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13-17170
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IN THE UNITED STATES COURT OF APPEALS
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FOR THE NINTH CIRCUIT
RONALD PIERCE, et al.,
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v.
Plaintiffs-Appellants,
CALIFORNIA CHIEF JUSTICE

CANTIL-SAKAUYE, et al.,
Defendants-Appellees.
On Appeal from the United States District Court

for the Northern District of California
No. C 13-01295 JSW
The Honorable Jeffrey S. White, Judge
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ANSWERING BRIEF OF DEFENDANTSAPPELLEES

KAMALA D. HARRIS
Attorney General of California
DOUGLAS J. WOODS
Senior Assistant Attorney General
TAMAR PACHTER
Supervising Deputy Attorney General
P. PATTY LI
Deputy Attorney General
State Bar No. 266937
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
Telephone: (415) 703-1577
Fax: (415) 703-1234
Email: Patty.Li@doj.ca.gov
Attorneys for Defendants-Appellees
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TABLE OF CONTENTS
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Introduction .................................................................................................... 1
Jurisdictional Statement ................................................................................. 2

Issues Presented ............................................................................................. 2
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Statement Regarding Addendum ................................................................... 3

Statement of the Case .................................................................................... 3
Summary of Argument .................................................................................. 7
Argument ....................................................................................................... 9
I.
II.
III.
IV.
Standard of Review ................................................................... 9
Sovereign Immunity Bars All Claims ..................................... 10
A.
Sovereign Immunity Bars the Claims Against the

Administrative Director of the Courts .......................... 12
B.

Chief Justice .................................................................. 13
Plaintiff Cunninghams Claims Are Barred ............................ 16
The District Court Properly Dismissed Plaintiffs Equal

Protection and Due Process Claims ........................................ 18
Rational Basis Review Applies to Plaintiffs Equal
Protection and Due Process Claims. ............................. 19
1.
Self-represented litigants are not a suspect

class .................................................................... 20
2.
Plaintiffs fundamental rights claims do not

warrant heightened scrutiny ............................... 21
a.
Civil litigation prefiling requirements

receive rational basis scrutiny .................. 22
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A.
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Heightened scrutiny would apply only

if a prefiling requirement completely
prevented litigants from filing for
divorce or appealing the termination
of parental rights ...................................... 24
c.
Heightened scrutiny does not apply to

plaintiffs claims....................................... 29
b.
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V.
B.
The VLS Satisfies Rational Basis Review ................... 32
C.
Even Under Heightened Scrutiny, the VLS Is

Narrowly Tailored to Meet a Compelling
Governmental Interest................................................... 34
Plaintiffs Have Waived Their Remaining Claims, Which

Nonetheless Fail ...................................................................... 35
Conclusion ................................................................................................... 37
Statement of Related Cases.......................................................................... 38
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Addendum .................................................................................................... 39
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TABLE OF AUTHORITIES
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CASES
Adams v. California Dept of Health Services

487 F.3d 684 (9th Cir. 2007) ............................................................. 18
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Armour v. City of Indianapolis, Ind.

132 S. Ct. 2073 (2012)....................................................................... 20
Ashcroft v. Iqbal
556 U.S. 662 (2009)............................................................................. 9
Assn des Eleveurs de Canards et dOies du Quebec v. Harris
729 F.3d 937 (9th Cir. 2013) ............................................................. 11
Atascadero State Hosp. v. Scanlon
473 U.S. 234 (1985)........................................................................... 10
Boddie v. Connecticut
401 U.S. 371 (1971).................................................................... passim
Bravo v. Ismaj
99 Cal. App. 4th 211 (2002) ........................................................ 30, 31
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Coal. to Defend Affirmative Action v. Brown

674 F.3d 1128 (9th Cir. 2012) ..................................................... 10, 11
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Cox v. State of Louisiana

379 U.S. 559 (1965)........................................................................... 35
Cruz v. Intl Collection Corp.

