  The scope of discretion always resides in the particular law being applied, i.e., in the legal principles governing the subject of [the] action .... Action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an “abuse” of discretion. (See Hurtado, supra, 167 Cal.App.3d at p. 1022.) If the trial [207 Cal. App. 3d 1298] court is mistaken about the scope of its discretion, the mistaken position may be “reasonable,” i.e., one as to which reasonable judges could differ. (See, e.g., the majority and dissenting opinions in Baggett v. Gates, supra, 32 Cal. 3d 128.) But if the trial court acts in accord with its mistaken view the action is nonetheless error; it is wrong on the law.  The legal principles that govern the subject of discretionary action vary greatly with context. (See Hurtado, supra, 167 Cal.App.3d at p. 1023.) They are derived from the common law or statutes under which discretion is conferred.

Here the principles are embodied in a question of equity.   The court exercises not only statutory but also common law and equity jurisdiction.  Courts have inherent equity, supervisory and administrative powers.  Bauguess v. Paine (1978) 22 Cal. 3d 626, 635 [150 Cal. Rptr. 461, 586 P.2d 942]) as well as inherent power to control litigation before them. Western Steel & Ship Repair, Inc. v. RMI, Inc. (1986) 176 Cal. App. 3d 1108, 1116-1117 [222 Cal. Rptr. 556].  Inherent powers of the court are derived from the state Constitution and are 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].

The pertinent question is whether the grounds given by the court for its denial of Lynch’s motion for terminating sanctions were appropriate given the fact that her motion was not a motion for reconsider and specifically addressed fraud upon the court.  The trial court erroneously applied the incorrect legal standard, and erred in its interpretation of the facts, when construing Lynch’s motion addressing fraud upon the court as a motion to reconsider. 

It has generally been stated that “the acts for which a court of equity will on account of fraud set aside or annul a judgment or decree between the same parties rendered by a court of competent jurisdiction have relation to frauds extrinsic or collateral to the matter tried by the first court, and not to a fraud in the matter on which the decree was rendered.”  United States v. Throckmorton, 98 U. S. 61, 68 (1878).  There is little doubt that the majority state rule is that the only type of fraud for which a court of equity will upset a judgment is extrinsic fraud; that intrinsic fraud does not afford ground for relief.  a Cf. RESTATEMENT, JUDGMENTS, § 126 with § 121. See FREEMAN, JUDGMENTS, § 1233; 3 Moore, FEDERAL PRACTICE, (1st ed. 1938), § 60.03; 126 A.L.R. 386. Extrinsic fraud is illustrated by McGuinness v. Superior Court, 196 Cal. 222, 237 Pac. 42 (1925), where the fraud alleged was the failure to notify interested parties of the pendency of a suit. 

The U.S. Supreme Court has rendered decisions, in Hazel-Atlas and Throckmorton, that have concluded that dependent upon the facts, extrinsic and intrinsic fraud constitute grounds for setting aside a judgment.  The allegations of Lynch’s motion for terminating sanctions clearly stated claims related to fraud on the court.  The trial court identified the incorrect legal rule to apply to the relief requested.  Lynch requested appropriate relief for both the extrinsic and intrinsic fraud.  With respect to the intrinsic fraud, Lynch asked the trial court to refer Cohen and his lawyers, Robert Kory and Michelle Rice, to the District Attorney for perjury prosecutions and the State Bar for disciplinary actions. 

United States Supreme Court precedent confirms that the court retains the power to set aside a judgment that defiles our system of justice.  The integrity of the civil litigation process depends on truthful disclosure of facts. A system that depends on an adversary’s ability to uncover falsehoods is doomed to failure, which is why this kind of conduct must be discouraged in the strongest possible way.  A court’s inherent power to vacate a judgment procured by fraud “fulfills a universally recognized need for correcting injustices which, in certain instances, are deemed sufficiently gross to demand a departure from rigid adherence” to the rule that a final judgment is typically binding and final.  Hazel- Atlas Glass Co. v. Hartford-Empire Co.  In Hazel-Atlas, the Supreme Court recognized that relief from a judgment obtained by fraud on the court is warranted even where the underlying action settled. 322 U.S. at 243.  The Supreme Court stated: “Every element of the fraud here disclosed demands the exercise of the historic power of equity to set aside fraudulently begotten judgments.” Id. at 245. The majority ruled that relief was warranted despite Hazel’s apparent lack of diligence in raising the fraud sooner. Id. at 245-46.  The proper focus is the “integrity of the judicial process” itself.  See id. at 246.

Respondents have perpetrated an unconscionable plan or scheme to defraud the court and defile our system of justice.  Hazel Atlas, 322 U.S. at 250.  The fraud upon the court is based on the parties’ overall course of conduct as well as separate acts of malfeasance and warrant relief from judgment.  Because the focus with respect to fraud upon the court is on the court itself, focusing on whether the consequence of that fraud is final between the parties misapprehends the nature of the question presented.

B.    The Opening Brief Does Not Violate Basic Rules Governing Appeals

Respondents’ Brief:  The appellant must discuss all the evidence supporting the court’s ruling;

otherwise the point is waived.  Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.  “When a party does not present evidence favorable to the respondent, the appellate court may presume the record contains evidence to sustain every finding of fact by the trial court.”  Doe v. Roman Catholic Archbishop of Cashel & Emily (2009) 177 Cal.App.4^th 209, 218.  Lynch’s “Statement of the Case” presents only Lynch’s version of the evidence and omits the conflicting evidence favorable to Cohen that supports the trial court’s findings.  (AOB 1-3.)  Instead, Lynch tries to reargue the facts already decided against her.  For example, Lynch continues to assert, as she did in both her 2013 and 2015 Motions, that she “was not served the summons and complaint or legally notified of the entry of the default judgment (AOB 1.)  But Lynch cites merely to the proof of service, without identifying any record evidence to support her contention, while avoiding the Edelman declaration that Cohen submitted to show all the details of service and notice.  (AOB 1-3; see 1 Supp. CT 136 – 2 Supp. CT 201.)  RB 27.

