Cal. Prac. Guide Civ. Pro. Before Trial Ch. 9(I)-B

California Practice Guide: Civil Procedure Before Trial

Hon. William F. Rylaarsdam, Hon. Lee Smalley Edmon, Contributing Editors: Atty. Richard J. Burdge, Jr., Atty. Richard B. Goetz, and Atty. David J. Pasternak

Chapter 9. Part I Law And Motion

B. Preparing And Filing Motions

(a) [9:85.1] Proof of service: A declaration of personal service is required by the person delivering the documents. FORM: Proof of Personal Service—Civil (Judicial Council form POS–020).

=> [9:85.2] PRACTICE POINTER: If you are going to use a messenger to serve documents on opposing counsel or parties, the proof of service must be by the messenger. A declaration signed by a secretary who gave the papers to the messenger is hearsay and not sufficient. For the same reason, a declaration by the attorney (e.g., “I caused to be delivered by hand”) is likewise insufficient. If you are relying on personal service, the person who actually served the document must sign the proof of service.

(vi) Filing False Document

1945. Procuring Filing of False Document or Offering FalseDocument for Filing (Pen. Code, § 115)

The defendant is charged [in Count ] with (offering a (false/ [or]forged) document for (filing[,]/ [or] recording[,]/ [or] registration)/havinga (false/ [or] forged) document (filed[,]/ [or] recorded[,]/ [or] registered))[in violation of Penal Code section 115].

To prove that the defendant is guilty of this crime, the People mustprove that:

<Alternative 1A—offering>

[1. The defendant offered a (false/ [or] forged) document for(filing[,]/ [or] recording[,]/ [or] registration) in a public office inCalifornia;]

<Alternative 1B—procuring>

[1. The defendant caused a (false/ [or] forged) document to be(filed[,]/ [or] recorded[,]/ [or] registered) in a public office inCalifornia;]

2. When the defendant did that act, (he/she) knew that thedocument was (false/ [or] forged);

AND

3. The document was one that, if genuine, could be legally (filed[,]/[or] recorded[,]/ [or] registered).

New January 2006

BENCH NOTES

Instructional Duty

The court has a sua sponte duty to give this instruction defining the elements of

the crime.

AUTHORITY

• Elements. Pen. Code, § 115.

• Materiality of Alteration Not Element. People v. Feinberg (1997) 51

Cal.App.4th 1566, 1578–1579 [60 Cal.Rptr.2d 323].

• Meaning of Instrument as Used in Penal Code section 115. People v. Parks

(1992) 7 Cal.App.4th 883, 886–887 [9 Cal.Rptr.2d 450]; Generes v. Justice

Court (1980) 106 Cal.App.3d 678, 682–684 [165 Cal.Rptr. 222]; People v.

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Powers (2004) 117 Cal.App.4th 291, 295–297 [11 Cal.Rptr.3d 619].

Secondary Sources

2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes AgainstProperty, §§ 171–172.

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143,Crimes Against Property, § 143.04[1][b] (Matthew Bender).

RELATED ISSUES

Meaning of Instrument

Penal Code section 115 applies to any “instrument” that, “if genuine, might be

filed, registered, or recorded under any law of this state or of the United States

. . . .” (Pen. Code, § 115(a).) Modern cases have interpreted the term “instrument”

expansively, including any type of document that is filed or recorded with a public

agency that, if acted on as genuine, would have the effect of deceiving someone.

(See People v. Parks (1992) 7 Cal.App.4th 883, 886–887 [9 CalRptr.2d 450];

Generes v. Justice Court (1980) 106 Cal.App.3d 678, 682–684 [165 Cal.Rptr.

222].) Thus, the courts have held that “instrument” includes a modified restraining

order (People v. Parks, supra, 7 Cal.App.4th at p. 886), false bail bonds (People v.

Garcia (1990) 224 Cal.App.3d 297, 306–307 [273 Cal.Rptr. 666]), and falsified

probation work referrals (People v. Tate (1997) 55 Cal.App.4th 663, 667 [64

Cal.Rptr.2d 206]). In the recent case of People v. Powers (2004) 117 Cal.App.4th

291, 297 [11 Cal.Rptr.3d 619], the court held that fishing records were

“instruments” under Penal Code section 115. The court stated that “California

courts have shown reluctance to interpret section 115 so broadly that it

encompasses any writing that may be filed in a public office.” (Id. at p. 295.) The

court adopted the following analysis for whether a document is an “instrument,”

quoting the Washington Supreme Court:

(1) the claimed falsity relates to a material fact represented in theinstrument; and (2a) the information contained in the document is ofsuch a nature that the government is required or permitted by law,statute or valid regulation to act in reliance thereon; or (2b) theinformation contained in the document materially affects significantrights or duties of third persons, when this effect is reasonablycontemplated by the express or implied intent of the statute or validregulation which requires the filing, registration, or recording of thedocument.

(Id. at p. 297 [quoting State v. Price (1980) 94 Wash.2d 810, 819 [620 P.2d 994].)

Each Document Constitutes a Separate Offense

Penal Code section 115 provides that each fraudulent instrument filed or offered for

filing constitutes a separate violation (subdivision (b)) and may be punished

separately (subdivision (d)). “Thus, the Legislature has unmistakably authorized the

imposition of separate penalties for each prohibited act even though they may be

CALCRIM No. 1945 CRIMINAL WRITINGS AND FRAUD

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part of a continuous course of conduct and have the same objective.” (People v.

