Date: Sat, Mar 25, 2017 at 10:08 AM
Subject: VAWA funding & Wire Fraud
To: "*IRS.Commisioner" <*IRS.Commisioner@irs.gov>, Washington Field <washington.field@ic.fbi.gov>, ASKDOJ <ASKDOJ@usdoj.gov>, "Division, Criminal" <Criminal.Division@usdoj.gov>, Dennis <Dennis@riordan-horgan.com>, MollyHale <MollyHale@ucia.gov>, fsb <fsb@fsb.ru>, rbyucaipa <rbyucaipa@yahoo.com>, khuvane <khuvane@caa.com>, blourd <blourd@caa.com>, Robert MacMillan <robert.macmillan@gmail.com>, a <anderson.cooper@cnn.com>, wennermedia <wennermedia@gmail.com>, Mick Brown <mick.brown@telegraph.co.uk>, "glenn.greenwald" <glenn.greenwald@firstlook.org>, Harriet Ryan <harriet.ryan@latimes.com>, "hailey.branson" <hailey.branson@latimes.com>, Stan Garnett <stan.garnett@gmail.com>, Mike Feuer <mike.feuer@lacity.org>, "mayor.garcetti" <mayor.garcetti@lacity.org>, Opla-pd-los-occ <OPLA-PD-LOS-OCC@ice.dhs.gov>, "Kelly.Sopko" <Kelly.Sopko@tigta.treas.gov>, Whistleblower <whistleblower@judiciary-rep.senate.gov>, Attacheottawa <AttacheOttawa@ci.irs.gov>, tips@radaronline.com, alan hootnick <ahootnick@yahoo.com>, bruce <bruce@brucecutler.com>
DOJ VAWA Division,
Here is my opening brief on appeal re. Cali's fraud domestic violence order. Could you explain to me what is going on here? And, I would like to remind you that the City Attorney continues to request fraud domestic violence orders, for Cohen's lawyers now (although he is deceased) and these continue to be transmitted into databases. They are issued without notice, hearings, confrontation, evidence, or any type of cause whatsoever. Is this the purpose of VAWA?
I'm putting together a package that will be mailed to you and the Senate Finance Committee. That package will include juror verdict forms proving that the jurors were advised that I allegedly violated the Colorado order which is NOT the California domestic violence fraud order.
It's important to take note of the pre-meditated planned use of these orders. Please see the Greenberg lawsuit allegations below. Other witnesses understood Cohen and Kory vowed to crush me and use restraining orders to discredit me. The prosecutors from the City Attorney's continue to lie. They are utterly and absolutely shameless.
I've attached this brief as a word doc and will provide you with a legal pleading I intend to file this week. I'd love to hear your thoughts as to what is going on here? The California DOJ has no remedies for the fraud domestic violence orders in their databases. I've asked FBI for a remedy re. the fraud in federal databases.
Kelley
145. When these tactics to draw Lynch into his extortion scheme proved futile, Cohen and Kory – according to Lynch – turned to far more aggressive means to obtain her cooperation. Indeed, as heard by other witnesses, Cohen and Kory vowed to "crush her," and planned to use restraining orders and other means to prevent her from serving as a credible witness regarding both Cohen's affairs and in regard to the scheme into which they had tried without success to draw her.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT, DIVISION SEVEN
LEONARD COHEN, DECEASED
vs.
KELLEY ANN LYNCH
APPELLANT’S OPENING BRIEF
INTRODUCTION
This is an appeal from the denial of Appellant Kelley Lynch’s Motion to Set Aside a fraudulent California domestic violence order issued without due process. Lynch contends that the trial court erred in its denial of the motion and the ensuing decision represented an abuse of discretion. Lynch’s motion argued that there was no evidence to support the issuance of a domestic violence order, her rights to due process were [violated], she was provided no notice or an opportunity to be heard, and the order was and remains void.
Lynch further argued that Los Angeles Superior Court is not merely enforcing a sister-state Colorado order but rather giving effect to a void California domestic violence order. The Colorado Court maintained exclusive modification jurisdiction and the California trial court never obtained jurisdiction over Lynch. Finally, Lynch argued that the California domestic violence order violated her second amendment rights as the Colorado order specifically excluded the Brady Handgun Violence Prevention Act, 18 U.S.C. Section 922(d)(8) and (g)(8) from its order.
STATEMENT OF APPEALABILITY
This appeal is authorized by Code of Civil Procedure Section 904.1, subdivisions (a)(2) and Code of Civil Procedure Section 904.1, subdivision (b) (void order entered without jurisdiction).
STATEMENT OF THE CASE
On July 28, 2015, Kelley Lynch filed a Motion to Set Aside the domestic violence order at issue in this case. (1 CT 5). On August 17, 2015, Leonard Cohen filed his Opposition to Lynch’s motion. (1 CT 155). Additionally, on August 17, 2015, Leonard Cohen filed a Request for Judicial Notice. (1 CT 199). On August 25, 2015, Lynch filed her Reply to the Opposition. (3 CT 357). On August 27, 2015, Cohen filed an Objection and Request to Strike Lynch’s Reply. (3 CT 586). On September 9, 2015, Cohen filed a Declaration of Mailing related to the Court’s Minute Order of September 1, 2015, which confirmed the Court’s decision with respect to Lynch’s motion: “After review of documents filed, the testimony of Respondent and the argument of counsel, the Court makes its findings and rulings as indicated below. The Court denies the Respondent’s request to set aside the May 25, 2011 California registration of Petitioner’s Colorado Permanent Protection Order issued by the Boulder County Court on September 2, 2008. Counsel for Petitioner is directed to prepare the Notice of Ruling. A copy of the Notion of Ruling is to be served on opposing party. Proof of service is to be filed with the Court.” (3 CT 593). The Minute Order listed the Counsel for Petitioner Leonard Cohen as “Michelle Rice” and “Robert Kory.” (3 CT 594). On October 6, 2015, Lynch filed her Notice of Appeal. (Supp 1 CT 16).
