MEMORANDUM OF
POINTS &
AUTHORITIES
INTRODUCTION
& SUMMARY OF ARGUMENT
Defendant
Kelley Lynch’s Motion for Terminating Sanctions addressed the fact that
Plaintiffs, and their lawyers Michelle Rice and Robert Kory, have committed fraud
upon this Court, repeatedly committed perjury, and engaged in abusive
litigation misconduct in this case. Cohen and his lawyers have now
argued, in response to Lynch’s Motion for Terminating Sanctions, that evidence
she attached thereto should be filed under seal and falsely claimed that Lynch
had attorney/client privilege with Leonard Cohen’s personal tax and corporate
lawyer, Richard Westin. Lynch’s claim of fraud upon the court was
properly brought as a motion addressed to the inherent power of the court to
set aside a judgment – specifically the denial of her Motion to Vacate - procured
by fraud upon the court. One procedure for obtaining relief is to invoke
the inherent power of a court to set aside its judgment if procured by fraud
upon the court. There is no time limit for such proceedings, nor does the
doctrine of laches apply. Those
documents and declarations Plaintiffs submitted in response to Lynch’s Motion
to Vacate also introduced arguments with respect to the underlying merits of
this case. Plaintiffs, and their lawyers, continue to deceive this Court
with respect to issues related to their willful failure to serve Lynch the
summons and
complaint.
It is beyond
question that a court may investigate a question as to whether there was fraud
in the procurement of a judgment. Universal
Oil Products Co. v. Root Refining Co., 329 U.S. 575, 66 S.Ct.
1176, 90
L.Ed. 1447. The inherent
power of a federal court to investigate whether a judgment was obtained by
fraud is beyond question. This is
to be done in adversary proceedings as in the case before the Court. See Hazel-Atlas Glass Co. v.
Hartford-Empire Co., 322 U.S. 238, 64 S.T. 997, 88 L.Ed. 1250; Sprague v. Ticonic National Bank, ,
59 S.Ct. 777, 83 L.Ed. 1184; and United States v.
Throckmorton, 98
U.S. (8 Otto) 61, 25 L.Ed. 93.
Fraud on the court is fraud which is directed to the judicial machinery
itself. It is thus fraud where the court or a member is corrupted or influenced
or influence is attempted or where the judge has not performed his judicial
function – thus where the impartial functions of the court have been directly
corrupted. The basic decisions of the Supreme Court are Throckmorton, Hazel-Atlas, and Universal Oil Products, cited
above. These cases considered the basic issues involved in setting aside
judgment and demonstrate, with Marshall v. Holmes, 141 U.S. 589 , 12 Sup. Ct. 62, the nature of
the fraud and the proof required for relief.
Lynch’s
motion, and the substance of that motion, should be construed either as an
independent action or, because there are no formal requirements for asserting a
claim of fraud on the court, as a pleading invoking the court's inherent power
to grant relief for fraud upon the court. “Fraud on the court” requires a
showing that one has acted with an intent to deceive or defraud the
court. Lynch has made a showing of conscious wrongdoing — what can
properly be characterized as a deliberate scheme to defraud — which would permit
the court to provide the requested relief. She has provided evidence of substantial
litigation misconduct, abusive tactics, perjured statements, concealment and
fabrication of evidence, and other deliberate and intentional misconduct on the
part of Plaintiffs and their lawyers.
See Exhibit A: Declaration of
Kelley Lynch.
Kelley
Lynch’s Motion to Vacate addressed the fact that she was not served the summons
and complaint; the proof of service was evidence of fraud; and the Court never
obtained jurisdiction over her rendering the Default Judgment void. 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. “In a
broader sense, lack of jurisdiction also exists when a court grants ‘relief which
it has no power to grant.’” Ibid. A judgment is void on its face if the
trial court exceeded its jurisdiction by granting relief that it had no power
to grant. Summers v.
Superior Court (1959) 53 Cal.
2d 295, 298 [1 Cal. Rptr. 324, 347 P.2d 668]; Roberts
v. Roberts (1966) 241 Cal.