673 F.3d 991 (9th Cir. 2012) ....................................................... 12, 16
Cunningham v. Mahoney
10-17863 (9th Cir. Mar. 10, 2011) .................................................... 17
Cunningham v. Mahoney
C 10-03211 JSW (N.D. Cal. Dec. 7, 2010) ....................................... 17
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Davis v. HSBC Bank Nevada, N.A.

691 F.3d 1152 (9th Cir. 2012) ............................................................. 9
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Estate of Magnin v. C.I.R.

184 F.3d 1074 (9th Cir. 1999) ........................................................... 15
Ex parte Young
209 U.S. 123 (1908)......................................................... 11, 13, 14, 15
Forrest v. Dept of Corporations
150 Cal. App. 4th 183 (2007) ............................................................ 29
Gonzales v. Dept of Homeland Sec.
508 F.3d 1227 (9th Cir. 2007) ........................................................... 15
Greenwood v. FAA
28 F.3d 971 (9th Cir. 1994) ............................................................... 36
Griffin v. Illinois
351 U.S. 12 (1956)....................................................................... 26, 27
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Guerrero v. RJM Acquisitions LLC

499 F.3d 926 (9th Cir. 2007) ............................................................. 15
Harris v. McRae
448 U.S. 297 (1980)........................................................................... 21
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Hiramanek v. Clark
C-13-0228 EMC, 2013 WL 3803613 (N.D. Cal. July 19, 2013) ...... 33
Hoye v. City of Oakland
653 F.3d 835 (9th Cir. 2011) ............................................................. 18
In re Marriage of Brown & Yana
37 Cal. 4th 947 (2006) ....................................................................... 29
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In re Marriage of Lucio
161 Cal. App. 4th 1068 (2008) .......................................................... 29
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In re R.H.
170 Cal. App. 4th 678 (2009) ...................................................... 29, 35
Kobayashi v. Superior Court
175 Cal. App. 4th 536 (2009) ............................................................ 34
L.A. Branch NAACP v. L.A. Unified Sch. Dist.
714 F.2d 946 (9th Cir. 1983) ....................................................... 12, 14
L.A. County Bar Assn v. Eu
979 F.2d 697 (9th Cir. 1992) ........................................... 11, 13, 14, 15
Long v. Cnty. of Los Angeles
442 F.3d 1178 (9th Cir. 2006) ........................................................... 19
Long v. Van de Kamp
961 F.2d 151 (9th Cir. 1992) ............................................................. 11
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Luckett v. Panos
161 Cal. App. 4th 77 (2008) .............................................................. 34
M.L.B. v. S.L.J.
519 U.S. 102 (1996).................................................................... passim
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Mahdavi v. Superior Court

166 Cal. App. 4th 32 (2008) .............................................................. 32
Mayer v. Chicago
404 U.S. 189 (1971)..................................................................... 27, 28
McColm v. Westwood Park Assn
62 Cal. App. 4th 1211 (1998) .............................................................. 4
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Ortwein v. Schwab
410 U.S. 656 (1973)..................................................................... 21, 22
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Papasan v. Allain
478 U.S. 265 (1986)........................................................................... 10
Pennhurst State Sch. & Hosp. v. Halderman
465 U.S. 89 (1984)....................................................................... 10, 11
Quan v. Computer Sciences Corp.
623 F.3d 870 (9th Cir. 2010) ............................................................. 36
Quern v. Jordan
440 U.S. 332 (1979)........................................................................... 10
Rodriguez v. Cook
169 F.3d 1176, 1178 (9th Cir. 1999) ................................................. 22
Sakamoto v. Duty Free Shoppers, Ltd.
764 F.2d 1285 (9th Cir.1985) ............................................................ 15
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San Remo Hotel, L.P. v. San Francisco City and County

364 F.3d 1088 (9th Cir. 2008) ........................................................... 17
Taylor v. Delatoore
281 F.3d 844 (9th Cir. 2002) ............................................................. 32
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Taylor v. Sturgell
553 U.S. 880 (2008)..................................................................... 16, 17
Thompson v. Paul
547 F.3d 1055 (9th Cir. 2008) ............................................................. 9
Troxel v. Granville
530 U.S. 57 (2000)............................................................................. 24
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U.S. ex rel. Meyer v. Horizon Health Corp.