STATEMENT OF THE FACTS
According to Appellant’s motion to set aside the domestic violence order, the statement of the facts is as follows: For the past 10 years, Leonard Cohen has used the restraining order process as a litigation tactic and to discredit Kelley Lynch. Kelley Lynch worked as Leonard Cohen’s personal manager for approximately 17 years. At no time were they involved in an intimate “dating” or “engagement” relationship. On or about July 25, 2004, April 15, 2005, and thereafter, Kelley Lynch reported allegations related to Leonard Cohen’s potential criminal tax fraud to Internal Revenue Service and other tax authorities. On October 14, 2005, after failing to serve Lynch the summons and complaint (Case No. BC338322), Leonard Cohen filed a Complaint in Case No. BS099650 [California civil harassment order; non-domestic violence]. This was the first restraining order Leonard Cohen obtained against Kelley Lynch [and was not a domestic violence order]. Cohen and his representatives steadfastly refused to communicate with Lynch, who has been representing herself since 2005, and used this as an opportunity to claim they were harassed. On November 3, 2005, Los Angeles Superior Court granted a civil non-domestic [violence] restraining order against Lynch. Lynch was not present for the hearing and is unaware of the allegations and/or Court’s findings in that matter. During Lynch’s 2012 trial, for violating the restraining order and intending to annoy Leonard Cohen, Cohen testified that his 2005 declaration (used to support the initial restraining order) [was] about the custody matter of her younger son; a May 25, 2005 SWAT incident; and, the fact that Lynch was taken to King Drew following that incident. Exhibits A, B, and C: Declarations of Kelley Lynch, John Rutger Penick, and Paulette Brandt attached hereto and made a part hereof. On September 2, 2008, Leonard Cohen obtained a Boulder, Colorado non-domestic violence civil harassment order (Boulder Court Case No. C0072008C00076) against Lynch. Exhibit D: Boulder Combined Court Verified Motion, attached hereto and made a part hereof. On August 19, 2008, in the midst of his European tour, Cohen made a desperate flight into Boulder, Colorado, a jurisdiction where he had not even minimal contacts, to attend an ex parte hearing in support of his Verified Motion. Notably, Cohen did not apply for the order based upon domestic abuse [13-14-101(2) C.R.S.]. In his application, Plaintiff falsely advised the Boulder Combined Court as follows: “The threat of violence, stalking, slander, and harassment has been ongoing since approximately April 2004, subsequent to Ms. Lynch being terminated from her job for cause. Additionally, there is an outstanding judgment against Ms. Lynch of approximately $7.3 million as a result of the lawsuit [Case No. BC338322] filed against her in the State of California by Mr. Cohen.” Some of the events leading up to the Boulder, Colorado restraining order are addressed in the Declaration of Ann Julia MacLean, attached hereto and made a part hereof. On May 25, 2011, Leonard Cohen, through his attorney Michelle Rice, registered the Colorado order with LA Superior Court using form DV-600. This wrongfully modified and transformed the Colorado order into a domestic violence order. Exhibit F: California Registration of Colorado Order, attached hereto and made a part hereof. Defendant contends that the California domestic violence is void as the Court lacked personal and subject matter jurisdiction. (1 CT 7-8).
According to Leonard Cohen’s Opposition, the statement of the facts are as follows: Plaintiff Leonard Cohen is an author, singer songwriter and recording artist who resides in Los Angeles. He is 80 years old. Defendant Kelley Lynch was Plaintiff’s former personal manager for approximately 17 years before she was terminated for cause as his manager in October 2004 for embezzling over $5 million of Plaintiff’s retirement savings.” (1CT 161) “After her termination as Plaintiff’s personal manager, Lynch resided in several states, including Colorado. Plaintiff’s Colorado PPO against Lynch was issued by the Boulder County Court on September 2, 2008, where Lynch was then residing.” (1 CT 161) “Because Lynch had returned to California, Rice obtained a certified copy of the Colorado PPO from the Boulder Combined County Clerk and sought registration of the Colorado PPO in California on May 25, 2011. Rice submitted the Colorado PPO for registration on Judicial Council Form DV-600 and filed the completed Form DV-600 attached to which was a certified copy of the Colorado PPO in Los Angeles Superior Court. The Colorado PPO was registered in California on May 25, 2011 by order of Los Angeles Superior Court Judge [Commissioner] Anthony S. Jones.” (1 CT 162-163).
Leonard Cohen and Kelley Lynch were never in a “dating” and/or “engagement” relationship. And, regardless of Cohen’s acknowledgment that he changed his testimony from one hearing to another during Lynch’s 2012 trial, this is precisely what Leonard Cohen confirmed on the witness stand during Lynch’s 2012 trial, Case No. 2CA 04539:
Public Defender: Is it – you told us that she used to be employed by you as a business manager, correct?
Leonard Cohen: Correct.
Public Defender: Was that the extent of your relationship?
Cohen: Yes, Sir. (2 CT 262).
Cohen also testified, at the March 23, 2012 hearing, that Lynch worked as his “business manager for about 17 years or so.” (2 CT 251). While this is false testimony, as Lynch worked as Leonard Cohen’s personal manager, it confirmed the basis of their relationship which was a business relationship. Therefore, when applying for the Colorado order and testifying during a preliminary hearing in 2012, Leonard Cohen personally acknowledged that the nature of his and Kelley Lynch’s relationship was a business relationship.
ARGUMENT
The Standard of Review
The trial court erred in denying Lynch’s motion to set aside and/or vacate the California domestic violence order. A trial court may set aside any void judgment or order. (§ 473, subd. (d).) A judgment is void as a matter of law if the judgment was issued in violation of a party’s due process rights to notice and an opportunity to be heard. Brown v. Williams (2000) 78 Cal.App.4th 182, 186-187, fn. 4. There is no evidence that would support the issuance of a domestic violence order and this unlawful order should have been vacated. The Appellate Court reviews protective orders issued under the Domestic Violence Prevention Act for substantial evidence supporting the court’s findings. Sabbah v. Sabbah (2007) 151 Cal.App.4th 818, 822-823. There is no evidence to support the Trial Court’s conclusion that the California domestic violence order should not be vacated. The weight of the evidence is in conflict with the trial court’s decision. While Lynch’s legal argument does involve an order taken against her through mistake, inadvertence, surprise, and/or excusable neglect, Lynch’s motion was not brought under CCP 473(b). It was brought under CCP 473(d) which relates to a void order issued without jurisdiction. Lynch’s motion was therefore not confined to or limited by any statutory time frame.
THE CALIFORNIA DOMESTIC VIOLENCE ORDER
WAS ISSUED BASED UPON FRAUD,
WAS ISSUED BASED UPON FRAUD,
WITHOUT MINIMAL DUE PROCESS & IS A VOID ORDER
The California Domestic Violence Order Is Not A Registration of the Colorado Order
Kelley Lynch’s motion to set aside the domestic violence order was brought on the grounds that Leonard Cohen does not qualify as a protected party according to the California Domestic Violence Protection Act; the foreign sister-state Colorado order was not a domestic violence order; the Colorado court maintained exclusive modification jurisdiction; the California domestic violence order is a separate and fraudulent order issued in violation of Lynch’s right to due process; Lynch and Cohen were not in a statutory required “dating” or “engagement” relationship; there were no findings whatsoever at the Colorado hearing or in any California proceeding with respect to domestic violence; and, VAWA is inapplicable to both orders. (1 CT 7-20). These issues were never before a jury. During Lynch’s 2012 trial, the jurors were advised that Lynch violated the Colorado order although the Trial Court took judicial notice, at the preliminary hearing, of the domestic violence order in Los Angeles Superior Court Case No. BQ033717 and all parties agree that Lynch was sentenced under domestic violence statutes. [2 CT 265].
