09-04-21 Fine v Sheriff (2:09-cv-01914) Dkt #12: April 21, 2009 Sheriff Baca's Motion to Dismiss

8/8/2019 09-04-21 Fine v Sheriff (2:09-cv-01914) Dkt #12: April 21, 2009 Sheriff Baca's Motion to Dismiss

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Case 2:09-cv-01914-JFW-CW Document 12 Filed 04/21/2009 Page 1 of 41

II1 II ~ ~ ~ B l ~ ~ t a ~ ~ o ~ a t e Bar No. 166265"" II ~ A RO@' K FO"1l..T'I' A NA C1 , , B "1l..T 2 4 A ~ AAL A A I'\l IV!. I ' \ l l A l , ~ T a T e ar l'\lO. ~ ; ) q [email protected] LAWRENCE BEACH ALLEN & CHOI, PC100 West Broadway, Suite 12004 Glendale, California 91210=1219Telephone No. (818) 545-19255 Facsimile No. (818) 545-19376 A t t o r n e ~ s for Res120ndentSHERIFF LEROY D. BACA [erroneously named as SheriffofLos Angeles7 County]8

RICHARD 1. FINE,12

SHERIFF OF LOS ANGELES15 COUNTY,

UNITED STATES DISTRICT COURTC ENTR AL DI STR I CT OF CALIFORNIA

91011

1314

1617181920212223

vs.Petitioner,

Respondent.

Case No. CV 09-1914 GW (CW)RESPONDENT'S NOTICE OFMOTION AND MOTION TODISMISS PETITIONER'SPETITION FOR WRIT O FHABEAS CORPUS OR IN THEA L T E R N A T I V E ~ REOUEST THATT H IS C O UR T DIRECT TH E REALP AR TI ES I N INTEREST T ORESPOND TO PETITIONER'SHABEAS CORPUS PETITION;MEMORANDUM OF POINTS ANDAUTHORITIES ANDDECLARATION OF PAUL B.B EA CH I N S U PP O RT THEREOFDate: May 19, 2009Time: 10:00 a.m.Courtroom: 640Honorable Carla M. Woehrle

24 TO THE HONORABLE COURT, ALL INTERESTED PARTIES, AND THEIR25 ATTORNEYS OF RECORD:26 PLEASE TAKE NOTICE that onMay 19,2009, at 10:00 a.m., or as soon27 thereafter as counsel may be heard, in Courtroom 640 of the above-referenced28 Court, located at 312 North Spring Street, Los Angeles, California 90012-4793,

1Fine\Motion to Dismiss or in the Alternative, Request That This Court Direct the Real Parties In Interest To Respond


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1 Respondent SheriffLeroy D. Baca will move this Court for dismissal of Petitioner2 Richard 1. Fine's ("Petitioner") Petition for Writ ofHabeas Corpus by a Person in3 State Custody under 28 U.S.C. 2254 or, in the alternative, request that this Court4 direct the real parties in interest in this matter - Superior Court ofCalifornia, Los5 Angeles County, Judge David P. Yaffe, and Del Rey Joint Venture and Del Rey6 Joint Venture North - to respond to Petitioner's Petition for Writ ofHabeas Corpus,7 upon the following grounds:8 1. Named Respondent, SheriffLeroy D. Baca1, is not a real party in9 interest in this matter.10 This Motion will be based upon this Notice, the attached Memorandum of11 Points and Authorities, the Declaration ofPaul B. Beach, and upon such further12 evidence as may be presented at or before the hearing. Due to Petitioner's status as13 a party appearing pro se, pursuant to Central District ofCalifornia Local Rule 1614 12, this case is exempt from the requirement ofLocal Rule 7-3.1516 Dated: April 21, 200917181920212223

LAWRENCE BEACH ALLEN & CHGI, PC

B Y _ - L 2 ~ ~Aaron M. FontanaAttorneys for RespondentSheriffLeroy D. Baca

2425262728

1 SheriffBaca does not dispute that he is correctly named as Respondent in thismatter, however, as discussed below, he should not be required to respond toPetitioner's Petition for Writ ofHabeas Corpus because he is not a real party ininterest. 2Fine\Motion to Dismiss or in the Alternative, Request That This Court Direct the Real PartiesIn Interest To Respond


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1 MEMORANDUM OF POINTS AND AUTHORITIES2 I. Introduction.3 Petitioner Richard 1. Fine ("Petitioner"), proceedingpro se, is currently in4 custody in the Los Angeles County jail pursuant to a contempt order issued by Judge5 David P. Yaffe ("Judge Yaffe") of the Superior Court ofCalifornia, County ofLos6 Angeles. Before this Court is Petitioner's Petition for Writ ofHabeas Corpus,7 pursuant to 28 U.S.C. 2254 ("Petition"), which names SheriffLeroy D. Baca8 ("SheriffBaca"}as the only Respondent. Prior to filing his Petition in this Court,9 Petitioner filed for habeas reliefin the California Court ofAppeals and the10 California Supreme Court, naming as Respondent the Superior Court ofCalifornia,11 Los Angeles County.12 While Petitioner may have correctly named SheriffBaca as Respondent in13 this matter, and while SheriffBaca does not contest that he has been properly14 named, SheriffBaca is not the real party in interest here. This is because Sheriff15 Baca is only the custodian ofPetitioner and he had no knowledge or involvement in,16 or knowledge of, Petitioner's contempt proceedings in the Superior Court of17 California, Los Angeles County ("Superior Court ofCalifornia"). Accordingly,18 SheriffBaca should not be required to respond to Petitioner's Petition.19 As discussed further below, the real parties in interest here are Judge Yaffe;20 the Superior Court ofCalifornia; and Del Rey Joint Venture and Del Rey Joint21 Venture North. As such, this Court should dismiss the Petition to the extent that the22 Petitioner urges SheriffBaca to defend the real parties in interest in this matter. In23 the alternative, SheriffBaca respectfully requests that this Court direct the real24 parties in interest to respond to Petitioner's Petition as appropriate.25 II. Procedural Background.26 The underlying matter in this case is Marina Strand Colony IL Homeowners27 Association v. County ofLos Angeles, Los Angeles Superior Court ofCalifornia,28 Case No. BS 109420, Judge David P. Yaffe presiding. According to documents



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1 submitted with Petitioner's Petition, Petitioner was the counsel for Marina Strand in2 said action. (See Exhibit C ofPetitioner's Petition, p. 5:1-3.) The real parties in3 interest were Del Rey Joint Venture and Del Rey Joint Venture North. (Id. at 2:1.)4 While the lv/arina Strand Colony IL Homeowners Association v. County of5 Los Angeles proceedings were ongoing, the State Bar ofCalifornia issued an order6 recommending the disbarment ofPetitioner. (Id. at 5:4.) The Bar also involuntary7 classified Petitioner as inactive. (Id.) Soon after, Petitioner was removed as counsel8 in the Marina Strand case. (See, Exhibit "C" of Petitioner's Petition, p. 5:4.)9 Subsequently, on December 15, 2008, Judge Yaffe dismissed the case and10 ordered Petitioner to pay reasonable compensatory legal fees of$46,329.01 to the11 real parties, Del Rey Joint Venture and Del Rey Joint Venture North. (See, Exhibit12 "C" ofPetitioner's Petition, p. 5-6.) After Judge Yaffe's ruling, Petitioner allegedly13 failed to submit to several judgment debtor examinations pertaining to this award of14 fees against him. (Id. at 6-7.)15 Because of this failure, real parties in interest Del Rey Joint Venture and Del16 Rey Joint Venture North sought an order to show cause as to why Petitioner should17 not be found in contempt of court. (See generally, Exhibit "C" of Petitioner's18 Petition.) Subsequently, Judge Yaffe found Petitioner in contempt of court and, on19 March 4, 2009, ordered Petitioner sentenced to confinement in the Los Angeles20 County jail until Petitioner agreed to submit to a judgment debtor examination. (Id.21 at 1 4 : ~ . )22 Prior to being incarcerated, Petitioner filed a habeas petition in the California23 Court ofAppeals, Second District, in an attempt to avoid the contempt sentencing.24 The California Court ofAppeals docket lists the following parties and attorneys:25 Petitioner, representing himself;26 Attorney Frederick Bennett, representing the Superior Court of Los27 Angeles, named as respondent; and28



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1 Attorney Joshua L. Rosen, representing Del Rey Shores Joint Venture and2 Del Rey joint Venture North, named as real parties in interest.3 (See Exhibit "A" herewith, a true and correct copy of the docket from the California4 Court ofAppeal as to Petitioner's first state habeas petition.)5 OnMarch 3, 2009, the Court ofAppeals denied the petition. (Id.) On March6 4, 2009, Petitioner filed a habeas petition in the California Supreme Court, which7 was denied on March 5, 2009. (See, Exhibit "E" ofPetitioner's Petition.) In both of8 Petitioner's state habeas petitions, Petitioner named the Superior Court ofCalifornia9 as the respondent. (Id.; and see Exhibit "A".) SheriffBaca, however, was neither a10 party nor a respondent to these state court habeas filings.11 Petitioner filed his Petition in the instant court on March 19, 2009. As the12 Petition named SheriffBaca as Respondent, representatives for SheriffBaca were13 served and, through County Counsel for the County ofLos Angeles, the law firm of14 Lawrence Beach Allen & Choi, PC, was retained to represent SheriffBaca.15 (Declaration ofPaulB. Beach (hereafter "Beach Decl."), ,-r 2.) Subsequently,16 attorneys for SheriffBaca contacted counsel for the Superior Court ofCalifornia and17 Judge Yaffe, two of the real parties in interest in this matter. (Beach Decl., ,-r 3.)18 Counsel for the Superior Court ofCalifornia and Judge Yaffe has informed counsel19 for SheriffBaca that, if required by this Court, counsel for the Superior Court of .20 California and Judge Yaffe is prepared to respond to Petitioner's Petition on behalf21 of those two parties in interest. (Id.)22 Counsel for SheriffBaca has also been in contact with counsel for Del Rey23 Shores joint Venture and Del Rey Joint Venture North. (Beach Decl., 4.) Counsel24 for these parties also informed counsel for SheriffBaca that Del Rey Shores Joint25 Venture and Del Rey Joint Venture North are prepared to respond to Petitioner's26 Petition should this Court require it. (Id.)27 As discussed below, while Petitioner has correctly named SheriffBaca as a28 respondent, the Petition should be dismissed as to SheriffBaca to the extent the