Gangemi (1993) 13 Cal.App.4th 1790, 1800 [17 Cal.Rptr.2d 462].)

1946–1949. Reserved for Future Use

CRIMINAL WRITINGS AND FRAUD CALCRIM No. 1945

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2641. Perjury by False Affidavit (Pen. Code, § 118a)

The defendant is charged [in Count ] with perjury by falseaffidavit [in violation of Penal Code section 118a].

To prove that the defendant is guilty of this crime, the People mustprove that:

1. The defendant gave an affidavit in which (he/she) (swore[,]/ [or]affirmed[,]/ [or] declared[,]/ [or] deposed[,]/ [or] certified) that(he/she) would (testify[,]/ [or] declare[,]/ [or] depose[,]/ [or]certify) before a competent (tribunal[,]/ [or] officer[,]/ [or]person) in connection with a case that had been or would befiled;

2. The defendant signed and delivered (his/her) affidavit to someoneelse intending that it be used, circulated, or published as true;

3. In the affidavit, the defendant willfully stated that informationwas true even though (he/she) knew it was false;

4. The information was material;

5. The defendant knew (he/she) was making the statement under(oath/affirmation);

AND

6. When the defendant made the false statement, (he/she) intendedto (testify[,]/ [or] declare[,]/ [or] depose[,]/ [or] certify) falselywhile under (oath/affirmation).

Someone commits an act willfully when he or she does it willingly or onpurpose.

An affidavit is a written statement made under an (oath/affirmation)given by a person authorized to administer oaths. [An oath is anaffirmation or any other method authorized by law to affirm the truthof a statement.]

[Information is material if it is probable that the information wouldinfluence the outcome of the proceedings, but it does not need toactually have an influence on the proceedings.]

[Information is material if <insert appropriate definition; seeBench Notes>.]

The People do not need to prove that the defendant knew that theinformation in (his/her) statement was material.

You may not find the defendant’s statement was false based on the

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testimony of <insert name of witness> alone. In addition tothe testimony of <insert name of witness>, there must besome other evidence that the defendant’s statement was false. This otherevidence may be direct or indirect. [However, if you conclude, based onthe defendant’s own testimony, that the allegedly false statement was infact false, then additional evidence is not required.]

If the defendant actually believed that the statement was true, thedefendant is not guilty of this crime even if the defendant’s belief wasmistaken.

The People allege that the defendant made the following falsestatement[s]: <insert alleged statement[s]>.

[You may not find the defendant guilty unless all of you agree that thePeople have proved that the defendant made at least one false statementand you all agree on which particular false statement the defendantmade. The People do not need to prove that all the allegedly falsestatements were in fact false.]

[It is not a defense (that the oath was given or taken in an irregularmanner/ [or] that the defendant did not go before or take the oath inthe presence of the officer claiming to administer the oath) as long asthe defendant caused the officer administering the oath to certify thatthe oath had been taken.]

[If you find beyond a reasonable doubt that after the defendant madethe statement[s] in the affidavit, (he/she) testified under oath in anothercase involving the same facts, but made [a] statement[s] that (was/were)different from (that/those) in the affidavit, you may, but are notrequired to, rely on that testimony to conclude that the statement[s] inthe affidavit (is/are) false.]

[When a person makes a statement, without qualification, thatinformation is true, but he or she does not know whether theinformation is true, the making of that statement is the same as sayingsomething that the person knows is false.]

[If the defendant attempted to correct the statement after it was made,that attempt may show that the defendant did not intend to (testify[,]/[or] declare[,]/ [or] depose[,]/ [or] certify) falsely. It is up to you todecide the meaning and importance of that conduct.]

New January 2006

BENCH NOTES

Instructional Duty

The court has a sua sponte duty to give this instruction defining the elements of

the crime.

CALCRIM No. 2641 CRIMES AGAINST GOVERNMENT

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The court has a sua sponte duty to define “material.” (People v. Kobrin (1995) 11

Cal.4th 416, 430 [45 Cal.Rptr.2d 895, 903 P.2d 1027] [materiality is a fact question

to be decided by the jury].) The first bracketed definition of material is appropriate

for court proceedings or legislative hearings. (People v. Hedgecock (1990) 51

Cal.3d 395, 405 [272 Cal.Rptr. 803, 795 P.2d 1260] [not appropriate for charge of

perjury on required disclosure forms].) For other types of proceedings, the court

should use the second bracketed sentence, inserting an appropriate definition in the

blank provided. (Ibid.)

The court has a sua sponte duty to instruct the jury about the need for

corroboration of the evidence of perjury. (People v. Di Giacomo (1961) 193

Cal.App.2d 688, 698 [14 Cal.Rptr. 574]; Pen. Code, § 118(b).) If the evidence that

the statement is false is based in whole or in part on the defendant’s testimony,

give the bracketed sentence that begins with “However, if you conclude, based on

the defendant’s own testimony.”

If the prosecution alleges under a single count that the defendant made multiple

statements that were perjury, the court has a sua sponte duty to instruct on

unanimity. (People v. McRae (1967) 256 Cal.App.2d 95, 120–121 [63 Cal.Rptr.