565 F.3d 1195 (9th Cir. 2009) ........................................................... 36
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United States v. Kras

409 U.S. 434 (1973)........................................................................... 22
Wolfe v. George
385 F. Supp. 2d 1004 (N.D. Cal. 2005) ............................................. 35
Wolfe v. George
486 F.3d 1120 (9th Cir. 2007) .................................................... passim
Wolfe v. Strankman
392 F.3d 358 (9th Cir. 2004) ................................................... 6, 14, 15
Wolfgram v. Wells Fargo Bank
53 Cal. App. 4th 43 (1997) ...................................................... 3, 29, 34
STATUTES
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United States Code, Title 28

1291 .................................................................................................. 2
1331 .................................................................................................. 2
United States Code, Title 42

1983 ................................................................................ 6, 10, 14, 19
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California Code of Civil Procedure

391 ...................................................................................... 3, 4, 5, 39
391.1 ................................................................................................. 4
391.7 ........................................................................................ passim
391.8 ....................................................................................... 3, 5, 39
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CONSTITUTIONAL PROVISIONS
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United States Constitution

First Amendment ..................................................................... 6, 35, 36
Eleventh Amendment ................................................................. passim
Fourteenth Amendment ............................................................... 24, 26
COURT RULES
Federal Rule of Appellate Procedure

4(a)(4)(A)(iv) ....................................................................................... 2
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Ninth Circuit
Rule 28-2.7 .......................................................................................... 3
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INTRODUCTION
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Plaintiffs seek a declaration that applying the California Vexatious
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Litigant Statute (VLS) in the context of custody disputes violates their
equal protection and due process rights. The VLS requires self-represented
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vexatious litigants subject to a prefiling order to obtain prior court approval

before filing new litigation. Plaintiffs assume that because the VLSs
prefiling requirement applies to self-represented litigants, and because child
custody disputes can impact parents fundamental rights, the VLS infringes
upon the fundamental rights of parents who cannot afford representation in
child custody proceedings.
These claims fail on several grounds. As a preliminary matter,

sovereign immunity bars all of plaintiffs claims, and issue and claim
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preclusion bar plaintiff Archibald Cunninghams claims. The claims also

fail on the merits because civil litigation prefiling requirements generally
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receive rational basis scrutiny. Heightened scrutiny would apply only if the
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prefiling requirement completely blocked access to the courts, for the

purpose of filing for divorce or appealing the termination of parental rights.
However, neither of those circumstances is present here. This Court has
previously applied rational basis review to find that the VLS does not violate
constitutional rights, because the VLS still allows vexatious litigants to
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access the courts. This Court should therefore affirm the dismissal of
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plaintiffs claims.
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JURISDICTIONAL STATEMENT
The district court had federal question jurisdiction over this case
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pursuant to 28 U.S.C. 1331.
This appeal is from an order granting a motion to dismiss, which is a

final decision of the district court. This Court has jurisdiction pursuant to 28
U.S.C. 1291.
The district court entered the order granting the motion to dismiss and
the resulting judgment on August 13, 2013. ER-6. On August 19, 2013,
plaintiffs filed a motion to amend the judgment, ER-5, which the district
court denied on October 4, 2013, ER-2. Plaintiffs filed the notice of appeal
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on October 23, 2013. ER-1. This appeal is timely under Federal Rule of
ISSUES PRESENTED
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Appellate Procedure 4(a)(4)(A)(iv).
Chief Justice of California and the Administrative Director of the Courts,

