1662Fraud & Corruption Appeal - Filed 11/2/11 in Ninth Circuit Court of Appeals
- Nov 4, 2011
Fraud & Corruption Appeal
Filed 11/2/11 in Ninth Cir. Court of Appeals
11245 Otsego St., #12
North Hollywood, CA. 91601
Plaintiff Pro Se
UNITES STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CITYOF LOS ANGELES ; L.A.P.D.
DOE1/ aka Marvin Gross;
DOE2/ aka Melony Schoenberg;
DOE3/ aka Nancy S. Gast;
DOE4/ aka Michael Jesic;
DOE5/ aka Anita Dymant;
DOE6/ aka Patti Jo Mc Kay;
DOE7/ aka Sunjay Kumar;
& DOEs 8 – 10, Inclusive
U.S. District Court for Central
California , Los Angeles
Filed by Molly C. Dwyer
Clerk U.S. Court of Appeals
on Oct. 25, 2011
Plaintiff/Appellanthereby appears in Opposition to the “Order” of 10-25-11
a copy of which is attached for reference.
Good cause exists for allowing this appeal as of right to move forward pursuant to Title 28 U.S.C. Sec. 1291, for the following reasons based on the abundance of evidence already established in this case.
In preparing this Opposition, Appellant’s research reveals that the definition of the term as used in this instant Order “insubstantial” is deemed subjective by this circuit. “Although it is difficult to formulate a precise standard, not every case in which appellant files an unimpressive opening brief is appropriate for summary affirmance. Motions to affirm should be confined to appeals obviously controlled by precedent and cases in which the insubstantiality is manifest from the face of appellant’s brief.2” United States of America v. James Lynn Hooton, Defendant-Appellant No. 82-1441, U.S. Court of Appeals, (Decided October 13, 1982.)
As to form, Plaintiff/Appellant, has found no authority as to the form this Opposition should take, nor has there been any requested format. Therefore, Appellant shall respond in opposition to this Order after a practical manner.
FACTS AND ARGUMENT
On August 9, 2011, Plaintiff Ronald Branson in the underlying court action, moved the below court for the entry of Summary Judgment against all Defendants as to all issues, based upon two grounds; namely 1) Non-response to Plaintiff’s Request for Admissions, and 2) upon EXHIBITS A, B, C, and D. Such Exhibits documented a major fraud which took place within the Los Angeles Superior Court, which fraud led all the way up through, and included the Appellate Department of the Superior Court. Such fraud appears on its face to have begun when someone unknown, created and filed a fraudulent Minute Order of 11-24-09, which Minute Order alleges “DEFENDANT IS PRESENT IN COURT, AND REPRESENTED BY MARVIN GROSS DEPUTY PUBLIC DEFENDER – DEFENDANT PLEADS NOT GUILTY TO COUNT 01, 125(A) VC. DEFENDANT PLEADS NOT GUILTY TO COUNT 02, 27153 VC. – DEFENDANT WAS ARRAIGNED AND PLEAD NOT GUILTY ON CITATION 0750701 – THAT CITATION IS NOW FILED AS A MISDEMEANOR ON THIS CASE. – LAST DAY IS 12/18/09.”
It was not until after the matter was on appeal that Plaintiff/Appellant, (hereinafter “P/A”), discovered this fraud upon which all Defendants/Appellees (hereinafter “D/A”) rely in asserting that P/A was convicted of a crime. This fraudulent Minute Order is an exhibit to the Motion for Summary Judgment.
As a result of P/A discovering the information regarding this false and fraudulent arraignment of criminal charges, he consulted with Court Reporter Veronika Cohen about this incident at which he supposedly was present and entered pleas to such charges. She advised P/A that no such incident took place. P/A relayed this same information on to the Appellate Department of the Los Angeles Superior Court at oral argument attempting to impeach the record and uncover the fraud behind this fraudulent Minute Order. P/A asked this panel of judges to consult with the Official Court Reporter for themselves and ascertain the truth regarding this matter, after all, it was this document upon which their entire affirmance of a conviction was based.