854].) Give the bracketed paragraph that begins with “You may not find the

defendant guilty unless.”

Give the bracketed sentence that begins with “It is not a defense (that the oath was

given or taken in an irregular manner” on request if supported by the evidence.

(Pen. Code, § 121.)

Do not give the bracketed paragraph stating that defendant “testified under oath in

another case involving the same facts” if there is evidence that the defendant’s

statements alleged to be false in the current case were in fact true. (Pen. Code,

§ 118a; Evid. Code, §§ 600–607; People v. Roder (1983) 33 Cal.3d 491, 497–505

[189 Cal.Rptr. 501, 658 P.2d 1302].) Although the statute creates a rebuttable

presumption that the first statements made were false, the instruction has been

written as a permissive inference. An instruction phrased as a rebuttable

presumption would create an unconstitutional mandatory presumption. (See People

v. Roder, supra, 33 Cal.3d at pp. 497–505.)

Give the bracketed sentence that begins with “When a person makes a statement,

without qualification,” on request if supported by the evidence. (Pen. Code, § 125.)

If there is sufficient evidence, give the bracketed paragraph that begins with “If the

defendant attempted to correct.” (People v. Baranov (1962) 201 Cal.App.2d 52,

60–61 [19 Cal.Rptr. 866].)

AUTHORITY

• Elements. Pen. Code, § 118a.

• Oath Defined. Pen. Code, § 119.

• Irregular Oath Not a Defense. Pen. Code, § 121.

• Knowledge of Materiality Not Necessary. Pen. Code, § 123.

CRIMES AGAINST GOVERNMENT CALCRIM No. 2641

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• Completion of Deposition, Affidavit, or Certificate. Pen. Code, § 124; Collins

v. Superior Court (2001) 89 Cal.App.4th 1244, 1247 [108 Cal.Rptr.2d 123].

• Unqualified Statement Equivalent to False Statement. Pen. Code, § 125.

• Material Defined. People v. Pierce (1967) 66 Cal.2d 53, 61 [56 Cal.Rptr. 817,

423 P.2d 969]; People v. Hedgecock (1990) 51 Cal.3d 395, 405 [272 Cal.Rptr.

803, 795 P.2d 1260]; People v. Rubio (2004) 121 Cal.App.4th 927, 930–934 [17

Cal.Rptr.3d 524].

• Materiality Is Element to Be Decided by Jury. People v. Kobrin (1995) 11

Cal.4th 416, 430 [45 Cal.Rptr.2d 895, 903 P.2d 1027]; People v. Feinberg

(1997) 51 Cal.App.4th 1566, 1576 [60 Cal.Rptr.2d 323].

• Specific Intent to Testify Falsely Required. People v. Viniegra (1982) 130

Cal.App.3d 577, 584 [181 Cal.Rptr. 848]; see also People v. Hagen (1998) 19

Cal.4th 652, 663–664 [80 Cal.Rptr.2d 24, 967 P.2d 563] [discussing intent

requirement for perjury].

• Good Faith Belief Statement True Negates Intent. People v. Von Tiedeman

(1898) 120 Cal. 128, 134 [52 P. 155] [cited with approval in People v. Hagen

(1998) 19 Cal.4th 652, 663–664 [80 Cal.Rptr.2d 24, 967 P.2d 563]]; People v.

Louie (1984) 158 Cal.App.3d Supp. 28, 43 [205 Cal.Rptr. 247].

• Unanimity. People v. McRae (1967) 256 Cal.App.2d 95, 120–121 [63

Cal.Rptr. 854].

• Mandatory Presumption Unconstitutional Unless Instructed as Permissive

Inference. People v. Roder (1983) 33 Cal.3d 491, 497–505 [189 Cal.Rptr. 501,

658 P.2d 1302].

Secondary Sources

2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes AgainstGovernmental Authority, §§ 56–81.

2 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 40,Accusatory Pleadings, § 40.07[6] (Matthew Bender).

LESSER INCLUDED OFFENSES

• Attempted Perjury. People v. Post (2001) 94 Cal.App.4th 467, 480–481 [114

Cal.Rptr.2d 356].

RELATED ISSUES

See the Related Issues section of CALCRIM No. 2640, Perjury.

2642–2649. Reserved for Future Use

CALCRIM No. 2641 CRIMES AGAINST GOVERNMENT

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Sacramento Family Court NewsHOME JUDGE PRO TEMS 3rd DISTRICT COURT of APPEAL RoadDog SATIRE

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17 April 2013

Hon. Jaime R. Roman Misconduct: Rewrites California Vexatious Litigant Law for Judge Pro Tem Divorce Lawyer Charlotte Keeley

News Analysis & Opinion by PelicanBriefed

The Sacramento Family Court News analysis team has been working overtime scrutinizing and trying to make sense of a controversial 20-page statement of decision issued on Nov. 14 of last year by Supervising Family Court Judge Jaime R. Roman. Click here for our initial report from 2012.

Roman's decision is now being challenged in both the Third District Court of Appeal, and in a federal class action lawsuit filed March 22 in U.S. District Court in San Francisco. It is certain that taxpayers will get a substantial bill for each case. Court watchdogs contend Roman's order exemplifies the overt lawlessness that occurs weekly in family court, and the preferential treatment that full-time judges provide for-profit attorneys who also serve as temporary judges.

