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San Diego Families File Opposition to Judges Request for $10,000 Sanctions Award

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San Diego Families File Opposition to Judges Request for $10,000 Sanctions Award

From Weightier Matter: San Diego Parents Counter Judges Motion for Sanctions. Read the entire story at http://www.WeightierMatter.com

Courtesey of Weightier Matter:

December 5, 2013–SAN DIEGO–  Today San Diego families respond to Family Court judges and Presiding Judge Robert Trentacosta seeking $10,000 in sanctions from San Diego families for attempting to alert the court to fraud.

San Diego Family Court judges are asking a federal district court to force parents to pay over $10,000 to the court’s attorneys as punishment for filing a lawsuit in federal court.

Today CCFC filed its Opposition to the Judges motion, requesting that the Court deny the Judges’ motion and award sanctions against Judges Robert Trentacosta, Lorna Alksne, Lisa Schall, Joel Wohlfeil, and others, for playing “hard ball” with parents and children victims of Family Court.  “When we sued them, we expected them to file the ordinary–‘we didn’t do it’ response, but a demand that families pay $10,000 fine?  That’s a slap in the face.”   Says California Coalition for Families and Children President, Cole Stuart.  “These guys are over the top.”  Says Stuart.  From the Opposition:

Seeking Rule 11 sanctions concurrent with a motion in order to “leverage” the motion is prohibited—indeed itself sanctionable—litigation conduct.  Gaiardo v. Ethyl Corp., 835 F2d 479 (3rd Cir. 1987).   Sanctions are inappropriate where there exists legitimate controversy.   Committee Notes on Amendments to Federal Rules of Civil Procedure 146 FRD 401, 590 (1993).  Simply “adding” a request for sanctions without addressing the Rule 11 certification issues is itself sanctionable conduct: “The use of Rule 11 … has become part of the so-called ‘hardball’ litigation techniques espoused by some firms and their clients. Those practitioners are cautioned that they invite retribution from courts which are far from enchanted with such abusive conduct.”  Gaiardo, supra at 485.

“We weren’t thrilled about bringing a lawsuit. Many parents who had been active members of the group have gone into hiding out of fear for reprisal. They still have cases before the Court, and will or years to come.  They’ve told us ‘good luck, we’re with you, but my kids are too important to risk.’  It’s a problem for reform–everyone knows its a disaster, but no one’s able to do anything about it because the judges have so much power and discretion.  They want parents to believe that complaining is a death sentence.”  Says Stuart.  Stuart was jailed last year for protesting Family Court judges at a San Diego County Bar Association meeting, precipitating this lawsuit.

San Diego Family Court judges asked the Court to award sanctions, claiming that the parents’ claims were “frivolous.”   “Frivolous means ‘it’s a piece of garbage’–no merit whatsoever.  In fifteen years practicing law I’ve seen only one court grant such a motion.  It’s heavy artillery for only the worst cases of litigation abuse–or when you really want to put the screws to someone who’s weaker than you.  Most lawyers won’t do it out of respect for their opponents.  I guess that sends us a message.  Clearly these judges are upset.”  Says Stuart.  The judges “double down” with two motions–both seeking serious sanctions.  From the Opposition:

Because The Superior Court has brought its Rule 11 attack on the very same grounds on which it brings the MTD, it effectively “doubles down” on the Motion to Dismiss.  In this case, Plaintiff has opposed the MTD with a Motion to Strike (Dkt#19) and Opposition (Dkt#21) asserting the MTD is meritless and attempting improper procedure.  Where a moving party brings a Rule 11 motion on the same grounds as an affirmative motion, yet fails on the underlying affirmative motion, it cannot be heard to claim that its Rule 11 Motion was filed in good faith—losing the underlying motion is at least prima facia evidence that a concurrently-filed Rule 11 Motion on the same grounds is impermissible “hard ball” attempt to leverage a “debatable” (or in this case meritless) motion.  Gaiardosupra.  Thus, should the Court deny the MTD, counter-sanctions to the Rule 11 Motion for impermissibly bringing the Rule 11 on “debatable” (indeed meritless) grounds are warranted.  By aggressively posing a quick-trigger Rule 11 Motion on top of a meritless Motion to Dismiss, Defendants have stacked their chips quite high.

