09-56073 Richard Fine 9th Circuit Court of Appeal All Orders

8/6/2019 09-56073 Richard Fine 9th Circuit Court of Appeal All Orders

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09/23/2009 23 Main Document 12 ENTRY UPDATED. Filed order MOATT: (SNR)Appellants emergency motion toimmediately grant writ of habeas corpus based uponopening brief,filed September 17, 2009, is deniedto the extent appellant seeks immediate release fromcustody, because on September 15, 2009, the court denied

appellants second motion for immediate releaseand stated that no further motions for immediate releasepending appeal shall be filed or entertained. To the extentappellant seeks expedited consideration of this appeal, thatrequest is granted. The answering brief is due October 9,2009. The reply brief is due within 14 days after service ofthe answering brief. Because this appeal is being expedited,the Clerk shall not grant any extension of time to file thebriefs under 9th Cir. R. 312.2. The Clerk shall calendarthis case during the week of December 711, 2009, inPasadena, California. [7071916][Edited 09/23/2009 byKD] [7071916]

10/13/2009 27 ECF Brief Filed 14 Filed clerk order: Answering Brief [26] filed by Sheriff of Los Angeles County. Within 5 working days of the filingof this order, filer is ordered to file 10 copies of the brief inpaper format, with a Red cover, accompanied bycertification, attached to the end of each copy of the brief,that the brief is identical to the version submittedelectronically. [7091929]

10/14/2009 30 Main Document 15 Filed order (Appellate Commissioner)Appellants September 17, 2009 and October 6,2009 motions seeking summary reversal of the district

courts denial of his petition for a writ of habeascorpus are denied. Appellants reply brief is dueOctober 23, 2009. (MOATT) [7095250]

10/15/2009 31 ECF Brief Filed 16 Filed clerk order: Answering Brief [25] filed by SuperiorCourt of California County of Los Angeles and JudgeDavid P. Yafee. Within 5 working days of the filing of thisorder, filer is ordered to file 10 copies of the brief in paperformat, with a Red cover, accompanied by certification,attached to the end of each copy of the brief, that the briefis identical to the version submitted electronically.[7095757]

10/16/2009 35 Main Document 17 Filed order MOATT: (SNR) Appellants motionto strike the answering briefs and request for judicial noticeare referred to the panel assigned to hear the merits of thisappeal. All further filings shall be referred to the meritspanel. The reply brief remains due October 23, 2009.[7098468]

11/03/2009 38 Main Document 18 Notice of Oral Argument on DECEMBER Calendar. Pleasereturn ACKNOWLEDGMENT OF HEARING NOTICEform to: PASADENA Office. Attention: The Notice ofDocket Activity may not list your case number. Pleaseopen attached documents to view details about your case.

[7117864]
https://ecf.ca9.uscourts.gov/docs1/009021425340?caseId=195849&dktType=dktPublichttps://ecf.ca9.uscourts.gov/docs1/009021423378?caseId=195849&dktType=dktPublichttps://ecf.ca9.uscourts.gov/docs1/009121490767https://ecf.ca9.uscourts.gov/docs1/009121442261https://ecf.ca9.uscourts.gov/docs1/009021423378?caseId=195849&dktType=dktPublichttps://ecf.ca9.uscourts.gov/docs1/009121436153https://ecf.ca9.uscourts.gov/docs1/009121434866https://ecf.ca9.uscourts.gov/docs1/009021425340?caseId=195849&dktType=dktPublichttps://ecf.ca9.uscourts.gov/docs1/009121427990https://ecf.ca9.uscourts.gov/docs1/009121383130


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11/12/2009 39 Main Document 26 Filed clerk order (Deputy Clerk:SC): Appellantsmotion to strike Respondents answering brief isDENIED. Appellants request for judicial noticeof California Government Code 68220 et. seq.is DENIED. Appellants oversized reply brief,which was filed on October 22, 2009, is deemed filed. The

panel unanimously finds that the facts and legal argumentsin this case are adequately presented in the briefs andrecord and that the decisional process would not besignificantly aided by oral argument. Pursuant to Fed. R.App. P. 34(a)(2), it is therefore ordered that the case besubmitted on the briefs, without oral argument onDecember 10, 2009, in Pasadena, California. IT IS SOORDERED. [7127470]

12/04/2009 50 Main Document 28 Filed clerk order (Deputy Clerk:SC): AppellantsRequest for Judicial Notice of Entire AppellateDistricts Self Recusals in the

Sturgeon Appealsis DENIED.[7151665]

12/08/2009 52 Main Document 29 Filed Daniel Henry Gottlieb's motion to to become amicuscuriae, served on 12/07/2009. (Panel) [7155956]

12/08/2009 53 Main Document 30 Received original and 0 copies of Amicus Curiae Pending Daniel Henry Gottlieb amicus brief in 18 pages.Major deficiencies: motion to become amicus pending,untimely, brief is oversized. Served on 12/07/2009. (Panel)[7155999]

12/09/2009 54 Main Document 54 Filed order (STEPHEN R. REINHARDT, STEPHEN S.TROTT and KIM MCLANE WARDLAW):

Appellants Motion for Reconsiderationof Denial of Emergency Petition for Writ ofMandateis DENIED. [7156559]

12/10/2009 SUBMITTED ON THE BRIEFS TO STEPHEN R.REINHARDT, STEPHEN S. TROTT and KIM MCLANEWARDLAW [7159651]

12/11/2009 57 Main Document 55 Filed order (STEPHEN R. REINHARDT, STEPHEN S.TROTT and KIM MCLANE WARDLAW): Dr. DanielGottliebs motion for amicus curiae status andsubmission of an amicus curiae brief is DENIED.[7160428]

12/15/2009 58 Main Document 56 Filed order (STEPHEN R. REINHARDT, STEPHEN S.TROTT and KIM MCLANE WARDLAW)Appellants Motion to ReconsiderClerks Denial of Requests for JudicialNoticeis DENIED. As to the request for judicialnotice of California Government Code 68220 68222, however, we note that the request isdenied only because it is unnecessary to request judicialnotice of a statute. The panel will consult theparties cited legal authorities in its considerationof this appeal. [7164720]
https://ecf.ca9.uscourts.gov/docs1/009121594980https://ecf.ca9.uscourts.gov/docs1/009121585475https://ecf.ca9.uscourts.gov/docs1/009121577624https://ecf.ca9.uscourts.gov/docs1/009121576520https://ecf.ca9.uscourts.gov/docs1/009121576425https://ecf.ca9.uscourts.gov/docs1/009121567271https://ecf.ca9.uscourts.gov/docs1/009121511623


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12/16/2009 59 FILED MEMORANDUM DISPOSITION (STEPHEN R.REINHARDT, STEPHEN S. TROTT and KIM MCLANEWARDLAW) AFFIRMED. FILED AND ENTEREDJUDGMENT. [7165909]

59 Main Document 57

59 Post Judgment Form 60

12/17/2009 60 Main Document 65 Filed Appellant Richard I. Fine's motion to take judicialnotice of Monterey County Judges ... . Served on

12/15/2009. [7171018]12/24/2009 62 Main Document 71 Filed order (STEPHEN R. REINHARDT, STEPHEN S.

TROTT and KIM MCLANE WARDLAW)Appellants Request for Judicial Noticeof Monterey County Judges PublicStatementsis DENIED. [7175290]

02/10/2010 66 Main Document 72 Filed order (STEPHEN R. REINHARDT, STEPHEN S.TROTT and KIM MCLANE WARDLAW) The panel hasvoted to deny Appellants petition for panelrehearing. Judge Reinhardt and Judge Wardlaw have votedto deny Appellants petitions for rehearing en

banc, and Judge Trott so recommends. The full court hasbeen advised of the suggestions for rehearing en banc andno active judge has requested a vote on whether to rehearthe matter en banc. Fed. R. App. P. 35. The petitions forrehearing en banc are denied. No further motions shall beentertained in this appeal. IT IS SO ORDERED. [7226626]

02/12/2010 68 Main Document 73 Filed order (STEPHEN R. REINHARDT, STEPHEN S.TROTT and KIM MCLANE WARDLAW)Petitioners Motion to Disqualify Judges and toVoid the Memorandum Disposition and Other Orders isDENIED. [7231563]

02/18/2010 69 Mandate Order 74 MANDATE ISSUED.(SR, SST and KMW) [7235709]04/19/2010 71 Main Document 75 Received notice from the Supreme Court: petition for

certiorari filed on 03/23/2010. Supreme Court Number091250. [7309221]

05/27/2010 72 Main Document 76 The petition for writ of certiorari was denied on05/24/2010. Supreme Court number 091250. Panel is: SR,SST and KMW. [7352928]

08/04/2010 73 Main Document 77 Received Supreme Court order dated 07/26/2010. Thepetition for rehearing is denied. [7428156]. [7428156]

08/19/2010 75 Main Document 78 Filed order (STEPHEN R. REINHARDT, STEPHEN S.