The unprecedented ruling - which was made-to-order for Judge Pro Tem attorney Charlotte Keeley - rewrites California vexatious litigant law and procedure. Watchdogs hold Judge Roman responsible for putting taxpayers on the financial hook for the costs of yet another unnecessary appeal from family court, and the federal litigation.

In another pointless appeal caused by judicial misconduct, Judge Matthew J. Gary unsuccessfully attempted a similar rewrite of putative spouse law and in 2011 was reversed in full by the Third District Court of Appeal. Our analysis indicates that Judge Roman's order likely is headed for the same fate.

To continue reading, click Read more >> below:

Judge Jaime Roman Misstates Law, Uses Overruled Case to Justify Vexatious Litigant and Other Orders Without Court Hearing

Judge Jaime R. Roman denied a family court litigant the right to a court hearing and oral testimony - fundamental components

of the right to due process of law.

Off-the-Rails at Conjunction Junction

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The confusing legal rationale of Judge Roman's 20-page decision is constructed from a series of allegedly consistent conjunctions conjoining components of the Family Code, Code of Civil Procedure, and court rules. For example, Roman writes at page six:

"Sacramento Superior Court Rule 14.02(C), consistent with Code of Civil Procedure section 2009, in conjunction with Family Code section 210.." and

"Code of Civil Procedure section 1008(a), in conjunction with Family Code section 210..." at page eight, and

"California Code of Civil Procedure section 2009 in conjunction with Family Code section 210...California Rules of Court rule 3.1306(a), in conjunction with California Rules of Court, rule 5.21...See Family Code section 217(c); California Rules of Court, rule 3.1306(b), in conjunction with rule 5.21 and rule 5.119," at page 19.

Judge Roman's statute and court rule references, and calculated omission of contrary authority suggest an intent to cherry-pick law - including law not applicable to a vexatious litigant proceeding - to reach a predetermined result for the benefit of Judge Pro Tem attorney Charlotte Keeley. In our first report on the decision, veteran court watchdog Robert Saunders astutely observed that the judge used reverse engineering. "In other words, he knew how he wanted to rule and from there worked backwards to try and justify an unjustifiable ruling," Saunders said in 2012.

Saunders' analysis appears to be substantially accurate, according to the family and civil law reference books used by judges, attorneys and Sacramento Family Court News. The logically inferred intent of Roman's risible, convoluted conjunctions is to enable himself to designate a family court party a vexatious litigant and issue a $2,500 sanctions assessment and 13 additional orders against the same party - all without a court hearing and oral argument. But Judge Roman is off-the-rails at conjunction junction.

California Practice Guide: Civil Procedure Before Trial, the gold standard civil law reference work used by judges and attorneys, indicates that Judge Roman attempted to create the illusion that his order was grounded in legitimate law by misstating and misapplying Code of Civil Procedure § 2009, Family Code § 210, and § 217, and California Rules of Court rules 3.1306 and 5.21. The perplexing rationale Roman cobbled together from parts of each is preempted and effectively nullified by the vexatious litigant statute and decisional law, according to the Guide.

Court watchdogs and whistleblowers charge that Judge Roman's prejudgment, unlawfully vacated hearing and erroneous statement of decision are more examples of Chris Volkers, Julie Setzer and other court administrators failing to adequately train, supervise, and discipline family court judges. They point out that Judge Roman, the supervising family law, probate and ADA judge has limited family court experience, and often confuses civil law with family law. At the end of her own two-year stint in family court, Judge Sharon Lueras confessed to the family law bar that, at the beginning of her family court assignment, she knew nothing about family law. The consequences of inadequate training and supervision can be tragic. Unrepresented litigant

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Jessica Hernandez blames Lueras for the death of her son at the hands of her ex-husband. Click here for our coverage of the Hernandez case.

As we reported in our original coverage, Judge Roman unilaterally cancelled a family court hearing calendared for Nov. 14, 2012. The hearing was scheduled for the purpose of arguing and resolving 15 disputed issues in the case Katina Rapton vs Andrew Karres.

On the day of the hearing, the parties and attorneys arrived at the courtroom and were told by the judge that the hearing was vacated and would not take place. A dumbfounded Sharon Huddle, the attorney for Karres, had the judge repeat the statement a second time while being recorded by a court reporter. Click here to read the court reporter's transcript, obtained exclusively by Sacramento Family Court News.

At the end of the non-hearing, Judge Roman scrawled out a minute order that read only "VACATED: COURT STATEMENT OF DECISION." The day before the hearing, Roman wrote, signed, filed, and mailed to the attorneys a 20-page statement of decision resolving all issues.

Virtually all of the rulings were in favor of Rapton and against Karres. Rapton, the Mel Rapton Honda heiress is represented by veteran family law attorney and temporary judge Charlotte Keeley. The orders requested by Keeley and granted by Roman included designating Karres a vexatious litigant, and ordering the financially disadvantaged litigant to pay Keeley $2,500 in sanctions. The vexatious litigant designation severely restricts Karres' access to every court in California by requiring him to get pre-approval from a presiding judge before he can file anything, anywhere in the state.

Conjunction MalfunctionThe relationship between family law, civil law and the court rules applicable to each can be confusing. But the family law procedure manual used by judges and attorneys, California Practice Guide: Family Law neatly sorts it all out in just two pages, which, apparently, is news to Judge Roman who clumsily cut, conjoined, and pasted conflicting laws and rules to justify his vexatious litigant order.