The California Domestic Violence Order Is Void & Unenforceable
Lynch’s motion argued that the lack of notice and hearing with respect to the issuance of California domestic violence order rendered the order “void” and “unenforceable.” (1 CT 16). Due to the fact that the Colorado PPO was not issued under domestic violence statutes it therefore could not be registered in California under the Family Code Section 6404 on Judicial Council Form DV-600. Respondent’s arguments with respect to Colorado’s anti-stalking laws are completely unavailing and outrageous. (1 CT 166).
Los Angeles Superior Court did not have jurisdiction to modify the Colorado order or issue a domestic violence order. Lynch’s motion further asserted that the ten year ban on owning or possessing a firearm imposed at sentencing violated her second amendment rights. Finally, Lynch challenged the three domestic violence related protection orders issued under Penal Code Section 136.2 to Robert Kory, Michelle Rice and Bruce Cutler (Phil Spector’s former lead trial attorney who did not request one), during her 2012 sentencing, and seeks an order vacating them. These domestic violence related orders were issued without notice, a hearing, or any type of cause whatsoever. (1 CT 5); (1 CT 5-33).
Collateral Estoppel & Waiver Are Inapplicable
Leonard Cohen’s Opposition argued that the doctrines of collateral estoppel and waiver bar relitigation of the issues Lynch now raises to set aside the California Registration of the Colorado PPO in this civil proceeding. Three years after her arrest in California and criminal conviction after a five day jury trial in Los Angeles Superior Court in April 2012 for violations of the Colorado PPO, Lynch now seeks to vacate the California registration of the Colorado PPO by advancing legal arguments which were: 1) rejected by the trial court; 2) not preserved for appeal by Lynch’s public defenders at the trial court level and were therefore waived; or 3) were made in her criminal appeal and denied by the appellate court. (1 CT 160). As Cohen’s Opposition confirmed the jurors were informed that Lynch violated the Colorado PPO. However, the California domestic violence order is not the Colorado PPO. The face of the California order clearly indicates that the order relates to Los Angeles Superior Court Case No. BQ033717, a domestic violence case. (Supp. 1 CT 3). The Los Angeles Superior Court docket also confirms that the order issued, Case No. BQ033717, is a “TRO/Domestic Violence” order. (Supp. 1 CT 1). The docket falsely indicates that the order issued was a registration of an out of state domestic violence order. (Supp. 1 CT 1). There is no out-of-state domestic violence order and the Colorado order is not a domestic violence order.
The issues on appeal are related to the fact that the California domestic violence order is not the registration of a non-existent Colorado domestic violence order. It is a newly created California domestic violence order issued without any due process whatsoever. The California court did not have jurisdiction to modify the Colorado order; the Colorado order cannot be converted into a domestic violence order; and, the California courts are not enforcing the Colorado order. In fact, the Colorado order has nothing whatsoever to do with the California domestic violence order. The California domestic violence order is evidence of fraud, is void for all intents and purposes, and the court should have vacated it.
The Fraudulent Registration & Issuance of the California Domestic Violence Order
Leonard Cohen’s Opposition sets forth the manner in which he and his representatives obtained the fraudulent domestic violence order: “The May 25, 2011 California registration of Cohen’s Colorado Permanent Protection Order (‘Colorado PPO’) issued by the Boulder County Court on September 2, 2008. (‘Motion’). The California registration of the Colorado PPO was made pursuant to Family Code Section 6404 on mandatory Judicial Council Form DV-600 by order of the Los Angeles Superior Court on May 25, 2011 (‘California Registration’).” (1 CT 155). The Opposition confirmed as follows: “Plaintiff’s Opposition is based upon the attached Memorandum of Points and Authorities as well as the court records of the following court cases: 1) the Colorado court that issued the Colorado PPO on September 2, 2008, Cohen v. Lynch, Boulder County Court Case Number 2008C776; 2) the court records associated with Lynch’s April 2012 criminal trial for violation of the Colorado PPO, People v. Lynch, Los Angeles Superior Court Criminal Case Number 2CA04539; 3) the court records of Lynch’s appeal from her April 2012 criminal conviction for violations of the Colorado PPO, Los Angeles Superior Court Appellate Court Case Number BR050096; and 4) the May 29, 2013 Appellate Court order denying Lynch’s petition for writ of habeas corpus, Case Number BX001309.” (1 CT 156). Lynch was unaware of the California domestic violence order until the Spring of 2013, when her appeal was before this Court was nearly decided, and at that time she was confused as to whether or not the Colorado order was in fact a domestic violence order. She was not present at the ex parte proceedings and was not afforded notice of the allegations against her during the September 2, 2008 hearing. She did not discover the Verified Motion filed with the Boulder Combined Court until the Court transmitted a copy to her on April 10, 2014. (1 CT 23-33). During Lynch’s 2012 trial, the Court took judicial notice of the domestic violence order.
Court: Does anybody have a copy of the restraining order?
Streeter: It is in the Court file.
Court: Why don’t you let me know what it is, and I’ll take judicial notice of anything in the file.
Streeter: It’s [Case No.] BQ033717. 2 CT 266
During Lynch’s April 17, 2012 sentencing hearing, the court confirmed that “the statute requires that she undergo domestic violence counseling … I don’t think the traditional domestic violence counseling is the kind of counseling we need here.” (3 CT 496.) Lynch’s declaration confirmed that she was unaware of the newly created California domestic violence order: “I was unaware, as was my Appellate Attorney (who was forced to file my appeal without my file from the Public Defender’s Office), that Cohen had registered the Colorado order in California as a domestic violence order so it would have been impossible to address this matter at that time.” (3 CT 496).
The Trial Court’s Findings & Hearing on the Motion to Set Aside
On November 29, 2016, Lynch augmented the appellate record with the Reporter Transcript of the September 1, 2015 hearing in this case. During that hearing, the Court concluded that the evidence established that there is a domestic violence order under California law and further noted that Lynch was prosecuted for violating the order after registration in California. The Court concluded as follows:
This is a motion by the Respondent to set aside the registration of the domestic violence restraining order – that’s been registered in California, originally issued in Colorado.
The Court denied the motion for a number of reasons:
First under CCP 473(b) it is untimely. It was not brought within six months of entry of the order or the Respondent’s knowledge of entry of the order. Second, the motion is based on the grounds that were or could have been raised during the criminal proceedings that occurred in California in which the order was actually enforced and both the appeal and the habeas corpus petition. And, therefore the grounds asserted have either been adjudicated and the Respondent is collaterally estopped, or they’ve been waived as a result of the failure to bring them. And then, finally, with respect to many of the arguments, including that it is not a domestic relations order, the evidence establishes that it is under California law.