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1 Petitioner expects SheriffBaca to litigate the legalities of the contempt finding as to2 Petitioner, which is the underlying reason for Petitioner's incarceration. In the3 alternative SheriffBaca respectfully requests that this Court enter an order asking4 the real parties in interest to respond to Petitioner's Petition.5 III. SheriffBaca Is Not A Real Party In Interes t And Thus He Cannot6 Substantively Respond To Petitioner's Habeas Petition.7 SheriffBaca does not dispute that he is properly named here, however,8 because SheriffBaca is not a real party of interest, Petitioner's Petition should be9 dismissed to the extent Petitioner urges SheriffBaca to substantively respond to the10 Petition. In the alternative, SheriffBaca requests that this Court direct the real11 parties in interest to respond to Petitioner's Petition.12 Real parties in interest are those persons or entities possessing the right or13 interest sought to be enforced through the litigation. Karras v. Teleydyne Industries,14 Inc., 191 F.Supp.2d 1162 (S.D. Cal. 2002). Real parties in interest are expected to15 litigate their own matters. Coalition ofClergy v. Bush, 189 F.Supp.2d 1036, 1040-16 41 (C.D. Cal. 2002); see also, Wilson v. US. Dist. Courtfor the Eastern Dist. of17 California, 103 F.3d 828 (9th Cir. 1996) (in which the real parties submitted briefs18 and there was no appearance as to the named respondent); U-Haul Int'l, Inc. v.19 Jartran, Inc., 793 F.2d 1034, 1038 (9th Cir. 1986) (the real party in interest is the20 person who has the right to sue under substantive law, rather than others who may21 merely be interested in or benefit from the litigation). The real parties in interest in22 this matter are: (1) the Superior Court ofCalifornia, County ofLos Angeles; (2)23 Judge Yaffe; and (3) Del Rey Joint Venture and Del Rey Joint Venture l ~ o r t h . This24 is because it is these real parties who sought to enforce (or entered) Petitioner's25 contempt finding. Indeed, while Petitioner requests to be released from jail by26 SheriffBaca, it is only by virtue of these parties that Petitioner is in jail in the first27 place. Said another way, Petitioner does not actually seek his redress from Sheriff28 Baca. Rather, so that he may be allowed release from jail, Petitioner seeks redress



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II1 Ias to Del Rey Joint Venture and Del Rey Joint Venture North, for their filing of the2 I motion for contempt in the first place, and as to Superior Court Judge Yaffe, for3 finding contempt and ordering Petitioner to jail.4 1\1oreover, it should be noted that Judge Yaffe is an officer of the State of5 California, and the Superior Court is administered by the State ofCalifornia. See,6 Cal. Gov't Code 811.9. As such, these parties would be represented by State7 counsel. Id. SheriffBaca, on the other hand, is contracted by the County of Los8 Angeles, not the State ofCalifornia. Cal. Gov't Code 53069.8; and Streit v.9 County o.,fLos Angeles, 236 F.3d 552,562 (9th Cir. 2001). Del Rey Joint Venture10 II and Del Rey Joint Venture North, meanwhile, are private parties, represented by a11 private attorney. (Beach Decl., ,-r 4.) SheriffBaca is not represented by State of12 California attorneys or Del Rey Joint Venture's attorney, but by the County Counsel13 for the County ofLos Angeles and Lawrence Beach Allen & Choi, PC. (Beach14 Decl.,,-r 2.) Thus, in addition to the fact that SheriffBaca had nothing to do with the15 decision to actually incarcerate Petitioner save carrying out a court order that was16 lawful on its face (See, Exhibit "C" of Petitioner's Petition), neither SheriffBaca17 nor his counsel are in the position to defend Petitioner's incarceration by the18 Superior Court ofCalifornia as a result of the urging of the private parties in the19 underlying matter. At most, SheriffBaca is only in a position to continue to detain20 Petitioner should this Courtfind that Petitioner is rightly incarcerated, or release21 Petitioner should this Court find that Petitioner is wrongfully incarcerated.22 This matter is nearly identical to Diaz v. Lee Baca, 203 Fed.Appx. 884 (9th23 eire 2006), in which an attorney was held in contempt by the Superior Court of24 California and he filed a habeas petition, naming SheriffBaca as the respondent.25 (See, Exhibit "B" hereto, which is a true and correct copy of the Ninth Circuit Court26 opinion, Diaz v. Lee Baca.) The attorneys representing the Superior Court of27 California, and not attorney for SheriffBaca, filed the responsive brief.28 Additionally, while the docket reflected that the respondent was SheriffBaca, the

5Fine\Motion to Dismiss or in the Alternative, Request That This Court Direct the Real PartiesIn Interest To Respond


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II1 only real party in interest to actually respond to the petitioner's habeas petition was2 "Superior Court ofLos Angeles County California." (Id.; and see Exhibit "c"3 hereto, a true and correct copy of the court docket for Ninth Circuit case, Diaz v. Lee4 Baca.)5 Here, likewise, while SheriffBaca may be properly named as Respondent, he6 is not the proper party to respond to the Petition. Sheriff Baca simply was not and is7 not privy to the facts underlying the contempt proceeding and thus not in a position8 to respond to the Petition. Judge Yaffe and the Superior Court ofCalifornia, among9 other parties, have such information, and, indeed, it appears that the counsel for10 II these parties are prepared to respond ifrequired by this Court. Moreover, the11 private real parties in this matter are also prepared to respond to Petitioner's12 Petition. Accordingly, to the extent Petitioner asserts SheriffBaca should actually13 put forth a responsive brief as to Petitioner's Petition, this matter should be14 dismissed. Alternatively, SheriffBaca respectfully requests that this Court order the15 real parties in interest to file a response to Petitioner's Petition.16 IV. Conclusion.17 As discussed above, SheriffBaca respectfully requests that the Court dismiss18 the Petition or, in the alternative, order the real parties in interest Superior Court of19 California, Judge David P. Yaffe, Del Rey Joint Venture and Del Rey Joint Venture20 North to respond to Petitioner's Petition.2122 Dated: April 21, 2009232425262728

LAWRENCE BEACH ALLEN & CHOI, PC

B y _ ~ ....,.Aaron M. FontanaAttorneys for RespondentSheriffLeroy D. Baca



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1 DECLARATION OF PAUL B. BEACH2 I, Paul B. Beach, declare as follows:3 1. I am an attorney at law duly licensed to practice before this Court and4 all the courts of the State ofCalifornia. I ani a shareholder with the law firm of5 Lawrence Beach Allen & Choi, PC, attorneys of record for Respondent Sheriff6 Leroy D. Baca ("SheriffBaca") in the above-referenced matter. I have personal7 knowledge of the facts stated herein except those stated upon information and belief8 and as to those matters I believe them to be true. If called to testify to the matters9 herein, I could and would competently do so.10 2. Shortly aftermy firm was retained inthis matter by the County counsell11 for the County ofLos Angeles, we received and reviewed Petitioner Richard 1.12 Fine's ("Petititioner") Petition for Writ ofHabeas Corpus, pursuant to 28 U.S.C. 13 2254 ("Petition"), as well as the exhibits attached to Petitioner's Petition. The14 Petition names SheriffBaca because he is the custodian of Petitioner. From the15 Petition papers, it is also clear that he seeks release from his incarceration stemming16 from his contempt proceedings before Judge David P. Yaffe ("Judge Yaffe") in the17 underlying state case, Marina Strand Colony IL Homeowners Association v. County18 ofLos Angeles, Los Angeles Superior Court, Case No. BS 109420. Accordingly,19 while we understand that SheriffBaca is necessarily named as Respondent in the20 Petition, SheriffBaca is simply not in a position to substantively respond to21 Petitioner's Petition. This is because SheriffBaca was not a party of the contempt22 proceedings below that resulted in Petitioner's incarceration.23 3. Subsequent to receipt of this case, counsel for SheriffBaca have been24 in contact with Frederick R. Bennett, counsel for the Superior Court ofCalifornia,25 County ofLos Angeles ("Superior Court ofCalifornia") and Judge Yaffe. I26 understand that counsel for the Superior Court ofCalifornia and Judge Yaffe is27 aware that two of the real parties in interest in this matter are the Los Angeles28 Superior Court, which is a state agency separate and independent from the

7Fine\Motion to Dismiss or in the Alternative, Request That This Court Direct the Real PartiesIn Interest To Respond


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1 County of Los Angeles, and Judge Yaffe, an employee of the State of California,2 who issued the order of contempt as to Petitioner. I also understand that counsel for3 the Superior Court ofCalifornia and Judge Yaffe knows of the Petition and intends4 to respond if asked to do so by this Court.5 4. Additionally, on April 20, 2009, I was contacted by Joshua Rosen, the6 attorney representing the private real parties in interest in the underlying state case,7 Marina Strand Colony IL Homeowners Association v. County ofLos Angeles.8 These parties are Del Rey Joint Venture and Del Rey Joint Venture North. Counsel9 for these parties is aware ofPetitioner's Petition and intends to respond if asked to10 Ido so by this Court. In fact, I was informed that counsel for these parties were11 preparing a response and intend to file it in the near future, although he cannot file it12 by the current deadline because Petitioner did not serve him with a copy of the13 Petition.141516171819202122232425262728

5. Attached and incorporated herein as Exhibit "A" is a true and correctcopy of the docket of the California Court ofAppeals as to Petitioner's state habeaspetition.

6. Attached and incorporated herein as Exhibit "B" is a true and correctcopy of the Ninth Circuit Court opinion inDiaz v, Lee Baca, 203 Fed.Appx. 884(9th Cir. 2006).

7. Attached and incorporated herein as Exhibit "C" is a true and correctcopy of the court docket for the Ninth Circuit case ofDiaz v. Lee Baca, 203Fed.Appx. 884 (9th Cir. 2006).

I declare under penalty ofperjury under the laws of the State ofCaliforniaand the United States ofAmerica that the foregoing is true and correct.