TROTT and KIM MCLANE WARDLAW) Richard Finerequests that this panel vacate its December 16, 2009,decision affirming the district courts denial of hispetition for habeas corpus. Fine asserts that newinformation undermines our prior decision. We affirmedthe district courts conclusion that the statecourts contempt finding was notcontrary to,and did notinvolve[] an unreasonable application of, clearlyestablished Federal law,28 U.S.C. 2254(d)(1), because Judge Yaffes refusal to

recuse himself did not present a probability of
https://ecf.ca9.uscourts.gov/docs1/009121609628https://ecf.ca9.uscourts.gov/docs1/009121619864https://ecf.ca9.uscourts.gov/docs1/009122020877https://ecf.ca9.uscourts.gov/docs1/009122194537https://ecf.ca9.uscourts.gov/docs1/009122234586https://ecf.ca9.uscourts.gov/docs1/009122194537https://ecf.ca9.uscourts.gov/docs1/009122020877https://ecf.ca9.uscourts.gov/docs1/009121922921https://ecf.ca9.uscourts.gov/docs1/009121756504https://ecf.ca9.uscourts.gov/docs1/009121746754https://ecf.ca9.uscourts.gov/docs1/009121736696https://ecf.ca9.uscourts.gov/docs1/009121619864https://ecf.ca9.uscourts.gov/docs1/009121609628https://ecf.ca9.uscourts.gov/docs1/009121597913https://ecf.ca9.uscourts.gov/docs1/009121597910https://ecf.ca9.uscourts.gov/docs1/009021597910


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actual bias . . . too high to be constitutionallytolerable,Caperton v. A. T. Massey Coal Co.,Inc., 129 S. Ct. 2252, 2257 (2009) (quoting Withrow v.Larkin, 421 U.S. 35, 47 (1975)). Nothing alleged inFines current petition demonstrates that aconstitutionally intolerable probability of actual bias

existed. Therefore, the petition to vacate thepanels December 16, 2009, decision isDENIED.[7445650]

09/17/2010 77 Main Document 80 Filed order (STEPHEN R. REINHARDT, STEPHEN S.TROTT and KIM MCLANE WARDLAW) JudgeReinhardt and Judge Wardlaw have voted to denyAppellants petition for rehearing en banc, andJudge Trott so recommends. The full court has beenadvised of the suggestion for rehearing en banc, and noactive judge has requested a vote on whether to rehear thematter en banc. Fed. R. App. P. 35. The petition for

rehearing en banc is DENIED. [7477834]
https://ecf.ca9.uscourts.gov/docs1/009122307888


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dk/COA

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICHARD I. FINE,

Petitioner - Appellant,

v.

SHERIFF OF LOS ANGELES COUNTY;

et al.,

Respondents - Appellees.

No. 09-56073

D.C. No. 2:09-cv-01914-JFW-CW

Central District of California,

Los Angeles

ORDER

Before: KLEINFELD, Circuit Judge.

UnderMiller-El v. Cockrell, 537 U.S. 322 (2003), appellant need not show

that he is probably correct or that there is a substantial likelihood that he is correct

in order to obtain a certificate of appealability. A certificate of appealability is

required if he demonstrates that reasonable jurists would find the district court's

assessment of his constitutional claims debatable. (Id. at 338.) Accordingly,

appellant is granted a certificate of appealability on the issue of whether the trial

judge should have recused himself. See 28 U.S.C. 2253(c)(3);see also 9th

Cir.R.22-1(e).

FILED

AUG 12 2009

MOLLY C. DWYER, CLERKU.S. COURT OF APPEALS

Case: 09-56073 08/12/2009 Page: 1 of 2 ID: 7024494 DktEntry: 12-1


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dk/COA 09-560732

A review of this courts docket reflects that the filing and docketing fees for

this appeal remain due. Within 14 days of the filing date of this order, appellant

shall (1) pay to the district court the$455.00 filing and docketing fees for this

appeal and file in this court proof of such payment or (2) file in this court a motion

to proceed in forma pauperis, accompanied by a completed CJA Form 23. Failure

to pay the fees or file a motion to proceed in forma pauperis shall result in the

automatic dismissal of the appeal by the Clerk for failure to prosecute. See 9th Cir.

R. 42-1.

The Clerk shall serve a copy of CJA Form 23 on appellant.

If appellant pays the fees, the following briefing schedule shall apply: The

opening brief is due September 9, 2009; the answering brief is due October 9,

2008; the optional reply brief is due within 14 days after service of the answering

brief. If appellant files a motion to proceed in forma pauperis, the briefing schedule

will be set upon disposition of the motion.

Appellants remaining motions and requests will be addressed by separate

order.



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OCJA 23 FINANCIAL AFFIDAVITev. 5/98 IN SUPPORT OF REQUEST FOR ATTORNEY, EXPERT OR OTHER COURT SERVICES WITHOUT PAYMENT OF FEE

IN UNITED STATES GMAGISTRATE GDISTRICT G APPEALS COURT or G OTHER PANEL (Specify below)

N THE CASE OF LOCATION NUMBER

FOR

*V.S.AT

PERSON REPRESENTED (Show your full name) 1 G DefendantAdult DOCKET NUMBERS

*2 G Defendant - Juvenile Magistrate

3 G Appellant

4 G Probation Violator *District Court

5 G Parole Violator

CHARGE/OFFENSE (describe if applicable & check box) G Felony 6 G Habeas Petitioner Court of Appeals

G Misdemeanor 7 G 2255 Petitioner

8 G Material Witness

9 G Other

ANSWERS TO QUESTIONS REGARDING ABILITY TO PAY

SSETS

9

EMPLOY-MENT

Are you now employed? G Yes G No G Am Self-Employed

Name and address of employer:

IF YES, how much do you IF NO, give month and year of last employment

earn per month? $ How much did you earn per month? $

If married is your Spouse employed? G Yes G No

IF YES, how much does your If a minor under age 21, what is your Parents or

Spouse earn per month? $ Guardians approximate monthly income? $

OTHER

INCOME

Have you received within the past 12 months any income from a business, profession or other form of self-employment, or in the fo

rent payments, interest, dividends, retirement or annuity payments, or other sources? G Yes G NoRECEIVED SOURCES

IF YES, GIVE THE AMOUNTRECEIVED & IDENTIFY $

THE SOURCES

CASH Have you any cash on hand or money in savings or checking accounts? G Yes GNo IF YES, state total amount $

PROP-

ERTY

Do you own any real estate, stocks, bonds, notes, automobiles, or other valuable property (excluding ordinary household furnishings andclothing)? G Yes G No

VALUE DESCRIPTION

IF YES, GIVE THE VALUE AND $DESCRIBE IT

BLIGATIONS &EBTS

9

DEPENDENTS

9

MARITAL STATUS Total

No. of

Dependents

9

List persons you actually support and your relationship to them

SINGLE

MARRIED

WIDOWED

SEPARATED OR

DIVORCED

DEBTS &

MONTHLY

BILLS(LIST ALL CREDITORS,INCLUDING BANKS,LOAN COMPANIES,

CHARGE ACCOUNTS,ETC.) 9

APARTMENT Creditors Total Debt Monthly POR HOME:

$ $

$ $

$ $

$ $

certify under penalty of perjury that the foregoing is true and correct. Executed on (date)

SIGNATURE OF DEFENDANT *(OR PERSON REPRESENTED)



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dk/COA



RICHARD I. FINE,


v.


et al.,


No. 09-56073

D.C. No. 2:09-cv-01914-JFW-CW


Los Angeles

ORDER

Before: SCHROEDER and KLEINFELD, Circuit Judges.

Appellant's motions and submissions to this court, received on July 20, 23,

29 and 30 and August 6, 2009, are ordered filed.

Appellant's request for a certificate of appealability is addressed by separate

order.

Appellant's remaining motions and requests including his request for

immediate release pending appeal are hereby denied.

FILED

AUG 12 2009


Case: 09-56073 08/12/2009 Page: 1 of 1 ID: 7024515 DktEntry: 13


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dk/COA



RICHARD I. FINE,


v.


et al.,


No. 09-56073

D.C. No. 2:09-cv-01914-JFW-CW


Los Angeles

ORDER

Before: SCHROEDER and KLEINFELD, Circuit Judges.

Appellants motion for reconsideration of this courts order denying his

request for immediate release pending appeal is denied.

FILED

AUG 26 2009




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ec/MOATT



RICHARD I. FINE,


v.


et al.,


No. 09-56073

D.C. No. 2:09-cv-01914-JFW


Los Angeles

ORDER

Before: TASHIMA and N.R. SMITH, Circuit Judges.

Appellant's second motion for immediate release is denied. No further

motions for immediate release pending appeal shall be filed or entertained.

No motions for reconsideration, modification, or clarification of this order

shall be filed or entertained.

The opening brief has been filed; the answering brief is due October 9, 2009;

and the optional reply brief is due within 14 days after service of the answering

brief.

FILED

SEP 15 2009




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SNR/MOATT



RICHARD I. FINE,


v.


et al.,


No. 09-56073

D.C. No. 2:09-cv-01914-JFW


Los Angeles

ORDER

Appellants emergency motion to immediately grant writ of habeas corpus

based upon opening brief, filed September 17, 2009, is denied to the extent

appellant seeks immediate release from custody, because on September 15, 2009,

the court denied appellants second motion for immediate release and stated that no

further motions for immediate release pending appeal shall be filed or entertained.

To the extent appellant seeks expedited consideration of this appeal, that

request is granted. The answering brief is due October 9, 2009. The reply brief is

due within 14 days after service of the answering brief. Because this appeal is

being expedited, the Clerk shall not grant any extension of time to file the briefs

under 9th Cir. R. 31-2.2.

FILED

SEP 23 2009




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SNR/MOATT 09-560732

The Clerk shall calendar this case during the week of December 7-11, 2009,

in Pasadena, California.