App. 2d 93, 101 [50 Cal. Rptr. 408]. The Court’s original judgments are
void because they were obtained by extrinsic fraud. In re Marriage of Melton (1994) 28 Cal.App.4th 931, 937.)
Lynch’s
Motion for Terminating Sanctions specifically addresses fraud upon the
court. The court in Televideo
Systems, Inc. vs. Heidenthal (9th Cir. 1987) 826 F.2d 915, 917)
concluded that the appellant’s “elaborate scheme involving perjury clearly qualifies
as a willful deceit of the court” and noted that “it infected all of the
pretrial procedures and interfered egregiously with the court’s administration
of justice.” Plaintiffs’ misconduct, and the misconduct of their legal
representatives, also involves an elaborate scheme involving perjury clearly
qualifying as a willful deceit upon this Court.
Plaintiff’s Opposition argument begins as
follows: “In an attempt to overcome statutory time limits imposed for
vacating a default judgment under California Code of Civil Procedure Section
473, Lynch first sought equitable relief from the May 15, 2006 Default Judgment
in August 2013 on the grounds of extrinsic fraud with regard to an allegedly
false proof of service of the summons and complaint. At the January 2014
hearing on Lynch’s 2013 Motion, the Court found that the service of summons and
complaint were proper [although Lynch was not served]; Lynch had not
demonstrated extrinsic fraud; and, she had not shown that she was entitled to
relief on any equitable basis. Certified Hearing Transcript p. 14, lines
7-11.” The Court also found that Lynch’s 2013 Motion ‘not even colorably
meritorious.’ Id. At p. 18, lines 18-19.” Kelley Lynch
disagrees. Numerous procedural and technical flaws, not created or caused
by Lynch, were addressed at the hearing; she did not request dismissal that
involved statutory time limits; and regardless of the ongoing attempts to prove
otherwise, Kelley Lynch was not served Leonard Cohen’s summons & complaint;
and, this Court has failed to obtain jurisdiction over her. See Exhibit B: Declaration of Paulette Brandt.
LYNCH’S MOTION IS NOT A MOTION FOR RECONSIDERATION
Plaintiffs argue that Lynch is “once again seeking
equitable relief from the Default Judgment, but this time under a different
theory of fraud.” Plaintiffs are relying upon a classic apples and
oranges argument. Lynch’s Motion to Vacate was based solely on extrinsic
fraud with respect to the proof of service. This motion addresses fraud
directed specifically at the Court itself and an egregious pattern of
litigation misconduct and abusive tactics.
Fraud upon the court was addressed by the
California Court of Appeal in Stephen Slesinger, Inc. v. Walt Disney Co.
(2007) 155 Cal.App.4th 736 as follows: “Other state and federal courts
have used a variety of characterizations to describe the misconduct necessary
to invoke the inherent power to dismiss, including: ‘fraud on the court,’
meaning deliberate conduct that ‘sets 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.’” See also Aoude v. Mobil Oil Corp.,
892 F.2d 1115, 1118 (1st Cir. 1989); Rockdale Management Co. v. Shawmut
Bank, N.A., 638 N.E.2d 29 (Mass. 1994); Cox
v. Burke, 706 So.2d 43, 46 (Fla. 5th DCA 1998); conduct due to willfulness,
fault, or bad faith, and having a relationship to the matters in controversy
such that the transgression threatens to interfere with the rightful decision of the case. Anheuser-Busch, Inc. v. Natural
Beverage Distribs., 69 F.3d 337, 348 (9th Cir. 1995); deliberately deceptive practices that
undermine the integrity of judicial proceedings, including when a party has
willfully deceived the court and engaged in conduct utterly inconsistent with
the orderly administration of justice (Ibid.); egregious misconduct such as willful or
contemptuous behavior, a deliberate attempt to hinder or prevent effective
presentation of defenses or counterclaims, or stalling in revealing one's own weak claim or
defense. Klupt v.
Krongard, 728 A.2d 727 (Md. Ct. Spec. App. 1999. The requisite misconduct is deliberate
and egregious such that no sanction other than dismissal is adequate to ensure
a fair trial.