The judges’ motion claims that they do not collaborate with other entities such as the San Diego Family Justice Center, or the court-appointed psychologists that CCFC also sued.  The judges claim the filing of the motion was “harassment.”

“Yes, we’re claiming that they committed crimes in bilking parents out of their children’s college savings. Yes, that’s serious. But we have proof that they work closely with the unethical divorce lawyers to orchestrate fraud, and we have a right to present that case to a jury.  And not only do they now want to pass the buck, they want to shoot the messenger with a $10,000 fine.”

Some highlights from CCFC’s Motion:

Claims Are Presented to Remedy Injury and Effect Reform–Not to Harass, Delay, Increase Costs, or Other Improper Purpose (Fed.R.C.P. 11(b)(1))

The claims of the Complaint are presented not to “harass, cause unnecessary delay, or needlessly increase the cost of litigation” —but to remedy independent injury caused during the course of Plaintiff’s reform efforts, and to cure the systemic affliction which Defendants have proven incapable or unwilling to cure for themselves.  CCFC and the parent community it supports have undertaken extensive efforts prefacing the filing of this lawsuit to effect reform by other means—but such efforts have been unsuccessful, and at times met with violent resistance by present Defendants and their cohorts.  See, Compl. ¶¶124-136; August 20, 2013 Press Release, Stuart Decl. Ex. “A”.  The injury precipitating the STUART ASSAULT and this lawsuit was orchestrated by Defendants precisely to frustrate Plaintiffs’ efforts while engaged in such reform.  Litigation is not a preferred choice, but as with many civil rights struggles in our nation’s history—federal courts are a uniquely appropriate and often the last recourse to defending the interests of an afflicted minority.  Given Defendants’ tactics of abusing color of law police power to silence Plaintiffs’ efforts, remedy for injuries thereby caused are appropriate and uniquely available in this forum.

The Superior Court claims that the inclusion of home addresses of certain Defendants in the Complaint had “no ostensible purpose other than harassment.”  Rule 11 Motion 7:12-14.  This is a misstatement of fact and law.  Averment of where an individual defendant “resides” or “may be found” is an entirely ordinary and required means to establish jurisdiction and venue within a federal district.  28 U.S.C. § 1391(b).  In compliance with this requirement, the Complaint avers the residence address of Defendants Schall, Trentacosta, and Wohlfeil as they were readily available from phone books, online records, online skip-trace searches, or other public resources.  No private records were disclosed.  The practice of averring residence or location of individual defendants to establish jurisdiction and venue is not prohibited by any rule, order, or law—it is required by such.  Plaintiff’s compliance with law and unremarkable practice in doing so in this action is permissible, entirely ordinary, and has obvious appropriate “purpose other than harassment.”

The Superior Court also incorrectly alleges that Plaintiffs “refused to take any steps to correct their violation.”  This assertion is a stunning and demonstrable falsehood.  The Court’s files reflect that as a courtesy to defendant’s bellicose demands that Plaintiff “remove all addresses from the Internet and Court files”, Plaintiffs promptly undertook steps to redact home addresses from the Complaint, removed the unredacted Complaint from it’s publicly-accessible web servers, coordinated the removal of the same from third party servers, and re-filed a redacted version of the Complaint with this Court.  Redacted Complaint, Dkt#8; Plaintiff’s Ex Parte Motion for Temporary Harassment Restraining Order, Dkt#4.