            Lynch’s Opening Brief addressed evidence favorable to Leonard Cohen.  It also referred the Appellate Court to the entire record as the evidence submitted to the trial court, while substantial, supports her argument that the proceedings were tainted by fraudulent misrepresentations, perjured statements, and blatantly false accusations. Lynch’s Opening Brief addressed the fact that Leonard Cohen and Michelle Rice submitted declarations to the trial court arguing that Lynch was the “Jane Doe” who was subserved.  (AOB 10.)  Lynch was not the individual subserved.  No female co-occupant existed.  Lynch and her son, John Rutger Penick, know of no such individual, and Respondents did not provide the court with any evidence whatsoever related to the “Jane Doe.”  They argued that Lynch was the Jane Doe although she did not resemble the individual described in the proof of service. 

            Furthermore, Lynch’s Opening Brief referred to approximately six (6) declarations submitted to the trial court rebutting the allegations that she resembled the individual in the proof of service, was in fact the Jane Doe who was allegedly subserved, had a female co-occupant, or was in fact served and/or subserved.  See Declarations 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. Ann Diamond’s declaration (CT 1327 – 1333) addressed the fact that, as a former friend and lover of Leonard Cohen’s, she understands that Cohen makes false accusations about others, relies on gossip to advance his cause, moves offensively to destroy people when forced to confront troubling situations, is a “skilled fabricator,” and is a “master manipulator … [who] becomes ruthless and will go to great lengths to see you neutralized and destroyed.”   Lynch also submitted a declaration (CT 1217 - 1260) in support of her motion for terminating sanctions.  All seven (7) declarations, submitted to the trial court in support of Lynch’s motion for terminating sanctions, have been submitted to this court and can be reviewed at CT 1215-1345.  The record contains evidence to sustain Lynch’s argument that her motion is not a motion to reconsider, she was not served the summons and complaint, and intrinsic and extrinsic fraud are not mutually exclusive.  Scott Edelman’s declaration does not “show all the details of service and notice.”  His statements with respect to Chad Knaak’s phone call are entirely hearsay and should be disregarded in their entirety.  Furthermore, the hearsay statements of Edelman’s assistant are inaccurate.  Lynch’s email to Edelman stated:   “If you try to serve this fraudulent lawsuit on me one more time, I will hold you personally responsible for mental duress.” (2 Supp. CT 152)  Individuals who are properly served do not inform people that “If you try to serve this fraudulent lawsuit” and inform opposing parties, and their representatives, repeatedly and consistently that they were not served.  Cohen, a wealthy individual with a team of professional lawyers, had every opportunity to serve Lynch.  He simply elected not to.

            With respect to the Respondents’ position that “Edelman continued to mail court filings to Lynch’s last known address (1 Supp. CT 142), and to provide her with electronic copies of all filings, including Cohen’s request for entry of default, and information about upcoming court dates and hearings.”  As of December 28, 2005, Lynch was homeless.  At no time did she have the ability to open, download, read, review, or print email attachments.  Furthermore, as the record clearly indicates, Lynch was not served the summons and complaint and had no knowledge or awareness of the actual allegations in the complaint until April 2010 when unauthenticated, and potentially fraudulent, copies of a handful of documents were posted online by an individual who has stalked, harassed, and terrorized Lynch, her family and friends for a period of approximately seven years.  This individual also routinely submits fabricated and fraudulent information to Lynch and other third parties.  The record also clearly indicates that Lynch and Cohen’s attorneys of record did not have an agreement to serve her electronically.  Part of the reason for that fact was Lynch’s inability to access or review attachments and, at times, emails themselves.(1 Supp. CT 142-145; 2 Supp. CT 176-180, 187.) 

Additionally, Lynch’s Opening Brief, as stated above, addressed the declarations used to support the motion for terminating sanctions.  Paulette Brandt’s declaration confirmed that she was at Lynch’s home on August 24, 2005 (the day the process server allegedly subserved “Jane Doe”), was present for Chad Knaak’s call to Edelman’s office, heard Chad inform Edelman’s office that Lynch was not served, and heard Lynch advise Chad to further inform Edelman that she had reported allegations that Cohen committed tax fraud to IRS and viewed the lawsuit as retaliation.  (RT 1279.)  Rutger Penick’s initial declaration confirmed that he resided with Lynch, they did not have a female co-occupant; he knew of no individual who resembled Jane Doe; no one was advised to evade service; he personally was home on August 24, 2005 (the day the process server alleged to have served “Jane Doe”), he was present when Lynch came into his room (where he and Chad were) and asked Chad to phone Cohen’s lawyer and advise him that she had not been served and if Edelman attempted to serve the lawsuit, Lynch would hold him personally accountable.  Rutger Penick’s declaration also confirmed that, since 2005, Lynch has consistently maintained that she was not served Cohen’s lawsuit and he was personally present on numerous occasions when Lynch phoned Cohen’s lawyers to discuss the fact that she was not served and they simply hung up on her.  Rutger’s declaration (RT 1299 – 1301.)  Lynch submitted sufficient evidence to the trial court with respect to the extrinsic fraud re. the proof of service.  Cohen and Rice have merely perjured themselves, in their declarations, in their attempts to argue that Lynch was the “Jane Doe” who was served.  She was not and, as of August 24, 2005, Cohen had not seen Lynch since October 2004 and Rice had not met Lynch.   

Respondents’ Brief:  The appellant must identify where in the record evidence appears to support her contentions … The opening briefly repeatedly makes factual contentions without record citations.  For example, the factual assertions on page 2 of Lynch’s opening brief are not supported by any record references.  Instead, Lynch refers to matters outside the record, such as another default judgment entered against her in a separate case Cohen had brought against her for return of his personal and business records.