A terminating sanction, such as dismissal, is
appropriate when “a party has engaged deliberately in deceptive practices that
undermine the integrity of judicial proceedings.”Leon, 464 F.3d at 958. Dismissal is an available sanction when “a
party has engaged deliberately in deceptive practices that undermine the
integrity of judicial proceedings” because “courts have inherent power to
dismiss an action when a party has willfully deceived the court and engaged in
conduct utterly inconsistent with the orderly administration of justice.” Anheuser-Busch, Inc. v. Natural
Beverage Distribs.,69 F.3d 337, 348 (9th
Cir.1995).
LYNCH’S MOTION IS NOT PROCEDURALLY DEFECTIVE
& RELIEF SHOULD BE GRANTED
Lynch’s Motion is a valid postjudgment
motion. The U.S. Supreme Court has repeatedly held that courts possess
the inherent power to “vacate their own judgments upon proof that a fraud has
been perpetrated upon the court.” Chambers
v. NASCO, Inc., 501 U.S. 32, 44 (1991).
The power to grant “equitable relief against fraudulent judgments is not
of statutory creation.” Hazel-Atlas,
322 U.S. at 248. This equitable power was “firmly established in English
practice long before the foundation of our Republic” [ Id. at 244] and the
power is vested in courts by their very creation. See Chambers
v. NASCO, Inc. (Justice Scalia dissenting: “Some elements of the
inherent authority are so essential to ‘the judicial Power,’ U.S. Const., art.
III, 1, that they are indefeasible …”)
To establish fraud on the court, it is necessary to
show an unconscionable plan or scheme which is designed to improperly influence
the court in its discretion. The 5th Circuit’s decision, in Browning v. Navarro, 826 F.2d 335
(5th Cir. 1987),
provides guidance on the standard for considering fraud upon the court.
In Browning, the court analyzed two U.S. Supreme Court
cases dealing with “fraud on the court” actions: United States v. Throckmorton and Hazel-Atlas.
The court summarized the holdings of these two cases: Throckmorton held that intrinsic fraud (fraudulent
evidence upon which a judgment is based), is not grounds to set aside a
judgment. It also argued that extrinsic fraud (fraud that was not the subject
of the litigation) that infects the actual judicial process, is grounds to set
aside a judgment as procured by fraud. Hazel-Atlas should be read as an expansion of the
limits set by Throckmorton in attacking judgments
generally. Hazel-Atlas allows a judgment to be attacked on
the basis of intrinsic fraud.
A fraud directed squarely at the integrity of this
Court’s decision-making, as happened in this case, should be confronted - not
excused. In the exercise of its supervisory powers, this Court should
provide Defendant Kelley Lynch with the requested relief. Willfully false
and misleading statements appear in sworn declarations submitted to this court
by Plaintiffs and their lawyers. The extensive use of perjury, though
alone not sufficient to prove fraud upon the court, is a willful deceit upon
the court and becomes a necessary element which must be considered when
addressing fraud upon the court. Fraud
upon the court addresses a broad remedy for deceit directed at the court
itself. The Hazel Atlas Court found that ‘‘every element of
the fraud here disclosed demands the exercise of the historic power of equity
to set aside fraudulently begotten judgments.’’ It also held that “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. The public welfare demands that the agencies of public justice
be not so impotent that they must always be mute and helpless victims of
deception and fraud.” Lynch’s motion,
which addresses fraud upon the court, is an independent action (or motion) in
equity to obtain relief from a judgment. An independent action is
available “to prevent a grave miscarriage of justice.” United States v. Beggerly, 524
U.S. 38, 47, 118 S.Ct. 1862, 141 L.Ed.2d 32 (1998).
Professor Moore is of the view that the
intrinsic-extrinsic distinction should not even apply to the independent
action: “Little is to be gained by classifying successful fraud into intrinsic
and extrinsic categories ... the more reasonable course to pursue would be to
weigh the degree of fraud and the diligence with which such was unearthed and
proceeded on.” Moore & Rogers. For further discussion of
the long standing rules governing post-trial allegations of fraud see United States v. Throckmorton and Hazel-Atlas
Glass Co. V. Hartford-Empire Co.