FOR THE COURT:

Molly Dwyer

Clerk of Court

By: Sunil N. Rao

Motions Attorney/Deputy Clerk

9th Cir. R. 27-7

General Orders/Appendix A



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RICHARD I. FINE,


v.


et al.,


No. 09-56073

D.C. No. 2:09-cv-01914-JFW-CW

Central District of California, Los

Angeles

ORDER

The Answering Brief submitted by Appellee Sheriff of Los Angeles County

(Sheriff Baca) on October 9, 2009 is filed.

Within five (5) working days of the filing of this order, Appellee is ordered to file

ten (10) copies of the brief in paper format, with a Red cover, accompanied by

certification (attached to the end of each copy of the brief) that the brief is identical

to the version submitted electronically. A sample certificate is available on the

Courts website, www.ca9.uscourts.gov, at the CM/ECF button.

FOR THE COURT:

Molly C. Dwyer

Clerk of Court

By: Liora AnisDeputy Clerk

FILED

OCT 13 2009

MOLLY C. DWYER, CLERK OF COU.S. COURT OF APPEALS

http://www.ca9.uscourts.gov%2C/http://www.ca9.uscourts.gov%2C/


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SNR/MOATT



RICHARD I. FINE,


v.


et al.,


No. 09-56073

D.C. No. 2:09-cv-01914-JFW


Los Angeles

ORDER

Before: Peter L. Shaw, Appellate Commissioner.

Appellants September 17, 2009 and October 6, 2009 motions seeking

summary reversal of the district courts denial of his petition for a writ of habeas

corpus are denied.

Appellants reply brief is due October 23, 2009.

FILED

OCT 14 2009




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RICHARD I. FINE,


v.


et al.,


No. 09-56073

D.C. No. 2:09-cv-01914-JFW-CW

Central District of California, Los

Angeles

ORDER

The Answering Brief submitted by Appellees Superior Court of California, County

of Los Angeles and Judge David P. Yafee on October 9, 2009 is filed.

Within five (5) working days of the filing of this order, Appellees are ordered to

file ten (10) copies of the brief in paper format, with a Red cover, accompanied by

certification (attached to the end of each copy of the brief) that the brief is identical

to the version submitted electronically. A sample certificate is available on the

Courts website, www.ca9.uscourts.gov, at the CM/ECF button.

FOR THE COURT:

Molly C. Dwyer

Clerk of Court

By: Liora AnisDeputy Clerk

FILED

OCT 15 2009

MOLLY C. DWYER, CLERK OF COU.S. COURT OF APPEALS

http://www.ca9.uscourts.gov%2C/http://www.ca9.uscourts.gov%2C/


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SNR/MOATT



RICHARD I. FINE,


v.


et al.,


No. 09-56073

D.C. No. 2:09-cv-01914-JFW


Los Angeles

ORDER

Appellants motion to strike the answering briefs and request for judicial

notice are referred to the panel assigned to hear the merits of this appeal.

All further filings shall be referred to the merits panel.

The reply brief remains due October 23, 2009.

FOR THE COURT:

Molly Dwyer

Clerk of Court

By: Sunil N. Rao

Motions Attorney/Deputy Clerk9th Cir. R. 27-7

General Orders/Appendix A

FILED

OCT 16 2009




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[email: [email protected] Subject: PAS Hearing Notice]

12/01/09 www.ca9.uscourts.gov

OFFICE OF THE CLERK

U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

95 SEVENTH STREET, P.O. BOX 193939

SAN FRANCISCO

NOTICE OF CASES SET FOR HEARING

Your case has been set for hearing as indicated on the attached calendar. Please take special note of the

time and place of hearing. In order that the court may make proper arrangements for oral argument, it is essential

that you immediately complete the attached acknowledgment of hearing notice and return it to the Clerk's Office

email OR street address provided. The acknowledgment of hearing notice may not be filed electronically via the

ECF system.

In preparing for oral argument, the parties should be guided by Rule 34 of the Federal Rules of Appellate

Procedure. The following information is provided to ensure the effectiveness of the hearing process:

Possibility of Mootness or Settlement - If your case has become moot or a settlement is imminent,

immediately advise the Clerk's office in writing and BY TELEPHONE. For ECF-registered parties, this

must be filed electronically as "Correspondence to Court."

Notification of Related Cases - If you are aware of other cases pending in this court which are related to

and which should be calendared with your case(s) on the attached calendar, please notify this office.

Admission for Oral Argument - Any attorney who will be presenting oral argument

must have been admitted to the bar of this court. The forms necessary for admission may be obtained

through the court's website [ www.ca9.uscourts.gov ] under Forms. If you have not been

admitted, or need to verify you have applied, please call the Attorney Admissions Inquiry line at

(415) 355-7800 and leave the requested information. While admission in open court on the day of

hearing is discouraged, you may elect such an admission procedure. Candidates for admission in open

court must appear in the Clerk's Office with a sponsor who has already been admitted to the bar of the

circuit, and who can orally move the admission before the calendar is called.

Submission Without Oral Argument - A party who feels that oral argument would not be ofassistance to the court may present a written motion asking the court to submit the case on the briefs for

decision without oral argument. Such a motion must be served on all parties. For ECF-registered parties,

this motion must be filed electronically. The court may, on its own motion, determine that oral argument

would not be of assistance. In such cases, all parties will be advised by separate notice pursuant to Fed.

R. App. P. 34(a).



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Appearing for Argument - If oral argument is to be presented, please register with the courtroom

deputy in the courtroom posted for your case 30 minutes before the time of the hearing. All parties

for all cases must be registered and present at the time the session is convened.

Hearing Order of Cases - Cases are generally heard in the order in which they

appear on the calendar. On the other hand, a panel may elect to poll the calendar prior to the

commencement of argument and to rearrange the order of cases based on the projected length of the

argument. Nevertheless, parties in the first case should be prepared to begin argument immediately after

the court is convened in the event that the entire calendar is not polled.

Limitation of Argument Time - Argument time in cases on the calendar which are

identified with an asterisk (*) is limited to 10 minutes per side. In all other cases, oral argument time is

limited to 20 minutes per side. The limitations may be modified by the panel at the time of hearing.

Subject of Oral Argument - At the time of hearing, the judges of the panel will have studied the briefs andthe excerpts of record and will be familiar with the facts and issues of the case. Argument should be

devoted to clarifying issues as needed and to responding to questions raised by the judges of the panel.

Presenting Additional Citations - Additional citations of relevant decisions rendered since the filing

of the party's last brief -or after oral argument but before decision- may be submitted by letter, showing

proof of service on all counsel and parties not represented by counsel. For ECF-registered parties, this

letter must be filed electronically, but if filed by paper, only the original must be submitted to the court.

The letter must state the reasons for the citations, referring to either the page of the brief or to a point

argued orally. The body of the letter must not exceed 350 words. Any response must be made

promptly and similarly limited. [FRAP 28j, Cir. R. 28-6]

Identity of Panel Members - Not earlier than the week before the court week in which your case will be

heard, the names of judges hearing the currently calendared cases will be announced. The names will

be posted on the public bulletin board of the Clerk's Office of your local U.S. District Court and on this

Courts web page. You may also determine the names of the judges by submitting with the enclosed

acknowledgment form, a self-addressed, postage-paid envelope and a card listing the case number, date

and time of hearing. We will write the names of the judges hearing your case on this card and mail it

to you at the same time that the official calendars are mailed to the District Court Clerk's Offices for

posting. [www.ca9.uscourts.gov]

Continuances - After a case has been calendared, continuances are not granted except for a showing of

extraordinarily good cause. If oral argument is essential but you find it impossible to be present, you

must, immediately after receipt of this hearing notice, submit a formal motion and supporting affidavit

for continuance. For ECF-registered parties, this motion must be filed electronically. Presentation of

the motion does not ensure that the continuance is granted. The court will not consider the motion for

continuance after the identity of the panel of judges has been divulged.



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DRIVING DIRECTIONS TO COURTHOUSE

The Richard H. Chambers U.S. Court of Appeals Building is located at 125 South GrandAvenue, in Pasadena, California.

From downtown Los Angeles, take the Pasadena Freeway (110) to the Orange Grove Blvd.exit. Go north on Orange Grove approximately two miles and turn left on Maylin Street orDel Rosa Drive one block to Grand Avenue.

From the west via the Ventura Freeway (134), exit Colorado/Orange Grove Blvd. exit.Go south (right) on Orange Grove to Green Street. Turn right one block to Grand Avenue.

From the east via the Foothill Freeway (210) exit at Orange Grove Blvd., go south (left) onOrange Grove to Green Street. Turn right one block to Grand Avenue.

Park in the lot across from the Richard H. Chambers U.S. Court of Appeals Building.



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UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Location of Hearing for the December Calendar: Corrected Notice:

Richard H. Chambers US Court of Appeals Bldg.