Executed on April 21, 2009, at Glendale/' lifornia..//"""';7 \,V \,lv-\Paul B. B e ~ c h \

8 UFine\Motion to Dismiss or in the Alternative, Request That This Court Direct the Real Parties In Interest To Respond


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EXHIBIT "A"


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DocketParties and AttorneysCase SummaryDisposition

2nd Appellate District

Court data last updated: 04/15/200901 :05 PM

Parties and AttorneysIn re RICHARDDivision 4Case Number

Fine, Richard: Petitioner Richard I. Fine468 North Camden Drive #200Beverly Hills, CA 90210

Superior Court Los Angeles County :Respondent Frederick BennettS.C.L.A.111 North Hill StreetRoom 546Los Angeles, CA 90012Marina Strand Colony II HomeownersAssociation : Real Party in Interest Rose M Zoia50 Old Courthouse SquareSuite 600

Santa Rosa, CA 95404Del Rey Shores Joint Venture: RealParty in Interest Joshua L. RosenLaw Offices of Joshua L. Rosen5905 Sherbourne Dr.Los Angeles, CA 90056

Robert James ComerArmbruster & Goldsmith LLP10940 Wilshire Blvd.I~ ~ : ~ ~ ~ ~ ~ s , CA 90024FD-e-I-R-ey:"-"""S-h-or-e-S-J-O-in-t v-en-t-ur-e-N-o-r-th-:-__mjJOShUa L. Rosen. ~ ~ ~ automatic e-mail Q t f f i ~ O O ~ t b i ~ . c R M e n

5905 Sherbourne Dr.Los Angeles, CA 90056Robert James ComerArmbruster & Goldsmith LLP10940 Wilshire Blvd.Suite 2100. ~ . ~ . . ~ ~ : I : ~ .' ~ . ~ . . ( ~ b i b . i t ~ ~ . A .. . 1

4/15/20092:04


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Case 2:09-cv-01914-JFW-CW Document 12 Filed 04/21/2009 Page 13 of 41LaUIUillla Louns Appellate Loun Lase l I l lOITIIa l lOIl

2nd Appellate District------Court data last updated: 04/21/2009 11 :05 AM

Case Summary Docket Scheduled ActionsDisRosition P a r t i e ~ ~ n d Attorl'1ID'JiDocket (Register of Actions)In re RICHARD FINE on Habeas CorpusDivision 4Case Number 8214321

rage 1 01 1

Date Description Notes03/02/2009 Petition for a writ of habeas Request for Immediate Stay/1corpus filed. Volume of Exhibits03/03/2009 Order denying petition filed.03/03/2009 Case complete.Click here to request automatic e-mail notifications about this case.

Exhibit"A" 2httn://annellatecases.comiinfo.ca.fIov/search/case/dockets.cfin?dist=2&doc id=1387745&... 4/21/2009


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EXHIBIT "B"


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2006 WL 2365431 (C.A.9)

For Opinion See 203 Fed.Appx. 884United States Court of Appeals,Ninth Circuit. Frances L. DIAZ, Petitioner and Appellant,

v.Lee BACA, Sheriff; Superior Court of California, County of Los Angeles, Respondents and Appellees.No. 04-56652.January 24,2006.

Page 1

Appeal from the United States District Court, Central District of California, Central Division, Case No. CV 0307625-RSWLAnswering Briefof Appellees, Superior Court of California, County of Los Angeles

Kevin M. McConnick - Casbn 115973, Benton, Orr, Duval &Buckingham, 39 North California Street, Post OfficeBox 1178, Ventura, California 93002, Telephone: (805) 648-5111; Facsimile (805) 648-3718, Attorneys for Respondent/Appellee, Superior Court of California, County of Los J\ng,eles.*i TABLE OF CONTENTS

I. STATEMENT OF JURISDICTION ... 1II. STATEMENT OF INTERESTED PARTIES ... 1III. STATEMENT OF ISSUES PRESENTED ... 2IV. STATEMENT OF THE CASE ... 2V. STATEMENT OF FACTS ... 9A. Moore v. Kaufman .. , 10B. December 30,2002 Judgment Debtor Examination ... 12C. March 25,2003, Order to Show Causeand April 21, 2003, Finding of Contempt Against Diaz ... 12D. Diaz' June 17,2003, Motion for a New Trial re the Apri121, 2003, Finding ofContempt ... 13E. July 22,2003, Hearing re Status of Compliance with April 21, 2003, Judgment of Contempt ... 14F. July 29, 2003, Order to Show Cause and September 15, 2003, Hearing ... 14

Exhibit "B" 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works. 3


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2006 WL 2365431 (C.A.9)

G. September 19,2003, Hearing on July 29,2003,Order to Show Cause Re Contempt ... 15H. October 3,2003, Hearing on July 29,2003, Order to Show Cause Re Contempt ... 15

Page 2

I. October 2003, Petitions for Writ of Habeas Corpus (California Court ofAppeal and California Supreme Court) ...16*ii J. Denial ofDiaz' Petition for Writ of Habeas Corpus (United States District Court) and Subsequent Certificate ofAppealability ... 17VI. STANDARD OF REVIEW ... 17VII. SUMMARY OF ARGUMENT ... 22VIII. ARGUMENT ... 22A. DIAZWAS NOT DENIED DUE PROCESS OF LAW DURINGHER CONTEMPT PROCEEDINGS ... 221. Due Process Was Satisfied as Diaz' Failure to Pay the Previously Imposed Sanction Was a Direct ContemptCommitted in the View and Presence of the Superior Court , the Superior Court Made an Order Reciting the FactsConstituting the Contempt, [ ] Diaz HadNotice of That Order, and Diaz Failed to Pay the Sanction or Establish WhyShe Could Not Comply with the Sanction Order ... 222. Under California Law, Diaz Had the Burden of Proof as to the Affirmative Defense of Inability to Comply withthe Sanction Order ... 25 .B. DIAZ WAS NOT DENIED HER RIGHT TO COUNSEL IN VIOLATION OF THE SIXTH AMENDMENT ...28C. THERE WAS SUFFICIENT EVIDENCE TO SUPPORT THE SUPERIOR COURT'S FINDING THAT DIAZWAS IN CONTEMPT OF VALID STATE COURT ORDERS ... 34*iii 1. The Voluntary Dismissal ofMoore v. KaufmanDid Not Divest the Superior Court of Jurisdiction to Rule onthe Anti-SLAPP Motion and Award of Costs and Attorney's Fees Against Diaz ... 342. The September 7,2001, Order of the Superior Court Awarding Attorney's Fees and Costs Against Diaz, and theSubsequent Order Setting the Amounts Thereof, Was Proper under State Law.... 35IX. CONCLUSION ... 39X. STATEMENT OF RELATED CASES ... 39XI. CERTIFICATE OF COMPLIANCE ... 40

*iv TABLE OFAUTHORITIESUNITED STATES SUPREME COURT CASES



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2006 WL 2365431 (C.A.9)

Bell v. Cone, (JOO?) 535 U.S. 685. I?? S.Ct. 1843. 15? T.Ed.2d 914 ... 19,20Brecht v. Abrahamson, (1993) 507 U.S. 619,113 S.Ct. 1710, L.Ed.2d 353 ... 19Earl)! v. Packer, (2002) 537 U.S. 3. 123 s.et. 362, 154 LEd.2d 263 ... 19.20Estelle v. McGuire, (1991) 502 U.S. at 67-68 ... 18Faretta v. California, (1975) 422 U.S. 806,95 S.Ct. 2525,45 L.Ed.2d 562 ... 28Hicks v. Feiock, (1988) 485 U.S. 624.108 S.Ct. 1423,99 L.Ed.2d 721 ... 23Kotteakos v. United States. (1946) 328 U.S. 750, 66 S.Ct. 1239,90 L.Ed.1557 ... 19Lockver v. Andrade, (2003) 538 U.S. 63. 123 S.Ct. 1166, 155 L.Ed.2d 144 ... 20. 21Martin v. Ohio (1987) 480 U.S. 228 [107 S.Ct. 1098, 94L.Ed.2d 267J ... 26,27Mullanev v. Wilbur, (1975) 421 U.S. 684, L.Ed.2d 508 ... 18*v Patterson v. New York (1977) 432 U.S. 197 [97 S.Ct. 2319,53 L.Ed.2d 281J ... 27Williams v. Tavlor, (2000) 529 U.S. 362, 120 S.Ct. 1495. 146 L.Ed.2d 389 ... 19.20Woodford v. Visciotti, (2002) 537 U.S. 19, 123 S.Ct. 357,154 L.Ed.2d 279 ... 20,21NINTH CIRCUIT COURTOF APPEALS CASESAlcala v. Woodford. (9th Cir. 2003) 334 F.3d 862 ... 17Bonin v. Calerone. (9th Cir. 1996) 77 F.3d 1155 ... 18Delgado v. Le'wis, (9th Cir. 2000) 223 F.3d 976 ... 21Jackson v. Ylst, (9th Cir. 1990) 921 F.2d 882 ,.. 28Kates v. Nelson, (9th Cir. 1970) 435 F. 2d 1085 ... 33Peltier v. Write, (9th Cir. 1993) IS'F.3d 862 ... 18Shackleford v. Hubbard. (9th Cir. 2000) 234 F.3d 1072 ... 21United States v. Akins, (9th Cir. 2002) 276 F.3d 1144 .. , 29, 30*vi UnitedStates v. Balough. (9th Cir. 1987) 820 F.2d 1485 ... 29, 30United States v.Farhad, (9th Cir. 1999) 190 F.3d 1097 ... 29

Exhibit "B" 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

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2006 WL 2365431 (C.A.9)