These cases address the fact that both extrinsic and intrinsic fraud are
material to arguments related to “fraud upon the court.” Miller v. Miller, 149 Fla. 722, 7 So.2d 9
(1942) acknowledges that the power of a court of equity to grant relief from
judgments and decrees obtained by fraud, deceit, artifice, and trickery.
Where the court that rendered the judgment
possesses a general jurisdiction in law and in equity, the jurisdiction of
equity may be invoked by means of a motion addressed to that court. See McGuinness v. Superior Court,
196 Cal. 222 [237 P. 42, 40 A.L.R.; Crescent
Canal Co. v. Montgomery, 124 Cal. 134, 144 [56 P. 797]; Estate of Estram, 16 Cal.2d
563, 571 [107 P.2d 36]; Ex-
Mission L. & W. Co. v. Flash, 97 Cal. 610, 631 [32 P. 600]; Cohen v.
Home Life Ins. Co., 273 Mich. 469 [263 N.W. 857]; Home Life Ins. Co. v. Cohen,
278 Mich. 169 [270 N.W. 256]; Jarman
v. Saunders, 64 N.C. 367; Demilt
v. Leonard, 11 Abb.Prac. (N.Y.) 252.” In accord Key System Transit
Lines v. Superior Court, 36 Cal.2d 184 [222 P.2d 867]; Estate of Costa, 37 Cal.2d 154
[231 P.2d 17].
According to the Court in Olivera V. Grace (1942) 19 Cal. 2d 570, 575-576 [122 P.2d 564, 140
A.L.R. 1328]: The principle of
law involved is that, through no fault of his, the defendant was not permitted
to participate in the proceedings. Equity's
jurisdiction to interfere with final judgments is based upon the absence of a
fair, adversary trial in the original action. Where the court that
rendered the judgment possesses a general jurisdiction in law and in equity,
the jurisdiction of equity may be invoked by means of a motion addressed to
that court. In view of the foregoing
cases, the statement in Tinn
v. U.S. District Attorney, 148 Cal. 773 [84 P. 152, 113 Am.St.Rep. 354], to the effect that equity jurisdiction can be invoked only by means of an
independent action, and not upon motion, is no longer an accurate statement of
the law. The Court should consider those cases in which equitable
relief has been granted in favor of a defendant, whether the jurisdiction of
equity was invoked by motion before a court of general jurisdiction or by an
independent action in equity.
In Hazel-Atlas,
the United States Supreme Court held that it would be manifestly unconscionable
to allow the judgment to stand. Although
perjury alone will not serve to vacate a judgment, it is considered fraud upon
the court when it involves or is suborned by an attorney. See generally Moore's
Federal Practice, supra, at § 60.21[4][b] & [c].
“Involvement of an attorney, as an officer of the court, in a scheme to suborn
perjury would certainly be considered fraud on the court.” Great
Coastal Express, Inc. v. Int'l Bhd. of Teamsters, 675 F.2d 1349, 1357 (4th
Cir. 1982); see also Meindl v. Genesys Pac. Techs., Inc.,
204 F.3d 124, 130 (4th Cir.) Fraud upon the court includes fraud by
bribing a judge, or tampering with a jury, or fraud by an officer of the court,
including an attorney.”; Cleveland Demolition Co. v. Azcon Scrap Corp.,
827 F.2d 984, 986 (4th Cir. 1987) (“A verdict may be set aside for fraud on the
court if an attorney and a witness have conspired to present perjured
testimony.”). The evidence in this case shows that Plaintiffs, together
with their lawyers, devised a plan to subvert the judicial process or a threat
of public injury.
The grounds for such equitable relief are
commonly stated as being extrinsic fraud or mistake. However, those terms
are given a broad meaning and tend to encompass almost any set of extrinsic
circumstances which deprive a party of a fair adversary hearing.” In re Marriage of Park (1980) 27 Cal.3d 337, 342. Defendant has indeed demonstrated fraud upon
the court and misconduct on the part of Plaintiffs and their attorneys.