lack a direct connection to the enforcement of the VLS?
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1. Does the Eleventh Amendment bar all claims, if the defendants, the
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2. Do issue and claim preclusion bar plaintiff Archibald Cunninghams
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claims, if he raised the same challenges in a previous action, and that matter
proceeded to a final judgment?
3. Can the VLS apply to litigants in custody disputes consistent with
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equal protection and due process, if the VLS uses no suspect classification,
permits continued access to the courts, and does not prevent litigants from
filing for divorce or appealing parental status terminations?
STATEMENT REGARDING ADDENDUM
In accordance with Ninth Circuit Rule 28-2.7, the addendum to this

brief includes sections 391, 391.7, and 391.8 of the California Code of Civil
Procedure.
STATEMENT OF THE CASE
California adopted the VLS to ease the unreasonable burden placed
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upon the courts by groundless litigation. Wolfgram v. Wells Fargo Bank,
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53 Cal. App. 4th 43, 48 (1997) (citation omitted). The statute allows a judge
permission of the presiding judge or justice before filing any new pro se
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to enter a prefiling order requiring a vexatious litigant to obtain the
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litigation, including an appeal or writ proceeding.1 Cal. Code Civ. Proc.
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391.7(a); McColm v. Westwood Park Assn, 62 Cal. App. 4th 1211, 1217
(1998) (the [Court of Appeal] will enforce the vexatious litigant statute by
requiring the permission of the administrative presiding justice before a
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vexatious litigant subject to a prefiling order may proceed). The litigation

covered by the prefiling order includes any petition, application, or motion
other than a discovery motion, in a proceeding under the Family Code .
Cal. Code Civ. Proc. 391.7(d). A court may enter the prefiling order on
its own motion or the motion of any party. Id. 391.7(a).
Under the VLS, a vexatious litigant is one who, while acting in

propria persona:
in a seven-year period has commenced, prosecuted, or maintained
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at least five litigations other than in a small claims court that have
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been (i) finally determined adversely to the person or (ii)
unjustifiably permitted to remain pending at least two years (id.

391(b)(1));
has repeatedly sued on the same cause of action (id. 391(b)(2));
The VLS also permits a defendant sued by a vexatious litigant to

move for an order requiring plaintiff to post security. Cal. Code Civ. Proc.
391.1. Plaintiffs have not challenged this provision of the VLS.
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has repeatedly filed unmeritorious papers or engaged in frivolous
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tactics (id. 391(b)(3)); or
has been declared a vexatious litigant by any state or federal court
in any action based upon the same or substantially similar facts
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(id. 391(b)(4)).
Litigants who are subject to prefiling orders are placed on a statewide

vexatious litigant list maintained by the Judicial Council of California and
disseminated to clerks of the state courts. Id. 391.7(f). Court clerks have
no discretion to accept new litigation from self-represented vexatious
litigants absent prior court approval. Id. 391.7(c). Such approval can be
given by the presiding judge or justice only if it appears that the litigation
has merit and has not been filed for the purposes of harassment or delay.
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Id. 391.7(b). A vexatious litigant may file an application to vacate the

prefiling order, and a court may grant the application upon a showing of a
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material change in the facts upon which the order was granted and that the
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ends of justice would be served by vacating the order. Id. 391.8.

Plaintiffs are nine individuals who have been named vexatious litigants
under the VLS in the context of custody proceedings before various state
superior courts. They purport to represent a class of parents engaged in
custody disputes in the family law courts (and on appeal with appellate
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Litigant Statute and whose access to state courts, both trial courts and
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courts) who have been declared vexatious under the California Vexatious
appellate courts, has been curtailed, restricted, or denied. SER at 55,
Complaint 63. Defendants are the Chief Justice of the State of California,
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in her role as the Chair of the California Judicial Council, and the
Administrative Director of the Courts. SER at 38, Complaint 34, 35.