United States v. George. (9th Cir. 1995) 56 FJd 1078 ... 28.29United States v. Harris. (9th Cir. 1982) 683 F.2d 322 ... 29United States v. Kimmel. (9th Cir. 1982) 672 F.2d 720 ... 30United States v. Mohawk, (9th Cir. 1994) 20 F.3d 148 ... 29OTHER CIRCUIT COURT OF APPEALS CASESDavis v. A1cMann. (2nd Cir. 1968) 386 F. 2d 611 ... 33United States v. GalloJJ. (4th Cir. 1988) 838 F.2d 105 ... 32United States v. Willie. (10thCir. 199?) 941 F.2d 1384 ... 32FEDERAL DISTRICT COURT CASESMetabolife International, Inc. V. Wornick, 213 F.Supp.2d 1220, (SD CA 2002) ... 36*vii CALIFORNIA STATE CASES PAGEBrandt v, Superior Court (1985) 37 Ca1.3d 813,210 Ca1.Rptr. 211 ... 38Cal-Vada Aircraft. Inc. v. Superior Court, (1986) 179 CatApp.3d 435, 224 Cal.Rptr. 809 ... 35Deckerv. U.D. Registrv.lnc.. (2003) 105 CatAppAth 1382, 129 Ca1.Rptr.2d 892 ... 37Grant v. List & Lathrop (1992) 2 Ca1.AnpAth 993 ... 11Hanson v. Superior Court. (2001) 91 Cal.AppAth 75, Cal.Rptr.2d 782 ... 23In re Rubin. (2001) 24 Ca1.4th 1176, 108 Cal.Rptr.2d 593 ... 25Ketchum v. Moses (2001) 24 Ca1.4th 1122, 104 Ca1.Rptr.2d 377 ... 36A10ss v. Superior Court, (1988) 17 Ca1.4th 396, 71.Ca1.Rptr.2d 215 ... 25,26,27Tokio Marine & Fire Ins. Corp. v. Western Pacific Roofing Corp.(1999) 75 Ca1.App. 4th 110 ... 11Warner v. Superior Court. (1954) 126 Ca1.App.2d 821, 273 P.2d 89 ... ?3Zapanta v. Universal Care. Inc.. (2003) 107 Ca1.AppAth 1167, 132 Cal.Rptr.2d 842 ." 34*viii FEDERAL STATUTES, RULES AN D REGULATIONS

Exhibit "B" 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

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2006WL 2365431 (C.A.9) Page 6

The interested parties to this appeal are appellant, Francis L. Diaz (hereinafter "Diaz"), Andrew E. Rubin, attorneyfor appellant, appellee, Lee Baca, Sheriff of the County of Los Angeles, State of California, appellee, the SuperiorCourt ofCalifornia, County of Los Angeles (hereinafter the "Superior Court"), and the offices of Benton, Orr, Duval& Buckingham, by Kevin M. McCormick, attorneys for appellee, the Superior Court.[FNl]

FN1. Appellant's Opening Brief is incorrect insofar as it represents that the firm of Benton, Orr, Duval &Buckingham represents appellee, Lee Baca. Mr. Baca, is not represented by the firm of Benton, Orr, Duval& Buckingham.

III.STATEMENT OF ISSUES PRESENTEDOn July 20,2005, this Court issued its order specifying the issues on appeal as follows:A. Whether Appellant was denied due process during her contempt proceedings;B. Whether Appellant was denied the right to counsel in violation of the Sixth Amendment of the United StatesConstitution during her April 2003 contempt hearing; andC. Whether there was sufficient evidence to support the Superior COUli of California, County of Los Angeles' finding that Appellant was in contempt of valid court orders.IV.STATEMENT OF THE CASEThis matter concerns repeated, concerted and frivolous tactics by a licensed attorney to avoid satisfying a validjudgment awarding attorney's fees and costs, culminating in multiple findings of contempt and, ultimately, the imposition of a three day jail sentence. The protracted history of the underlying state matter is set forth in detai l below.[FN2]

FN2. The following procedural history regarding the underlying state court proceedings is taken, in largepart, from the California COUli of Appeal, Second Appellate District's February 3, 2005, opinion, Moore v.Diaz, Case No. B 165018 (2005WL 249336). This appeal, one of many, dealt with Diaz' appeal of two orders of the Superior Court denying Diaz' motions for correction of the September 7,2001 Order and Judgment to delete all references to Diaz' contained therein and a February 5, 2003 order granting additionalmonetary sanctions against Diaz and Moore for their frivolous attempts to block Kaufman's attempts to collect on the judgment. In its decision, the Court of Appeal reviewed the long procedural history of the matterultimately resulting in the September 7, 2001 Order and Judgment against Moore and Diaz. (SupplementalExcerpts of Record on Appeal, hereinafter "SER", pp. 001-005.)In April 2000, Sheila G. Moore (hereinafter "Moore"), represented by Diaz, sued Bany B. Kaufman (hereinafter"Kaufman") for intentional interference with her employment contract with the Cedars-Sinai Imaging MedicalGroup, but did not serve Kaufman with the summons or the complaint. When the cOUli set a status conference forOctober 2000, Moore dismissed her complaint without prejudice.

In April 2001, Moore, through Diaz, filed an ex parte application for an order vacating her prior dismissal of thisaction and for leave to serve the complaint. The ex parte application was denied, and Moore was ordered to proceedby way of noticed motion. Moore then filed a motion, but did not serve it on Kaufman, and instead served another



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lawyer who also represented Moore. In Kaufman's absence, Moore's motion was granted and the action was reinstated. In May of 2001, Moore filed and served a first amended complaint. In June of 2001, Kaufman found outabout the order relieving Moore from her dismissal. On July 9, 2001, Kaufman moved for reconsideration of theorder reinstating Moore's action on the ground that Diaz had concealed from the court the fact that Kaufman had notbeen served with the motion to vacate the dismissal, or with notice of the order granting that motion. On July 10,2001, Kaufman filed a motion to strike the first amended complaint pursuant to Cal. Code o(Civ. Pro. 425.16.On July 16,2001, :Moore filed a second amended complaint in which (in addition to her claim of intentional interference with contract) she charged Kaufman with legal malpractice, breach of fiduciary duty, breach of contract, andfraud by concealment. On July 25,2001, Kaufman filed a motion to strike the second amended complaint, pursuantto Cal. Code ofCiv. Fro. ' 425.16. On July 27,2001, Moore filed an opposition to Kaufman's motion for reconsideration ofthe reinstatement order.On August 8, 2001, the Superior Court granted Kaufman's reconsideration motion, finding that Diaz's intent was tomislead the court. (Excerpts of Record on Appeal, hereinafter "ER", p. 323.) Diaz was ordered to file and serve anoticed motion and she clearly had knowledge of Kaufman's address to give notice. The court neveliheless deferredthe issue of dismissal to September 7, 2001, the date set for the hearing on Kaufman's motion to strike. [FN3]

FN3. Moore v. KauOnan. Case No. B165018 (2005 WL 249336). (See "SER", p. 003.)On August 14, 2001, Moore applied ex parte for an order restoring the case to its dismissed status, claiming thecourt lacked jurisdiction to grant her earlier motion to reinstate the case because the order of dismissal had been entered at her request. Her ex parte application was denied, and the matter was set for hearing on September 27, 2001.On August 15,2001, Moore applied ex parte for an order staying the September 7,2001, hearing on Kaufman's motion to strike until after the September 27,2001, hearing. Diaz' application was denied, and the California Court ofAppeal, Second Appellate District summarily denied Diaz' petition for relieffrom that order. (SER, pp. 003.)On September 7, 2001, the trial court granted Kaufman's motion to strike, dismissed the action with prejudice,awarded attorney's fees and costs to Kaufman, found that these orders constituted an adjudication on the merits ofthe action within the meaning of the anti-SLAPP statute, and deemed the relief sought by Kaufman's motion for reconsideration moot. A judgment of dismissal was entered the same day, awarding fees and costs of $42,223.75 toKaufman, payable jointly and severally by :rVloore and Diaz.[FN4] 1'-.1oore, but not Diaz, filed a notice of appeal fromthat order. The state COUli of Appeal affirmed, and awarded costs to Kaufman, including attorney's fees in anamount to be determined by the trial court. (ER, pp. 317-328.)

FN4. The attorney's fees and costs added by the clerk to the September 7, 2001 Order and Judgment weredecided in response to Kaufman's motion to set those amounts filed November 5,2001 and decided January8,2002 (ER, pp. 041,049,087,088-090.) Diaz was present at the time of the hearing and argued againstthe amounts set as fees and costs.On December 9, 2002,Diaz filed a motion seeking relieffrom the September 7,2001, Order and Judgment, pursuantto Cal. Code of Civil Froc. 473(b). That motion was denied by the Superior Court on January 22, 2003, on thebasis that Diaz' motion was actually an untimely motion for reconsideration pursuant to Cal. Code of Civ. Fro. 1008 and that there was no clerical error in terms of Diaz being named on the September 7,2001 Order and Judgment. (SER, pp. 004-005.)

At the time of the debtor's examination on December 30, 2002, before the Honorable Murray Gross, Superior COUliCommissioner, Diaz simply refused to answer any questions regarding her financial ability to comply with theaward of costs and fees to Kaufman in connection with the September 7,2001 Order and Judgment. (ER, 117-120.)On February 5, 2003, the Superior Court granted Kaufman's motion for. sanctions, pursuant to Cal. Code of CivilFro. 128.7, based upon Diaz' frivolous motion to quash the examination, previously filed September 30,2002, in a



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concerted effort to block Kaufman's legitimate attempts to enforce his jUdgment. (SER, p. 003-004.)