The remaining allegations of “harassment” motive in the Rule 11 Motion (Rule 11 at 7:17-8:10) do not support The Superior Court’s claim that the Complaint was filed to harass.  The number of times the Complaint had been viewed on the Internet, that the Complaint also included home addresses of other Defendants which have not objected and are not represented by The Superior Court or its counsel, and this Court’s courteous, yet not required, sealing of the original and redacted Complaints—to which no plaintiff objects—are not consistent with an intent to harass—they are the ordinary and expected behavior of civil rights plaintiffs publicizing their efforts to a nationwide community of similarly-situated domestic dispute industry professionals and victim-litigants closely watching this case as an augur of the future of reform.  Further, Plaintiff maintains that Defendant’s post-filing “take-down” demands—coerced by threats of San Diego County Sheriff’s Department Detectives acting without warrant or probable cause—to remove the Complaint from public locations are legally indefensible, and themselves constitute further illegal deprivation of Plaintiff’s rights of free speech and access to courts which will be redressed in due course.  Notwithstanding Plaintiff’s claim that such “take down” activity was illegal and indeed reprehensible state censorship, Plaintiff undertook substantial efforts to accommodate Defendants’ less-than-courteous demands.  See Ex Parte Motion for Emergency Harassment Restraining Order, Dkt#4.

Defendant has not shown a motive of intent to harass sufficient to establish a violation of certification under Fed.R.C.P. 11(b)(1), and as such its Motion may be Denied.

The judges accuse CCFC of seeking a change in the law, CCFC responded “We only want you to enforce the law as its written–not as you think it should be.”

The Complaint Seeks No Change, but Enforcement of Law (Fed.R.C.P. 11(b)(2))

The Complaint certainly asserts that a change in family law as practiced is in immediate order—but only to conform that practice with existing and longstanding principles of state and federal laws—commercial, health and welfare, and constitutional standards which are flagrantly disregarded by institutionalized Domestic Dispute Industry public and private interests.  To the extent that State laws and practice are inconsistent with federal law, the Complaint properly and in good faith prays for declaratory and prospective relief to conform or invalidate those inconsistent laws and practices.  Should Plaintiffs’ seeking enforcement of the fundamental liberties of some of our most vulnerable citizens be viewed as “harassment” or “bad faith” by present defendants, the proper judgment day for that proposition may and should await the presence of a trier of fact rather than be quelled by improper use of Rule 11 hardball.  See, e.g.,   Plaintiff, and millions of parents and children nationwide, eagerly await that day.

The judges claim that CCFC–dozens of parents, children, professionals, and people who have been around family courts for years-have “no adequate basis in fact” for making the claims of the lawsuit.  CCFC responds:

           Evidentiary Foundation of Plaintiff’s Claims (Fed.R.C.P. 11(b)(3)

[CCFC] has conducted extensive investigation and research into each of the factual and legal allegations of the Complaint over a period of many years.  The allegations of the Complaint are not created by a lawyer interpreting a client’s experience—therefore giving rise to the typical Rule 11 “duty to investigate” factual foundations of the client’s claims.  Here, the pro se Plaintiff is the client and witness.  Almost all of the facts in the Complaint are given on personal and professional knowledge and experience.  This experience includes seventeen years practicing law in the States of California, Nevada, and Arizona since 1995, 96, and 97, respectively, and federal districts therein.  Plaintiff’s experience includes litigation, trial, mediation, and arbitration of dozens of matters for a variety of clients, including federal civil rights, commercial fraud, legal malpractice, and similar state-court matters.  Though Plaintiff is not a divorce lawyer, he is familiar with California state practice and procedure generally applicable in all California Superior Courts through seventeen years of litigation experience.

Through his personal experience with his own dissolution litigation and in assisting dozens of similarly-situated parents enduring modern family court malfeasance, fraud, and abuse, he has become an informed observer of family court practices at several levels.  He founded Plaintiff California Coalition for Families and Children to address those common concerns and provide a vehicle for domestic dispute industry reform, education, and engagement toward those ends.  Stuart Decl.   This experience, activism, scholarship, research, and personal observation is described at ¶¶ 71-75, 77-99, 100-101, 110, 113-123.