Plaintiffs challenge the constitutionality of the VLS as it is applied in
the context of family law custody proceedings, and allege that the VLS on
its face and as applied infringes on their fundamental custody rights. SER
at 31, Complaint 1. The Complaint asserts claims under 42 U.S.C. 1983,
alleging that defendants have violated plaintiffs rights under the following
constitutional provisions: the Equal Protection Clause, the Due Process
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Clause, the First Amendment, the prohibition on Bills of Attainder, and the
Ex Post Facto Clause. SER at 5681, Complaint 66143.
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The district court dismissed all claims with prejudice, finding that the
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claims against the Administrative Director of the Courts were barred by the
Eleventh Amendment;2 that the claims raised by plaintiff Archibald
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The district court found that the claims against the Chief Justice
were not barred by sovereign immunity, relying on Wolfe v. Strankman, 392
F.3d 358 (9th Cir. 2004). ER-6 at 53.
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Cunningham were barred by issue and claim preclusion; and that plaintiffs
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failed to state a claim on the alleged constitutional violations. ER-6 at 53

58. The court also denied as moot plaintiffs motion for an injunction
prohibiting California courts from applying the VLS in the context of
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custody proceedings. ER-6 at 58. Plaintiffs moved to amend the judgment,

and the district court denied the motion. ER-5; ER-2.
Plaintiffs timely appealed. ER-1. On January 4, 2014, plaintiffs moved

this Court to enjoin family law courts throughout California from imposing
the VLS against family law litigants, pending appeal. Dkt. No. 12. This
Court denied the motion on January 24, 2014. Dkt. No. 14.
SUMMARY OF ARGUMENT
The VLS requires self-represented individuals who have been
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adjudicated vexatious litigants to show that any new litigation they seek to
file has merit, and is not for the purpose of harassment or delay. Plaintiffs
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contend that this prefiling requirement violates equal protection and
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infringes upon the fundamental rights of parents involved in custody

disputes. But because the statute provides vexatious litigants with continued
access to the courts, plaintiffs claims must fail.
As a threshold matter, the Eleventh Amendment bars the claims against
both the Chief Justice and the Administrative Director of the Courts. The
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required direct connection to the enforcement of the statute is lacking
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because defendants cannot control individual judges in their application of
the VLS. In addition, plaintiff Archibald Cunninghams claims are entirely
precluded. Cunningham previously raised an unsuccessful challenge to the
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constitutionality of the VLS, and that action resulted in a final judgment.

Plaintiffs claims also fail on the merits. Plaintiffs contend that strict
scrutiny applies to their equal protection and due process claims, because the
VLS targets self-represented parents, and because any restriction on
litigation of custody matters infringes upon fundamental parental rights.
Opening Brief at 4. However, courts have consistently rejected such equal
protection challenges. And, the Supreme Court has established that rational
basis scrutiny applies to civil litigation prefiling requirements, unless the law
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entirely blocks litigants from accessing the courts for the purpose of filing
for divorce or appealing the termination of parental rightsconditions not
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alleged here.
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As numerous courts have found, the VLS allows continued access to
the courts. The VLS thus receives, and satisfies, rational basis scrutiny.
Even if heightened scrutiny were to apply, the VLS is narrowly tailored to
meet a compelling governmental interest, because it still permits litigants to
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file new litigation, while guarding against frivolous litigation and the abuse
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of the court system.

Finally, plaintiffs have waived their remaining claims by failing to
present any substantive arguments on those claims in their opening brief. In
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any event, this Court has previously rejected these same claims. The district
court properly dismissed plaintiffs claims, and this Court should affirm.
ARGUMENT
I.
STANDARD OF REVIEW
This Court reviews a district courts grant of a motion to dismiss de