Page 8

On February 6,2003, and almost eighteen months after the September 7,2001, judgment was entered, Diaz filed anotice of appeal from two post-judgment orders, the first entered on January 22,2003, denying Diaz' motion to correct the September 7,2001, judgment by delet ing all references to her, and the other entered on February 5, 2003,granting Kaufman's Cal. Code o(Civ. Pro. 128.7 motion for sanctions payable by Diaz and Moore for their frivolous efforts to block his attempts to collect his judgment. (SER, pp. 001-005.)On Apri l 23, 2003, and result ing from a March 25,2003, Order to Show Cause based upon Diaz' failure to answerquestions regarding her financial condition at the time of the December 30,2002, judgment debtor's examination,and, after a two day hearing, the Superior Court found Diaz in contempt as she had wilfully failed to obey the lawfuland valid order of the Superior Court made by Commissioner Gross, to answer certain relevant questions during herjudgment debtor examination. In addition, the Superior Court, pursuant to Code ofCivil Procedure, 1218(2), imposed a $1,000 fine against Diaz, and awarded reasonable attorney's fees and costs to Kaufman in an amount thatwas later set on noticed motion at $14,339.95. (ER, pp. 311,329-330.)After the Apri l 21, 2003, Order and Judgment of Contempt was issued, Diaz filed a motion seeking a new trial onthat order. That motion was denied by the Superior Court on June 17,2003. (SER, pp. 006-022.) On that same date,Diaz advised the Superior Court that she still had not paid the attorney's fees and costs, nor the $1,000 fine imposedby the April 23, 2003, Order and Judgment of Contempt. (SER, pp. 018-019.)Ultimately, and after several continuances and extensions were provided for Diaz to comply, Diaz, through her attorney, Rubin, appeared for the October 3,2003, hear ing on the Order to Show Cause re Contempt. (ER, pp. 342347, 348-377, 378-405.) The Superior Court found that Diaz had previously represented thatshe had not paid thefine and that she lacked the money to pay the fine. The Superior Court also found that no evidence had been presentedbyDiaz to substantiate her claim of inability to pay. Based upon the foregoing, the Superior Court found Diazin contempt. (ER, pp. 465-471.) As a result of the October 3,2003, Orderand Judgment of criminal contempt, Diazwas sentenced to three days in jail and assessed $6,927.80 in fines. The Superior Court stayed the imposition of thesentence until October 24, 2003, to allow Diaz an opportunity to seek appellate review of the order of criminal contempt.After exhausting her state law remedies, Diaz surrendered herse lf to the Super ior Court on October 24, 2003, andthereafter served the sentence in full.On October 24, 2003, Diaz sought an immediate stay of sentence and habeas corpus relief from the United StatesDistrict Court, Central District of California, Western Division, Francis L. Diaz v. Lee Baca (SherifJ), Case No. CV03-7625-RSWL (SH). The request for immediate stay of sentence was denied by the District Court and the petitionfor habeas relief, after full briefing by Diaz and the Superior Court, was ultimately denied. (ER, pp. 475-498.)[FN5]

FN5. Diaz states in her Opening Brief that she objects to the "Procedural History" and "Eactual Background" contained in the District Court 's order denying habeas relief. (AOB, p. 2, ft. 1.) Diaz further statesthat she has filed objections to such findings; however, no such objections were served with the OpeningBrief . In any event, Diaz' objec tions to the "Procedural His tory" and "Factua l Background" are withoutmerit as the District Court's findings in this regard are part of the record on appeal.

The instant appeal is from the District Court's denial ofDiaz' Petition for a Writ of Habeas Corpus.V.

STATEMENT OF FACTS



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This appeal arises from the October 3, 2003, Superior Court Order ,md *10 JUdgment of Contempt entered againstDiaz in the underlying state cOUli matter of Sheila G. Moore v. BarTy B. Kau.finan, Superior Court of California,County ofLos Angeles, Case No. BC228943 (hereinafter "Moore v. Kaufman "). (ER, pp. 472-474.)The October 3, 2003, Order and Judgment of Contempt was the culmination of numerous prior hearings and ordersas described below.

A.Moorev.KaufmanThis state court lawsuit was filed by Diaz on behalf of her then-client, Moore.[FN6J On September 7,2001, and uponmotion by Kaufman, the mater was dismissed pursuant to th e anti-SLAPP provisions of California Code of CivilProcedure. 425.16. (ER, pp. 001 -004,041-042,317-328.) Judgment was ultimately entered in Kaufman's favor andagainst Moore and Diaz in the amount of$42,223.75, in attorney's fees and costs. The amount of fees and costs wereset bythe Superior COUli on January 8, 2002. (ER, pp. 041, 049, 087, 088-090.)

FN6. According to the factual summary provided by the California Court of Appeal in its April 24, 2003unpublished opinion (ER, pp. 328), in affirming the granting of the anti-SLAPP motion and dismissal of theMoore v. Kau.{1nan lawsuit,in April 2000, Moore, a radiologist, shareholder, director and employee of Cedars-Sinai Imaging Medical Group, Inc. sued Barry Kaufman, attorney fo r the Group, alleging intentionalinterference with her employment contract with the Group. The origin of the lawsuit, and numerous others,appears to be a dispute which arose in 1999, when the Group initiated a "peer review investigation" into allegations that Moore had disclosed confidential corporate information to a former employee who was suingthe Group. Throughout the subsequent litigation, Diaz represented Moore.

*11 Although Diaz did not directly appeal the award of costs and attorney's fees against her personally, by way ofher appeal of two subsequent orders issued by the Superior Court, the California Court ofAppeal, Second AppellateDistrict reviewed the award of fees as against Diaz, finding that the award was proper and supported by Californialaw.[FN7J

FN7. In its February 3, 2005 opinion,Moore v. Kaufman. Case No. B 165018 (2005 WL 249336). and specific to Diaz' argument that the September 7, 2001 award of costs and fees against her was without noticeand violated due process, the Court of Appeal stated: "First, Diaz is wrong when she claims the motion didnot seek fees and costs payable by her as well as her client. The motion, filed on July 25, 2001, expresslysought fees and costs from "plaintiffMoore and her attorney of record ..., Frances L. Diaz, Esq., jointly andseverally." Thetrial court's order, signed and entered on September 7,2001, "granted [that motion to strike]in its entirety" and awarded fees and costs to Kaufman as the prevailing party. ( 425.16.subd. (c) .) As aresult, there was no "clerical error." (Tokio Marine & Fire Ins. Com. v. Western Pacific Roofing Corp.(1999) 75 CaI.App.4th 110. 117-118.) Second, Diaz--who filed a notice of appeal on Moore's behalf--didnot file a notice of appeal from the September 7, 2001, judgment for herself, notwithstanding that she knewthat judgment made her jointly and severally liable for the award of fees and costs. Since the time to seekreconsideration of or apneal from the iudgment had expired long before Diaz filed her motion to correct a"clerical error," and lodg' before she fi led this appeal from the order denying that motion (Cal. Rules ofCourt. rule 2; Grant v. List & Lathrop (1992) 2 CaI.App.4th 993. 998; Eisenberg et aI., Cal. PracticeGuide: Civil Appeals and Writs (The Rut te r Group 2003) 3:4 to 3:6, pp. 3-1 to 3-2), Diaz' motion tocorrect a "clerical error" must be viewed as what it is--a transparent effort to do indirectly that which sheforfeited the right to do directly. For this reason too, her motion was properly denied. (Betz v. Pank01;JJ(1993) 16 Cal.App.4th 93 L 937-938.)" (SER, pp: 004-005.)

*12 B. December 30,2002, Judgment Debtor ExaminationThe contempt proceedings that are the subject of this appeal initially arose from Kaufman's attempts to conduct a



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judgment debtor examination of Diaz as part of his efforts to collect the costs and fees aWarded in connectio!1 ',x/lththe judgment entered on the order granting the Anti-SLAPP motion. Notwithstanding a court order requiring Diaz tofully answer questions regarding her financial status in connection with a debtor's examination, at the time of thatexamination on December 30, 2002, before the Honorable Murray Gross, Superior Court Commissioner, Diaz simply refused to answer any questions regarding her financial ability to comply with the award of costs and fees toKaufman. (ER, pp. 117-120.)

C. March 25,2003, Order to Show Cause and April 21 ,2003, Finding of Contempt Against DiazFollowing Diaz' willful failure to respond to questions during the Judgment Debtor Examination on December30,2002, Kaufman sought an order to show cause why Diaz should not be held in contempt for that wilful failure tocomply. On March 25,2003, the Superior Court issued an order to show cause as to why Diaz should not be adjudged in contempt of court for willfully disobeying the order of the Superior Court to answer questions regardingher financial ability to satisfy the award of costs and fees in favor ofKaufman. (ER, 127-128.)*13 On April 21, 2003, and after a two-day bench trial, an Order and Judgment of Contempt was entered againstDiaz by the Superior Court. (ER, pp. 137-310 and 3-11-316.) Pursuant to Code ofCivil Procedure, 1218(2), theSuperior Court imposed a $1,000 fine against Diaz, and awarded reasonable attorney's fees and costs to Kaufman inan amount that was later set on noticed motion at $14,339.95. (ER, 329-330.)

D. Diaz' June 17,2003, Motion for a New Trial re the April 21, 2003, Finding of ContemptAfter the April 21, 2003, Order and Judgment of Contempt was issued, Diaz filed a motion seeking a new trial onthat order. That motion was denied by the Superior Court on June 17,2003. (SER, pp. 017-018.) On that same date,Diaz advised the Superior Court that she had not paid the attorney's fees and costs, nor the $1,000 fine imposed bythe April 21,2003, Order and Judgment of Contempt. (SER, pp. 018-021.) In response, the Superior Court grantedDiaz an additional thirty day extension to comply with the April 21, 2003, Order and Judgment of Contempt, settingthe matter for hearing on July 22, 2003, to confirm whether Diaz had made payment or obtained a stay of the April21,2003, Order and Judgment of Contempt from the state appellate court. (SER, pp. 018-020.)

*14 E. July 22,2003, Hearing re Status ofCompliance with April 21,2003, Judgment of ContemptOn July 22,2003, Diaz advised the Superior Court that she had failed to obtain a stay. She also confirmed that shehad not paid the $1,000 fine or the attorney's fees award. (ER, p. 332-334.) The Superior Court directed that a newOrder to Show Cause re Contemptbe prepared. (ER, pp.337-340.)