The Court also noted for the record that “Respondent was prosecuted for violating this order in California after the registration of the Order.” The jurors were instructed that Lynch was prosecuted for violating the Colorado order which is not the California domestic violence order.
Kelley Lynch brought her motion in accordance with California Code of Civil Procedure 473(d) as the California domestic violence order is void for lack of jurisdiction. The Colorado order is not a domestic violence order and therefore it was not lawfully registered and/or modified in California. The California order is a newly created domestic violence order that does not contain a proof of service. Collateral estoppel and waiver do not apply to void orders.
During the motion hearing, as set forth in the transcript of the proceedings, Lynch raised the fact that she and Leonard Cohen were not in a statutory required “dating relationship;” sexual harassment and indecent exposure do not form a “dating relationship;” and, Cohen was not a protected party in accordance with the domestic violence laws of California. Lynch also addressed the fact that she did not discover the existence of the California domestic violence order until the Spring of 2013 and it was not until April 2014 that the Boulder Combined Court confirmed in writing that the Colorado order was not a domestic violence order.
Additionally, Lynch addressed the fact that the Judicial Council advised her that Leonard Cohen could not register the Colorado order using the domestic violence form DV-600. The Judicial Council mandates the use of these forms and further confirmed, as set forth in Gabrielle Selden’s email to Lynch, that there is no mandatory form related to a sister-state non-domestic violence civil harassment order. Ms. Selden’s letter set forth the following: “I have confirmed with my colleagues who specialize in civil court matters and forms that the Judicial Council has not adopted a mandatory form equivalent to DV-600 for the registration of an out-of-state civil harassment order. This does not mean that the out-of-state order cannot be entered into the California Law Enforcement Telecommunications Systems (CLETS). It just means that the method of achieving entry of the order into CLETS is a matter of judicial discretion.” (1 CT 107).
The California domestic violence order was entered into local, state, and federal databases. To ensure effective statewide enforcement, domestic violence protective orders (including modifications, extensions and terminations thereof) must be registered with the State Department of Justice (DOJ) through the California Law Enforcement Telecommunications System (CLETS). The DOJ is required to maintain a “Domestic Violence Restraining Order System” and to make all information concerning such restraining orders (whether or not served upon the respondent) available to court clerks and law enforcement personnel through computer access. Electronic transmission of the pertinent information is the county's responsibility. [See Ca Fam §§ 6380(a),(e) & (f), 6382].
Finally, at the hearing Lynch pointed out that Leonard Cohen previously obtained a civil harassment order against Lynch through the Los Angeles Superior Court, Case No. BS BS099650, a civil harassment order issued to Leonard Cohen. Lynch has no details with respect to the basis of that order which has long expired.
Leonard Cohen’s lawyers, Michelle Rice and Robert Kory, argued that in Lynch’s moving papers “she ignores the mandatory recognition of the out-of-state order under Family Code Section 6401.5 which actually includes anti-stalking laws of the issuing state.” As the Judicial Council itself confirmed, there is no mandatory form related to the registration of a non-domestic violence sister state order. The fraudulent modification and/or registration of a sister-state order, creating an unlawful domestic violence order, is clearly not mandatory. Furthermore, the Colorado order clearly set forth the fact that the Colorado Court maintained exclusive modification jurisdiction and therefore no arguments can be made that the California trial court had jurisdiction to modify the Colorado order and/or convert it into a domestic violence order. California’s Family Code is inapplicable to the Colorado order.
The Colorado Order Was Not “Registered” In California
Leonard Cohen’s Opposition confirmed that he “applied for a temporary protection order in Colorado on August 19, 2008 by filing a Verified Motion for Civil Protection Order in Boulder County Court. Motion, Exh. D; Plaintiff’s RJN, Doc. No. 2. In Plaintiff’s application for the temporary protection order, Cohen listed ‘stalking’ (Section 18-9-111(4) to (6) C.R.S.) and ‘physical assault, threat or other situation’ as the primary reasons for seeking the order of protection against Lynch.” (1 CT 165).
Lynch was unaware of the information contained on the Verified Motion until April 10, 2014. (1 CT 55-62). She was provided no notice or an opportunity to be heard with respect to the actual allegations during the Colorado proceedings although that is not at issue in this case. The Colorado Verified Motion is evidence that the Colorado order was not a domestic violence order and Cohen failed to check the “domestic abuse (Section 13-14-101(2) CRS” box on the form. (1 CT 60). On this Motion, Leonard Cohen unequivocally set forth the nature of the relationship between the parties: “I know Kelley Ann Lynch because: Ms. Lynch was a former employee.” (1 CT 60).
On April 10, 2014, the Colorado Court wrote and confirmed to Lynch: “This case is not a domestic violence case which can be verified on the top right of the first page of the ICON; noted as ‘Type: Protection Order.’ On the motion for civil protection order, the Petitioner only checked off Stalking and Physical Assault, Threat, or Other Situation but not Domestic Abuse.” Therefore, an employee of the Boulder Combined Court verified in writing the fact that Leonard Cohen neither applied for nor obtained a domestic violence order in Colorado. (1 CT 55).
The Colorado Order contained the following language as set forth in two separate places on their form: “only the court can change this Order” (Supp 1 CT 4) and, under Notice to Protected Party, “You may apply to the Court for a modification or dismissal of a Protection Order at any time, per Section 13-14-102 (17.5)(a-e), C.R.S.” (Supp. 1 CT 6). The Colorado Order has never been modified. The Colorado court maintained exclusive modification jurisdiction. Its ongoing continuing jurisdiction is being separately challenged by Appellant in another venue as no parties have had even minimal contacts with Colorado since 2009 and therefore no injuries have allegedly occurred there either.
The California Order is an unlawful domestic violence order created when Leonard Cohen and his representatives elected to fraudulently register an out-of-state order through the use of California domestic violence form DV-600. (Supp. 1 CT 3). This order clearly sets forth at the bottom of the form “Domestic Violence Prevention.”
The California domestic violence order does not contain a proof of service as Lynch was not notified and/or served a copy of the order. Lynch believes this was pre-meditated on the part of Cohen and his representatives in order to subject her to more stringent domestic violence laws and to move offensively with respect to allegations related to Cohen’s wholly unprofessional conduct with respect to Lynch. These issues were addressed in great detail in Lynch’s declaration. (1 CT 24-33; Exhibits – 1 CT 34-114).
The California Order Issued Under The Domestic Violence Prevention Act Is Unconstitutional & Unenforceable
The Trial Court confirmed that a California domestic violence order exists. (Reporter
Transcript Lodged on November 29, 2016).