novo, and may affirm on any ground supported by the record. Davis v.
HSBC Bank Nevada, N.A., 691 F.3d 1152, 1159 (9th Cir. 2012). To
survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face.
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A claim has facial plausibility when the plaintiff pleads factual content that
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allows the court to draw the reasonable inference that the defendant is liable
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for the misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citations and internal quotation marks omitted). This Court may affirm on
any ground supported by the record. Thompson v. Paul, 547 F.3d 1055,
105859 (9th Cir. 2008).
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This Court must resolve an Eleventh Amendment immunity claim
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before reaching the merits, and such review is de novo. Coal. to Defend
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II.
SOVEREIGN IMMUNITY BARS ALL CLAIMS
Affirmative Action v. Brown, 674 F.3d 1128, 1133 (9th Cir. 2012).
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Sovereign immunity bars all of plaintiffs claims. The Eleventh
Amendment prohibits suit against a state or its instrumentalities for legal or

equitable relief, in the absence of consent by the state or an abrogation of
that immunity by Congress. Papasan v. Allain, 478 U.S. 265, 27677
(1986); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100
(1984). Section 1983 did not abrogate a states Eleventh Amendment
immunity. Quern v. Jordan, 440 U.S. 332, 341 (1979). The State of
California has not waived that immunity with respect to claims brought
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under Section 1983 in federal court. Atascadero State Hosp. v. Scanlon, 473
U.S. 234, 241 (1985).
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The Eleventh Amendment bars a suit against state officials when the
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state is the real, substantial party in interest. Pennhurst, 465 U.S. at 101
(citation and internal quotation marks omitted). The general rule is that
relief sought nominally against an officer is in fact against the sovereign if
the decree would operate against the latter. Id. (citation omitted). [A]s
when the State itself is named as the defendant, a suit against state officials
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that is in fact a suit against a State is barred regardless of whether it seeks
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damages or injunctive relief. Id. at 10102 (citation omitted).
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Ex parte Young, 209 U.S. 123 (1908), created an exception to Eleventh
Amendment immunity for actions for prospective declaratory or injunctive
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relief against state officers in their official capacities for their alleged
violations of federal law. Coal. to Defend Affirmative Action, 674 F.3d at

1134. However, this exception applies only where it is plain that such
officer [has] some connection with the enforcement of the act. Ex parte
Young, 209 U.S. at 157. This connection must be fairly direct; a
generalized duty to enforce state law or general supervisory power over the
persons responsible for enforcing the challenged provision will not subject
an official to suit. L.A. County Bar Assn v. Eu, 979 F.2d 697, 704 (9th Cir.
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1992) (citing Long v. Van de Kamp, 961 F.2d 151, 152 (9th Cir. 1992)); see
also Assn des Eleveurs de Canards et dOies du Quebec v. Harris, 729 F.3d
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937, 943 (9th Cir. 2013) (governor entitled to Eleventh Amendment
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immunity when only connection to challenged statute was general duty to

enforce state law). If a state official lacks the power to address the
purported violation of federal law, this indicates that the plaintiff intends to
use that official as a surrogate for the state, and thereby to evade the states
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Eleventh Amendment immunity. L.A. Branch NAACP v. L.A. Unified Sch.
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Dist., 714 F.2d 946, 953 (9th Cir. 1983).
Here, Plaintiffs failed to allege facts showing that either defendant has
a sufficient connection to enforcement of the VLS, or that defendants have
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the power to direct judges to refrain from applying the VLS. The Eleventh
Amendment thus prohibits this suit.
A.

Administrative Director of the Courts.
The district court dismissed all claims against the Administrative

Director of the Courts, finding that plaintiffs failed to allege[] a sufficient
connection between Mr. Jahr and the enforcement of the VLS. ER-6 at 53.
Plaintiffs did not challenge this ruling in their opening brief, thereby waiving
any objections to this ruling. See Cruz v. Intl Collection Corp., 673 F.3d
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991, 998 (9th Cir. 2012) (argument not raised in opening brief is waived).
Even if plaintiffs had preserved this argument on appeal, the district
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court correctly found that the Complaint lacks any specific factual
allegations tying the Administrative Director of the Courts to the
enforcement of the VLS. The Complaint alleges only that the
Administrative Directors duties include carrying out the goals of the
Judicial Council, and that he must interpret policies, allocate financial
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progress in achieving such goals. SER at 3839 , Complaint 35.
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resources to achieve goals, to accomplish the goals, and provide reports on
These allegations fail in several respects. First, the VLS is neither a
goal nor a policy of the Judicial Council. It is a legislative enactment.
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Second, the allegations fail to establish general supervisory power over the
judges who interpret and apply the VLS, who are the persons responsible
for enforcing the challenged provision, L.A. County Bar Assn, 979 F.2d at
704. Such supervisory power would still fall short of the fairly direct
connection to enforcement of the VLS required for the Ex parte Young
exception to apply. Id. The district court thus properly dismissed the claims
against the Administrative Director.
B.
Sovereign Immunity Bars the Claims Against the Chief

