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
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.4th
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.4th 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
NBC Subsidiary (KNBC-TV), Inc. v. Superior Court,
20 Cal.4th 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.4th,
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
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.4th 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)
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.4th 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.4th
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
22nd 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.4th, 1, 20; Selma Auto Mall v. Appellate Department
(1996) 33 Cal.App.4th 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.4th 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.4th 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