California Code of Civil Procedure 1916 provides, “Any judicial record may be impeached by evidence of a want of jurisdiction in the court or judicial officer, of collusion between the parties, or of fraud in the party offering the record, in respect to the proceedings.”
Notwithstanding this law, this County appellate panel forged forward, based upon this exposed fraud, to order, without jurisdiction to do so, a false and fraudulent affirmance of the charges as stated within this fraudulent Minute Order.
It thereby became obvious that it was this very appellate panel itself who were offering this fraudulent record, in respect to the proceedings, and who thereby were in collusion by fraud with the other side. Such conduct, bordering on criminal conduct, cannot be respected by any other tribunal.
P/A then got back with Court Reporter Veronika Cohen listed in the Minute Order, and informed her that the appellate court refused to accept the fact that no arraignment took place. Ms. Cohen then prepared a declaration dated 3-9-11 verifying that there was no such arraignment that took place. In her declaration she identifies her position as the “OFFICIAL REPORTER FOR THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, FOR THE COUNTY OF LOS ANGELES” which P/A attached as Exhibit B to all three Motions for Summary Judgment served upon counsels for all of the D/As.
The declaration of the Official Reporter for the Los Angeles County Courts stands unopposed and deemed true throughout both the State action, and this current federal action. There is nothing more to be resolved in this federal action except damages to be determined by a jury.
P/A has testified numerous times by declaration that he was neither present at any arraignment, had never received notice of any arraignment, never plead to any charges at an arraignment, was never presented with a verified complaint alleging charges, that he never waived his right to defend himself should he be presented with criminal charges. Everything involving the People of the State of California v. Ronald Branson, Case # 9VY04970, is based upon a total fraud, and that the affirmation of conviction based upon a fraudulent non-existent arraignment on fraudulent non-existing charges performed without notice and without the presence or knowledge of P/A, all now manifest as a magnificent cover-up in this federal action.
Coming to the other ground for P/A’s Motion for Summary Judgment, i.e., non-response to Request for Admissions, it was therefore deemed admitted by the D/As: “That there was no case called Re Ronald Branson; that there was no foundation for the affirmance of a criminal conviction against Ronald Branson inasmuch as there was no arraignment on criminal charges against him. (Admission 6 & 8). That the case of People v. Ronald Branson, 9VY04970 was absent jurisdiction and the most basic fundamental right to due process, and was based on fraud; that the intended targeted victim was Ronald Branson to cause him to suffer imprisonment. (Admission 13 & 15).” – Conclusion of P/A’s Reply to Opposition of Defendant Marvin Gross to Plaintiff’s Motion for Summary Judgment by Plaintiff Ronald Branson against Defendant Marvin Gross & Los Angeles County, page 14, lines 12 – 21.
Since it is manifest by both the declaration of the Official Court Reporter for the County of Los Angeles, and by their own deemed admissions that there was no criminal charges brought forth against P/A, nor an arraignment on anything, that the criminal court debacle upon which these D/As rely for their Motions to Dismiss was devoid of absolutely all jurisdiction both in personam, and in rem, and are situated in the same legal status as if no criminal proceeding existed. Further noteworthy is the fact that the City of Los Angeles did not even oppose P/A’sMotion for Summary Judgment. They submitted nothing in their defense against the granting of the Motion for Summary Judgment.
The question now in consideration is whether such lack of jurisdiction through manifest fraud, and deception, should carry over into this Federal litigation.
P/A’s Motion for Summary Judgment was set for hearing on October 17, 2011. On this date, P/A appeared in court for a decision regarding this fraud. However, rather than a decision regarding this fraud, the court rendered the following; “ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS by Judge Otis D Wright, II. This Court GRANTS Moving Defendants’ Motion and dismisses Plaintiff’s FAC in its entirety. In the event Plaintiff’s conviction is overturned on appeal, he may file a new action. All remaining motions are hereby found moot, and the Clerk of Court shall close this case.”