An assessment of the legality of Roman's order blacklisting Andrew Karres as a vexatious litigant begins with the law itself. California's vexatious litigant law is codified at Code of Civil Procedure §§ 391-391.8. Wikipedia explains how the law works at this link. The law was intended to limit frivolous litigation by unrepresented, pro per parties in civil courts. When a judge issues an order designating a self-represented litigant as a vexatious litigant, the Constitutional rights of access to the courts, due process of law, equal protection of law and the right to petition the government for redress are severely restricted. Due to the harsh consequences of the vexatious litigant label, California law requires full due process before the order can be issued, including notice and a court hearing where written or oral evidence is presented. The notice and hearing requirements of the vexatious litigant statute are difficult to misconstrue:

"At the hearing upon the motion the court shall consider any evidence, written or oral, by witnesses or affidavit, as may be material to the ground of the motion," reads the law at section 391.2.

At § 391.3, the vexatious litigant law specifies, twice, that a decision is made "after hearing the evidence on the motion." The California Practice Guide for civil law recites the procedure for a vexatious litigant determination, including the required court hearing. Based on the 2002 appellate court case Bravo v. Ismaj, "[a] party may not be declared to be a 'vexatious litigant' without a noticed motion and hearing which includes the right to oral argument

The Disappearing Hearing

Family law attorney and Judge Pro Tem Charlotte L. Keeley demanded and gotfrom Judge Jaime R. Roman a court order designating Andrew Karres a

vexatious litigant.

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Labels: ANALYSIS, CHARLOTTE KEELEY, CHILD CUSTODY, CJP, JAIME R. ROMAN, JUDGE PRO TEM, JUDICIAL MISCONDUCT, OPINION, RAPTON-KARRES, SHARON HUDDLE, VEXATIOUS LITIGANT Location: Family Relations Courthouse - William R. Ridgeway - Sacramento County Superior Court, 651 I Street, Sacramento, CA 95814, USA

and the presentation of evidence," according to the Guide. Since the 2002 Bravo case, at least 20 other published and unpublished appellate court decisions have relied on and mirrored the controlling holding in Bravo, including these two cases from 2009 and 2012.

In a single paragraph and four footnotes at page 19 of his 20-page statement of decision, Judge Roman provides his rationale for issuing the vexatious litigant order without a hearing. The judge recites sections of the Code of Civil Procedure, Family Code, and court rules that he claims, when conjoined, authorize him to "vacate the hearing in this matter..."

Notably absent from the justification is any reference to the Bravo line of cases, the notice and hearing requirements of the vexatious litigant statute, and the instruction of the California Practice Guides, all of which contradict Roman's justification for denying Karres a hearing with oral argument and the presentation of evidence. Roman does cite to a single case law reference, Reifler v. Superior Court, a 1974 case which was effectively overruled by the Legislature as of January 1, 2011, and which in any event has no legitimate connection to the procedure for declaring a litigant vexatious. Judge Roman gives his reasons for blacklisting Karres statewide as a vexatious litigant at pages 15-18 of his 20-page statement of decision. Absent from the ruling is the boilerplate recital that "The Court has considered the moving and responding papers, the evidence and argument presented at the hearing, and the files herein," which appears on page one of this vexatious litigant order from a family court case in Santa Clara County. Judge Roman's unlawful order declaring Karres a vexatious litigant is now the subject of both a costly appeal and federal civil rights litigation against Judicial Branch officials. The appeal and federal case will cost the parties and taxpayers significant sums. The current cost to taxpayers for a single appeal is between $8,500 and $25,000, according to recent appellate court decisions. Ironically, vexatious litigants are routinely accused of, and punished for wasting scarce appellate court resources with frivolous litigation.

"Other appellate parties, many of whom wait years for a resolution of bona fide disputes, are prejudiced by the useless diversion of this court's attention. [Citation.] In the same vein, the appellate system and the taxpayers are damaged by what amounts to a waste of this court's time and resources," reads a line of cases from 1988 to 2012, beginning with Finnie v. Town of Tiburon.

The same should be said about the unnecessary appeal and federal litigation against the government compelled by Judge Roman's order.

Related articles:

Click here for our complete coverage of the Rapton-Karres case.

Click here for our reporting on Judge Jaime R. Roman.

Click here for coverage of judicial misconduct.

Click here for our special Judge Pro Tem Page.

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Judge Jaime R. Roman conjoined statutory law, court rules and overruled decisional law to rewrite vexatious litigant procedure in California.

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22 April 2013

Sacramento Divorce Attorney Charlotte Keeley, Judges Peter J. McBrien and Jaime R. Roman et al., vs. Sharon Huddle

News Analysis & Opinion by PelicanBriefed

For Roseville family law attorney Sharon Huddle, the Sacramento Family Court proceedings surrounding issuance of a controversial order designating her client Andrew Karres a vexatious litigant may be déjà vu all over again. Throughout the 20-page order, written by Judge Jaime R. Roman, Huddle and her client are demeaned, disparaged and ridiculed. The opposing attorney - Judge Pro Tem Charlotte Keeley - and her client, Mel Rapton Honda heiress Katina Rapton, are portrayed by Roman in the patently unlawful order as victims. For our complete coverage of the vexatious litigant order and the Rapton-Karres case, click here.