F. July 29,2003, Order to Show Cause and September 15, 2003, HearingOn July 29,2003, Kaufman filed a Declaration in Support of the Order to Show Cause Re Contempt. (ER, pp. 344347.) The Superior Court then issued a second Order to Show Cause Re Contempt on July 29, 2003. (ER, pp. 342343.)In response, Diaz filed a "SLAPP" motion, pursuant to Cal. Code of Civ. Pmc. 425.16 directed to the declarationfiled in support of the Order to Show Cause Re Contempt. Diaz' motion was set for hearing on September 15. 2003.As a result,the Superior Court continued the July 29, 2003, hearing on the second Order to Show Cause Re Contempt to September 15, 2003, for the purpose of hearing hoth matters on the same date. (ER, p. 478,11. 23-28.)On September 15, 2003, the Superior Court concluded that Diaz' "SLAPP" motion was meritless and was presentedfor the purpose of delay. (ER, p. 478, 11. 25-27.) The Superior COUli granted Diaz a continuance to allow her moretime to obtain *15 counsel and prepare for the contempt trial. As a result, the second Order to Show Cause Re Con-

Exhibit "B" 2009 Thomson Reuters/West. No Claim toOrig. US Gov. Works. 12


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tempt was continued to September 19, 2003, (ER, p. 478,1 L 27-'28.)G. September 19,2003, Hearing on July 29,2003, Order to Show Cause Re Contempt

Page 11

On September 19,2003, Ganett Zelen, an attorney, appeared for Diaz and requested a further continuance, to allowcounsel an opportunity to prepare. Zelen represented that Diaz would provide evidence that she could not pay thefine or the fee award. The Superior Court again continued the matter to October 3,2003. (ER, pp. 399-404.)H. October 3,2003, Hearing on July 29,2003, Order to Show Cause Re Contempt

On October 3, 2003, Diaz appeared for the continued hearing with attorney, Andrew Rubin (hereinafter "Rubin").The Superior Court informed Rubin that Diaz had previously represented that she had not paid the fine and that shelacked the money to pay the fine. The court also found that no. evidence had been presented by Diaz to substantiateher claim of inability to pay. (ER, pp. 431-432.)Rubin represented to the Superior Court that Diaz would not present any evidence to show an inability to pay. (ER,p. 432.) Rubin did not object to the state of the evidence recited by the Superior Court, nor did he offer any furtherevidence, notwithstanding the cOUli's invitation to do so. (ER, p. 429-432.) Rubin's only effort *16 at this hearingwas to present oral argument as to why Diaz could not be held in contempt of court. (Commencing at ER, p. 432 andcontinuing through p. 464.)On October 3,2003, the Superior Court found that the evidence proved beyond a reasonable doubt that Diaz was inwillful violation of the April 21,2003, Order and Judgment of Contempt and that Diaz had proved no valid defensefor the refusal to comply with the court's order. Additionally, the Superior Court found Diaz in contempt for refusingto pay the fine and fees she had been ordered to pay as part of the April 21 , 2003, Order and Judgment of Contempt.Diaz was ordered to serve three days in county jai l and to pay $6,297.80 in attorneis fees and costs incun-ed byKaufman in connection with the second contempt proceeding. The Superior Court stayed the imposition of the sentence to allow Diaz the opportunityto seek appellate intervention. (ER, pp. 465-471.)

I. October 2003, Petitions for Writ ofHabeas Corpus (California Court of Appeal and California Supreme Court)On October 21, 2003, Diaz filed a Petit ion for Writ of Habeas Corpus in the California COUli of Appeal, SecondAppellate District, challenging the second contempt finding. This petition was summarily denied on October 22,2003. (ER, p. 476,11. 1-2.) A subsequent petition to the California Supreme Court was summarily denied on October 23,2003. (ER, p. 476, 11. 2-4.) On October 24,2003, Diaz *17 appeared in Department 50 and was taken intocustody to serve the jail term imposed by way of the October 3,2003, Order and Judgment of Contempt.1. Denial of Diaz' Petition for Writ of Habeas Corpus (United States District Court) and Subsequent Certificate ofAppealability

Contemporaneously with her servi'ng of the three-day sentence imposed by way of the October 3, 2003, Order andJudgment of Contempt, Diaz filed a petition seeking federal habeas relief. This petition was ultimately denied by theDistrict Court on July 15,2004. (ER, pp. 498-500.)Diaz then sought a certificate of appealability from this Court, said certificate issuing on July 20, 2004. (ER, pp.501-522,523-524.)

VI.



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SEANDARD OF R.EVIEWFN8 ]

Page 12

FN8. Section VI., above, is taken from the Magistrate Judge's April 27, 2004, Report and Recommendation. (ER, 480-483.)The standard of review of an order denying a Petition for Writ of Habeas Corpus, pursuant to 28 U.S.C. 2254, is denovo. Alcala v. Woodford, 334 FJd 862. 868 (9th Cir. 2003). Further, and as the petit ion was filed after 1996, thereview of the *18 order will also be subject to the provisions of the Antiterrorism and Effective Death Penalty Act of1996 ("AEDPA,,).[FN9]

FN9. Under the AEDPA, a federal court may not grant habeas relief on any claim adjudicated on its meritsin state court, unless that adjudication "(1) resulted in a decision that was contrary to, or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the UnitedStates; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light ofthe evidence presented in the State court proceeding." 28 Us.c. 2254(d)(as amended by the AEDPA).Moreover, a state court factual determination must be presumed to be correct unless rebutted by clear andconvincing evidence to the contrary. 28 Us . C. 2254(e)(1) (as amended).

Notwithstanding the foregoing, a federal court may entertain a habeas petition on behalf of person in state custodyonly when the petitioner's claim is based upon a violation of the Constitution, laws or treaties of the United States.= - - : : : : . . . : . . ~ ~ - = - = = - . : . ~ ' Estelle v. McGuire, 502 U.S. 62,68,112 S.Ct. 475. 116 L.Ed.2d 385 (1991). A petitioner is notentitled to habeas reliefbased upon state court en'or in interpreting statutes or applying state law. Estelle v.McGuire,502 U.S. at 67-68; Bonin v. Calderone, 77 F.3d1155, 1161 (9th Cir. 1996) (no federal habeas relief for state lawerror not amounting to a denial of a federal constitutional right). If a state law issue must be decided by the federalcourt in order to decide the federal habeas claim, the state's own construction of that law is binding on the federalcourt. Pettier v. Wright, 15 F.3d 860.862 (9th Cir. 1993), citing *19Mullanev v. TYilbur, 421 U.S. 684, 691, 95 S.Ct.1881. 44 L.Ed.2d 508 (1975) (state courts as the ultimate expositors of state law).With respect to a federal claim subject to the "harmless error" analysis, habeas relief is available only when the theviolation in question "had substantial and injurious effect or influence" in determining the the result in the matter.Brecht v. Abrahamson, 507 U.S. 619, 637-638, 113 S.Ct. 1710. 123 L.Ed.2d 353 (1993); Kotteakos v. United States,328 U.S. 750, 764, 66 S.Ct. 1239.90 L.Ed.1557 (1946)(the issue to be determined is "what effect the etTOr had orreasonably may be taken to have had").The standard of "clearly established Federal law" set forth in 2254(d)(1) refers to the actual holdings of SupremeCourt decisions "as of the time of the relevant state court decision." Williams v. Tavlor, 529 U.S. 362,412,120 S.Ct.1495,146 L.Ed.2d 389 (2000); see also Bell v. Cone, 535 U.S. 685,698,122 S.Ct. 1843,152 L.Ed.2d 914 (2002). Astate court is not required to set forth the controlling Supreme COUli cases in denying habeas relief"so long as neither the reasoning nor the result of the state-coUli decision contradicts them." Earlv v. Packer, 537 U.S. 3, 1)3 S.Ct.362,365. 154 L.Ed.2d 263 (2002) (per curiam).A federal habeas court is not required to "adopt anyone methodology" in determining "whether a state court decision is contrary to, or involved an *20 unreasonable application of, clearly established Federal law." Lockyer v.Andrade, 538 U.S. 63,123 S.Ct. 1166, 1172, 155 L.Ed.2d 144 (2003). Although a particular decision may be both"contrary to" and "an unreasonable application of' controlling law, the phrases have independent meanings. Wil-liams v. Taylor, supra, 529 U.S. at 391,413.A state cOUli decision is "contrary to clearly established federal law if the decision either applies a rule that contradicts governing Supreme COUli law, or reaches a result different from which the Supreme Court reached on "materially indistinguishable" facts. Earl)? v. Packer, supra, 123 S.Ct. at 365; Bell v. Cone, supra, 535 U.S. at 694; Williams



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v Tavlnr, SUlJra, 529 H.S, at 405--406, State court decisions which are nat "contrary to" Supreme Court law may oulybe set aside on federal habeas review "i f they are nat merely erroneous, but 'an unreasonable application' of clearlyestablished federal law, or are based on 'an unreasonable determination of the facts. ' " Early v. Packer, supra, 123U.S. at 366 (citing 28 U.S.c. 2254(d); emphasis added).A state court decision involves an "unreasonable application" of clearly established federal law if the decision correctly identifies the governing legal rule, but unreasonably applies it to the facts of a particular case. Tt711iams v.ravlor, supra, 529 U.S. at 406-410,413; *21Woodford v. Visciotti, 537 u.s. 19,123 S.Ct. 357,360-361. 154 L.Ed.2d279 (2002) (per curriam). i> .. federal habeas court may notreject a state court decision based upon the federal court'sindependent determination that the state court decision was incorrect, en'oneous, or even "clear error." Lockyer v.Andrade, supra, 123 S.Ct. at 1175. A federal habeas cOUli may only reject a state court decision as an "unreasonableapplication" if the state court's application of Supreme Court precedent was "objectively unreasonable." ld.;TP"oodford v. Visciotti. supra, 123 S.Ct. at 360-361; Bell v. Cone. supra. 535 U.S. at 699; Williams v. ravlar, supra.529 U.S. at 413.In reviewing a state court adjudication, a federal habeas court looks to the last reasoned state decision as the basisfor the state court's final judgment. Schackleford v: Hubbard, 234 F.3d 1072, fn. 2 (9th Cir. 2000),citing Ylst v.Nunnemaker, 501 U.S. 797, 803-804, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991). Thus, a federal court may "lookthrough" a summary denial by a state supreme court to a reasoned lower court decision to find the basis for the thefinal judgment. ld. However, when there is no state court decision atiiculating the rationale for the judgment, a federal habeas court "has no basis other than the record" for determining whether a state court adjudication of a claimwas contrary to, or an unreasonable application of, controlling law. Delgado V. Lewis, 223 F.3d 976. 981-982 (9thCir.2000).VII.SUMMARYOFARGUMENT

A. Diaz was not denied due process of law during her contempt proceedings.B. Diaz was not denied her right to counsel in violation of the Sixth Amendment during the April 2003 hearing.C. There was sufficient evidence to support the Superior Court's finding that Diaz was in contempt of valid statecourt orders.The district court's decision should be affirmed in its entirety.

VIII.ARGUMENT

A. DIAZ WAS NOT DENIED DUE PROCESS OF LAW DURING HER CONTEMPT PROCEEDINGS1. Due Process Was Satisfied as Diaz' Failure to Pay the Previously Imposed SanctionWas a Direct ContemptCommitted in the View and Presence of the Superior Court, the Superior COUliMade an Order Reciting the FactsConstituting the Contempt, Diaz Had Notice of That Order, and Diaz Failed to Pay the Sanction or EstablishWhyShe Could Not Comply with the Sanction Order.