Domestic Violence Protective Orders
The Domestic Violence Prevention Act (“DVPA”) was enacted in 1979. The history surrounding the passage of the DVPA and other domestic violence protective acts was a legislative response to increased public concern over domestic violence. The purpose of the DVPA, stated in section 540, is to prevent recurring acts of abuse by a spouse or household member and “to provide for a separation of the persons involved in such domestic violence.” The purpose and intent of the statute was to protect both married and unmarried cohabitants who were domestic violence victims. In re Marriage of Van Hook (1983) 147 Cal. App. 3d 970 [195 Cal. Rptr. 541]. The wide nature of relief for protection and separation was also evidenced by the forms promoted by the Judicial Council under the DVPA. The form Cohen and his representatives used, DV—600, is a domestic violence form used to register a foreign and/or sister state order issued under the appropriate domestic violence laws and in compliance with the federal Violence Against Women’s Act. This form, DV-600, was originally Form 1296.45 and titled “Registration of a Foreign Domestic Violence Restraining Order.” This was addressed in Lynch’s communications with Gabrielle Selden, (1 CT 107-110).
The Domestic Violence Prevention Act (DVPA) of the Family Code, § 6200-6409, governs the issuance and enforcement of domestic violence restraining orders in California.
The DVPA gives the family law court the authority “to prevent the recurrence of acts of violence . . . and to provide for a separation of the persons involved in the domestic violence . . . .” (Family Code § 6220.) A court may issue a restraining order under the DVPA “if . . . an affidavit and any additional information provided to the court . . . show, to the satisfaction of the court, reasonable proof of a past act or acts of abuse.” (Family Code § 6300.) Leonard Cohen did not provide the requisite affidavit, or any information, to support reasonable proof of domestic violence.
Under the DVPA, a temporary domestic violence restraining order may be issued “without notice” (§ 6300), but an order issued without notice becomes unenforceable if no hearing is held within 21 or 25 days thereof (unless the temporary order is reissued). (§§ 242, 6327.) Thus, although a domestic violence restraining order may be issued without notice, on an ex parte basis, such an order is temporary and for a brief duration. In contrast, a permanent restraining order with a duration of five years may be issued only “after notice and a hearing under this article.” (§ 6345, subd. (a). The notice of hearing must “notify the respondent that if he or she does not attend the hearing, the court may make orders against him or her that could last up to five years.” (§ 6302.) Section 6302 requires that notice of a hearing be given to the person against whom a permanent restraining order is being sought. Interpreting the DVPA in the manner the Trial Court has, which permitted Los Angeles Superior Court to issue a “permanent” domestic violence restraining order against Lynch without any notice, is a serious due process issue. Domestic violence restraining orders are deemed to be of three years' duration if the expiration date is not stated on the face of the order form. [Ca Fam § 6345(c)]. The California Order does not state any terms and/or conditions and does not contain an expiration date. Permanent orders expired in California.
Under DVPA, domestic violence is abuse perpetrated against any of the following: (1) A spouse or former spouse. (2) A cohabitant or former cohabitant. (3) A person with whom the abuser is having or has had a dating or engagement relationship. (4) A person with whom the abuser has had a child. (5) A child of a party or a child who is the subject of an action. (6) Any other person related by consanguinity or affinity within the second degree (related by blood or marriage, e.g., grandparent, grandchild, brother/sister, parent, in-law). Domestic violence includes “abuse perpetrated against” “a person with whom the [defendant] is having or has had a dating or engagement relationship.” (§ 6211, subd. (c). A “‘dating relationship’” is defined as “frequent, intimate associations primarily characterized by the expectation of affection or sexual involvement independent of financial considerations.” (§ 6210). At no time were Lynch and Cohen in any such relationship. Lynch has addressed the fact that sexual harassment, sexual assault, and indecent exposure do not meet the description of a “dating relationship.” The application of DVPA and the California Family Code to Lynch, as well as the transmittal of the California domestic violence order into databases, is unconstitutional. The purpose of Family Code Section 6404 was to register a valid and lawful domestic violence order into the Domestic Violence Restraining Order System and/or other databases such as CLETS.
Leonard Cohen Was Not A Protected Party In Accordance California’s Statutory Required “Dating Relationship”
Leonard Cohen’s fraudulent registration of the Colorado order created a new California domestic violence order. Such an order may be granted where the parties are “having or [have] had a dating ... relationship.” (§§ 6211, subd. (c), 6301, subd. (a).) The DVPA originally did not define “dating relationship.” In Oriola v. Thaler (2000) 84 Cal.App.4th 397, 412, 100 Cal.Rptr.2d 822, the court concluded that “a ‘dating relationship’ refers to serious courtship. It is a social relationship between two individuals who have or have had a reciprocally amorous and increasingly exclusive interest in one another, and shared expectation of the growth of that mutual interest, that has endured for such a length of time and stimulated such frequent interactions that the relationship cannot be deemed to have been casual.” Based on this definition, the Oriola court determined that the plaintiff was not entitled to a DVPA restraining order because a dating relationship between the parties had not existed. Leonard Cohen and Kelley Lynch had a professional business relationship which is what Cohen set forth on the Colorado Verified Motion.
The legislature responded swiftly to Oriola's definition of “dating relationship.” In 2001 it passed Assembly Bill 362, enacting section 6210 which gave the phrase “dating relationship” a technical definition for purposes of the DVPA: “ ‘Dating relationship’ means frequent, intimate associations primarily characterized by the expectation of affection or sexual involvement independent of financial considerations.”
The same definition of “dating relationship” appears in Penal Code section 243, subdivision (f)(10). Section 243, subdivision (e)(1) applies to a battery committed against “a person with whom the defendant currently has, or has previously had, a dating ... relationship.”
Appellant claims that the trial court erroneously assigned Lynch a dating relationship
with an individual, Leonard Cohen, who sexually harassed, sexually assaulted, and exposed himself to her routinely for a period of approximately twenty years. This was completely unprofessional and unacceptable conduct on the part of Cohen towards his female business colleague, Kelley Lynch. There is no evidence whatsoever, apart from Leonard Cohen’s confession that he changed his testimony during the 2012 proceedings, that a dating relationship ever existed. See J.J. v. M.F. (2014) 223 Cal.App.4th 968, 975, 167 Cal.Rptr.3d 670. “The ultimate determination is whether a reasonable trier of fact could have found [the existence of a dating relationship] based on the whole record.” Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633, 29 Cal.Rptr.2d 191.
Leonard Cohen Was Not A Protected Party In Accordance With Colorado’s Statutory Required “Intimate” Relationship
Under Colorado law, domestic violence is defined in C.R.S. 18-6-800.3(1) as: an act or threatened act of violence upon a person with whom the actor is or has been involved in an intimate relationship. “Domestic violence” is unlawful activity directed against a person with whom the actor is or has been involved in an intimate relationship.” Intimate relationship is defined in C.R.S. 18-6-800.3(2) as: “a relationship between spouses, former spouses, past or present unmarried couples, or persons who are both the parents of the same child regardless of whether the persons have been married or have lived together at any time.” Leonard Cohen and Kelley Lynch were not spouses, were never an unmarried couple, and most certainly did not have children together. They were in a professional business relationship. Leonard Cohen did not, and was not entitled to, avail himself of the domestic violence statutes in Colorado.