It therefore becomes obvious that Judge Otis D. Wright’s Order completely ignores all the evidence regarding the fraud. By saying, “In the event Plaintiff’s conviction is overturned on appeal, he may file a new action,” he thereby refutes that P/A never received a notice, was never arraigned, was never presented with a verified complaint, that he never entered a plea to anything, that there was no magistrate, no Probable Cause, he was never allowed to put on his own defense should he have been presented with charges, and that he was never convicted of any charges. It was impossible to affirm a conviction of anything against P/A.
He also, by his Order, necessarily, by implication, calls the Official Court Reporter for the County of Los Angeles, a liar when she states under oath by declaration that there was no such criminal proceeding before her upon which Minute Order all Defendants rely in asserting that there was a conviction.
Obviously,it is impossible to “overturn” a non-existent fraudulent “conviction,” based upon a non-existent fraudulent arraignment, based upon non-existent fraudulent charges, all performed without notice to P/A, and without his knowledge or his appearance, thereby making it impossible to “file a new action.”
All of this fraud was brought to the judge’s attention within P/A’s opposition to all of these D/A’s Motions to Dismiss, which facts, for purposes of the Motion to Dismiss, must assume the truthfulness of the factual allegations. As to the application of substantive law as to the facts of Notice and Opportunity, and fraud, P/A will establish this within his below points and authorities.
POINTS AND AUTHORITIES
As stated in U.S. v. Hooton, (Supra), cited in the commencement of this Opposition to “Order,” the standard for insubstantiality of an Opening Brief is case precedent, “Although it is difficult to formulate a precise standard, not every case in which appellant files an unimpressive opening brief is appropriate for summary affirmance. Motions to affirm should be confined to appeals obviously controlled by precedent and cases in which the insubstantiality is manifest from the face of appellant’s brief.2”
While acknowledged that this is not an Opening Brief, which Opening Brief would otherwise be due April 2, 2012, the same minimum standard of case precedent for an Opening Brief should be applied as to when no Opening Brief on appeal is allowed.
Below are case precedents in matters of lack of notice, lack of opportunity to put on a defense, and of extrinsic fraud, as alleged, and even proved, within discovery below. P/A had a right to notice, a right to appear, to be apprised of charges,if any, that might be laid against him, to a magistrate, and to Probable Cause, and to put on his own defense, all of which were denied him.
“No state shall … deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Fourteenth Amendment, U.S. Constitution.
“While warrants were not required in all circumstances, the requirement of probable cause, as elaborated in numerous precedents, was treated as absolute. The "long-prevailing standards" of probable cause embodied "the best compromise that has been found for accommodating [the] often opposing interests" in "safeguard[ing] citizens from rash and unreasonable interferences with privacy" and in "seek[ing] to give fair leeway for enforcing the law in the community's protection." Brinegar v. United States, 338 U. S. 160, 338 U. S. 176 (1949). The standard of probable cause thus represented the accumulated wisdom of precedent and experience as to the minimum justification necessary to make the kind of intrusion involved in an arrest "reasonable" under the Fourth Amendment. The standard applied to all arrests….” Dunaway v. New York, 4422 U.S. 200 (1979)
“The petition here involved does not disclose whether petitioner upon his arrest was immediately taken before a magistrate …. It does aver that no waiver was made. Under such circumstances the filing of a complaint was mandatory, and essential to the jurisdiction of the court. ‘Jurisdiction is fundamental. It is the primary question for determination by a court to any case for jurisdiction is the power to hear and determine. [Citing cases.] If a judgment is rendered by a court which did not have jurisdiction to hear a cause, such judgment is void ab initio. [Citing cases.] Even though a void judgment is affirmed on appeal, it is not thereby rendered valid.’ (In re Wyatt, 114 Cal.App. 557, 559. [300 P. 132])” Ralph v. Police Court, 84 C.A.2d 257, 260.
“Fraudvitiates everything it touches.” Nudd v. Burrows (1875) 91 U.S. 416.
“Frauddestroys the validity of everything into which it enters.”
Boyce’s Executors v. Grundy (1830) 28 U.S. 210.
“Fraudvitiates the most solemn contracts, documents and even judgments.” United States v. Throckmorton (1878) 98 U.S. 61, 70.