            Lynch’s Opening Brief contained sufficient facts and citations.  She may have inadvertently failed to include a citation with respect to the default judgment in the related case (BC341120) but that matter is not outside the record and Lynch did, as the entire record must be reviewed, refer this Court to the entire four volumes of material submitted in support of her 2015 Motion, as it is important to take into consider the totality of circumstances and entire record.  (AOB 2, citing Clerk’s Transcript Volumes 1 – IV.)  The Respondents are the individuals who introduced the related case into this matter.  This was addressed in Lynch’s declaration and evidence submitted to the trial court with that declaration.  (Cohen Aug. – Unredacted.)  The Respondents resubmitted Los Angeles Sheriff’s Department’s Inventory to this Court with their Motion to Augment the Record.  (Cohen Aug. 22.)  Respondents refuse to provide Lynch with the proof of service in the related case and therefore she is unable to address that particular default judgment which is not a part of this appeal but was mentioned due to Respondents’ reliance upon it in connection with their Ex Parte Application to Seal Records.  (CT Aug. 1-8.)  That document contained the following allegations:  “On May 15, 2006, the Court entered judgment that Defendant was not a rightful owner of any assets nor had any interest in any of Plaintiff’s business entities and was ordered to return all money (judgment was for $7,341,345.00) and property of Plaintiff’s that she wrongfully retained or transferred after her termination as Plaintiff’s business manager.  On May 9, 2006, in a related case, Case No. BC341120, all property of Plaintiff that was located at Defendant’s then residence 2648 Mandeville Canyon Road, Los Angeles, 90049 was rightfully owned by Plaintiff and returned to him (see Exhibits A and B to Plaintiff’s Motion to Seal Portions of the Court Record for which Plaintiff is concurrently requesting the Court take Judicial Notice.)  Defendant has disregarded these clear Court orders to return all of his personal and business property by disclosing clearly confidential and privileged attorney-client communications, confidential business agreements, and tax information in connection with Defendant’s Motion.” Lynch has disregarded no such order, does not have the proof of service and other relevant documents (including Steve Lindsey’s declaration), has requested them repeatedly from Respondents and their attorneys of record, and they steadfastly refuse to provide Lynch with same.  The writ of possession did not address or extend to corporate records, Lynch’s personal property, the property of Machat & Machat or Phil Spector, or other property that was wrongfully seized and which most certainly are not Leonard Cohen’s personal property.   Therefore, Lynch did not refer to matters outside the record, including with respect to “another default entered against her in a separate case Cohen had brought against her for return of his personal property and business records.”  RB 28.  (AOB 2-3.)

IV.             The Trial Court Improperly Denied Equitable Relief from the Default Judgment

Equitable relief from default judgment may be granted where a party was prevented from participating in the action due to an extrinsic mistake of a third party, and this denied the party a fair hearing. See e.g., Kulchar v. Kulchar (1969) 1 Cal.3d 467, 472; Cruz v. Fagor America, Inc. (2006) 146 Cal.App.4th 488, 502; Marriage of Park (1980) 27 Cal.3d 337, 342; Sporn v. Home Depot USA, Inc., 126 Cal.App.4th 1294, 1300 (relief from default with evidence that papers were lost).

 The Appellate Court, in Rochin v. Pat Johnson Manufacturing Co., (1998) 67 Cal.App.4th 1228. 51, held that a void judgment is subject to attack at any time and any subsequent order denying a party’s motion to vacate, giving effect to a void judgment, is itself void.

A Void Judgment Is Subject to Attack At Any Time, Either Directly or By Way of an Independent Action in Equity

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 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;  see also 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.  See Rochin v. Pat Johnson Manufacturing Co.

The Doctrine of Res Judicata Is Inapplicable to Void Judgments

The doctrine of res judicata is inapplicable to void judgments.  “Obviously a judgment, though final and on the merits, has no binding force and is subject to collateral attack if it is wholly void for lack of jurisdiction of the subject matter or person, and perhaps for excess of jurisdiction, or where it is obtained by extrinsic fraud.”  (7 Witkin, Cal. Procedure, supra, Judgment, § 286, p. 828.)  See Rochin v. Pat Johnson Manufacturing Co.

As discussed above, the amended judgment was void and of no effect … In addition, the trial court's subsequent order denying plaintiff's motion to vacate the amended judgment, in that it gives effect to a void judgment, is itself void.  County of Ventura v. Tillett, supra, 133 Cal.App.3d at p. 110, 183 Cal.Rptr. 741.  “While defendants are correct in stating that the order denying the motion to vacate was itself appealable, plaintiff's failure to appeal from it, thus 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.  See Rochin v. Pat Johnson Manufacturing Co.

A.     The Court Improperly Mischaracterized Lynch’s 2015 Motion as a Motion for Reconsideration of the Order Denying Lynch’s 2013 Motion to Vacate

Code of Civil Procedure section 1008, subdivision (a) provides that, within 10 days after service of the order, a party may make a motion to reconsider “based upon new or different facts, circumstances, or law.” “A party seeking reconsideration also must provide a satisfactory explanation for the failure to produce the evidence at an earlier time.”  New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212.

Lynch did not file a motion to reconsider.  The trial court, at the June 23, 2015 hearing (See Cohen Aug. 148-167), found as follows:

Court:  Ms. Lynch, this is your motion for terminating and other sanctions.  This action was originally filed many years ago in about 2005, and as a – among other things, a Complaint for breach of fiduciary duty against you.  And a default judgment was entered against you on May 15, 2006, and that default judgment has been subsisting since that time.  In August of 2013, you filed a Motion to Vacate and/or Modify Default Judgment, and that was eventually heard on January 17th, 2014.  And in that motion, you argued that the judgment is void and dismissal was mandatory because there was no jurisdiction over you because you had never properly been served with summons and complaint.  And at the conclusion of that hearing, the motion to vacate was denied with prejudice on a variety of grounds, among other things, that it was procedurally deficient because it did not – it wasn’t properly served on Plaintiffs, your own declaration was unsigned, that you had not acted with diligence in bringing the motion to vacate because you said you found out about the action in April of 2010 but did not seek to have this set aside until August 2013.   You bore the burden of persuasion that the Proof of Service was false, and you had not carried that burden of proof because you had failed to produce any evidence of that beyond an unsigned declaration by yourself and a signed declaration by your son that said only that you were home at all times during 2005.  And you did not demonstrate extrinsic fraud because you conceded you were living in the home where the request – where the Notice of Request for Default was sent, and that you were home when the process server attempted to serve you on the six occasions - before subserving the Jane Doe.  Now, when the court made that order, at that point you had a couple of options, and one of those was to let it go, and the second was to take an appeal. 