This case is unusual in that few facts in this case will be in legitimate dispute—Plaintiff accuses widely-known, and increasingly widely despised, practices of public institutions and private industry cohorts.  Except perhaps for an answer to the question “why has such illegal conduct been tolerated for so long?” few legitimate factual issues will arise.

The Family Court judges also attacked CCFC’s claim based on a “conspiracy”–CCFC responded simply “”It seems like they’re expecting that we have to prove a ‘grassy knoll’ CIA compact with the Devil theory.  That’s simply not necessary.  A conspiracy is simply an agreement to do an act that constitutes a crime.  In the case of Family Court–much of the entire operation is a crime, so proving agreement will be as easy as asking to see their pay stubs.”  Say Stuart.  “If you work there-you’re raping families and children. That’s a crime. End of story.”

A conspiracy is an agreement to commit a crime.   Mendocino Envtl. Ctr. v. Mendocino Cnty., 192 F.3d 1283, 1301-02 (9th Cir. 1999).  The conspiracy allegations of the Complaint need no creative mind to understand.  A simple walk through defendants own downstairs administrative operations—the Family Law Facilitator Offices (DDI-IACE) which counsels and facilitates illegal DVILS ORDERS, paperwork, and enforcement (Compl. Ex. 1 and Exs. A, B thereto);  an illegal psychology enterprise (DDI-FICE) populated by fraudulent “forensic psychologists”; to the legal communities which they participate in—the San Diego County Bar Association and it’s “Family Law Subsection” (Compl. ¶¶4, 275, Ex. 2) and the “Family Law Community” it serves (Compl. ¶¶71-73, 275-280, 320); to the federally-funded quasi-public “technical support” and leadership corporations it collaborates with on family law policy and operations levels—the San Diego Family Justice Center and National Family Justice Center Alliance (Compl. ¶¶262, 318, RICO Enterprises 2, 3, 4; Compl. Ex. 1); and to its leadership operations of Co-Defendants Judicial Council and Administrative Office of the Courts (Compl. ¶¶10, 13-16; Quest for Justice, infra.).  An insightful public account of the history, evolution, and independent control and operation of these entities is recently available from former California Supreme Court Chief Justice and Chairperson of Defendants AOC and Judicial Counsel Ronald M. George, entitled ChiefThe Quest for Justice in California (2013).[1]  Chief Justice George explicitly details how these defendants have established themselves to be free from the “micromanagement” of legislators, who “don’t understand” how to administer justice. Id. at 453-454.  For theater fans, A feature-length documentary entitled “DivorceCorp” (www.divorcecorp.com) to be released nationwide on January 10, 2014 graphically describes the Domestic Dispute Industry Criminal Enterprise detailed in the Complaint.  The Divorce Industry, it seems, is enjoying a new day in the sun.[2]

Defendants no doubt will assert that the accused operations, though highly coordinated, are not illegal.  Plaintiff will be prepared to present that case to a trier of fact at the appropriate time.  For purposes of the Complaint, however, the above allegations of coordinated action to accomplish an allegedly illegal purpose satisfy any relevant pleading standard for pleading “conspiracy.”


[1] Supportive details describing the operation of these entities in collaboration with their enterprise co-defendants is located at pp. 303-318, 380-81, Chapter 14, pp. 448-459, 622-624, 660-665, 752-785.