VAWA Is Inapplicable to the Colorado & California Orders
In September 1994, Congress passed the Violence Against Women Act of 1994, 42 U.S.C. § 13981 et seq., a comprehensive statutory enactment designed to address “the escalating problem of violent crime against women,” as part of the larger Violent Crime Control and Law Enforcement Act of 1994, P.L. 103–322. S.Rep. 103-138, 103rd Cong., 1st Sess., Violence Against Women Act of 1993, 38 (Sept. 10, 1993). Recognizing that domestic violence is a national problem that transcends state lines, the federal government enacted VAWA to afford full faith and credit to domestic violence protection orders issued in sister states.
Pursuant to federal law, a qualifying civil or criminal domestic protection order issued by a court in one state or Indian tribe was to be accorded full faith and credit by the courts of other states or tribes, and enforced as would their own orders. Qualifying protection orders may be permanent, temporary or ex parte, but they must be issued by a court that has jurisdiction over the parties, and provide the defendant with reasonable notice and an opportunity to be heard, consistent with due process.
Under VAWA, states and tribes are required to provide full faith and credit to qualifying protective orders of each other’s courts. See 18 U.S.C. § 2265. This means they must enforce each other’s orders as if they were the order of the enforcing State or tribe. The Colorado order is not a domestic violence order and California is not enforcing the Colorado order. It is enforcing a California domestic violence order.
In conjunction with VAWA, Congress empowered the Attorney General of the United States to award grants to eligible states, local governments and Indian tribal units, to promote various policy goals aimed at reducing domestic violence. (42 U.S.C. § 3796hh(b).)
Full Faith and Credit
Under VAWA a protection order must meet the following conditions to be eligible for full faith and credit: • The order was entered pursuant to a complaint, petition, or motion filed by (or on behalf of) a person seeking protection; • The court that issued the order had personal jurisdiction over the parties and subject matter jurisdiction over the case; and • The person against whom the order was issued must have had notice and an opportunity to be heard related to the allegations of abuse and the relief sought.
VAWA only applies to certain types of relationships between the petitioner and the person against whom the order is sought. The intimate relationship category was added when VAWA was reauthorized in 2013 although it would not apply to Cohen and Lynch. The relationships include: • A spouse or former spouse of the respondent or defendant; • A person who lives or who has lived with the respondent or defendant (i.e., who resides or resided together in a sexual or romantic relationship); • A child of the respondent or defendant, a child of the intimate partner, or a child in common of the respondent or defendant and the intimate partner (including where parental rights have been terminated); and • A person with whom the respondent or defendant has or had a child in common (regardless of whether they were married or cohabitated). See 18 U.S.C. § 2265. 2 18 U.S.C. § 2265(b). Such a relationship does not include: • Boyfriends or girlfriends who do not live together or have never lived together; • Elder abuse; • Siblings who abuse siblings, uncles or uncles who abuse nieces and nephews, grandparents who abuse grandchildren, etc.; • Roommates, neighbors, or strangers. Further, due process requires that a person be served with the protective order before it can be enforced against them, so proof of such service is required before law enforcement will take action. Lynch and Cohen were not in the necessary relationship that would have permitted a court to apply VAWA’s full faith and credit provisions. The non-domestic violence civil harassment orders issued throughout this country are not governed by a uniform act similar to VAWA. While a foreign sister-state order can be registered in California, that requires either registering it with the California Department of Justice or, as with a monetary judgment, opening a new case.
Further, in accordance with due process, VAWA requires that a person be served with the protective order before it can be enforced against them, so proof of such service is required before law enforcement will take action. The California order does not contain a proof of service.
One of main purposes of VAWA was to provides a mechanism for the interstate enforcement of domestic-violence protection orders. The California domestic violence order is not a registration of the Colorado order; California had no jurisdiction to modify the order and/or issue a new domestic violence order; and, California is not enforcing the Colorado order. Furthermore, the Colorado order was not a domestic violence order and VAWA was and remains inapplicable.
The California Domestic Violence Order Was Issued Without Minimal Due Process – Including Notice and/or A Meaningful Opportunity to Be Heard
The essence of procedural due process is notice and an opportunity to respond. “The purpose of notice under the Due Process Clause is to apprise the affected individual of, and permit adequate preparation for, an impending ‘hearing.” Gilbert v. City of Sunnyvale (2005) 130 Cal.App.4th 1264, 1279; Thornbrough v. Western Placer Unified School District (2013) 223 Cal.App.4th 169, 183-184.
Although due process tolerates variances in procedure “appropriate to the nature of the case,” Mullane v. Central Hanover Trust Co., 339 U.S. 306, 313 (1950), it is nonetheless possible to identify its core goals and requirements. First, “procedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property.” Carey v. Piphus, 435 U.S. 247, 259 (1978). “Procedural due process rules are shaped by the risk of error inherent in the truth-finding process as applied to the generality of cases.” Mathews v. Eldridge, 424 U.S. 319, 344 (1976). Thus, the required elements of due process are those that “minimize substantively unfair or mistaken deprivations” by enabling persons to contest the basis upon which a State proposes to deprive them of protected interests. Fuentes v. Shevin, 407 U.S. 67, 81 (1972). At times, the Court has also stressed the dignitary importance of procedural rights, the worth of being able to defend one's interests even if one cannot change the result. Carey v. Piphus, 435 U.S. 247, 266-67 (1978); Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980); Nelson v. Adams, 120 S. Ct. 1579 (2000) (amendment of judgement to impose attorney fees and costs to sole shareholder of liable corporate structure invalid without notice or opportunity to dispute). The core of these requirements is notice and a hearing before an impartial tribunal. Due process may also require an opportunity for confrontation and cross-examination, and for discovery; that a decision be made based on the record, and that a party be allowed to be represented by counsel.
Lynch was not given notice or the opportunity to defend against the entry of the domestic violence order against her. She was unaware of the order at the time of her trial or throughout the appellate process. She moved diligently to vacate the order. The issues are complex and involve numerous states and federal laws.
Elementary & Fundamental Requirements of Due Process
Notice
“An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Central Hanover Trust Co., 339 U.S. 306, 314 (1950). See also Richards v. Jefferson County, 517 U.S. 793 (1996) (res judicata may not apply where taxpayer who challenged a county's occupation tax was not informed of prior case and where taxpayer interests were not adequately protected). The notice must be sufficient to enable the recipient to determine what is being proposed and what he must do to prevent the deprivation of his interest. Goldberg v. Kelly, 397 U.S. 254, 267-68 (1970). Ordinarily, service of the notice must be reasonably structured to assure that the person to whom it is directed receives it, Armstrong v. Manzo, 380 U.S. 545, 550 (1965); Robinson v. Hanrahan, 409 U.S. 38 (1974); Greene v. Lindsey, 456 U.S. 444 (1982).