Lynch:  Well, I was arrested on a related case and imprisoned …

Court:  I’m not sure that there’s any basis on which – for me to act.  This is not a proper motion for reconsideration.  A motion for reconsideration under CCP 1008 has to be done very promptly.  It’s about ten days.  And you are supposed to present facts or new law that could not have been presented the first time around … And what you want me to do is you want me to dismiss their complaint.  And that’s – that’s not an appropriate remedy, and, procedurally, your motion is fundamentally flawed …

Lynch:  This is not a motion to reconsider.  This is a motion addressing fraud upon the court which was used to obtain the default judgment.  I was not served.  I was home.  No one came to my house. 

Court:  We have adjudicated that already.

Lynch:  But it was obtained through fraud upon the court.  There’s tremendous perjury, fraudulent misrepresentations, and other things I’ve addressed. 

Court:  Ma’am, if I remember correctly, the proof of service on the underlying case was filed – was signed by the California Registered Processor, and under Evidence Code Section 647, the Affidavit of Service by a Registered Process Server carries a presumption of correctness that affects the burden of producing evidence.  It is not conclusive, but it affects the burden of producing evidence, and it requires you, the person who is – who is challenging that service, to persuade me that it is incorrect.  It is – there is no doubt whatsoever that you were living at the residence where the service was attempting to be made. 

Lynch:  Well, I was living there, but the service wasn’t made …

Court:  The – the process server’s declaration did not say that you were personally served. 

Lynch:  Well, there was no other female co-occupant there, apart from Paulette.

Court:  The process server’s declaration says that a Jane Doe came to the door and then – and they subserved the Jane Doe after multiple attempts to serve you, and thereafter it was mailed. 

Lynch:  Well, plaintiffs are arguing it was me, first of all. 

Court:  I don’t know.

Lynch:  But there was no [male] co-occupant, and no one has been identified, and I was home at all times.  My son, Rutger, lived with me, and his friend Chad Knaak at that point was staying with us.  On the morning where I was alleged served, Paulette Brandt who is over here was with me.  No one came to my house.  So it is conceivable that a process server lied or simply didn’t come there.

Court:  It is, but you have to – it affects the burden of producing evidence, and unfortunately you had the opportunity to present that in 2013, when you filed that motion in August 2013.

Lynch:  Well, actually, I didn’t realize in 2013 that I would be confronting an inconceivable amount of lies, fraud, and perjured statements.  I mean the latest issue is that my son’s friend called a Scott Edelman to tell him I wasn’t served.  They’re saying that means I was served.  It’s preposterous.  I have maintained for ten years that I was not served, and it defies logic that Leonard Cohen, who has two law firms representing him, wouldn’t have me properly served immediately if I alleged that …

Court:  Did you get the summons and complaint in the mail?

Lynch:  No I did not …

Lynch:  I still don’t know if your order was entered.  I mean, I was in jail.  I got out of jail.  Jeffrey Korn had sent me an email on January 22^nd saying I would like you to approve or comment on this.  When I got out of jail a number of months later, I called him.  He said he would serve me; I never received anything.  I don’t even know if an order was filed.  It’s not on LA Superior Court’s website.  And he refused to serve me anything, which is pretty fascinating. 

Court:  Is there anything else you would like to add?

Lynch:  Yes.  I’m addressing fraud upon the court.  And I think that you, sir, should address the fact that this judgment was obtained through fraud and perjury, and it – this is not a motion to reconsider.  This is a motion for fraud upon the court.  (Cohen Aug. 148-167.)

            Lynch’s motion for terminating sanctions did not ask the trial court to reconsider the following:  (1) the motion to vacate was procedurally deficient but it wasn’t properly served on Plaintiffs (although it was properly served on Scott Edelman who confirmed receipt and referred Lynch to Robert Kory, who was not the attorney of record); (2) that Lynch’s declaration was in fact signed as her appellate attorney, Francisco Suarez, transformed her declaration and case history into Exhibit A and her son’s declaration into Exhibit B; (3) Lynch acted diligently and should not be prejudiced due to the fact that Cohen willfully bankrupted her and prevented her from participating in litigation; (4) the Court itself misled Lynch into believing she could simply show up with witnesses who would be permitted to testify and incorrectly informed Lynch that her witnesses could not testify, when unavailable and out of state, via CourtCall; (5) and/or that Lynch’s son’s declaration confirmed that they had no female co-occupant, knew of no such person as described in the proof of service, and the Jane Doe did not resemble Lynch.  If Lynch had in fact decided to file a motion to reconsider, these are the issues Lynch would have asked the Trial Court to reconsider.  Lynch did address, at this hearing, the fact that the original default judgment was void and the court failed to obtain jurisdiction over her.  Paulette Brandt was once again available, at the June 23, 2015 hearing, and had hoped to testify.  As her declarations clearly state, she was present at Lynch’s home on the morning of August 24, 2005.  As for any arguments with respect to why she did not receive the summons and complaint in the mail, Lynch does not believe that speculating about either the process server or USPS is appropriate.  Leonard Cohen, or someone representing him, had attempted to change Lynch’s mailing address to his personal home address in Los Angeles so perhaps they actually were successful in that regard.  (4 CT 888-889.)  It is impossible for Lynch to say with any degree of certainty.  Many of these issues were in fact addressed directly with the trial court at the January 17, 2014 hearing on the motion to vacate.  (CT 1149 – 1159N.)