125 South Grand Avenue

Pasadena, California 91105 October 30, 2009

LL Picture ID required to enter Courthouse 77

COUNSEL WILL PLEASE CHECK-IN WITH THE DEPUTY IN THE COURTROOM

All CJA Counsel call (415) 355-7993 for travel authorization

Monday, December 7, 2009 9:30 a.m. Courtroom 1

( ) * 08-50527 United States v. Kohler

( ) ~ 08-50031) United States v. Corona

08-50032) United States v. Corona

( ) 06-50607 United States v. Evans

( ) 06-50456) United States v. Kloehn

07-50274)


( ) * 07-55825 Clardy v. Castellaw

( ) * 07-55838 Small v. Horel

( ) * 07-56794 Torlucci v. Evans

( ) ~ 06-56093 Maxwell v. Roe

( ) ~ 09-55699 Pacific Sunwear v. Kira Plastinina( ) ~ 09-55937 E! Entertainment TV v. Entm't One GP


( ) * 04-71791 Aivazova v. Holder

( ) * 05-75584 Garcilazo-Cupa v. Holder

( ) * 07-55522 Park v. Chertoff

( ) * 08-56655 Jevne v. Lund

( ) ~ 07-56630 Holcomb v. New Castle Financial

( ) 08-56320 Association of Christian Schools v. Stearns

* MAX ARGUMENT TIME 10 MINS/SIDE ~ MAX ARGUMENT TIME 15 MINS/SIDE

OTHER CASES 20 MINUTES PER SIDE

[email: [email protected] subject: PAS Hearing Notice]

PLEASE RETURN ENCLOSED ACKNOWLEDGMENT NOTICE to CLERKS OFFICE

www.ca9.uscourts.gov

mailto:[email protected]://www.ca9.uscourts.gov/http://www.ca9.uscourts.gov/mailto:[email protected]


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Tuesday, December 8, 2009 9:30 a.m. Courtroom 1

( ) * 05-73068 Chen v. Holder

( ) * 05-73200) Bennani v. Holder

05-75097)

( ) * 09-50324 United States v. Vasallo-Martinez

( ) ~ 09-50059 United States v. Ramos

( ) ~ 09-50151 United States v. Hernandez-Rivera( ) ~ 09-50020 United States v. Ochoa-Ramirez


( ) * 07-74946 Gonzalez-Leyton v. Holder

( ) * 08-50554 United States v. Kelly-Palmer

( ) * 08-56056 Schulte v. City of Los Angeles

( ) ~ 06-56703) Lee v. TRW, Inc.

06-56704)

( ) 06-50717) United States v. Garrido

06-50718) United States v. Robles


( ) * 07-74899) Singh v. Holder

08-74195)

( ) * 08-56258 Puente v. County of Los Angeles

( ) * 08-56303 Agadzhanyan v. Astrue

( ) ~ 08-55861 Quiksilver, Inc. v. Kymsta Corp.

( ) ~ 08-56307 Shaffy v. United Airlines, Inc.( ) ~ 08-56314) Allied Orthopedic v. Tyco Health Care

08-56315)

Wednesday, December 9, 2009 9:30 a.m. Courtroom 1

( ) * 06-56352 Cervantez v. Pliler

( ) * 08-56357 Couch v. Telescope Inc.

( ) * 08-56360 Herbert v. Endemol USA Inc.

( ) ~ 08-56423 Khatib v. County of Orange

( ) 09-55673) MGA Entertainment, Inc. v. Mattel, Inc.

09-55812)


OTHER CASES 20 MINUTES PER SIDE


PLEASE RETURN ENCLOSED ACKNOWLEDGMENT NOTICE to CLERKS OFFICE

www.ca9.uscourts.gov

mailto:[email protected]://www.ca9.uscourts.gov/http://www.ca9.uscourts.gov/mailto:[email protected]


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UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Location of Hearing for the December Calendar: Date of Notice:

Richard H. Chambers US Court of Appeals Bldg.

125 South Grand Avenue

Pasadena, California 91105

LL Picture ID required to enter Courthouse 77

COUNSEL WILL PLEASE CHECK-IN WITH THE DEPUTY IN THE COURTROOM

All CJA Counsel call (415) 355-7993 for travel authorization


( ) * 05-72524 Poulis v. Holder

( ) * 05-72692 Sulaiman v. Holder

( ) * 05-73483) Baban v. Holder

05-76270)

( ) * 05-74111 Shaba v. Holder

( ) ~ 08-55625) Larin Corp. v. Mueller

08-55790) 08-56191)

( ) 08-56415) Jewish War Veterans v. City of San Diego

08-56436)


( ) * 05-72595 Gonzalez v. Holder

( ) * 07-70640 Esquivel-Garcia v. Holder

( ) * 08-56332 Madani v. Shell Oil Co.( ) * 09-50197 United States v. Felix-Olivas

( ) ~ 09-50180 United States v. Dierking

( ) 08-55838 FTC v. MacGregor

Thursday, December 10, 2009 9:30 a.m. Courtroom 1

( ) * 08-50182 United States v. Collins

( ) * 09-50259 United States v. Hernandez-Ortega

( ) * 09-50333 United States v. Magana-Colin

( ) * 09-56073 Fine v. Sheriff of Los Angeles County

( ) ~ 09-55791) Jamison v. City of Los Angeles09-55792)

( ) 08-56454) World Wide Rush v. City of Los Angeles

08-56523) 09-55494)


+ MAX ARGUMENT TIME 30 MINS/SIDE OTHER CASES 20 MINUTES PER SIDE


PLEASE RETURN ENCLOSED ACKNOW LEDGMENT NOTICE to CLERKS OFFICE

mailto:[email protected]:[email protected]


24/80


( ) * 05-70513 Mishustina v. Holder

( ) * 05-72970 Kanhukamwe v. Holder

( ) * 08-55534 Maxwell v. Roe

( ) ~ 05-56795) United States v. Withers

08-55096)

( ) ~ 08-50423 United States v. Isaacs

( ) ~ 08-56378 Kennedy v. Natural Balance Pet Foods, Inc.


( ) * 08-50538 United States v. Juarez-Mendez

( ) * 08-56374 Antoniewicz v. Astrue

( ) * 09-50171 United States v. Geiger

( ) ~ 08-50534 United States v. Deshotels

( ) ~ 08-55249 Emery v. Clark

( )~ 08-50547) United States v. Pereda-Rebollo

08-50552) United States v. Preciado

Friday, December 11, 2009 9:30 a.m. Courtroom 1

( ) * 04-73040 Chong v. Holder

( ) * 07-74624 Alvarez-Enriquez v. Holder

( ) * 05-72685 Dabo v. Holder

( ) * 08-50088) United States v. Hall

08-50226)

( ) * 09-50403 United States v. Casillas

( ) * 07-56455 Rawls v. Hunter

( ) ~ 08-55277) Mitchell v. MetLife08-55686)

Friday, December 11, 2009 9:00 a.m. Courtroom 3

( ) * 04-50266 United States v. Carey

( ) * 07-50571 United States v. Stolte

( ) * 07-50227 United States v. Shirazi

( ) ~ 07-50094 United States v. Johansen

07-50095) United States v. Standby Parts

( ) ~ 07-50576 United States v. Rodriguez

( ) ~ 08-50062 United States v. Mausali




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OFFICE OF THE CLERKUNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Return Notice To: OFFICE OF THE CLERKRichard H. Chambers U.S. Court of Appeals Build ing

125 SOUTH GRAND AVENUE

PASADENA, CA 91105Phone: (626) 229-7250

Fax (626) 229-7462 [Cir R 25-3.1]

OR % [email: [email protected] Subject: PAS Hearing Notice]

ACKNOWLEDGMENT OF HEARI NG NOTICE

ATTENTION: Calendar Clerk Date:

I acknowledge receipt of notice of assignment showing my case:

No.

Title:

assigned for hearing:

Date: Time: Courtroom:

Location:

Counsel to Argue: Name:

Address:

Phone: Fax:

Email:

Party(s) Represented:

Please indicate any special needs you may require in the courtroom:

NOTE: In the event that argument is to be presented "in pro per", please place party's name,address and telephone number in the space provided for counsel.

KPlease submit a separate Notice of Appearance to the Clerks Office for all counselwho have not entered an appearance in the above referenced case(s).

ADMISSION STATUS(To Be Completed by Attorneys Only)

( ) I certify that I am admitted to practice before this Court

( ) I certify that I am generally qualified for admission to practice before the bar of theNinth Circuit and that I will immediately apply for admission. ( forms available online )

Date: Signature:www.ca9.uscourts.gov



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RICHARD I. FINE,


v.


et al.,


No. 09-56073

D.C. No. 2:09-cv-01914-JFW-CW


Los Angeles

ORDER

Appellants motion to strike Respondents answering brief is DENIED.

Appellants request for judicial notice of California Government Code

68220 et. seq. is DENIED.

Appellants oversized reply brief, which was filed on October 22, 2009, is

deemed filed.

The panel unanimously finds that the facts and legal arguments in this case

are adequately presented in the briefs and record and that the decisional process

would not be significantly aided by oral argument. Pursuant to Fed. R. App.

P. 34(a)(2), it is therefore ordered that the case be submitted on the briefs, without

oral argument on December 10, 2009, in Pasadena, California.

IT IS SO ORDERED.

FILED

NOV 12 2009




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FOR THE COURT:

MOLLY C. DWYER

Clerk of Court

By: Shane Colegrove

Deputy Clerk



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RICHARD I. FINE,


v.


et al.,


No. 09-56073

D.C. No. 2:09-cv-01914-JFW-CW


Los Angeles

ORDER

Appellants Request for Judicial Notice of Entire Appellate Districts Self-

Recusals in the Sturgeon Appeals is DENIED.