[2] “Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.” Buckley v. Valeo, 424 U.S. 1, 67, (1976); L. Tarango Trucking v. Cnty. of Contra Costa, 202 F.R.D. 614, 620 (N.D. Cal. 2001); Fair Political Practices Com. v. Suitt, 90 Cal. App. 3d 125, 132, 153 Cal. Rptr. 311, 316 (Cal. Ct. App. 1979); Original publication: L. Brandeis, Other People’s Money at 62 (National Home Library Foundation ed.  1933)

CCFC explained to the District Court that they were a parents’ organization run by volunteers and donations–and that the judges’ requesting a sanction of $10,000 would demolish their organization.  “Not only do they want us to go away, they want to teach us a lesson for bringing up the point at all.  These are judges–bullying parents and kids who’ve been beaten already been beaten up by Family Court.  And they say ‘Didn’t like that? Perfect, here’s some more trouble and humiliation.”

Any award of sanctions must evaluate a sanctioned party’s ability to pay.  Christian v. Mattel, Inc. (9th Cir. 2002) 286 F3d 1118, 1125, fn. 4.  Rule 11 sanctions should not be used to chill creative advocacy, or legitimate causes asserted in good faith.  See, e.g.Chase v. Auerbach, 1994 WL 590588, *2 (E.D.Pa. Oct. 26, 1994) (rejecting the imposition of Rule 11 sanctions on a litigant for advancing a novel legal theory in attempting to move an action to federal court to consolidate case with another pending case); Committee Notes on Amendments to Federal Rules of Civil Procedure 146 FRD 401, 587 (1993) (explaining that replacing the 1983 version of the rule’s standard of “good faith” with the 1993 term “nonfrivilous” was not intended to raise the bar on “creative advocacy” brought in good faith which might be “chilled” by a higher standard).

Though Plaintiffs vigorously deny that sanctions against Plaintiff are appropriate and assert precisely the opposite request for relief, any sanction award against plaintiffs in this case would be unjust.  Plaintiffs are a public benefit corporation and their members and advocates which, in the course of attempts to facilitate the reform of voracious criminal enterprises, have fallen victims to the illegal tactics of those very enterprises.  Stuart Decl. ¶¶.  It would be difficult to exaggerate the devastating impact of Defendants’ illegal activities on the resources available to Plaintiffs to continue their reform efforts, including this litigation.  CCFC is not a commercial operation—it has no revenue other than donations and the generous goodwill of many dedicated volunteers.  It is a community of victims of these very defendants’ heinous acts of fraud and abuse, who have formed to recover their losses, but more importantly to prevent that same harm from befalling others unaware of the maze of horrors that awaits them once they step behind Defendants’ doors.  Stuart Decl. ¶¶X.

The Complaint details Plaintiffs’ efforts in seeking attention and assistance to remedy and reform an industry few deny to be a notorious dystopia, yet almost none have the  knowledge, concern, or courage required to attend.  Government agencies, politicians, and the commercial and pro bono legal community have universally respond “yes, it’s a mess, but we don’t know how to fix it.”  Present Defendants have responded with offers to absorb even more resources in wastefully returning to the lawless maze of family court, or more often responded not at all. Stuart Decl.

As the intended benefactors of that dystopia—parents and children—who’ve instead of benefiting from that system have fallen victim to it, we have valuable input of what is wrong and how to fix it.  Yet Plaintiffs’ wealth of experience, knowledge, and suggestions is not equaled by a wealth of material resources to implement them.   Like most family court litigants, CCFC members left family courts with little more than harrowing nightmares and a very bitter taste in their mouths which, though highly motivating, are accompanied by a debilitating fear of further legal reprisal or financial victimization by the very defendants present here.  By anticompetitive means—including the violent means deployed against Plaintiffs detailed in the Complaint—Defendants have effectively monopolized or blockaded all venues for effecting reform through state-level machinery—courts, judges, lawyers, bureaucrats, and psychologists collaborate to police a poisonous toll-based maze they themselves built which outrageously extracts wealth from unsuspecting families by artifice, trick, and deceit.  Stuart Decl.