            Lynch’s motion for terminating sanctions did address new facts and/or evidence that were unavailable to her as of the January 17, 2014 hearing.  This was detailed for the trial court in Lynch’s Motion for Terminating Sanctions, her declaration, and all evidence submitted with that motion.  (1 CT 6 – 6 CT 1345.)  That would include, but is not limited to, the March 23, 2012 bail hearing testimony where Cohen testified that Lynch never stole from him – just his “peace of mind” and confirmed that he and Lynch were in a purely business relationship.  The entire basis for Respondents’ lawsuit against Lynch involves “misappropriation.”  The legal pleadings were used to obtain fraudulent tax refunds based upon the complaint itself.  Therefore, Cohen’s testimony that Lynch never stole from him is highly relevant and material.  Cohen’s testimony that he and Lynch were in a purely business relationship is also relevant due to the fact that Michelle Rice submitted the fraudulent domestic violence related orders, granted by LA Superior Court to Kory & Rice without a hearing or evidence, with her declaration in response to Lynch’s motion to vacate.  Rice attempted to argue that the fraudulent domestic violence related order prevented Lynch from effecting service on Plaintiff LC Investments, LLC although Kory & Rice are the registered agents for that entity which is now cancelled in the State of California.  Additionally, Lynch submitted the Boulder Combined Court email, and further evidence, confirming that the Colorado order was not a domestic violence order although Cohen and his attorneys, Kory & Rice, fraudulently registered it as such in California on May 25, 2011.  That particular matter is presently under appeal.  This new evidence was submitted with respect to perjured and/or fraudulent testimony, misrepresentations, or blatantly false statements contained in Respondents’ documents filed in response to Lynch’s motion to vacate.  With respect to the intrinsic fraud, Lynch asked the trial court to refer Cohen, Kory & Rice to the DA for perjury prosecutions and the State Bar for disciplinary action.  (1 CT 28.) 

“Compliance with the statutory procedures for service of process is essential to establish personal jurisdiction.  Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void.”  Dill v. Berquist Construction Co., 24 Cal.App.4th at p. 1444, 29 Cal.Rptr.2d 746.  Lynch has consistently maintained that Respondents failed to comply with the statutory requirements for service of process, the court has no jurisdiction over her, and the default judgment is void as are all judgments or decisions emanating therefrom. 

B.    Lynch Was Not Served and Did Not Have Actual Notice of the Summons and Complaint

Neither Lynch, nor anyone in her home (including her two male co-occupants), were served or subserved Respondents’ summons and complaint.  The documents were not left in the presence of a “competent member of the household or person apparently in charge.”  This issue, related to extrinsic fraud, has been addressed ad nauseum throughout the record in this case, and Lynch’s Motion for Terminating Sanctions addressed the fact that “the judsgment 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.4^th, 1, 20; Selma Auto Mall v. Appellate Department (1996) 33 Cal.App.4^th 1672, 1683.  ‘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.”  (1 CT 26.)

The Substituted Service on Lynch Did Not Comply with the Code of Civil Procedure

Code of Civil Procedure Section 415.20, subdivision (b), provides that if a copy of the summons and complaint “cannot with reasonable diligence be personally delivered to the person to be served” as specified in Section 416.60, 416.70, 416.80, or 416.90, they may instead be served by leaving a copy of each at the person’s “usual place of abode” … in the presence of a competent member of the household or person apparently in charge … and thereafter mailing a copy of the summons and of the complaint by first class mail” to the person to be served at the address where the documents were left.

Lynch has disputed service of the summons and complaint.  (AOB 10-11.)  Lynch had no female co-occupant, Respondents have identified no such individual, Respondents have falsely argued that Lynch was the Jane Doe, and Lynch did not resemble the individual described in the proof of service.  See Declarations 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).  The declarations, personally signed by all declarants, can be reviewed at CT 1215-1345.

Respondents argue, in their Reply Brief, that “the court also discredited Lynch’s statement that the person who accepted the complaint was not Lynch herself and found that Lynch had actual notice of the request for entry of default.”  (5 CT 1158-1159B).  The trial court informed Lynch, at the June 23, 2015 hearing, as follows:  Court:  “The – the process server’s declaration did not say that you were personally served.”  (Cohen Aug. 154)  That statement does not indicate that the Court determined that the person who accepted the complaint was Lynch.  No one at Lynch’s home, including Lynch herself, was served. 

On appeal from an order denying a motion to vacate a judgment, the reviewing court “will not revisit the trial court’s factual determination if supported by substantial evidence,” and will not second guess the trial court’s credibility findings.  Conseco Marketing, LLC v. IFA & Ins. Services, Inc. (2013) 221 Cal.App.4^th 831, 841.

“A trial court may ․ vacate a default on equitable grounds even if statutory relief is unavailable.”  Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981, 35 Cal.Rptr.2d 669, 884 P.2d 126.  Appellant has carried the burden of proving that she is entitled to equitable relief.  Moghaddam v. Bone (2006) 142 Cal.App.4th 283, 290-291, 47 Cal.Rptr.3d 602.  Lynch’s Opening Brief extensively addressed the trial court’s equitable powers and explains how the general principles apply to the specific facts of this case. 

Lynch Did Not Have Actual Notice of the Summons and Complaint And/Or the Default Proceedings

Respondents’ Brief:  From the date the process server left eh summons and complaint with “Jane Doe,” Lynch has repeatedly demonstrated that she had notice of the action.  These demonstrations began the afternoon of the substituted service of the summons and complaint at Lynch’s residence with the call to Edelman’s office from Chad, threatening to assert mental duress if Edelman persisted in trying to serve Lynch (1 Supp. CT 138), followed by emails from Lynch.  (2 Supp. CT 152.) Lynch subsequently emailed Edelman to say she would not attend the case management conference.  (1 Supp. 139; 2 Supp. CT 154.)  Lynch does not deny receiving Edelman’s notices or sending responsive emails.  RB 36-37.