Judge Jaime R. Roman Vexatious Litigant Order for Attorney Charlotte Keeley Shows Judge Pro Tem Monopoly - Unfair Competition at Work

Roseville-based family law attorney Sharon Huddle continues to be subjected to retaliation by Sacramento County Family Court judges, apparently for her assertive client advocacy in the notorious Carlsson case and the related Commission on Judicial Performance disciplinary proceedings

against troubled Sacramento Superior Court Judge Peter McBrien.

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Huddle was subjected to similar treatment by Judge Peter J. McBrien during a family court trial in March, 2006. McBrien's treatment of Huddle was later recounted by eyewitness and court reporter Robbi Joy in sworn testimony before the Commission on Judicial Performance, where the rogue judge received his second round of discipline by the CJP. The transcript of Joy's testimony - obtained exclusively and published for the first time by Sacramento Family Court News - provides still more explicit evidence of the preferential treatment and kickbacks given by judges to the cartel of local family law attorneys who also serve as temporary judges.

The transcript and other records from the McBrien CJP proceedings also provide a troubling point of reference indicating that the unlawful, interdependent relationship between full-time judges and judge pro tem attorneys dates back at least seven years and is now all but institutionalized.

To read the sworn testimony of Robbi Joy and an incriminating admission by Santa Barbara County Superior Court Judge Denise deBellefeuille, click Read more >> below.

Court watchdogs and whistleblowers have cataloged an array of other examples of judge pro tem favoritism, including undisclosed conflicts of interest and counterfeit court filings that impede the appeal rights of unrepresented litigants. They assert that financially disadvantaged, self-represented family court litigants with little or no knowledge of family law and court procedure are treated even harsher than outside-the-cartel lawyers like Huddle. Watchdogs point to informal audits of several family court cases and anecdotal evidence indicating that cartel attorneys obtain favorable rulings on disputed issues at a statistically improbable rate.

The collusion between full-time judges and judge pro tem attorneys constitutes unfair, fraudulent, and unlawful business practices, all of which are prohibited under California unfair competition laws, including Business and Professions Code § 17200, according to court reform advocates.Whether a party is self-represented or represented by an "outsider" attorney, a judge pro tem attorney on the opposing side is the common denominator in lopsided, unfair and unlawful court rulings. They contend that taxpayers inevitably will be held liable for class action or institutional reform litigation [pdf], or government enforcement under B&P Code § 17200 on behalf of outside attorneys and pro per litigants against the court and the Sacramento County Bar Association Family Law Section.

Santa Barbara County Superior Court Judge Denise deBellefeuille was one of three judges assigned to hear and decide the fate of Sacramento County Superior Court Judge Peter J. McBrien in his 2009 disciplinary proceedings before the Commission on Judicial Performance. [Click here to read the court of appeal decision that sent McBrien to the CJP woodshed a second time]. In her assessment of the testimony and evidence considered by the 3-judge panel, she candidly acknowledged that McBrien's favorable treatment of judge pro tem attorney Charlotte Keeley and harsh treatment of attorney Sharon Huddle was partly attributable to the fact that Huddle "wasn't an insider. She wasn't a pro tem."

When San Francisco attorney Stephen R. Gianelli read an article in the ABA Journal on the court of appeal decision in the Carlsson case, he wrote about his own nightmarish experience as an outsider attorney in

California Unfair Competition Law

"She Wasn't An Insider. She Wasn't a Pro Tem."

Judge Denise deBellefeuille made this unsettling observation in her assessment of the evidence presented at the Commission on Judicial Performance disciplinary proceedings against Sacramento County Superior Court Judge Peter J. McBrien.

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Sacramento Family Court. Like Huddle, Gianelli also faced off against judge pro tem Charlotte Keeley:

"[I] was attacked personally in court filing after court filing. I was required to drive from San Francisco to Sacramento (a three hour round trip drive) over six times on 24 hours notice, in my opinion to harass me and make me quit," the attorney said. "[T]his is a 'juice court' in which counsel outside Sacramento have little chance of prevailing...[the] court has now abandoned even a pretense of being fair to outside counsel."

Click here to read Gianelli's complete statement. In future posts, SFCN will have more, never before published information on the McBrien CJP proceedings, including transcripts of sworn statements by character witnesses who testified on McBrien's behalf, including full-time and temporary Sacramento County Superior Court judges. Judge pro tem lawyers who testified for McBrien include Camille Hemmer, Jerry Guthrie, Robert O'Hair, and current chair of the Sacramento County Bar Association Family Law Section Russell Carlson.

The relevance of court reporter Robbi Joy's testimony about the contrast between how Judge McBrien treated outsider attorney Sharon Huddle and temporary judge attorney Charlotte Keeley during the Carlsson trial was described by CJP attorney Andrew Blum.

"Robbi Joy is a neutral third party. She's not friends with any of these people. She's been a court reporter for a long time, and she has seen a lot of what takes place in courtrooms. She testified that the judge was demeaning to Ms. Huddle, treated her with disdain and displayed irritation towards her throughout the trial, and she never saw Ms. Huddle do anything to justify that conduct. Even Judge McBrien admitted that some of his comments could make it appear that he was badgering Ms. Huddle in an inappropriate manner. Now, in addition to what these actual observers said, the record shows that he repeatedly threatened a mistrial from early on in the trial, curtailed her presentation of evidence, threatened her with contempt, and he would barely let her take breaks to go to the bathroom." To view Blum's statement, click here.