Lying about facts central to the case, including the
nature and extent of one’s own injuries or effecting service of process, simply
cannot be tolerated and, frequently, cannot be remedied by any lesser sanction
than dismissal with prejudice. The
plaintiff’s false or misleading statement given under oath concerning issues
central to her case amounted to fraud and deceit. As the Fifth District Court
of Appeal stated in Cox v. Burke, 706 So.2d 43, 47 (Fla. 5th DCA 1998): “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.”
While the grounds for an equitable action to set
aside a default judgment are commonly stated as being those of extrinsic fraud
or mistake, the terms are given a very broad meaning which tends to encompass
all circumstances that deprive an adversary of fair notice of hearing whether
or not those circumstances would qualify as fraudulent or mistaken in the
strict sense. Thus a false recital of service although not deliberate is
treated as extrinsic fraud or mistake in the context of an equitable action to
set
aside
a default judgment. Bennett
v. Hibernia Bank, 47 Cal.2d 540, 558 [305 P.2d 20]; Rest., Judgments, §
117, com. C, p. 565. “Fraud
on the court” is used as shorthand to describe a variety of improper acts that
may lead to sanctions under the rules of civil procedure or pursuant to a
court’s inherent powers in managing its docket. Stanley Shenker & Assocs. v.
World Wrestling Fed’n. Entm’t, 48 Conn.Supp. 357 (Conn. Super. Ct. 2003).
The time honored equitable maxim that all courts
have the inherent power to all things reasonably necessary to ensure that just
results are reached to the fullest extent possible. The Court must
consider the fact that Plaintiffs came before it with unclean hands.
“Unclean hands” is actually an equitable doctrine that courts apply for their
own protection. It is “a self-imposed ordinance that closes the doors of
a court of equity to one tainted with inequitableness or bad faith relative to
the matter in which he seeks relief, however improper may have been the behavior
of the defendant.” Precision
Instrument Mfg. Co. v. Automotive Maintenance Mach. Co., 324 U.S. 806,
814–15 (1945). The following two equitable maxims underlie the doctrine:
(1) he who seeks equity must do equity; and (2) he who comes into equity must
come with clean hands. See, e.g., 27A Am. Jur. 2d, Equity §§119, 126 (1996)
The
unclean hands doctrine, flexible in application, permits a court to exercise
broad discretion to deny relief to a litigant who has acted in an
unconscionable way that “has immediate and necessary relation to the matter
that he seeks in respect of the matter in litigation.” Keystone Driller Co. v. Gen.
Excavator Co., 290 U.S. 240, 245 (1933). While the misconduct must be
closely related to the subject of the claim, it need not rise to the level of
fraud or illegal conduct. John Norton Pomeroy, Equity Jurisprudence 397, 404
(5th ed. 1941) (“It is not alone fraud or illegality which will prevent a
suitor from entering a court of equity; any really unconscientious conduct,
connected with the controversy to which he is a party, will repel him from the
forum whose very foundation is good conscience.”); see also Mas, 163 F.2d at 507–8.
As a practical matter, there may be little need to
apply the doctrine in law cases because of the parallel development of the
“fraud on the court” doctrine but it should be taken into consideration by the
Court. As the First Circuit stated in Aoude v. Mobil Oil Corp:
“Because corrupt intent knows no stylistic boundaries, fraud on the court can
take many forms.” Some examples of
conduct that triggers the unclean hands and fraud on the court doctrines are
suborning perjury, suppressing evidence, altering evidence, perjury, and
fabricating evidence. The sources of authority for these doctrines are a
trial court’s inherent powers, its procedural rules, or a combination of the
two. Courts that dismiss cases because of fraud practiced on them often cite
their inherent powers as a source of sanctioning authority. Brady v. United States, 877
F.Supp. 444 (C.D. Ill. 1994); Sun
World, Inc. v. Lizarazu Olivarria, 144 F.R.D. 384, 390 (E.D. Cal. 1992);
Eppes, 656 F.Supp. at 1279. This likely is because there is not a tight fit
between the rules of civil procedure and situations in which litigants
repeatedly lie under oath, fabricate evidence to support their claims, or
destroy evidence. TeleVideo
Sys. Inc. v. Heidenthal; McDowell, 1996 U.S. Dist. LEXIS 19558 (fabrication of
evidence); Vargas, 901
F.Supp. at 1581 (fabrication of evidence); ABC
Home Health Serv. Inc. v. Int’l Bus. Mach. Corp., 158 F.R.D. 180 (S.D. Ga.