“Nocourt in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment or a court, no order of a minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. …fraud vitiates all transactions, and if taken for a fraudulent purpose to carry out a fraudulent scheme, such action is void and of no force or effect whatever, equality will compel fair dealing, disregarding all forms and subterfuges, and looking only to the substance of things.” Jackson Law Office, P.C. v. Chappell, 327 SW2d 15 at 27 citing Libhart v. Copeland 949 SW2d 783, 794.
“Extrinsic fraud usually arises when a party is denied a fair adversary hearing because he has been ‘deliberately kept in ignorance of the action or proceeding, or in some other way fraudulently prevented from presenting his claim or defense.’ ’’ Cross v. Tustin (1951) 37 Cal.2d 1067.
“The principle stated in this terse language lies at the foundation of all well ordered systems of jurisprudence. Wherever one is assailed in his person or his property, there he may defend, for the liability and the right are inseparable. This is a principle of natural justice, recognized as such by the common intelligence and conscience of all nations. A sentence of a court pronounced against a party without hearing him or giving him an opportunity to be heard is not a judicial determination of his rights, and is not entitled to respect in any other tribunal.
“That there must be notice to a party of some kind, actual or constructive, to a valid judgment affecting his rights is admitted. Until notice is given, the court has no jurisdiction in any case to proceed to judgment, whatever its authority may be, by the law of its organization, over the subject matter. But notice is only for the purpose of affording the party an opportunity of being heard upon the claim or the charges made; it is a summons to him to appear and speak, if he has any thing to say, why the judgment sought should not be rendered. A denial to a party of the benefit of a notice would be in effect to deny that he is entitled to notice at all, and the sham and deceptive proceeding had better be omitted altogether. …. It is difficult to speak of a decree thus rendered with moderation; it was in fact a mere arbitrary edict, clothed in the form of a judicial sentence.” Windsor v. McVeigh, 93 U. S. 274 (1876).
“If the court of a state had jurisdiction of a matter, its decision would be conclusive, but this Court cannot yield assent to the proposition that the jurisdiction of a state court cannot be questioned where its proceeding were brought collaterally before the circuit court of the United States.
“Where a court has jurisdiction, it has a right to decide any question which occurs in the cause, and whether its decision be correct or otherwise, its judgment, until reversed, are regarded as binding in every other court. But if it acts without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void, and form no bar to a remedy sought in opposition to them, even prior to a reversal. They constitute no justification, and all persons concerned in executing such judgments or sentences are considered in law as trespassers.
“The jurisdiction of any court exercising authority over a subject may be inquired into in every other court when the proceedings of the former are relied on and brought before the latter by a party claiming the benefit of such proceedings.” Elliott v. Lessee of Piersol, 26 U.S. 1 Pet. 328 (1828).
“The affirmance of a void judgment upon appeal imparts no validity to the judgment, but is in itself void by reason of the nullity of the judgment appealed from.” Pioneer Land Co. v. Maddux, 109 Cal. 633, 642.
“The doctrine of res judicata is inapplicable to void judgments. ‘Obviously a judgment, though final and on the merits, has no binding force and is subject to collateral attack if it is wholly void for lack of jurisdiction of the subject matter or person, and perhaps for excess of jurisdiction or where it is obtained by extrinsic fraud.” Rochin v. Pat Johnson Manufacturing Co., (1998) 67 Cal. App. 4th 1228, 1239.
“… [W]e are of opinion that we should recognize the condition created by the judgment of the state court unless, from an intrinsic consideration of the state record, one or all of the following conditions should appear: 1, that the state procedure, from want of notice or opportunity to be heard, was wanting in due process, 2, that there was such an infirmity of proof as to facts found to have established the want of fair private and professional character as to give rise to a clear conviction on our part that we could not, consistently with our duty, accept as final the conclusion on that subject, or 3, that some other grave reason existed which should convince us that to allow the natural consequences of the judgment to have their effect would conflict with the duty which rests upon us not to disbar except upon the conviction that, under the principles of right and justice, we were constrained so to do.” Selling v. Radford, 243 U.S. 46, 51 (1917)