Robbi Joy's testimony included the following exchange:

Q. During the Carlsson trial, how would you describe Judge McBrien's behavior towards Attorney Huddle?

A [Robbi Joy]. Demeaning. This is hard. He is a judge. I have no ill will toward him. But it was remarkable to me that he seemed to have an amicable relationship with Ms. Keeley, but he seemed so irritated with Ms. Huddle. In fact, I asked the deputy -

MR. MURPHY: Objection –

SPECIAL MASTER CORNELL: Sustained.

MR. MURPHY: hearsay.

BY MR. BLUM:

Q. What did the judge do that makes you say that he was demeaning towards Ms. Huddle?

A. A couple of times she asked for just a brief break. She finally said, frankly, "I want to use the restroom, and you've given me a couple of tasks, phone calls to make," and he said, "one minute." And he repeatedly threatened a mistrial. I've seen this happen. If you say it's to wrap up Friday and it's already Friday and it seems to be going on and on, that the judge may say, "We're headed for a mistrial" or "none of us want a mistrial. " But he, I would say, at least five times said, "Do you want a mistrial? Just, let's have a mistrial, " which is something, of course, that nobody wants to have to go through.

Q. Did the judge's poor demeanor towards Ms. Huddle begin on the first day of trial?

A. Yes.

Q. Did it continue throughout the trial?

A. Yes.

Q. Did you observe Ms. Huddle do anything that would justify Judge McBrien's attitude towards her?

A. No. I felt that she and Ms. Keeley comported themselves as professionals.

Q. Would you say that Ms. Huddle was ever rude or disrespectful to the judge?

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A. No.

Q. I think you touched on this, but how did Judge McBrien treat Ms. Keeley?

A. In a much more respectful manner.

Q. Did Judge McBrien treat you poorly?

A. No.

Q. Were the attorneys rude to each other?

A. No.

Q. In your years as a court reporter, have you ever seen a judge behave this way, the way Judge McBrien behaved towards Ms. Huddle?

A. Not to be glib, but not even on television.

Q. So that's a no?

A. That's a no. I certainly have seen judges lose their temper, if they're consuming time or if it's just -- for a reason. But I have not seen a judge, without some prior history of dealing with this attorney or -- or for some other reason, just seeming to have disdain for them.

To read Robbi Joy's complete testimony, click here.

In 2008, the 3rd District Court of Appeal described how Huddle's client, Ulf Carlsson, was ultimately treated at the conclusion of the 2006 trial. The description bears similarities to the recent treatment of Huddle client Andrew Karres by Judge Jaime R. Roman.

"Judge McBrien issued a written decision, ruling against Ulf on almost every issue. He rejected Ulf's contention that Mona was underemployed, ruled ruled that Ulf and Mona were sole owners of the rental property; ordered both the family residence and the rental property sold; failed to segregate Ulf's retirement account for purposes of awarding Mona her community share; and ordered Ulf to pay Mona $35,000 in attorney and expert witness fees. Despite the court's prior handwritten order that child support would not be determined until custody was resolved, the judgment ordered Ulf to pay $736 per month in child support." Click here.

NEXT: The Huddle-Keeley-McBrien backstory, continued: The revealing ex parte communication between Judge Peter J. McBrien and Judge Pro Tem Charlotte Keeley, and McBrien's secret transcript request.

Related articles: Sacramento Family Court News has continuing coverage of issues involving judge pro tem attorneys and financially disadvantaged, unrepresented litigants. For a list of all posts about temporary judges, click here. Our special, independent Judge Pro Tems Page is at this link. Specific issues with direct links include:

A variety of illegal tactics used by court employees, judges, the Family Law Facilitator Office and judge pro tem attorneys to obstruct family court appeals by unrepresented, financially disadvantaged litigants.Click here.

Full-time family court judges failure to disclose judge pro tem conflicts of interest to opposing parties and attorneys. Click here.

Judge pro tem attorneys promoted a software program sold by the wife of a family court judge. Click here.

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Posted by PelicanBriefed at 3:06 PM

Labels: ANALYSIS, CHARLOTTE KEELEY, CHILD CUSTODY, JAIME R. ROMAN, JUDGE PRO TEM, JUDICIAL MISCONDUCT, OPINION, PETER J. McBRIEN, RAPTON-KARRES, SHARON HUDDLE Location: Sacramento County Superior Court, 651 I Street, Sacramento, CA 95814, USA Family Relations Courthouse

Court administrators concealing from the public judge pro tem attorney misconduct, including sexual battery against clients. Click here.

Illegal use of California vexatious litigant law by family court judges. Click here.

Waiver of judge pro tem qualification standards. Click here.

Failure to adequately train family court judges. Click here.

Allowing courtroom clerks to issue incomplete, useless fee waiver orders which prevent indigent and financially disadvantaged litigants from serving and filing documents. Click here.

Preferential treatment provided to judge pro tem attorneys by family court judges, administrators, and employees. Click here.

Unfair competition and monopolistic practices by family court judges and attorneys who also hold the Office of Temporary Judge which may violate state unfair competition laws. Click here.