1994) (evidence destroyed prior to initiation of lawsuit); O’Vahey v. Miller, 644 So.2d
550 (Fla. Dist. Ct. App. 1994) (personal injury plaintiff repeatedly lied under
oath about education and background); Vaughn
v. Tex. Employment Comm’n, 792 S.W.2d 139 (Tex. App.–Houston [1st Dist.]
1990, no writ) (wrongful discharge when plaintiff lied under oath). These cases set forth examples in which Rules
11, 16, 26, 37, and 41 of the Federal Rules of Civil Procedure or their state
counterparts have been cited as support for dismissal for fraud on the court.
Courts are empowered to deal harshly with
plaintiffs who act in underhanded ways to improperly influence the judicial
system. Sufficient flexibility exists to respond to whatever scheme a
misbehaving litigant might concoct, whether it involves perjury, fabrication of
evidence, destruction of evidence, suppression of evidence, witness tampering,
or a combination of these. The Federal Rules of Civil Procedure and their state
counterparts provide some of the tools to address fraud on the court. These
rules, however, do not provide a good fit for most fraud on the court and
unclean hands scenarios. This is, in part, a result of the fact that the rules
do not expressly proscribe perjury, fabrication of evidence, destruction of
evidence, and the like. Where the Rules do not sufficiently address the
problem, however, the courts have the inherent power to address the situation.
See Exhibit C:
Addressing Egregious Misconduct The Perjuring Plaintiff by Jonathan M. Stern.
LYNCH’S REQUEST FOR “CLARIFICATION OF
AMBIGUOUS JUDGMENT” IS PROCEDURALLY DEFECTIVE
& HAS NO STATUTORY OR JURISDICTIONAL BASIS
AMBIGUOUS JUDGMENT” IS PROCEDURALLY DEFECTIVE
& HAS NO STATUTORY OR JURISDICTIONAL BASIS
Plaintiffs argue that Lynch shows no “clerical errors” in the May 6,
2015 Default Judgment requiring correction, the judgment is the identical
judgment which the Trial Court intended to render, and the Default Judgment is
clear and unambiguous.
An exception
to the general rule against modification of judgments applies when the language
of the original judgment is unclear. Courts
have held that an ambiguous judgment can always be clarified. As long as the
court only determines the effect and meaning of the prior decree, and does not
change that effect or meaning, the rule against modification does not
apply. See Atchison v.
Atchison, 646 So. 2d 72 (Ala. Civ. App. 1994) (where original court ordered
sale of marital home but stated no specific time, subsequent order specifying
time for sale was clarification and not modification); Graham v. Graham, 555 So. 2d
1126 (Ala. Civ. App. 1989); Jones
v. Jones, 26 Ark. App. 1, 759 S.W.2d 42 (1988); In re Connell, 831 P.2d 913
(Colo. Ct. App. 1992) (decree required wife to reimburse husband for taxes he
paid after certain date; proper to clarify as to taxes paid after the date but
incurred before the date); MacDonald
v. MacDonald, 582 A.2d 976 (Me. 1990) (judgment awarded husband 17 acres
but description of land covered only 3 acres; proper to change description); Perrington v. Perrington, 447
N.W.2d 886 (Minn. 1989); Lockett v. Musterman, 854 S.W.2d 831 (Mo. Ct. App.