            The above statements from Respondents’ Reply Brief misstate the facts and evidence.  On March 17, 2015, Lynch submitted a declaration to the trial court in support of her motion for terminating sanctions (fraud upon the court).  That declaration, among other things, addressed the perjured statements and misrepresentations in the declarations of Leonard Cohen, Michelle Rice, Robert Kory, and Kevin Prins (Kory’s declaration reintroduced Prins’ declaration into response documents related to Lynch’s motion to vacate).  CT 985 – 1025.  With respect to Edelman’s declaration, and the call Chad Knaak placed to Edelman’s office, Lynch’s declaration addressed the fact that all statements Edelman made with respect to his assistant were hearsay, Lynch was not served the summons and complaint and the proof of service was evidence of extrinsic fraud, why she refused to provide a declaration from Chad Knaak (ongoing criminal harassment with respect to her son, John Rutger Penick, and others), Lynch’s confirmation that she was not served and if Edelman attempted to serve her she would hold Gibson, Dunn accountable for mental duress, the fact that the LA Times brought Cohen’s lawsuit to her attention, and the fact that Edelman did not have the legal authority to serve her by email (including re. the notice default judgment and all documents attached to his emails, sent while Lynch was homeless, that she could not open, download, read, review, or print, and attending any hearing would be preposterous as Lynch was unaware of the actual allegations set forth in Cohen’s Complaint.  CT 1021 – 1025. 

Lynch was not served the summons and complaint.  Understanding, through the LA

Times and other news outlets, that a complaint had been filed against Lynch is not service of

process.  Lynch repeatedly contacted Respondents and their attorneys with respect to their failure to serve her.  The news accounts did not provide Lynch with the allegations set forth in the complaint.  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.  Extrinsic fraud is distinguishable from intrinsic fraud, “[which] goes to the merits of the prior proceeding and is ‘not a valid ground for setting aside a judgment when the party has been given notice of the action and has had an opportunity to present his case and to protect himself from any mistake or fraud of his adversary but has unreasonably neglected to do so.  Such a claim of fraud goes to the merits of the prior proceeding which the moving party should have guarded against at the time.”   In re Margarita D. (1999) 72 Cal.App.4th 1288, 1295.  “Because of the strong public policy in favor of the finality of judgments, equitable relief from a default judgment or order is available only in exceptional circumstances.”  (Gorham, supra, at pp. 1229-1230.)  The trial court’s denial of equitable relief was an abuse of discretion.  Lynch’s Opening Brief addressed her claims of extrinsic fraud.  With respect to the intrinsic fraud, Lynch believes – particularly based on the quasi-criminal nature of allegations related to “misappropriation” – that she had a right to confront the fabricated evidence used against her, fraudulent misrepresentations alleged in the legal pleadings, and perjured statements submitted to the court in declarations by Respondent and his representatives. 

With respect to the intrinsic fraud, Lynch continues to address that fraud with IRS, FBI, DOJ, and other authorities, and asked the trial court to refer Cohen and his lawyers, Kory & Rice, to the DA for perjury prosecutions and the State Bar for disciplinary action.  (1 CT 28.)  Lynch believes that is a completely appropriate remedy Lynch was absolutely deprived of an opportunity to present a claim or defense to the court as a result of being fraudulently prevented by the opposing parties from fully participating in the proceeding.”  That warrants equitable relief.  See County of San Diego v. Gorham, supra, 186 Cal.App.4th at pp. 1228-1229 which also held that a false proof of service “essentially perpetrates a fraud on the court” which the court believed would “be unfair, against the intent of the Legislature, and a violation of fundamental due process.”

The Gorham court stated that despite the strong public policy favoring finality of judgments and the public’s interest in these support cases, “we will not compound the miscarriage of justice in this case created by the lack of fundamental due process stemming from the false proof of service filed by the DCSS that essentially deprived Gorham, the opportunity to be heard at a meaningful time and in a meaningful manner.” (Id. at p. 1234, quoting Mathews v. Eldridge (1976) 424 U.S. 319, 333.) The court held that “under the unique facts of this case, we conclude that once the court determined the default judgment was void as a matter of law based on the lack of personal jurisdiction, it was required to dismiss this action.” (Ibid.) 

C.    The Court Erred in Precluding Live Testimony

Denying Lynch opportunity to call witnesses, confront adverse witnesses, and cross-examine witnesses was an abuse of discretion and violated Lynch’s right to due process.  The opening brief addressed the fact 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.”  (AOB 11.) 

“An essential principle of due process is that a deprivation of life, liberty, or property be preceded by notice and opportunity for hearing appropriate to the nature of the case.”  See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985).  The court had the discretion to allow oral testimony and an opportunity for cross-examination.  The documentary evidence was incapable of replacing oral testimony.  See Rosenthal v. Great W. Fin. Securities Corp. (1996) 14 Cal.4th 394, 18 414.

In Reifler v. Superior Court (1974) 39 Cal.App.3d 479, held that the trial court is empowered to hear and exclude oral testimony and that there are situations in which the trial court should hear testimony and permit cross-examination.  Lynch and Brandt, in their declarations, explained to the trial court that due to information provided to them by court personnel, they were led to believe that Lynch should simply show up at the hearing (on January 17, 2014) with her witnesses, need not file additional documentation, and the trial court did not accept CourtCall.  As it turned out, this information was entirely incorrect.  Lynch should not be penalized for issues beyond her control.  Furthermore, all of her witnesses (including, but not limited to, Paulette Brandt, John Rutger Penick, Clea Surkhang, Daniel Meade, and Palden Ronge, CT 1215-1345) were either available to testify, showed up at the hearing prepared to do so, or were unavailable, out of the state or country, and were willing to testify via CourtCall.  This information was confirmed for the trial court in the declarants’ declarations and/or letters they submitted to the trial court.  The matter was also addressed directly with the trial court during the January 17, 2014 hearing on Lynch’s motion to vacate.  (5 CT 1148-1159N.) 