FOR THE COURT:

MOLLY C. DWYER

CLERK OF COURT

By: Shane Colegrove

Deputy Clerk

FILED

DEC 04 2009




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Professor Emeritus Daniel H. GottliebMathematics3516 via DolceMarina del ReyCA 90292dhg7@macxcomhttp '//hormepagexmac.com/1t /

R E C E 1 V E DM -1 LY (). DWYEF), CLERKIJ.S. coun'f OFAPPEALS4

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&'h f ., . .j sy z'- s ''qox ks '.y:tu)j:..);?.;! : ,.s,.Mathenlatit)s ConsultantATTN: Panel Justices Assigned to Case # 09-56873, Set for Hearing 12/10/2009U.S. Court of Appeals for the Ninth Circuit95 Seventh StreetSan Francisco, CA 94103Date 12/7/2009RE: Amicus Curiae Brief Submission for Consideration'Ninth Circuit Cgse No. 09-56073. District Court Case No, CV-09-1914 JFW (CW)Dear Panel:l am a retired mathematics professor. My interest in the above matter stems from my former role as aneducator and present activities as a consultant as they relate to the perceived honesty (or lack thereotl ofthe judicial system, combined with my unique perspective from being a member of the Marina StrandColony 11 Homeowners association. Note that Marina Strand Colony 11 vs Los Angleles County and DelRey Shores is the originating case for the December 10 Hearing.l am aware of the requirement that amicus briefs be submitted by attorneys licensed to practice beftxeyour Court. However, 1 have been unable to retain one willing to risk their careers, given th issues ,ghdcircumstances.l have nonetheless prepared the enclosed amicus curiae in the interests of justice and respectfully re-quest that you give these issues due consideration.Sincerely,,:, :zwk *4# . Z/J' '> -e.,t' '-DANIEL H. GOTTLIEBDHG/mlmEnclosure

Richard 1. FineAaron Mitchell Fontana, Esq.Paul B. Beach' Esq.Kevin M. Mccormick, Esq.



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Amicu Curiae Brief Case No. 09-56073 Saturday, September 19, 2009UNITED STATES COURT OFAPPEALS

FOR THE NINTH CIRCUITF1E C L- 1 V E( t'MOLLY C. DWYEFI, CLERKU.S. COt)fq7' OFAPPEALS

DEC () 2 2q.RICHARD 1. FINE,Appellant and Petitioner, Case No. 09-56073

D.C. No. 2:09-cv-01914 JFW (CW)SHERIFF OF LOS ANGELESCOUNTX et al,Appellees and Respondents

AMICUS CURIAE BRIEFDANIEL HENRY GOTTLIEBProfessor Emeritus in MathematicsPurdue UniversityVisitor, UCLA3516 V1A DOLCEMARINA DEL REYCA 90292

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Amicus Curiae Brief Case No. 09-56073 Saturday, September 19, 2009Table of ContentsReason for Amicus Curiae BriefCollateral EstoppelSigns of SophistryHonn's DecisionFine's Blogonaut CommentHonn's OpinionMitchell strains to stay on the DiFlores case.Mathematician's comment on Mitchell's Strained Argument 10Three Paragraph Waldo 11Aggravated Ambiguity 11

3345579

Count 17Harsh and SevereAbility to be lmpartialMarina Strand Colony 11 vs LA County et alConclusionPROOF OF SERVICE

121213141921

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Amicus Curiae Brief Case No. 09-56073 Saturday, September 19, 2009

Reason for Amicus Curiae BriefRe Richard 1. Fine vs California State Baq Los Angeles County/Del Rey Shores JointVenture, and Judge David Yaffe.Honorable Judges,Please forgive my use of the first pefson. l am a property ownef in lhe Marina StrandColony 11 Homeowners Association, MSCII. It was MSCII vs County of Los Angeles andthe party of interest, DeI Rey Shores Joint Venture/Del Rey Shores Joint VentureNorth,which Ied to the contempt citation against our counsel, Richard 1. Fine, by judgeDavid Faffe (Superior Court Case number BS1 094203. Also it was MSCII as well as theCoalition to Save the Marina whose causes were harmed by the disbarment of theircounsel, Richard 1. Fine, (Slale Bar Cstl?-l Hearing Department Los Angeles, casenumber 04-0-143663.I am also a retired mathematics professor. I have been doing research and teaching inmathematics since 1962. I have published over 60 papers in various areas ofmathematics: Point set and algebraic topology, combinatorics, robotics, math history,and mathematical physics. You can find a summary of my work at my website .Collateral EstoppelThe reason why l mention my mathematical expertise, is that I want to critique thedoctrine of collateral estoppel, which I take to mean that one cannot re Iitigate alreadydecided cases. This doctrine plays a major role in the Fine disbarment trial. lt is animportant doctrine needed to prevent endless Iitigation, but it rests on a very unstablefoundation.In mathematics, it is known that if you have a false proposition, you can proveanything you want with it, both statements that are true and statements that are false.This is an abstract result, but we see it arising in the practice of mathematics where youuse a result you think is true and suddenly there are many nice interestingconsequences. This occurs with a rush of excitement, then a slow suspicion that it is toogood to be true, then the painful search for the error itself or for a false implication.Finally a careful study of the false argument so that you never make that error again.I think the doctrine of collateral estoppel can Iead to burst of unjust results when thereis an originating incorrect judgement and that is what happened in the State Bardisbarment of Fine and also in the subsequent part of the MSCII vs Los Angeles Countyet aI. I will tell the story in a historical manner from my perspective.The MSCII is west of the Shores Project, proposed by Del Rey Shores. Unknown toMSCII, the Shores had signed a Iease with the County and planned to put 5 story



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Amicus Curiae Brief Case No. 09-56073 Saturday, September l9, 2009apartments on the edge of Dell Alley less than 75 feet from my front door. Theirbuildings would be up to 100 feet tall. The Shores gained approval from the DesignControl Board, without anyone of us knowing about the project. Then in December2005, they published the Draft Environmental lmpact Report, DEIR, and noticed us thatthey were going to ask the Regional Planning Commission for approval early in 2006.We were referred to Attorney Richard 1. Fine, who said he cotlld get us through thepermit process in front of the regulatory boards and the Board of Supervisors, BOS, andthat we would Iose. Then he would set up an appeal for us, aII for $25,000, The goingrate was $250,000 and we would still lose. Mr. Fine said he needed help, the BOS coulddo what it wanted, but it had to have accurate information for their decision. Thus weshould Iook for flaws in the EIR. We should Iearn about sewers and shadows and trafficstudies. We couldn't raise any issue in an appeal unless it was mentioned in ourcomments to the EIR. We engaged Fine as our counsel in Iate January. 2006. Twoweeks Iater, unbeknownst to us, the State Bar issued its Notice of DisciplinaryComplaint, NDC, against Fine in early February 2006.I started going to the public Iibrary where the Shores DEIR was kept and began byreading the traffic study because it had a Iarge mathematical content to it. I Iearned thesubject and found errors. Fine suggested I Iook at the shadow study; I found errors inthat. Meanwhile, technology was changing rapidly, Google search became better andbetter. Google satellite maps became available to the public, and l was able to measuredistances very accurately. I was able to search the county's ordinances and the LocalCoastal Plan for the relevant Iaws. I found the counsel to the DCB failed to mention theordinance that gave the DCB the duty to consider impacts of projects on scenic viewsand traffic and massing. When the DCB Iearned from the public their powers, theythreatened to actually turn down projects. In response, County Sta# found anSinconsistency', which they were unable to explain clearly, and they got the BOS toremove most of the DCBY powers.Signs of SophistryI began to recognize sophistry by ceftain signs. I Iooked in other EIR's for examples. Ibegan naming the signs. For example, a 34 story condo building was proposed onLincoln Blvd. just east of Marina deI Rey. It is on the most congested road stretch in LosAngeles. Twenty five percent of the exiting traffic was estimated going north, But theonly exit from the condos forced traffic to move south on Lincoln. I Iooked for adescription of how thefound an arrow on a north going traffic would eventually start going north. Finally Ikey map which Iooked Iike a fishhook. It was at an intersection onLincoln. After some time I guessed it meant U-turns. The word U-turn was nevermentioned in the ElR as far as I could see. Certainly not in the traffic study. None of thethousands of arrows in the traffic study, except one, Iooked Iike a fishhook. The nameWaldo came to mind. However the Waldo's of sophistry are not always dressed in thesame outfit as occurs in the children's puzzle, Find Waldo.Such an example of a Waldo is a three paragraph word queering Waldo. Wordqueering is taking two words with overlapping meanings in one context and quite

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Amicus Curiae Brief Case No. 09-56073 Sattlrday, September 19, 2009Fifth, it omitted to tell the reader that Commissioner Mitchell orderedthe removal of approximately $1.6 million from the Di Flores ClassSettlement Fund in violation of the Section 5, Paragraph 5.2 of theStipulation of Settlement and Final Judgment (See Joint Trial Ex. 180),through approving the purchase of a1I claims held by Fine against'sBruce E, Mitchell, the Superior Court and otherjudicial officers'' inthe name of the class members for $40,000,00 with another $40,000.00to be paid to defend the purchase in violation of Section 5, Paragraph5.2 (b), approving $300,000.00 to be paid to specially appointed lsclassbankruptcy counsel'' to defend the purchase in violation of Section 5,Paragraph 5.2(b) approving $1.6 million in attorneys fees to ''plaintiffscounsel'' on the condition that they would withhold 35% (orapproximately $566,464.65) to fund the defense of the S'purchase'' inviolation of Section 5, Paragraph 5.2 (b), (of the $1.6 million ofattorneys fees, the additional violations of the Stipulation ofSettlement Section 5, Paragraph 5.2(a)(i)-(iv) were approximately$1,075,000.00 in Sflndividual Fees and Costs in violation of Paragraph5.2 (a)(i)-(iv) and approximately $301,342,22 in Attorney Fee ReserveFund in violation of Paragraph 5.2 (a)(1)-(iv));Sixth it omitted to tell the reader that Commissioner Mitchell, basedupon the accounting presented by the Disbursing Agent for the March13, 2006 hearing in the DiFlores case, illegally paid, Byron Moldo whois also the tdreceiver'' and 'dnotice giver'', an estimated $510,172.00 forpedorming attorneys work, acting as a 'sreceiver'' and a Sdnoticegiver'' in violation of Section 5, Paragraph 5.2(b) of the Stipulation ofSettlement, illegally paid, Diane Karpman, of Karpman & Associates,an estimated $55,980.00 as an dlethics exped'' to assist Ssplaintiffs'