1993) (proper to add legal description of property conveyed); Berg v. Berg, 530 N.W.2d 341
(N.D. 1995) (noting that clarification is particularly appropriate where the
nonmoving spouse created the ambiguity); Kostelecky
v. Kostelecky, 537 N.W.2d 551 (N.D. 1995) (reopening judgment to address
tax consequences not allocated in divorce decree); Wastvedt v. Wastvedt, 371
N.W.2d 142 (N.D. 1985); Davis v. Davis, 488 N.W.2d 425 (S.D. 1992); Bettinger v. Bettinger, 793
P.2d 389 (Utah Ct. App. 1990). For similar reasons, the court can file an
opinion explaining its judgment after the judgment has already become final. As
long as the explanation is fully consistent with the judgment itself, no
improper modification is involved. Emanuelson
v. Emanuelson, 26 Conn. App. 527, 602 A.2d 609 (1992).
“Generally, once a judgment has been entered, the
trial court loses its unrestricted power to modify, retaining only the power to
correct clerical errors in the entered judgment. ‘However, it may not amend
such a judgment to substantially modify it or materially alter the rights of
the parties under its authority to correct clerical error.’ A court of
general jurisdiction has this inherent power to correct clerical error in its
records, whether made by the court, clerk or counsel, at anytime so as to
conform its records to the truth.” Aspen
Internat. Capital Corp. v. Marsch (4th
Dist., Div. One 1991) 235 Cal. App.3d 1199, 1220. Code of Civil Procedure
§473(d) provides that the court may correct clerical mistakes in its judgment
or orders as entered, so as to conform to the judgment or order directed. The
court also has the inherent power to correct clerical errors in its records so
as to make the records reflect the true facts. “The power exists independently
of statute and may be exercised in criminal as well as in civil cases.
The power is unaffected by the pendency of an appeal or a habeas corpus
proceeding. The court may correct such errors on its own motion or upon
the application of the parties. Courts may correct clerical errors at any
time. . .” People v. Mitchell (2001) 26 Cal. 4th 181, 185.
“The general rule with respect to the power of the
court to modify a judgment does not preclude the court from correcting clerical
errors and misprisions either in the entry of the judgment or due to
inadvertence of the court. The term ‘clerical error’ covers all errors,
mistakes, or omissions which are not the result of the exercise of the judicial
function. If an error, mistake, or omission is the result of inadvertence, but
for which a different judgment would have been rendered, the error is clerical
and the judgment may be corrected to correspond with what it would have been
but for the inadvertence. The court has inherent power to correct such
errors.” Aspen Internat.
Capital Corp. v. Marsch(4th Dist., Div. One 1991) 235 Cal. App. 3d 1199, 1204. A “clerical mistake” may include an ambiguous
provision in a judgment which seemingly changes what was actually agreed to and
ordered in open court. The mistake may be that of the lawyer who was asked to
draft the court order. The judgment should accurately express what was done in
court and what the judge had called for. It is the understanding of the court
and not that of the parties that is the determinative factor. See Russell v. Superior Court of Placer
County (3rd Dist. 1967) 252
Cal. App. 2d 1, 8.
There are general income tax rules related to
settlements and judgments. There
are tax consequences of payments
made in connection with a lawsuit and they remain the same whether the lawsuit
is settled or proceeds to judgment. In general, the origin of the claim
presented in the lawsuit determines the tax consequences of the award. A
plaintiff’s tax treatment is determined by reference to the genesis and
gravamen of the underlying claims. U.S.
v. Gilmore, 372 U.S. 39 (1963); U.S.
v Woodward, 397 U.S. 572 (1970); Keller
St. Dev. Co. v. Comm’r, 688 F.2d 675 (9th Cir. 1982).
This case is not dissimilar to Ward v. Am.
Family Life Ins. Co. of Columbus, 444 F.Supp.2d 540 (D. S.C. 2006), in
which the court refused to read into a settlement agreement a prohibition
against the filing of a Form 1099.
A court may amend its judgment to correct inaccuracies or ambiguities that might cause its actual intent
to be misconstrued. Omissions, erroneous inclusions, and descriptions are correctable. The test is not whether the language
appears to the court to be unambiguous, but whether the disputed
language is susceptible of more than one reasonable interpretation.