A Hearing
“Some form of hearing is required before an individual is finally deprived of a property [or liberty] interest.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976). "Parties whose rights are to be affected are entitled to be heard." Baldwin v. Hale, 68 U.S. (1 Wall.) 223, 233 (1863). This right is a “basic aspect of the duty of government to follow a fair process of decision making when it acts to deprive a person of his possessions. The purpose of this requirement is not only to ensure abstract fair play to the individual. Its purpose, more particularly, is to protect his use and possession of property from arbitrary encroachment …” Fuentes v. Shevin, 407 U.S. 67, 80-81 (1972). See Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 170-71 (1951) (Justice Frankfurter concurring). Thus, the notice of hearing and the opportunity to be heard “must be granted at a meaningful time and in a meaningful manner.” Armstrong v. Manzo, 380 U.S. 545, 552 (1965).
Service of Process
Proper service is a requirement for a court's exercise of personal jurisdiction. Sternbeck v. Buck (1957) 148 Cal. App. 2d 829 [307 P.2d 970]. An order entered without personal jurisdiction over the defendant is void. Slaughter v. Legal Process & Courier Service (1984) 162 Cal. App. 3d 1236 [209 Cal. Rptr. 189].
“The filing of a proof of service creates a rebuttable presumption that the service was proper” if the proof of service complies with the statutory requirements. Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1441. A proof of service related to the California domestic violence order does not exist. This issue is not in dispute.
The California Domestic Violence Order Is Void for Lack of Service & Lack of Jurisdiction
A motion to vacate a void judgment in California is authorized by Code of Civil Procedure section 473, subdivision (d). A judgment may be void as a matter of law due to (1) lack of subject matter jurisdiction, (2) lack of personal jurisdiction, (3) lack of or improper service of summons, (4) default improperly entered, and (5) a default judgment exceeding the amount demanded in the complaint. Code of Civil Procedure section 473, subdivision (d) states that, “The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.” “A court can lack fundamental authority over the subject matter, question presented, or party, making its judgment void, or it can merely act in excess of its jurisdiction or defined power, rendering the judgment voidable.” In re Marriage of Goddard (2004) 33 Cal.4th 49, 56. A judgment is void if the court lacked jurisdiction over the subject matter or parties, for example, if the defendant was not validly served with summons. If a judgment is in fact void, there is no time limit mentioned for a party to file a motion to set aside the void judgment. Section 473, subdivision (d) allows a trial court to set aside a void judgment without mentioning a time limit. Lee v. An (2008) 168 Cal.App.4th 558, 563.
The California Supreme Court explained in In re Marriage of Goddard (2004) 33 Cal.4th 49, that “a court can lack fundamental authority over the subject matter, question presented, or party, making its judgment void, or it can merely act in excess of its jurisdiction or defined power, rendering the judgment voidable.” In this case, Lynch was not served, had no notice or awareness of the order, and the California domestic violence order is void.
“Lack of jurisdiction in its most 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.” Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 288, 109 P.2d 942. When a court lacks jurisdiction in a fundamental sense, an ensuing judgment is void, and “thus vulnerable to direct or collateral attack at any time.” Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94, 119, 101 Cal.Rptr. 745, 496 P.2d 817; People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 660, 16 Cal.Rptr.3d 76, 93 P.3d 1020. For example, if a defendant is not validly served with a summons and complaint, the court lacks personal jurisdiction and a default judgment in such action is subject to being set aside as void. Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1441, 29 Cal.Rptr.2d 746. Subdivision (d) of section 473 allows a court to set aside a void judgment without any mention of a time limit. See Heidary v. Yadollahi (2002) 99 Cal.App.4th 857, 862, 121 Cal.Rptr.2d 695.
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; 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.
A Void Order May Be Set Aside & Attacked At Any Time
A void order may be ‘set aside at any time’ and may be ‘attacked at any time, directly or collaterally.’ See Hager v. Hager (1962) 199 Cal.App.2d 259, 261 (‘a void judgment or order may properly be attacked at any time, directly or collaterally’).
“‘A void judgment 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 upon it are equally worthless.’” Rochin v. Pat Johnson Manufacturing Co. (1998) 67 Cal.App.4th 1228, 1240 (any order or judgment which gives effect to a void judgment, is itself void).
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.)
A “final” but void order can have no preclusive effect. “A void judgment [or order] is, in legal effect, no judgment. By it no rights are divested. From it no rights can be obtained. Being worthless in itself, all proceedings founded upon it are equally worthless. It neither binds nor bars any one.” Bennett v. Wilson (1898) 122 Cal. 509, 513-514, 55 P. 390.
The Domestic Violence Related Orders Issued Under Penal Code Section 136.2 Were Unconstitutional & Issues Without Due Process
Kelley Lynch has never been charged with domestic violence. There have never been any findings of domestic violence. The issue of domestic violence has never been before a court or jurors. There was and remains no domestic violence and Leonard Cohen does not qualify as a protected party in accordance with domestic violence statutes. The jurors during Lynch’s 2012 trial were informed that Lynch violated the Colorado order which is not a domestic violence order as confirmed by all parties involved in this case.
In People v. Stone (2004) 123 Cal.App.4th 153 (Stone ), the appellate court construed section 136.2 narrowly, holding restraining orders authorized by this provision “are those aimed at preserving the integrity of the administration of criminal court proceedings and protecting those involved in them. It therefore follows that the required good cause must show a threat, or likely threat to criminal proceedings or participation in them.” (Stone, at p. 160.) In an express response to Stone, in 2008 the Legislature added subdivision (h) to section 136.2, which provides, in a case in which a crime of domestic violence is charged, the court may consider, in determining whether good cause exists to issue an ex parte order pursuant to Family Code section 6320, “the underlying nature of the offense charged” and the defendant's history of domestic violence, prior restraining orders and other forms of violence or weapons offenses.
At no time has Lynch attempted to intimidate anyone, let alone a witness. She continues to maintain that Cohen, Kory & Rice are co-conspirators and not victims or witnesses. Section 136.2 authorizes a criminal protective order only if the defendant attempted to intimidate a witness or victim or there is a reasonable likelihood that such an attempt to intimidate a witness or victim will occur and no evidence of any such threat was presented in the underlying proceeding. Lynch also contends she was not afforded proper notice of the hearing at which the protective order was issued or an adequate opportunity to present evidence in opposition to the issuance of the order.
Section 136.2 Criminal Protective Orders May Be Properly Issued Based on the Underlying Charges in Domestic Violence Cases
This is not a domestic violence case, and there was no evidence Lynch had attempted to intimidate or dissuade his victims from reporting the crime. In fact, there is evidence that parties involved in this case attempted to intimidate and dissuade Lynch – including through the use of fraudulent restraining orders.