Justice.
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Like the Administrative Director of the Courts, the Chief Justice lacks a
sufficient connection to enforcement of the VLS. The Complaint alleges
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that the Judicial Council is responsible for assuring that the law, statutes,
and court rules and procedures are consistent with constitutional
guarantees. SER at 38, Complaint 34. But the Chief Justice, as Chair of
the Judicial Council, cannot direct or influence judges as they make
individualized determinations of whether the VLS applies to a particular
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litigant, or whether new litigation proposed by a vexatious litigant complies
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with the requirements of the VLS. Nor can the Chief Justice, as Chair of the
Judicial Council, instruct judges to apply the VLS or to refrain from
applying it. The Chief Justice does not have a fairly direct connection to
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enforcement of the VLS, L.A. County Bar Assn, 979 F.2d at 704, and lacks
the power to prevent judges from enforcing the VLS, L.A. Branch NAACP,
714 F.2d at 953.
For these reasons, the claims against the Chief Justice do not fall within
the Ex parte Young exception. The decision in Wolfe v. Strankman, 392
F.3d 358 (9th Cir. 2004), on which the district court relied in declining to
apply the Eleventh Amendment to the Chief Justice, is not controlling
authority to the contrary. In finding that a 42 U.S.C. 1983 challenge to the
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VLS against a previous chief justice fell within the Ex parte Young
exception, the Strankman panel simply cited the plaintiffs request for
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prospective injunctive and declaratory relief, and pointed out that the
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plaintiff did not seek damages. 392 F.3d at 365. The panel did not
consider whether the chief justice had any connection to enforcement of the
VLS, let alone whether that connection was fairly direct and went beyond
a generalized duty to enforce state law or general supervisory power over
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the persons responsible for enforcing the challenged provision. L.A.
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County Bar Assn, 979 F.2d at 704.
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Given Strankmans silence on this issue, the decision is not binding
precedent. When a case assumes a point without discussion, the case does
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not bind future panels. Estate of Magnin v. C.I.R., 184 F.3d 1074, 1077
(9th Cir. 1999) (citations omitted). [I]ssues that are not raised or discussed
are unstated assumptions on non-litigated issues [and] are not precedential
holdings binding further decisions. Gonzales v. Dept of Homeland Sec.,
508 F.3d 1227, 1235 (9th Cir. 2007) (quoting Sakamoto v. Duty Free
Shoppers, Ltd., 764 F.2d 1285, 1288 (9th Cir.1985)); see also Guerrero v.
RJM Acquisitions LLC, 499 F.3d 926, 937 (9th Cir. 2007) (cases that do not
actually analyze the issue and cases that erroneously rely on those cases
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for their implicit assumptions do not bind future panels).
A determination that a defendant has a sufficient connection to
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enforcement of the challenged statute is essential to proper application of the
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Ex parte Young exception to Eleventh Amendment sovereign immunity.
Otherwise, the plaintiff is merely making [the defendant] a party as a

representative of the state, and thereby attempting to make the state a party.
Ex parte Young, 209 U.S. at 157. Because Strankman does not control here,
and because plaintiffs failed to allege facts establishing that the Chief Justice
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has a direct connection to enforcement of the VLS, sovereign immunity bars
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the claims against the Chief Justice.