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Amicus Curiae Brief Case No. 09-56073 Saturday, September l9, 2009attorneys'' in violation of Section 5, Paragraph 5.2(b) of the Stipulationof Settlement, illegally paid, Bernard George lnvestigations anestimated $10,146.00 as an fsinvestigator'' to investigate Fine inviolation of Section 5, Paragraph 5.2(b) of the Stipulation ofSettlement, illegally paid, Joel Rudof an estimated $7,939.00 tocontact Richard 1. Fine's clients in violation of Section 5, Paragraph5.2(b) of the Stipulation of Settlement, illegally paid, Tovar & Cohen$800.00 to retain a medical exped for the Couft in violation of Section5, Paragraph 5.2(b) of the Stipulation of Settlement, and illegally paid,$768,00 to purchase a Ssscanner'' for an unstated purpose in violationof Section 5, Paragraph 5.2(b) of the Stipulation of Settlement (SeeJoint Trial Ex. 180);Honn's OpinionIt was obvious to me that Fine was making detailed accusations in plainIanguage which could either be right or wrong and that it shouldn't be hard todetermine which. So I decided to go to the State Bar in Los Angeles and read thetranscripts of the trial Matter of Fine State Bar 04-0- 14366 Judge Honn. Therewere seven volumes. In the end, I Iooked over the Iast five and I bought the fiveCD's and Iistened to the Iast five days of the trial.I wanted to concentrate on the Counts which Honn found in favor of Fine. Themost obvious ones were Counts 2 and 4. which charge Fine of accusing Mitchellof misappropriation of the DiFlores settlement monies without supplyingevidencetcount 2) and that the accusations of misappropriations were false(Count 4). The judge combined the two Counts and found that the State Barprosecutors had not proved their case. Nonetheless, Honn stated he really didn'tbelieve Fine at all. I include the Counts 2&4 below with bold face emphasis mineMatter of Fine State Bar 04-0-14366 Judge HonnCounts 2 A 4 -false accusation ofmisappropriation.ln counts 2 and 4, the State Bar charges respondent with engaging in acts of moralturpitude by falsely stating, in his seventh section 170.3 challenge (exhibit 45), that

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Amicus Curiae Brief Case No. 09-56073 Saturday, September l9, 2009Commissioner Mitchell x'misappropriated Settlement fund monies'' in the DiFlorescase.JtRules of professional conduct Sthat prohibit false statements impugning theintegrity of judges . . . are not designed to shield judges from unpleasant or offensivecriticism. . . .' '' (ln the Matter of Anderson (Review Dept. 1997) 3 Cal. State Bar Ct.Rptr. 775, 782, quoting Standing Committee v. Yajman (9th Cir. 1995) 55 F.3d 1430,1437.) Thus, the State Bar Couft cannot discipllne an attorney fot making astatement that attacks or impugns the honesty, motivation, integrity, orcompetence of a judicial officer (or other court official) unless (1) the statement isa false statement of fact (as opposed to opinion) and (2) the attorney made thefalse statement knowing it was false orwith reckless disregard for the truth. (In the Matter of Anderson, sujra, 3 Cal. StateBar Ct. Rptr. at jp. 781-783.) Moreover, the State Bar must affirmatlvely prove, byclear and convlncing evidence, the statement's falsity. (Id. at p. 785.)Opensive and impugning 'dstatements that arq not capable of being proved true orfalse (e.g., rhetorical hyperbole) cannot support the imposition of discipline. Likewise,statements of opinion are not disciplinable unless they imply or are based upon a falseassertion of fact.'' (ln the Matter of Anderson, supra, 3 Cal. State Bar Ct. Rptr. at p. 786.)When an individual states an opinion or conclusion and discloses the factual basisfor that opinion or conclusion, then the stated opinion or conclusion fcan only be readas the author's personal conclusion about the information presented, not as a statementof facts' '' ( Franklin v. Dynamic Details, Inc. (2004) 116 CaI.App.4th 375, 387.) That isbecause any unfounded, unjustified, or unreasonable opinion or conclusion will revealits own Iack of merit when the author discloses the factual basis for the opinion orconclusion. Thus, an attorney cannot be disciqlined for offensive and imqugningstatements of opinions or conclusions (even If they accuse a judicial offlcer ofcriminal activity) if the underlying facts are disclosed and afe true. (StandingCommittee v. Yagman, supra, 55 F.3d at pp. 1439-1430' Franklin v. Dynamic Details,lnc,, supra, 116 CaI.App.4th at p. 388.) This is true regardless of how reckless oroutrageous the opinion or conclusion might be.Admittedly, respondent's statement that Commissioner Mitchellmisapjropriated settlement fund monies is derogatory and impugns the commissioner'sintegrlty. ln addition, it appears that respondent made the statement with recklessdisregard for the truth. The State Bar, however, failed to carry its burden toaffirmatively prove, by clear and convincing evidence, that the statement is false.Moreover, theState Bar failed to establish that the statement is an opinion or conclusion that is basedupon a false assedion of fact. Accordingly, even though this court is confident thatCommissioner Mitchell did not misappropriate any settlement monies in thesecases, this court must dismiss counts 2 and 4 with prejudice for want of proof.

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Amicus Curiae Brief Case No. 09-56073 Saturday, September 19, 200915The term misappropriation covers a wide range of conduct. At least in the context of attorneydiscipline, not al1 misappropriations involve moral turpittzde, dishonesty, or corruption. (1n theMatter ofHagan (Review Dept. 1992) 2 Cal. State Bar161t is not sufficient that the State Bar establish that respondent's accusation ofmisappropriation is unsupported by any facts or that respondent mischaracterized hisinflammatory accusations at the hearing in this proceeding. The State Bar must prove theaccusation false.This ends Honn's description of his decisions on Counts 2&4. ln the trial it washard for Fine to get his evidence to be considered. During the trial Fine didmention some of the items in his Blogonaut Comment. He was not cross-examined on them, nor did the judge explain why he thought these specificassertions were untrue even though the State Bar didn't dispute them,Mitchell strains to stay on the DiFlores case.Fine Fs Mitchell Appeal 8153382A page 7/30 Judges Boren, Nott and DoiAs to Commissioner Mitchell's authority to adjudicate the contempt, the ordernoted that pursuant to the first stipulation executed by the parties CommissionerMitchell was appointed and empowered to act as a temporary judge 'for aII pretrialproceedings.'' The court concluded that Jtlhis Iitigation is still in pretrialproceedings. The Court's files reflect the following: No trials have yet been held.The defendants entered into a global settlement, paid approximately $9 million intoCourt similar to an interpleader, and were dismissed. Now there are 494 plaintiffs whoaII have claims to that fund. None of those claims has received an individual final value,and if claims cannot be resolved by fudher settlement procedures then they will have to() () ttl trill. -..'' 'Fine Ms Mitchell Appeal 8153382A page 13/30 Judges Boren Notl and DoiThe record reflects that the stipulation executed by the parties when the casewas first filed empowered Commissioner Mitchell to conduct '$alI pretrialproceedings.'' According to the order of contempt, Commissioner Mitchell views theproceedings occurring subsequent to enlry of judgment in June 1999 as dlpretrialproceedings'' because no determination has yet been made concerning the amount ofmoney each class member will receive, and thus a lltrial'' may be required in order todetermine what allocation is to be made. Such an interpretation, we conclude, isstrained. What the Ianguage of the stipulation executed by the padies when the casecommenced makes clear is that when the class action Iawsuit was initiated, the padiescontemplated that unless settled, the case would proceed to trial, and CommissionerMitchell could act as a temporary judge in connection with d'all pretrial proceedings.''When the case settled, and an order of judgment was entered, the dfpretrial'' phaseof the action ended, as did Commissioner Mitchell's authority to act as a temporaryjudge pursuant to the first stipulation.