Judges cherry-pick state law and court rules to rewrite established law to reach a predetermined result to benefit judge pro tem attorneys. Click here.

The waste of scarce court resources and taxpayer funds caused by unnecessary appeals and other court proceedings. Click here and here.

Allowing judges with a documented history of misconduct and mistreatment of unrepresented litigants to remain in family court. Click here.

Concealing from the public but disclosing to the family law bar the demotion of problem judges. Click here.

Failing to enforce the Code of Judicial Ethics provisions applicable to temporary judges. Click here.

Allowing court clerks to commit perjury without apparent consequences. Click here.

Permitting Family Law Facilitator Office staff to dispense false information to unrepresented, financially disadvantaged litigants. Click here.

Click to visit Sacramento Family Court News on: Facebook, YouTube, Google+, Scribd, Vimeo, and Twitter. For additional reporting on the people and issues in this post, click the corresponding labels below:

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20 February 2014

Judge Peter J. McBrien Misconduct: Divorce Corp Documentary Reveals Sacramento Family Court Most Corrupt In Nation

Movie Review and Opinion by PelicanBriefed

It is now difficult to dispute that the Sacramento County Family Court system - rebuilt more than 20 years ago to the specifications of local judge pro tem family law attorneys by Judge Peter McBrien, then-Judge Vance Raye, divorce attorney Robert O'Hair, and others - has become the most corrupt family court in the nation. The proof is now available to anyone for $20: the cost of the documentary film Divorce Corp, recently released on DVD, and also available by download at the iTunes store. In his first, full-length documentary film, director Joe Sorge meticulously documents the epidemic of corruption and collusion in family courts throughout the United States. And the Sacramento County system rises to the top of the toxic slurry pond.

To continue reading, click Read more >> below...

A parade of litigants from Indiana, Tennessee, Ohio, California and other locales recount their nightmare

Judge Peter McBrien and Sacramento County Family Court System Disemboweled in Divorce Corp Documentary

Sacramento Family Court litigant Ulf Carlsson's startling story is central to the documentary Divorce Corp.

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experiences in child custody and other divorce-related court disputes. Retired judges, active attorneys, child custody evaluators and court reform advocates are interviewed over the one hour, 33 minute run time of the film. In one compelling segment, Nevada County Superior Court whistleblower Emily Gallup reveals that state-level oversight and accountability of California family courts is effectively nonexistent. In a tacit admission, the Judicial Council and Administrative Office of the Courts declined Sorge's request to be interviewed and respond to Gallup's documented accusations.

But the local, well-known Ulf Carlsson case takes center stage and is woven throughout the movie, overshadowing the horror stories of other litigants. Judge Peter McBrien's clinically sociopathic, personal vendetta against Carlsson - which in 2012 6th District Court of Appeal Presiding Justice Conrad Rushing called a "judicial reign of terror" - is chronicled in all its perverse glory. Sacramento family court litigants Andrew Karres, Mike Newdow and Robert Saunders, and Nevada County pro per Elena Haskins also make appearances criticizing virtually every aspect of local court operations. Judges, attorneys, custody evaluators, the family law facilitator, and even the "child's best interest" legal standard are all held under the microscope and come away nakedly exposed and tarnished. Sometimes, only a cliché will do: Must be seen to be believed. Missing only interviews with family court child victims. Four and a half stars.

Click here to order the movie at the Divorce Corp web page. To download the film from the iTunes store, click here.

Click to visit Sacramento Family Court News on: Facebook, YouTube, Google+, Scribd, Vimeo, and Twitter. For additional reporting on the people and issues in this post, click the corresponding labels below the photos:

Andrew Karres recounts his own hellish experience in Sacramento Family Court in the documentary Divorce Corp.

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Sacramento Family Court litigant Robert Saunders is interviewed for Divorce Corp during a protest demonstration at the courthouse. Saunders' case is ongoing. Last November, Judge Thadd Blizzard inexplicably authorized an illegal, out-of-state child abduction in the

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Judge Peter J. McBrien via Google+ 9 months ago - Shared publicly

Judge Peter McBrien and Sacramento Family Court System Disembowled in Divorce Corp DocumentarySacramento Family Court News reviews Divorce Corp..."Must be seen to be believed." #judgemcbrien #ulfcarlsson #sacramento #familycourt #familylaw #government #misconduct

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Helen Evans 9 months ago - Shared publicly

The subject of family law is a broad and diverse subject. It covers a wide range of issues and topics mainly involving the subject of marriage and the rights of children under marriage. Some of the subjects that pertain to family law are divorce, annulment and child support.<a href="http://stolenspouse.com">suing home wrecker</a>.

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Posted by PelicanBriefed at 7:53 PM

Labels: ARTS & CULTURE, ATTORNEY MISCONDUCT, DIVORCE CORP, EMILY GALLUP, JUDICIAL MISCONDUCT, MIKE NEWDOW,

PETER J. McBRIEN, RAPTON-KARRES, ROBERT O'HAIR, ROBERT SAUNDERS, ULF CARLSSON, VANCE W. RAYE

Location: William Ridgeway Family Relations Courthouse - 3341 Power Inn Road, Sacramento, CA 95826, USA

Correction: This post has been updated to reflect that Elena Haskins' family court case is in Nevada County.

Elena Haskins and her Nevada County Family Court case play a prominent role in Divorce Corp.

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