Los Angeles Superior Court, in granting domestic violence related orders, erred in failing to give Lynch adequate notice and an opportunity to present evidence.
The United States Supreme Court has ruled that “an elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under the circumstances, to apprise interested parties of the pendency of an action and afford them the opportunity to present their objections.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). Failure to give notice violates “the most rudimentary demands of due process of law.” Armstrong v. Manzo, 380 U.S. 545, 550 (1965). See also World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291 (1980); Mathews v. Edlridge, 424 U.S. 319, 333 (1976); Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 110 (1969); Pennoyer v. Neff, 95 U.S. 714, 733 (1878).
The Domestic Violence Related Orders Issued to Kory, Rice, & Bruce Cutler Gave Effect to a Void Judgment
In addition, the trial court's issuance of domestic violence related orders as part of Lynch’s 2012 sentencing are void, in that they gave 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.
Appellant Did Not Consent to Commissioner Anthony Jones Presiding Over the California Domestic Violence Case
Defendant further contends that the restraining order is void because she did not consent to a commissioner presiding over the hearing. The California Constitution provides that “on stipulation of the parties litigant the court may order a cause to be tried by a temporary judge.” (Cal. Const., art VI, § 21.) The California Supreme Court has interpreted this constitutional provision to mean that in the absence of a stipulation a commissioner is not qualified to act, and any ruling the commissioner makes “must be reversed.” People v. Tijerina (1969) 1 Cal.3d 41, 49 [reversing order revoking probation entered by commissioner]; accord Rooney v. Vermont Investment Corp. (1973) 10 Cal.3d 351, 359-360 [commissioner did not have power to act because no stipulation was “shown by the record”].
Following Tijerina and Rooney, California appellate courts have reversed and voided actions taken by commissioners where no stipulation appeared on the record. See Lovret v. Seyfarth (1972) 22 Cal.App.3d 841; In re Marriage of Galis (1983) 149 Cal.App.3d 147; In re Frye (1983) 150 Cal.App.3d 407 (Frye); In re Steven A. (1993) 15 Cal.App.4th 754.
There is no indication in the record that Lynch consented to the commissioner presiding over the issuance of the California domestic violence order. Lynch has consented to nothing whatsoever with respect to the creation of this fraudulent domestic violence order. The issue here is adherence to the California Constitution. The California Supreme Court was clear in setting forth the consequences for lack of consent, and the appellate courts have been consistent in applying those consequences. In these cases, the restraining order issued is void.
The Domestic Violence Orders Violate Lynch’s Second Amendment Rights
The void California domestic violence order violates Lynch’s second amendment rights. Due to the issuance of the domestic violence order, Lynch was barred from owning, purchasing, receiving, or having in her possession or under her custody or control, any firearm for a ten year period following her conviction. The jurors were instructed that Lynch violated the Colorado order which specifically excluded the Brady Handgun Violence Prevention Act, 18 U.S.C. Section 922 (d)(8) and (g)(8). The government interest behind § 922(g)(9) was to prevent domestic gun violence is apparent from the face of the statute and its legislative history. The 1996 passage of § 922(g)(9) was motivated by the concern that guns were not being kept away from domestic abusers under felon-in-possession laws because “many people who engage in serious spousal or child abuse ultimately are not charged with or convicted of felonies.” Skoien, 614 F.3d at 643 (quoting 142 Cong. Rec. 22985 (1996) (statement of Sen. Lautenberg) (internal quotation marks omitted)); see also United States v. Hayes, 555 U.S. 415, 426 (2009); United States v. White, 593 F.3d 1199, 1205 (11th Cir. 2010). Through § 922(g)(9), Congress sought to “close this dangerous loophole” and “establish a policy of zero tolerance when it comes to guns and domestic violence.” Booker, 644 F.3d at 16 (quoting 142 Cong. Rec. S8831 (daily ed. July 25, 1996) (statement of Sen. Lautenberg)). Thus, the legislative history of § 922(g)(9) shows that Congress did not enact the statute for the purpose of “preventing gun violence.” Instead, Congress passed § 922(g)(9) to prevent domestic gun violence.
While the jurors were advised that Lynch violated the non-domestic violence Colorado civil harassment order, the case heard by the trial court related to the California domestic violence order issued in Los Angeles Superior Court Case No. BQ033717. California and federal law prohibit people with domestic violence convictions from possessing guns. Lynch has never been convicted of domestic violence and there have never been findings, let alone allegations, of domestic violence. California law defines "domestic violence" as the abuse of: your current or former spouse; a person with whom you live or have lived (a "cohabitant"); the mother or father of your child, anyone you are or were dating, and, a current or former fiancé(e). Under Penal Code 29805 PC, about 40 misdemeanor convictions carry a ten-year firearms ban. These include battery, threats and stalking against any of the people aforementioned. If a party is convicted of misdemeanor domestic violence, they are prohibited under California law from possessing a gun for ten years. After the 10-year period is up, one’s right to possess a gun is automatically restored.
18 United States Code 922(g) – Federal Firearms Ban
Under federal law, most domestic violence convictions trigger a lifetime firearms ban. Most people convicted of a California crime of domestic violence will never legally be able to own a gun anywhere in the United States. Federal law does not define offenses against people you have dated as domestic violence. Therefore, even if you are only subject to a 10-year ban under California law, if your offense qualifies as a misdemeanor crime of domestic violence (“MCDV”) under federal law, you are banned from owning firearms for life.
Domestic Violence Protective Orders and Federal Firearms Law
Under 18 USC 922(g)(8), you are prohibited from possessing a firearm one is subject to a domestic violence protection order. For purposes of this law, an “intimate partner” is: your current or former spouse, the mother or father of your child, or, someone with whom you live or have lived (a “cohabitant”).
In order for the firearms prohibition to apply, one must have received actual notice of the domestic violence protection order hearing and had an opportunity to participate. In addition, for the federal ban to apply the protective order must also: include a finding that one represented a credible threat to the physical safety of such intimate partner or child; or by its terms explicitly prohibited the actual, attempted, or threatened use of physical force that would reasonably be expected to cause bodily injury to your intimate partner or child. A court order that merely requires “no contact” does not meet this requirement.
Leonard Cohen and Kelley Lynch were not in the required relationship under California, Colorado, or federal law. Furthermore, when the California domestic violence order was created, Lynch was not afforded notice with respect to her second amendment rights.
CONCLUSION
Kelley Lynch respectfully asks that this Court verse the decision of the trial court and direct that the order denying her motion to set aside the California domestic violence order be reversed a new order granting the motion and vacating the restraining order. The domestic violence and domestic violence related orders should be expunged from all local, state, and federal databases into which they were transmitted. All of the evidence supports this conclusion.
Dated: 22 March 2017