Diaz contends that she was denied due process and a fair trial at the time of the October 3,2003, contempt hearing.



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*23 Where the sentence for a finding of contempt is "a determinate one, then the punishment is criminal in nature,and it may not be imposed unless federal constitutional protections are applied in the contempt proceedings." Hicksv. Feiock. 485 U.S. 624,637, 108 S.Ct. 1423.99 L.Ed.2d 721 (19881. As the sentence imposed by way of the October3, 2003, contempt hearing included a jail sentence of three days, federal constitutional protections attach; however,there was no violation ofDiaz' rights.In California, a direct contempt is "that which is committed in the immediate view and presence of the court or ofthe judge in chambers; all other contempts,... which occur outside the presence of the court are indirect. Hanson v.Superior Court. 91 Cal.App.4th 75, 81, 109 Cal.Rptr.2d 782 (2001). Moreover, in a case involving a direct contempt, where there is no requirement that the charging documents be filed and served to present a prima facie showing of the elements of contempt, the "court must make an order reciting the facts that constituting the contempt." Id.at 81.The elements of contempt are that the court made a lawful order; the person cited for contempt had knowledgeor notice of the order; and the person was able to comply, yet wilfully disobeyed the order. Warner v. SuperiorCourt. 126 Cal.App.2d 821. 824, )73 P.2d 89 (1954).*24 The specific contempt at issue was Diaz' refusal to comply with the Superior Court's April 23,2003, contemptorder, which required her to pay a $1,000 fine and costs. (ER, p. 472.) On October 3, 2003, the Superior Court recited the evidence constituting the contempt finding that it had been proved beyond a reasonable doubt. (ER, p. 472473.) Diaz had previous notice and knowledge of the underlying order to pay the fine of $1 ,000. (ER, p. 472.) Diaz'refusal to comply took place in the immediate view and presence of the trial judge. (ER, p. 473.) Diaz failed to provethat she was unable to pay the fine, notwithstanding the Superior Court providing numerous opportunities to do so.(ER, p. 473.) Under California law, such a failure to comply is considered a direct contempt of cOUli. Se eRubin. 24 Ca1.4th 1176, 108 Ca1.Rptr.2d 593 (2001) (appointed attorney's wilful failure to comply with deadline forfiling criminal defendant's brief after the sixth extension of time was "direct contempt" on appeal in capital case; thefailure to comply with the order occurred within the immediate view and presence of the Supreme Court). As a result, and contrary to Diaz' contention, California law did not require the admission of the charging affidavit duringthe October 3,2003, contempt hearing, as it was a direct contempt under the applicable state law.On October3, 2003, and after the Superior Court's rendition of the facts constituting the contempt, Diaz, in the fullview and presence of the Superior COUli, *25 represented that she had not paid the sanction. Thereafter, Diaz refused to offer any evidence to establish that she was unable to pay the sanction. (ER, pp. 429-432.)As specifically found by the District Court, the "review of the trial judge's October 3,2003, contempt order indicatesthat he recited the facts constituting the contempt and found that the elements had been proven beyond a reasonabledoubt, as required under state law for a finding of criminal contempt. The foregoing record of evidence suggests noerror rising to the level ofa federal constitutional violation." (ER, p. 484,11. 7-11.)2. Under California Law, Diaz Had the Burden ofProofas to the Affirmative Defense of Inability to Comply withthe Sanction Order.

Diaz contends that her ability to comply with the sanction order is an element of the contempt that must be provedby the Superior Court beyond a reasonable doubt. Diaz further contends that both the Superior Court and the DistrictCOUli erred in finding that the burden ofproof rested with Diaz in the fonn of an affirmative defense to the charge ofcontempt. (AOB, pp. 24-27.)Diaz urges that the case of AIoss v. Superior Court. 17 Ca1.4th 396, 71 Cal.Rptr.2d 215 (1988), relied on by both theSuperior Court and the District COUli, should be more narrowly construed, i.e., that the holding should be limited tothe *26 context olCa! . Code ofCiv. Pro. 1209.5.[FN10J Review of the Moss v. Superior Court decision reflects that



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the California Supreme Court began its analysis by reviewing the history of the shifting the burden of proof from thestate to a criminal defendant. In multiple settings far beyond the subject code section, the California Supreme Courtstated:FN10. Cal. Code of Civ. Pro. 1209.5 provides in relevant part: "When a court of competent jurisdictionmakes an order compelling a parent to furnish supportor necessary food, clothing, shelter, medical attendance, or other remedial care for his or her child, proof that the order was made, filed, and served on theparent or proof that the parent was present in court at the time the order was pronounced and proof that theparent did not comply with the order is prima facie evidence of a contempt of court."

"We initially observe that assigning the burden to prove an affirmative defense by a preponderance of the evidenceto a defendant in a criminal proceeding, and thus to an alleged contemner (sic) in a criminalcontempt proceeding, isconstitutionally permissible. The Supreme Court so held in Martin V. Ohio (1987) 480 U.S. 228 [107 S.Ct. 1098, 94L.Ed.2d 267], when it considered the validity under the due process clause of the Fourteenth Amendment of an Ohiostatute pursuant to which self-defense was an affirmative defense in a prosecution for murder. Affirmative defensesunder Ohio law were those in which " 'an excuse or justification [was] peculiarly within the knowledge of the ac-cused, on which he can befairly required to adduce supporting evidence.' "(Citation omitted.) The high court heldthat since the state did not preclude the jury from considering self-defense evidence in determining whether therewas a reasonable doubt that the element of the offense had been proven, it was permissible to impose on the [criminal] defendant the burden of proving self-defense by a preponderance of the evidence. (Citations omitted.)"*27 "The rule applied by the high court was consistent with the court's earlier decision in Patterson v. Ne-J,vYorl(1977) 432 1).S.197 [97 S.Ct. 2319, 53 L.Ed.2d 2811. There the court considered a New York law that placedthe burden on a murder defendant to prove an affirmative defense of extreme emotional disturbance by a preponderance of the evidence in order to reduce the offense to manslaughter. The court emphasized, as it did again in Martinv. Ohio, supra, 480 U.S. at page 232 [107 S.Ct. at page 110 1], that defining the elements of an offense and the procedures, including the burdens of producing evidence and of persuasion, are matters committed to the state. A state'sdecision in that regard does not offend the due process clause "unless 'i t offends some principle of justice so rootedin the traditions and conscience of our people as to be ranked as fundamental.' "(Citations omitted.) Thus the statemay not label as an affirmative defense a traditional element of an offense and thereby make a defendant presumptively guilty of that offense unless the defendant disproves the existence of the element. (Citations omitted.) Dueprocess does not require that the state prove the nonexistence of a constitutionally permissible affirmative dEfense,however. (Citations omitted.)" (Emphasis added.)Diaz' contention that the Moss V. Superior Court decision should be limited to theapplication of section 1209.5 iswithout support and contrary to the analysis engaged in by the California Supreme Court in terms of the shifting ofthe burden of proof of ability to comply to a contemnor. Moreover, and as noted in the above quote, the evidenceregarding Diaz' ability to pay the $1,000 sanction, among all others, was "peculiarly within the knowledge of theaccused, on which [she] can be fairly required to adduce supporting evidence.,,[FNll]

FNll. The District Court, in analyzing the shifting of the burden of proof of ability to comply, held in accordance with the analysis set forth inMoss V. Superior Court, noting that Diaz "has not demonstrated thatthe state court's decision placing the burden on her to prove, by a preponderance of the evidence, her inability to comply with the April 21,2003, contempt order was contrary to, or an unreasonable application offederal law." (ER, p. 485,11. 12-15.)

*28 IfMoss v. Superior Court were interpreted as Diaz suggests, then every alleged contemnor who claimed an inability to pay (whether true or not), but refused to provide proof as to that inability, would not be subject to an ultimate finding of contempt. Clearly, this is not the result intended by the California Supreme Court in the Moss V.Superior Court decision.B. DIAZWAS NOT DENIED HER RIGHT TO COUNSEL IN VIOLATION OF THE SIXTH AMENDMENT