That wealth and power, initially earned by the honest hands and brows of parents working to provide for their children, has by trick and device been converted into the hands of some of San Diego’s strongest law firms, hired to defend the schemes that pay their bills—and today returns to a new scene to use impermissible “hardball” Rule 11 litigation tactics pick those pockets yet again, by means of new rules in a new courthouse.  Plaintiff prays for a new awakening to a new, healthier day for plaintiffs and defendants alike.  “If we desire respect for the law, then we must first make the law respectable.”  L. Brandeis, Other People’s Money (National Home Library Foundation ed. 1933).

Any award of sanctions against Plaintiffs in this case would only further the perpetration of what will be proven to be a shameful and fraudulent abuse of knowledge of public processes and institutions, public police power, and tainted wealth by those operating under a public license, oath, and duty to protect those in their care.  Sanctions would be an affront not only to a meager pocketbook, but to the courage, dignity, and public spirit of parents and children nationwide, who having no recourse to defenders such as those they face, have barely the means to defend themselves.  A sanction against these Plaintiffs in this action would be a sanction against equal justice itself.

                                                                                                                                  Conclusion

The Superior Court’s Rule 11 Motion is almost entirely unwarranted by existing law, structurally incomprehensible, and wildly off-target.  It impermissibly seeks relief for Co-Defendants not present in the Motion, argues their case but not its own, pleads to the wrong legal standards and only summarily acknowledges the correct ones, and is infected with the same meritless arguments of the MTD and inadmissible, impertinent, and scandalous evidence that work is based upon. The Rule 11 Motion is itself an inappropriate litigation “hard ball” double down tactic by those intimately familiar with such schemes and tools of prevailing in high-stakes litigation games, making sanctions against The Superior Court for its unfaithful litigation conduct in the present Motion appropriate.  The Superior Court has chosen the stakes of the table it sits at.  It should not be permitted to walk away from the accounting.

The hearing on the judges’ Motion for Sanctions is scheduled for December 19, 2013, in United States District Court for the Southern District of California.

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5 Comments

  1. Ralph Scott says:

    We stand with you our brothers and sisters. We may be 500 miles away but we’re so ready to follow your lead and take down the courts in Sonoma, Marin, S.F., Alameda, and Santa Clara Counties.

    Keep fighting. Let us know how we can help.

    The Bay Area Fathers’ Rights Support
    KidsDeserveDads.com

    • Cole Stuart says:

      Thank you Mr. Scott. We’re also aware of your troubles in the North, and have worked with parents from your jurisdictions. As our issues overlap substantially, I would encourage you to spread the word that we’ve established new beacheads on many fronts to drive back the entrenched industry defendants. As the issues will be raised in federal court, of venue will be substantially different from the state court venues your parents are probably accustomed to. We are optimistic to take advantage of that federal perspective and history in policing state courts’ respect for individual rights and the need to police local frauds.

      We encourage you and your members to stay tuned–the issues we raise will likely have an impact on your abilities to recover in your cases–perhaps even beyond the statutes of limitation, as fraud, incapacity, and duress are exceptions to ordinary statutory period. If we are successful, many parents may be able to reach back longer than the statutes on their cases and re-litigate issues on which their attorneys fraudulently mislead them.

      I would suggest that your primary targets for investigation should begin with your local bar association and any “family law community” meetings, newsletters, listservs, websites, or other printed material. There is likely to be a wealth of evidence of illegal bench/bar collusion to deprive your parents/litigants of rights, and commit fraud in the process.

      A good second step would be to begin looking for an “outsider” to the divorce bar–perhaps someone from another county or larger city–to visit your case. Our materials will be familiar to civil rights and criminal defense lawyers. Look for someone with appellate experience on constitutional issues. There are many “anti-CPS” lawyers in southern California who know these issues–I’m sure you have some in Northern California as well.

      And obviously stay tuned. Our progress will set precedent nationwide. You’re welcome to track our path in beginning to blaze your own.

      Good luck and God bless.

      Cole Stuart

  2. “If we desire respect for the law, then we must first make the law respectable.” L. Brandeis, Other People’s Money (National Home Library Foundation ed. 1933).

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