If it is reasonably susceptible to more than one interpretation, than evidence
other than the words on the page of the judgment should be provided.
THE DECLARATIONS LYNCH SUBMITTED ARE
COMPETENT EVIDENCE
COMPETENT EVIDENCE
Kelley Lynch’s declaration, while
extremely lengthy due to the fact that the litigation misconduct is so extensive,
does not need to meet the statutory requirements of CCP 1008(b) as she has not
submitted a motion to reconsider to this Court.
Lynch’s declaration, submitted together with this Reply addresses with
more specificity why she was unable to present this information in her previous
motion. The general reason for that is
due to the fact that Plaintiffs’ submitted documents and declarations replete
with fraudulent misrepresentations, perjured statements, and frivolous
arguments that had nothing whatsoever to do with Lynch’s Motion to Vacate. Leonard Cohen’s endlessly evolving narratives
are not something Lynch has always had in her possession.
Lynch is now resubmitting the
declarations of John Rutger Penick, Clea Westphal Surkhang, Paulette Brandt,
Palden Ronge, and Daniel J. Meade, together with the original signature pages
and additional evidence explaining the fact that they initially provided Lynch
with limited powers of attorney to conform their signatures and were available
and willing to testify at the January 17, 2014 hearing. The situation with respect to Kelley Lynch’s
mother’s declaration is more specifically addressed in the newly attached
declarations of Kelley Lynch and Paulette Brandt (attached hereto as Exhibits A
& B). See Exhibits D, E, F, G, and H
attached hereto and made a part hereof. Additionally,
Lynch submits a letter from her former employer, Jules Zalon, explaining that
while Lynch does have a legal background, she always worked under the
supervision of an attorney. That
practice continued through Lynch’s career as a personal manager. See Exhibit I attached hereto and made a part
hereof.
Finally, Lynch submits the declaration of Anne Julia MacLean. This declaration supports Lynch’s argument
that Leonard Cohen has a long and complicated history of deceiving others,
using operatives to target people, and falsely accuses people of stalking and
harassing him when he needs to move offensively or defend himself from
potentially damaging allegations. See
Exhibit J attached hereto and made a part hereof.
CONCLUSION
According to Plaintiffs’ Opposition, “Lynch’s
requested relief should be denied in its entirety because (i) Lynch’s 2015
Motion is procedurally defective and violates California Rules of Court and for
these reasons alone should be denied in its entirety; (ii) Lynch’s 2015 Motion
styled as one for “terminating sanctions” is an invalid postjudgment motion;
(iii) despite its spurious title, Lynch’s 2015 Motion seeks an order for the
same relief (an order vacating the Default Judgment) as her 2013 Motion, but
does not meet the statutory requirements of Code of Civil Procedure Section
1008, which is the sole authority allowing a party to renew a previous denied
motion; (iv) Lynch’s declaration filed in support of her 2015 Motion does not
meet statutory requirements of Section 1008(b) in that she demonstrates no new
or different facts, circumstances of law and offers no excuse as to why she
could not have advanced her alternate legal theories or presented these facts
in her 2013 Motion and therefore she has not demonstrated the requisite
diligence; (v) Lynch has not demonstrated fraud upon the Court or any
misconduct on the part of Plaintiff or his attorneys as a basis for granting
equitable relief; (vi) Lynch’s own case authority, decided under
California law and procedure, shows that a court sitting in equity will set
aside a final judgment after the time to appeal has expired only upon a showing
of extrinsic fraud; (vii) Lynch has not demonstrated extrinsic fraud, only
claims of intrinsic fraud; (viii) Lynch’s “Request for Clarification of
Ambiguous Judgment” is procedurally defective and has no statutory or
jurisdictional basis; (ix) Lynch shows no “clerical errors” in the Default
Judgment requiring correction; and (x) the Default Judgment is clear and
unambiguous.” Lynch’s Reply refutes these self-serving frivolous
arguments, made with obvious bad faith, in their entirety.
Dated:
16 June 2015 Respectfully
submitted,
Kelley
Lynch