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Amicus Curiae Brief Case No. 09-56073 Saturday, September 19, 2009

Mathematician's comment on Mitchell's StrainedArgumentThis strained argument of Mitchell's should disqualify him from hearing any caseas a judge, ever. If a mathematician made a statement Iike that, even whileSproving' a true proposition, it would end his career. Consider this, if a trial hadbeen held and resulted in the same judgement, as the settlement, would thepossibility of a trial between the different parties still be a reason for Mitchell tohang onto the case? Mitchell's strained kind of reasoning is used wholesale bythe Iawyers and consultants in EIR's in California, and in regulatory hearings.Hopefully it has not spread to the Federal Courts.Review Dept State Bar Matter of Fine Judges Remke, Epstein, Stovitz page17/36Counts 2 and 4: Counts 2 and 4 are based on the seventh section 170.3 challenge,wherein respondent alleged that Commissioner Mitchell misappropriated settlementfunds in the DiFlores matter. Specifically, count 2 alleges that the seventh challengewas frivolous because it was brought without any factual basis to support theallegation of theft and it was filed for the purpose of harassment. Although thatchallenge was meritless, as discussed above, it is part respondent's overall misconductof repeatedly filing frivolous section 170.3 challenges for improper purposes. The factsin count 2 are not separate and ajart from those used to support a findinj of culpabilityunder count 1 , and thus, we dismlss count 2 with prejudice as duplicatlve of count 1.In count 4, the State Bar alleged that respondent violated section 6106 by filing theseventh challenge falsely alleging that Commissioner Mitchell misappropriatedsettlement funds when respondent knew or was grossly negligent in not knowing thatthe statement was false.Contrary to the hearing judge's conclusion, we find that the record amplyestablishes the falsity of respondent's allegation of misappropriation.Respondent alleged that in a minute order Commissioner Mitchell solicits other counselto advocate Commissioner Mitchell's position in the appeal.., by o#ering themcompensation from the Settlement Fund .,''.. Based on his clearly erroneousinterpretation of the order respondent contended in his seventh challenge that''Commissioner Mitchell has mis-appropriated (sic) the Settlement Fund monies to payfor his defense in the appeal.''Because Commissioner Mitchell merely suggested that a response to the appeal wasappropriate and that the responding party may be entitled to attorney fees, the Courtof Appeal concluded that his allegations regarding Commissioner Mitchell's handling ofthe settlement fund were false. (Fine vk Superior Cou?'l, stppra, 97 CaI.App.4th at p.670.) Based on our independent review of the record, we agree with this finding, and we

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Amicus Curiae Brief Case No. 09-56073 Saturday, September 19, 2009conclude that respondent committed an act involvinj moral turqitude in violation ofsection 6106 as charjed in count 4 by knowingly mlsrepresentlng that CommissionerMitchell misapproprlated settlement funds.Three Paragraph WaldoHere we find the review judges using the Sign of Sophistry of an irrelevantparagraph (Count 3) inserted between closely related paragraphs (Counts 2 & 4)to change Honn's ruling on Count 2 by relating it to Count 1. Count 4 is reversedby examining the record by finding the State Bar did actually prove that Finemade a false accusation. Apparently, Fine's use of the word misappropriatedshould have been replaced by 'is misappropriating', since Fine makes statementsIater, easily determined to be true or false, as to how exactly the funds monieswere used for purposes other than paying the class members or their Iawyers.Aggravated AmbiguityCommissioner Mitchell made a cameo appearance in Judge Honn's courtroomon or about 11 :11 :30 on 1/25/2007 and announced that he was the complainingwitness. He just walked into the Courtroom just before a Iunch break and wasasked who he was by Honn, Thus information contradicting sworn testimony wasput on the record in an informal manner, not under oath, and not subject to crossexamination.The cameo assertion that Mitchell was the complaining witness contradictstestimony given that the State Bar Initiated the investigation. From my reading ofthe trial there was evidence on both sides. Then there were two high officialsfrom the State Bar in the courtroom at about 10:21 :25 on 1/26/2007 and Finesaid, Iet's ask them under oath to resolve this issue once and for all. Judge Honnrefused to call the witnesses, saying he was relying on the pattern of Fine'sactions and the issue of statute of Iimitations was not going sway him. So theprinciple that every accused has the right to face his accusers bites the dust.Also, the fact that Fine's clients might want to know the circumstances of whytheir Iawyer was stripped from them was never considered.The sophistry described here needs a name. I will christen it AggravatedAmbiguity. I will define it by an ambiguity introduced by a cameo appearancewhich is easily resolved, but is consciously left unresolved in spite of protestsfrom an interested party. l use the phase cameo appearance to refer toinformation entering a process in a way so that it can be used to Jprove' a pointexpade to some official or interested party. An example of what I mean occurs inthe State Bar's Notice of Disciplinary Complaints, NDC. Count 3 makes a cameo

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Amicus Curiae Brief Case No. 09-56073 Saturday, September 19, 2009appearance between Count 2 and Count 4. Judge Honn says Count 2 and Count4 are the same, whereas the State Bar Review Court says that Count 2 is thesimilar to Count 1, and so it is a frivolous instead of a filing not providinjevidence. This changes Fine's status on Count 2 from not guilty to gullty.Another example of Aggravated Ambiguity is what the stipulation actually said.Was Mitchell really violating the agreement or not? Well, where's the copy of thestipulation? It's in exhibit 45. But exhibit 45 only contains some relevant parts, sothe judge won't read it, because it's not the whole document. Then Fine says hehas a copy, but it's not certified. Then Honn asks, why didn't you put in a certifiedcopy in the record since it it is the foundation of your case? So Fine replies, wellthe Bar has a certified copy, why isn't it in the record? The answer comes back:You expect the prosecution to prove your case for you? (About 11 :48:00 on1/26/200/)Count 17That's Aggravated Ambiguity, but with an ironic chaser. Count 17 concernsMisrepresentation to a court. Apparently Fine didn't Iist aIl the grounds a judgeused for finding against Fine in a petition to a higher court. Honn ruled Fine notguilty on Count 17, saying Fine's behavior is misconduct, but it doesn't rise to thelevel of moral turpitude. But l think it sure does rise to moral turpitude for aprosecutor to Ieave out exculpatory evidence, l imagine, based on the State Barnot proving Fine's case and Ieaving out information in their document, that judgeHonn had to Iet the State Bar and his statement be misconduct below the Ievel ofmoral turpitude. And consistency required that Fine's conduct had to be belowthe Ievel of morel turpitude. The State Bar did not appeal Count 19, but theReview Court reversed Fine's conviction on Count 17, probably not aware of theexposure of Honn and the prosecutors on this point.ln any event, l thought the Review Court of Remke et al needed to reverse atIeast one count in Fine's favor to show they were impartial, so I Iooked forCount's where Honn convicted and they reversed. and I found some. Socomparing the State Bar Coud's decision with the Review Courts decision, I thinkwe can see the underlying mathematical result that a false proposition can proveanything reflected in the real Iife world of the Law.Harsh and SevereWhen I first read Judge Honn's opinion, l thought it was full of sophistry withregard to Fine's credibility. Then, as I read the the trial transcript, Honn

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Amicus Curiae Brief Case No. 09-56073 Saturday, September 19, 2009comported himself so well, struggling to understand Fine's motivation, that Ifound l couldn't believe that Honn wrote that opinion. In the trial, Honn said thatFine had abused the process, but that his credentials and career andcomportment in his courtroom Ieads him to the conclusion that Fine should notbe disbarred. His behavior with frivolous filings should be sanctioned. Honnbegged the prosecution and Fine to come to an agreement. It never happened.The only point in the trial that l found where Judge Honn openly expressed hisskepticism about Fine's truthfulness was when Fine was reading some judge'sopinion. Honn interrupted Fine and accused Fine of reading a pad of the opinionwhere the judge was quoting Fine's own arguments. That reading may havebeen Judge Christianson's opinion, to which Honn referred to in his opinionbelow.page 13/ 72 Matter of Fine State Bar 04-0-14366 Judge HonnThe Judicial Council assigned Judge Ronald Christianson of the San BernardinoSuperior Court to decide the question of Commissioner Mitchell's disqualification underrespondent's first challenge. ln a ruling filed on January 7, 2000, Judge Christiansonheld that Commissioner Mitchell was not disqualifted f'rom presiding over the DiFlorescasc. (Exhibit 21.) ln his l'uling, Judge Christianson found that, even thoughCommissioner Mitchell's critique of respondent's legal services as liability class counselin DiFlores had ttbeen harsh and the measures taken severe, it has not been establishedthat his actions wcre based on any improper motive. Certainly at some point a judge'sfl-ustration with the conduct of an attorncy might rise to the level of personalembroilment. However, taking the actions in this case within their appropriate context,neither personal bias nor embroilment have been established.'' Flzrthermore, JudgeChristianson found that CW person aware of the facts would not reasonably entertain adoubt as to Commissioner Mitchell's ability to be impartial.''Ability to be ImpartialThe Iast quoted sentence in the above paragraph has too many words in it, a sign ofsophistry. Suppose the sentence meant: A reasonable person aware of the facts wouldnot doubt Commissioner's Mitchell's impartiality. Then it is false if only one reasonableaware person did doubt Mitchell's impartiality. I guess Fine is ruled out because he isimplied to be not reasonable. But I also doubt Mitchell's impartiality.So maybe those extra words change the meaning of the sentence. Now the question is:Does Mitchell have the ability to be impartial? Which I take to mean: If he really wantsto, he can be impadial. Here again I doubt he has the ability to be impadial. My reasonis, because he advanced the strained argument queering the contextual meaning ofpretrial, he reveals himself as not intellectually honest, both to me and probably to anyother mathematician. Intellectual honesty is a prerequisite to clearing your mind of pre

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Amicus Curiae Brief Case No. 09-56073 Saturday, September 19, 2009existing beliefs and opinions when confronted with opposing facts. Hence I don't thinkhe can solve difficult mathematical problems or be impartial in a case in which he haspre formed opinions. lt is possible that brain research can experimentally prove mystatement. See the article in the New York Times by John Tierney, A-GI.S.II-QLP.QLq.IFraudyan.d 'hose who Believe .