The trial court provided Lynch with no reason for the decision to preclude oral testimony and cross-examination.  Cross- examination would have been particularly useful as this is one manner in which parties are able to uncover and confront perjured testimony and unreliable or fabricated evidence.  As it is, the trial court could have simply decided that it preferred the style in which Cohen’s declarations were written and, even if the statements contained therein were untrue, they could not be confronted.  The trial court was misled and deceived by the declarations of Leonard Cohen, Robert Kory, Michelle Rice, Kevin Prins (CT 985 – 1025) and the legal pleadings and declarations reintroduced to the court in the documents they submitted in response to Lynch’s motion to vacate.  That would include, but is not limited to, issues specifically related to the proof of service and effecting service upon Lynch or “Jane Doe.”

 The failure to permit live testimony, confrontation, and cross-examination was an abuse of discretion, caused by errors on the part of the court’s personnel, and deprived Lynch of the right to a fair hearing.  In the hearing on the motion to vacate, Lynch was further prejudiced by the trial court’s position that her declaration was unsigned.  Lynch authorized her former appellate attorney to sign her declaration and he elected to transform her declaration and case history into a declaration, Exhibit A, and signed on her behalf.  The refusal to permit live testimony, confrontation, and cross-examination deprived Lynch of due process.   

V.                 The Court Improperly Redacted & Sealed Lynch’s Declaration & Evidence Attached Thereto

The default judgment declares that Lynch has no interest in any of Cohen’s business entities, and ordered her to return all of Cohen’s property that she wrongly retained after Cohen terminated her services.  (Cohen Aug. 7, 11, 17; 2 Supp. CT 199.)  But Lynch retained privileged and confidential documents belonging to Cohen, and disclosed them and their contents in her motion for terminating sanctions as well as on her blog.  (1 CT 74 – 4 CT 884; Aug. CT 1-2; Cohen Aug. 7-8, 11-12.)  Cohen had never waived any privilege or consented to disclosures of the information, and Lynch lacked authority to make those disclosures. (Aug. CT 1-2; Cohen Aug. 7-8, 11-12.)  RB 38

            The default judgment language is itself entirely fraudulent.  Lynch had a legal interest in Blue Mist Touring Company, Inc., Traditional Holdings, LLC, and Old Ideas, LLC.  The trial court wrongfully converted Lynch’s property, and the property of corporations (including at least two suspended corporations), to Leonard Cohen and his wholly owned LC Investments, LLC.  (AOB 14.)  Lynch was excluded from attorney/client privileged by Cohen who intentionally wrapped Richard Westin and Neal Greenberg, his representatives, into attorney/client privilege with him.  (6 CT 1219.)  At no time was Lynch informed that any of the documents under seal were privileged communications.  To the extent that any allegedly privileged or confidential information was provided to Lynch, which she in turn relied on with respect to her federal and state tax returns and in other ways, the privilege was waived.  Furthermore, Lynch’s communications to Cohen and his representatives, including those arguing that the corporations did not have offices or clarifying her role in certain transactions, K-1s, and corporate documents themselves are not Cohen’s privileged or confidential communications.  Lynch’s Opposition, filed with this Court on July 11, 2016 addressed this more fully and attached a Crime Waiver Exception schedule.  That declaration, redacted by order of the trial court, and portions of the evidence attached thereto, sealed by order of the trial court, is evidence related to a federal and state tax controversy, all evidence supporting the declaration is evidence related to that controversy, and the Crime Waiver Exception schedule should be taken into consideration with respect to the sealing of Lynch’s declaration and evidence. 

Lynch Has Not Demonstrated Error in the May 29, 2015 Sealing Order

            Respondents argue, in their Reply Brief, that certain documents (corresponding to Exhibits OO, QQ and RR to Lynch’s Declaration) were not sealed by the trial court.  Based upon an order that includes evidence grouped together, and imprecise underlining, Lynch is unable to discern precisely what is under seal.  She has received Respondents’ Request for Judicial Notice, filed one day after Respondents filed their late Brief, but is unable to determine what the precise issue is.  It is Lynch’s understanding that Leonard Cohen’s declaration in the CAK bond deal litigation before the Southern District of New York was in fact submitted to the Court.  Lynch does not agree with Respondents position regarding what was or was not sealed by the federal courts and finds the argument that documents left unsealed for ten to fifteen years – and currently available through Pacer, Southern District of New York, and U.S. District Court in Colorado – totally unavailing.  As Respondent’s Brief was over one week late, and the Request for Judicial Notice filed a day after the late Brief, Lynch asks this Court to strike the request from the record. 

            As for the Motion allegedly Lodging the proposed order related to the January 17, 2014 hearing, that information is not on LA Superior Court’s website and the Court itself recently confirmed that it is not in their database.  In any event, Lynch was incarcerated when Respondents allegedly served this document upon her, was not served, and – after her release from LA County Jail (related to the fraud domestic violence order), Lynch attempted to have Cohen’s lawyer, Jeffrey Korn serve the document on her but he, in keeping with all of Cohen’s lawyers and their conduct towards Lynch, refused to communicate with or serve Lynch.  San Diego v. Gorham addressed lack of service upon an inmate and that case would most definitely apply to this situation. 

The Wrongful Sealing Order, Default Judgment, January 17, 2014 Trial Court Order, and Related Case No. BC341120

Respondents’ Brief:  Regardless of whether the sealing order was proper, that is irrelevant to the fundamental question of whether lynch is entitled to equitable relief from the 2006 default judgment.  The few documents that Lynch claims were improperly sealed have nothing to do with the reasons Lynch offers for setting aside the 2006 default judgment. 