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Diaz, a licensed attorney in the State of California since 1992, contends that she was denied the effective use ofcounsel at the time of the hearings on April 18 and 21,2003. (AOB, p. 28.) Diaz bases this on a citation to one exchange during the course of the April 18,2003, hearing wherein she requested a continuance to obtain counsel, thatrequest being denied by the Superior Court. (AOB, p. 28; ER, 2 1 5 - 2 1 6 ~ )The Sixth Amendment provides a defendant in state court criminal proceedings with the right to counseL Faretta v.California, 422 U.S. 806, 807,95 S.Ct. 2525,45 L.Ed.2d 562 (1975); Jackson v. Ylst, 921 F.2d 88'), 888 (9th Cir.1990). Conversely, the Sixth Amendment implicitly guarantees a corresponding right to self-representation. Fm'etta,422 U.S. at 821, 832.; *29United States v. George, 56 F.3d 1078,1084 (9th Cir. 1995). A defendant must knowinglyand intelligently waive their right to counsel in order to satisfy due process concerns regarding self-representation.United States v. Akins, 276 F.3d 1141, 1146 (9th Cir. 2002)(as amended), citing United States v. Balough, 820 F.2d1485,1487 (9th Cir. 1987). A waiver is considered knowing and intelligent only ifit comes after the defendant hasbeen "made aware of the dangers and disadvantages of self-representation, so that the record will establish that [s]heknows the dangers ofwhat [s]he is doing and [her] choice is made with eyes open." Faretta. 422 U.S. at 835.This Court has consistently held that in order for a defendant to make a knowing and intelligent waiver of the rightto counsel, the defendant must be made aware of the following: 1) the nature of the charges against the defendant; 2)the possible penalties; and 3) the dangers and disadvantages of self-representation. United States v. Farhad, 190F.3d 1097. 1099 (9th Cir. 1999); United States v. Moha1'vk. 20 FJd 1480. 1484 (9th Cir. 1994); Unites States v.J-Iarris, 683 F.2d322, 324 (9th Cir. 1982).The trial court is generally in the best position to explicitly communicate the risks of self-representation to the defendant in open court; however, in the circumstance where the cOUli has not so explicitly communicated those risks,the reviewing cOUli must look to "the patiicular facts and circumstances surrounding the *30 case, including thebackground, experience and conduct of the accused" to determine whether the record, as a whole, supports a findingthat the waiver was knowing and intelligent. United States v. Kimmel, 672 F.2d 720, 722 (9th Cir. 1982; see alsoJohnson v. Zerbst. 304 U.S. 458.464. 58 S.Ct. 1019,82 L.Ed. 1461 (1938); United States v. Akins, supra, 276 F.3dat 1146-47; United States v. Balough, supra, 820 F.2d at 1487 (noting that a limited exception to the requirement ofthe on-the-record discussion exists "when the record as a whole reveals a knowing and intelligent waiver"). "Inevaluating \\lhether a v/aiver is valid, courts adopt 'ever; reasonable presumption against \ivaiver.' " GTnitecl States ,}.Akin. supra, 276 F.3d at 1147, citing Johnson v. Zerbst. 304 U.S. at 464.It is clear from review of the transcripts regarding the April 18 and 21, 2003 hearings that although the SuperiorCOUli did not explicitly discuss the dangers of self-representation with Diaz, the record as a whole reveals that Diaz,and based upon those warnings given by the Superior Court, in addition to Diaz' own statements and conduct, knowingly and intelligently waived her right to counsel as follows:At the commencement of the April 18, 2003 hearing, Diaz was advised as to the quasi-criminal nature of the contempt proceeding, which she stated she understood. (ER, p. 140,11.18-24.)*31 Ms. Diaz stated that she understood that she could be jailed if found in contempt and had been so advised bylegal counsel prior to the hearing on April 18, 2003. (ER, p. 141, 12-24.) Diaz again stated to the cOUli that she understood that the cOUli had the power to jail her. (ER, p. 143, 11. 6-9.) Diaz stated to the cOUli that she was there to defend herselfon a contempt charge. (ER, p. 146,11. 13-28.) Diaz argued that the basis of the order for which she was now being cited for contempt (the September 7, 2001,Order and Judgment awarding attorney's fees and costs to Kaufman, ER, p. 043) is invalid. (ER, pp. 146-158.) Diaz stated that she would take the stand to provide testimony in her own defense (ER, pp. 158-159.) Diaz took the stand and admitted that she had the court's earlier admonitions in mind. (ER, p. 166,11. 5-17.) Diaz provided testimony in defense of the contempt charge without asking for a continuance or the assistance ofcounsel, including the cross-examination of the process server regarding the service of the subject OSC re Contempt(ER, pp. 166-192.)*32 Diaz submitted on the issue of service on the evidence with no request fora continuance or the assistance of



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Even after the court found the service of the OSC to be valid, Diaz still proceeded with the hearing requesting acontinuance or the assistance of counsel. (ER, pp. 198-211.)The fact that Diaz admitted that she had consulted with counsel regarding the contempt charge establishes her understanding of the seriousness of the charge. More importantly, Diaz did not request a continuance or counsel until itwas clear that the matter was going against her. (ER, pp. 198,214.) Diaz' comments during the hearing clearly indicate her understanding of the risk of self-representation, and that she had simply avoided obtaining counsel in thehopes that the matter would be continued due to the filing of the undertaking. ld. "[T]here must be some limit to thedefendant's ability to manipulate the judicial system." United States v. PVillie, 941 F.2d 1384, 1391 (lOth Cir. 1992),citing United States v. Gallop. 838 F.2d ]05, 111 (4th Cir. 1988). While the courts have recognized a defendant'sright to proceed without counsel and to refuse appointed counsel, "[sh]e may not use this right to playa 'cat andmouse' game with the cOUli ... or by ruse or stratagem fraudulently seek to have the trial judge placed in a positionwhere, in moving along the business of the *33 court, the judge appears to be arbitrarily depriving the defendant ofcounsel." Kates v. Nelson, 435 F.2d ]085, 1088-89 (9th Cir. 1970), citing United States ex reI. Davis v. McMann,386 F.2d 611, 618-19 (2d Cir. 1968).In fact, and notwithstanding Diaz' protestations as to the requested continuance and the assistance of counsel, whengiven the continuance of the matter to April 21, 2003, to allow the filing of points and authorities in support of herdefense, Diaz still did not obtain counsel. (ER, p. 255, 261.) In addition, and as noted by the District Court, Diaz'background and experience as an attorney establish that her decision to represent herself at the time of the April2003, hearings was the product of a knowing and intelligent waiver of her right to counsel.Based 'upon the foregoing, Diaz has failed to demonstrate a deprivation of her constitutional right to counsel, asguaranteed by the Sixth Amendment, in connection with the April 2003, contempt order. As a result, the October 3,2003, order of contempt is not lacking the required element of a]awful order, and the California Supreme Court'srejection ofDiaz' due process claim is not contrary to, or an unTeasonable application of federal law.*34 C.THEREWAS SUFFICIENT EVIDENCE TO SUPPORT THE SUPERIOR COURT'S FINDING THATDIAZWAS IN CONTEMPT OF VALID STATE COURT ORDERS

1. The Voluntary Dismissal ofMoore v. Kaufinan Did Not Divest the Superior COUli of Jurisdiction to Rule on theAnti-SLAPP Motion and Award of Costs and Attorney's Fees Against DiazDiaz contends that as a result of the dismissal of the Moore v. Kaufman matter, the Superior Court was divested ofjurisdiction to conduct fmiher proceedings, such as the September 7,2001, hearing on the anti-SLAPP motion.(AOB, pp. 35-43.) In its April 24, 2003, opinion, the California Court of Appeal dealt directly with this contentionby stating "[t]he unique history of this case makes it unnecessary for us to consider Dr. Moore's contention that herrequest for dismissal deprived the trial comi of jurisdiction to make its subsequent orders. (Citation omitted.)" (ER,p. 324, fn. 4.) The Court of Appeal cited the case of Zapanta v. Universal Care, Inc .. 107 Cal.AppAth 1167.l 1 Z : t l . : t ~ CaLRptr.2d 842 (2003) in connection with this finding, distinguishing the Superior Court's dismissal. In-Zapanta v. Universal Care, Inc., the Court of Appeal held that, generally, a voluntary dismissal will deprive a trialcourt of jurisdiction to act; however, in a situation where the plaintiffs right to dismissal clearly conflicts with public policy, the trial court may retainjurisdiction to act and enter additionalorders in a matter. Id. at 1174 (stating thatthe purpose behind the right of a plaintiff to voluntarily dismiss a case under section 581 "is to allow a *35 plaintiffa certain amount of freedom of action within the limits prescribed by the Code," and that such a dismissal is validwhere this right does not conflict with other statutory provisions, judicial procedures or public policy) citing Cal-Vada Aircraft, Inc. v. Superior COurt, 179 Cal.App.3d 435,446,224 Cal.Rptr. 809 (1986).As stated by the District COUli, "the trial court made a finding that [Diaz'] tactics were designed to mislead the



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court." (ER, p. 491.) As a result, the "against public policy" exception under Zapanta v, Universal Care, Inc., wasapplied and the trial court was not divested of jurisdiction to enter the subsequent orders. There is no indication fromeither the Court of Appeal or the California Supreme Court that this exception to the general rule was improperlyapplied. As a result, and notwithstanding Diaz' contention to the contrary, the Superior Court did retain jurisdictionto enter orders subsequent to the voluntary dismissal ofMoore v. Kaufman, including the September 7,2001, Orderand Judgment.2. The September 7, 2001, Order of the Superior Court Awarding Attorney's Fees and Costs Against Diaz, and theSubsequent Order Setting the Amounts Thereof, Was Proper under State Law.

Cal. Code o f Cillo Pmc. 425.16(c) provides in relevant part: "I f the court finds that a special motion to strike isfrivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney's feesto a prevailing *36 plaintiffon the motion, pursuant to section 128.5." Moore v. Shaw, 116 Cal.AppAth 182, 199, 10Cal.Rptr.3d 154 (2002),EFNI2]FN12. Diaz' argument that the "safe harbor" provisions of Cal. Code ofCiv. Pro. 128.7 were not satisfiedprior to the granting of the motion to strike and the award of attorney's fees and costs is simply wrong.(AOB, pp. 40-41.) The statutory basis of an award of attorney's fees in connection with a successful antiSLAPP motion is pursuant to Cal. Code o(Civ. Pro. 128.5 and 425.16(c). See also Ketchum v. Moses 24Ca1.4th 1122. 1132-1136, 104 Cal.Rptr.2d 377 (2001). Section 128.5(a) provides: "Every trial court mayorder ... the party's attorney ... to pay any reasonable expenses, including attorney's fees, incurred by another party as a result of bad-faith actions or tactics ...." Unlike Section 128.7, Section 128.5 has no "safeharbor" provision. Moreover, and as setforth previously, the Court of Appeal found that the September 7,2001 award of attorney's fees and costs against Diaz' was "correct on the merits." (SER, p. 004-005, fn. 3.)

The California Legislature passed the anti-SLAPP statute specifically recognizing, "the public interest to encouragecontinued participation in matters of public significance ... and [finding] that this participation should not be chilledthrough abuse of the judicial process." Metabolife International, Inc. V. Wornick. 213 F.Supp.2d 1220, 1221 (SDCA 2002). The California Legislature amended the anti-SLAPP statute in 1997, mandating that section 425.15 be"construed broadly." Metabolite International. Inc. v. Warnick, 213 F.Supp.2d at 1223, citing Briggs v. Eden Coun-cil fo r liope and Opportunity, 19 Ca1.4th 260, 1119, 81 CaLRptr. 471 (2001); see also Rosenauer v. Schere, 88Cal.AppAth 260, 286. 105 Ca1.Rptr. 674 (2001) (specifically stating, in the context of attorney's fees, that the antiSLAPP *37 statute "shall be construed broadly.") Although the above citation provides for an award of costs andfees in the context o fa f i ~ i v o l o u s anti-SLAPP motion, the Superior Court broadly construed the legislative purpose ofthe statute in order to effectuate its stated purpose with respect to the multiple complaints filed by Diaz on behalf ofMoore. The Superior Court did so based upon the harassing nature of Diaz' litigation tactics as evidenced by theunpublished decision

Documents

09-04-21 Fine v Sheriff (2:09-cv-01914) Dkt #12: April 21, 2009 Sheriff Baca's Motion to Dismiss