Colony 11 vs LA County et alBelow is a timeline of the action against Fine in the case MSCII vs LA County etaI. Most of it was excerpted from the timeline on the website Free I-ILCMf.d..I:''r'k..;,''ine It details the prosecution of Fine by the Shores Counsel after he wasdropped from the case MSCII vs County et aI, and its intimidating effect on hisclients and Shores opponents. This adds credence to the theory that the Shoreswas behind the State Bar Complaint against Fine. It shows how difficult it is forthe ordinary citizen to fight the combination of rich developers allied with the Iocalgovernment and hired unethical consultants. We need advocates such as Fine todefend our homes and to keep our Iegal process fair and open to all,

Marina Strand

I added more material on the outline concerning those events for which l havepersonal knowledge: The BOS hearing on December 16, 2009 and the effect ofFine's disbarment and contempt conviction on MSCII.01/2006Fine represents MSCII02/06/06A California State Bar case against Fine (State Bar Court Case No. 04-0-14366)commenced on February 6, 2006, while Fine was opposing LA County and DeI ReyShores and the Epsteins before the LA County Regional Planning Commission on onbehalf of clients Marina Strand Colony 11 Homeowners' Assoc. Sheldon H. Sloan, aIawyer for Marina Pacific Associates, a Iessee of Iand from LA County in Marina deI Rey,controlled byjerry B. Epstein, and a co-defendant with LA County in the case ofCoalition to Save the Marina et al v. LA County et aI, who is also a member of the Boardof Governors of the State Bar and incoming president, does not disclose that he has afinancial interest in Fine being removed from the case as counselfor the plaintiffs.January, 2007LA Superior Court Judge Soussan G. Bruguera held the motion for reconsiderationbeyond the time period to maintain the right to receive a decision in the trial courtwhile still being able to timely file an appeal in the case of Coalition to Save the Marinaand Marina Tenants Association et aI., v. County of Los Angeles.Mathematics offers a way to get out of this type of problem. Fine shouldhave filed a timely appeal based on the statement, mathematically

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Amicus Curiae Brief Case No. 09-56073 Saturday, September 19, 2009correct, that every statement in the Judge's vacuous decision opposingthe motion is false and every statement supporting the motion is true.This is not strained, it is mathematically consistent. Anything is true ofany nonexistent thing.0 5 / 1 5 / 0 7Supervisors vote to approve DeI Rey Shores' EIR, despite receiving politicalcontributions from Epsteins near time of vote.06/ 14/07On June 14, 2007, Fine fjled a qetition for writ of mandate in the case of Marina StrandColony 11 Homeowners Associatlon v. County of Los Angeles seeking to overturn theSupervisors' approval of an EIR in favor of the redevelopment of the Del Rey Shoresapartment complex. The petition alleged that the EIR violated the CaliforniaEnvironmental Quality Act (CEQA) and that LA County did not receive any positivefinancial benefit from the project as required by CEQA.David P. Yaffe was the judge assigned to the case.10/ 10/07Fine saves MSCII'S Iaw suit after missing a filing date by one day by admitting it was hisfault- Fine told me that he miscalculated by one day. An friend of Fine's helped us getour case reinstated. Then we finally found a Iawyer willing to take our case, Rose Zoiafrom Santa Rosa California. Ms. Zoia concentrated her arguments on the fourinadequately done alternative projects in the Shores EIR.10/ 12/07State Bar orders Fine placed on ''involuntary inactive enrollment''.Fine Ieft the Marina Strand case on Oetober 12, 2007, as a result of the actions ofCalifornia State Bar Court Hearing Department Judge Honn, who ordered Mr. Fine's Barmembership into ''inactive'' status, meaning he could no Ionger practice Iaw.01/08/08On January 8, 2008, Judge Yaffe ordered that Fine, who was no Ionger the attorney forMarina Strand, pay sanctions of $ 1,000.00 and attorney's fees and costs to LA Countyand DeI Rey Shores without having given Fine notice of the hearing and without Finebeing present at the hearing. Fine was sent notice by mail on January, 23, 2008.Shortly thereafter, Fine made a ''special appearance'' in the Marina Strand case andmoved to dismiss the January 8, 2008, order. Judge Yaffe took the motion ''offcalendar''. On March 25, 2008, Fine served Judge Yaffe with a CCP j 170.3 ''Objection''based upon Judge Yaffe's admitting in a hearing on March 2O, 2008, that he receivedpayments from LA County.ludge Yaffe did not make any response to the Objection,which failure to respond automatically disqualified him on April 8, 2008, by operationof Iaw under CCP j 170.3(c)(4). Judge Yaffe, however, refused to Ieave the caserelating to Fine.Fine told me that usually, a day Iate for filing a response is forgiven if it is a si mpletype of mistake. The Iaw that the Iate filer must pay attorney's fees exists to prevent



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Amicus Curiae Brief Case No. 09-56073 Saturday, September 19, 2009purposeful delay of the process. So to follow the letter of the Iaw, harsh and severe, ispermissible, but then it is not morel turpitude to remind the judge that he himself isviolating a more important Iaw, by asking him to recuse himself. In addition, Yaffeargued that Fine waited until Yaffe had made an adverse ruling against Fine before hementioned recusal. But earlier Fine had to think of the interests of his clients, MSCIIwho would not have wanted their Iawyer to irritate the judge.06/02/08In June, 2008, Judge Yaf'fe ruled against Marina Strand Colony on the issue of whetherthe new lease with DeI Rey Shores, which was part of the project, would be of afinancial benefit to LA County. At the contempt trial, it was shown that no evidencewas presented in the ''recordH that a positive financial benefit to LA County wouldoccur. R. J. Comer, counsel for DeI Rey Shores, testified that he did not review the newIease and could not cite to any evidence showing a benefit to the tounty.The ''Draft Amended and Restated Lease Agreement'' showed at section 4.4.1 that LACounty was giving DeI Rey Shores an $11,050,000 Lessee Credit plus accrued interestfor the dedication of 54 Iow- and moderate-income apartments in the project. Underthe Mello Act, DeI Rey Shores was required to dedicate these apartments without anyIessee credit.Also at the contempt trial, Fine questioned Judge Yaffe and got him to admit thathe did not consider the fact that two of the four Supervisors who voted on the Shoresproject on 05/15/07 had accepted contributions from the Shores people, and so thevote was illegal. Yaffe said, how would l know? No one brought it up.However, Judge Yaffe ruled in favor of recirculating the Shores EIR to analyze theimpact of the additional 25.000 cubic yards of waste material removal not mentionedin the DEIR.10/ 10/08Taxpayers win appeal in Sturgeon v. County of Los Angeles. Caselaw now confirmsthat payments to judges by counties are illegal under the California Constitution.12/ 16/08On December 16, 2008, Supervisors Antonovich and Knabe voted for the approval ofthe recirculated EIR for the DeI Rey Shores Project, after having accepted campaigncontributions from DeI Rey Shores' developers.On December 16, 2008, Supervisor Gloria Molina also voted for the approval of therecirculated EIR for the Del Rey Shores Project, doing so after having acceptedcampaign contributions to the ''Gloria Molina 'Yes' on Measure U etc-'' fund from JerryB. Epstein - $1,250.00 on 10/8/08 and David Levine - $1,250 on 10/8/08, within sixweeks of the vote.Supervisor Gloria Molina did not disclose those contributions prior to, or at the timeof the hearing.Maximum contribution made bylerry B. Epstein on 8/14/08 to Antonovich for $ 1,000.Contribution by David 0. Levine on 8/15/08 to Antonovich for $ 1,000. Contributionby Marina Properties, LLC on 3/18/08 (an entity controlled bylerry Epstein) to Knabe

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Amicus Curiae Brief Case No. 09-56073 Saturday, September 19, 2009for $ 1000. The Iaw forbids contributions being made within one year of a vote on asubject in which the donor has an interest in the outcome.Also at that hearing, Shores Counsel R. J Comer misleadingly implied, underoath, that the exported amount of material from the Shores project would notexceed the 100.000 cubic yard threshold of expoded material which triggers anapplication for a conditional Use Permit. Thus 92,000 cy of originally exportedmaterial and 25,000 cy of new expoded material would not exceed 100,000 cy oftotal exported material. So much for the integrity of the Shores Iawyers11/03/08 to 01/08/2009 Fine's contempt trial.Meanwhile, in the Marina Strand case, Judge Yaffe both presided as the judge andappeared as an adverse witness in the ''contempt'' proceedings against Fine whichbegan November 3, 2008, with an order to show cause containing 16 counts. The''contempt'' proceeding was based upon allegations of actions occurring after JudgeYaffe entered the January 8, 2008, void order in the Marina Strand case.The charges included, but were not Iimited to, refusing to respond to questions at ajudgment enforcement hearing, making false statements in pleadings, making motionsfor reconsideration of the court's January 8, 2008, order, directly and indirectlyattacking the integrity of the LA Superior Court and the court Eludge Yaffe), attackingthe integrity of the State Bar Court, attacking the integrity of DeI Rey Shore's counsel,and holding himself out to practice Iaw in violation of B&P Code jj 6126 and 6127,despite the fact he had been placed on involuntary inactive status by the State Bar ofCalifornia.On the first day of trial, Judge Yaffe testified, as an adverse witness called by Fine,that he had received the LA County payments, that he knew that LA County had casesbefore him, that he did not disclose the payments on his Form 700 Statement of

Economic Interests required to be filed with the State of California under the PoliticalReform Act, that he was a State of California employee and an elected state judgeunder the California Constitution, that he did not have any employment contract withLA County or agreement or arrangement to provide services to LA County, that hereported the LA County payments as ''income'' on his tax retur

Documents

09-56073 Richard Fine 9th Circuit Court of Appeal All Orders