            The trial court has absolutely no jurisdiction to seal these documents.  Lynch has consistently maintained that the court lacked jurisdiction due to the fact that she was not served the summons and complaint or notified of entry of default judgment.  Respondents are the individuals, through the documents (including Michelle Rice’s declaration, 5 CT 987-1002) who introduced the related case (BC341120) into this matter.  That case is not before this court.  That court was devoid of jurisdiction with respect to corporate property that was not part of the writ of possession related to Cohen’s personal property.  That would include, but is not limited to, the property Lynch stored as a courtesy for Cohen from approximately 1996 and which he abandoned and failed to retrieve once they parted ways.  Corporate property is not Leonard Cohen’s personal property. 

Leonard Cohen’s application to seal court records was and remains unjustified.  The U.S. Supreme Court has recognized a long-standing public right to access court records that results in a presumption that anything filed with a court should be available to the public. The public in general and news media in particular have a qualified right of access to court proceedings and records. This right is rooted in the common law.  Nixon v. Warner Communications, Inc., 435 U.S. 589, 596–97 (1978).  The First Amendment also confers on the public a qualified right of access.  Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 (1980).  Since the public has a First Amendment right of access to a court proceeding or record, the sealing of the proceeding or record to preserve confidentiality must be narrowly tailored to a compelling confidentiality interest. 

            As the California Supreme Court made clear in the palimony/fraud trial of celebrities Clint Eastwood and Sondra Locke, the First Amendment 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.4^th 1187, 1208 & n.25; 1211 n.27, 1218-19(1999).  These rights do not simply disappear because the proceedings – as in the instant case - involve wealthy, powerful public figures represented by an army of professionals.  To the contrary, the public’s interest in ensuring that equal treatment in such cases is arguably stronger when public figures are involved.

            Furthermore, 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 in Burkle v. Burkle (2006) 135 Cal. App. 4th 1045, and the case at hand.

            Despite this well-established right of public access, Respondent Leonard Cohen has asked Los Angeles Superior Court and the Appellate Division to issue what are essentially blanket sealing orders, as well as prior restraints on Lynch’s speech, to conceal evidence and information from public scrutiny. 

Crime Fraud Exception                        

California Evidence Code Section 956 explains that there is no attorney-client privilege if an attorney was sought or obtained to facilitate the commission or the planning of a crime or fraud. 

The crime fraud exception to the attorney-client privilege is well established in American jurisprudence.  In a 1933 decision by the United States Supreme Court, Clark v. United States, 298 U.S. 1 – 1933, the Court held that while there is a privilege protecting confidential communications between a lawyer and a client, the “privilege takes flight if the relationship is abused.  A client who consults an attorney for advice that will serve him in the commission of a fraud will have no help from the law.  He must let the truth be told.”

The main issue on appeal is the fact that a Court decision, as well as the original default judgment, was obtained through the use of extensive fraudulent misrepresentations, the submission of perjured declarations and fabricated evidence, as well as through other litigation misconduct.  Therefore, this Court should promote transparency with respect to the judicial decision-making process.  The public’s right of access serves that interest for our court system.

VI.             Due Process Violations

                    Kelley Lynch correctly contends that the cumulative effect of the fraud upon the court, failure to serve Lynch, extrinsic fraud – and now perjury – with respect to the proof of service, failure to permit Lynch to call and/or cross examine witnesses, and general misconduct violated her right to due process and inconceivably harmed and prejudiced her.  The record establishes that Respondents, together with their attorneys, engaged in deliberate and egregious misconduct.  The trial courts judgments and orders were procured through fraud upon the court and Lynch has requested a corrective remedy. 

            The due process clause of the Fourteenth Amendment governs any action of a State through its legislature, its courts, or its executive officers, including action through its prosecuting officers.  In denying Lynch’s motion for terminating sanctions (fraud upon the court), the trial court has failed to provide her with a corrective judicial process.  It seems impossible to believe that the State of California, even if it has elected not to follow Hazel-Atlas, is without power to issue a remedial process when one is deprived of her property without due process of law in violation of the Constitution of the United States.  Upon the state courts, equally with the courts of the Union, rests the obligation to guard and enforce every right secured by that Constitution. Robb v. Connolly, 111 U. S. 624, 111 U. S. 637.  In view of the requirement of the Fourteenth Amendment, the Appellate Court should not simply assume that the state has denied to its court jurisdiction to redress a prohibited wrong or provide a corrective judicial process.  See Mooney v. Holohan, 294 U.S. 103 (1935). 

CONCLUSION

            Respondents argue, in their Reply Brief, that “there is no basis” for reversing the Trial Court’s January 17, 2014 decision or for “granting terminating sanctions, or any sanctions whatsoever, against Cohen.”  There is indeed a basis for providing relief to Lynch from judgments and decisions, related to void orders that were procured through fraud upon the court.

This Court should strike Respondents’ late, and preposterous Brief, from the record, sanction them for their ongoing misconduct (that now includes willfully submitting an altered trial court order to this court) and attempting to deceive the Appellate Court as to what the trial court actually said or held with respect to substitute service upon “Jane Doe.” 

            The Appellate Court should reverse the trial court’s decisions with respect to Appellant’s motion for terminating sanctions, the sealing order, and instruct the court to vacate the fraudulent yet void May 15, 2006 default judgment.  The harm to Lynch is inconceivable and entirely prejudicial. 

            Leonard Cohen, after wrongfully converting Lynch’s property to himself via the fraud default judgment, and withholding commissions and monies due her, has now asked this Court to award him his costs on appeal.  Cohen and his attorneys of record should be sanctioned for their ongoing misconduct with this Court. 

Dated:  17 October 2016                               Respectfully submitted,

                                                                        _____________________________________

                                                                        Kelley Lynch

                                                                        In Propria Persona