III. PLAINTIFF CUNNINGHAMS CLAIMS ARE BARRED
As the district court correctly found, plaintiff Cunninghams claims in
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this litigation are precluded. Cunningham has waived this issue on appeal,
as the Opening Brief makes no mention of the dismissal of his claims. See
Cruz, 673 F.3d at 998 (argument not raised in opening brief is waived).
Even if Cunningham had preserved this issue, this Court should nevertheless
affirm the district courts dismissal. Cunningham has previously litigated
the constitutionality of the VLS as applied to family law litigants, and that
suit resulted in a final adverse judgment on the merits. His claims are barred
under principles of issue and claim preclusion.
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Claim preclusion forecloses successive litigation of the very same

claim, whether or not relitigation of the claim raises the same issues as the
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earlier suit. Taylor v. Sturgell, 553 U.S. 880, 892 (2008) (citation and
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internal quotation marks omitted). Issue preclusion bars successive

litigation of an issue of fact or law actually litigated and resolved in a valid
court determination essential to the prior judgment, even if the issue recurs
in the context of a different claim. Id. (citation and internal quotation
marks omitted). These doctrines preclud[e] parties from contesting matters
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that they have had a full and fair opportunity to litigate. Id. (citation and
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internal quotation marks omitted).
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In Cunningham v. Mahoney, C 10-03211 JSW (N.D. Cal. Dec. 7,
2010), the district court dismissed a suit in which Cunningham also
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challenged the application of the VLS to litigants in custody disputes,
arguing that the VLS violated his due process right to access the courts and
interfered with his ability to vindicate his custodial rights. SER at 9091.
Cunningham also challenged the VLS under the Takings Clause and as an
invalid ex post facto law, and also alleged that it was vague and overbroad.
The district court rejected each of those claims, dismissed the action, and
entered final judgment. SER at 9094, 97. This Court dismissed
Cunninghams appeal when he failed to perfect it. Cunningham v. Mahoney,
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10-17863, Dkt No. 4 (9th Cir. Mar. 10, 2011). Cunningham thus had a full
and fair opportunity to litigate, and did so unsuccessfully. Taylor, 553 U.S.
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at 892. The prior litigation precludes Cunningham from relitigating those
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same issues and claims here.

Claim preclusion also applies to any claims that were not actually, but
should have been, litigated in the prior suit. Claim preclusion precludes
relitigation of claims that were raised or should have been raised in earlier
litigation. San Remo Hotel, L.P. v. San Francisco City and County, 364
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F.3d 1088, 1094 (9th Cir. 2008) (citation omitted). This suit presents a
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common transactional nucleus of facts, and to the extent Cunningham
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brings claims in this suit that he did not raise in the prior suit, claim
preclusion also bars those claims. Adams v. California Dept of Health
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Services, 487 F.3d 684, 689 (9th Cir. 2007) (applying the transaction test
developed in the context of claim preclusion). Accordingly, the Court
should affirm the district courts dismissal of plaintiff Cunninghams claims.
IV. THE DISTRICT COURT PROPERLY DISMISSED PLAINTIFFS
EQUAL PROTECTION AND DUE PROCESS CLAIMS
This appeal raises as-applied constitutional challenges to the VLS,
based on due process and equal protection principles.3 Plaintiffs assert that
because the prefiling requirement of the VLS applies only to selfrepresented litigants, the VLS violates equal protection. Opening Brief at
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51. Plaintiffs also claim that the VLS invades parents rights of access to
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Plaintiffs allege that the VLS on its face and as applied infringes on
their fundamental custody rights. SER at 31, Complaint 1. This is the
only reference to a facial challenge. A facial challenge is a challenge to an
entire legislative enactment or provision, whereas an as-applied challenge
focuses on only one of the rules in a statute, a subset of the statutes
applications, or the application of the statute to a specific factual
circumstance. Hoye v. City of Oakland, 653 F.3d 835, 857 (9th Cir. 2011).
Plaintiffs raise as-applied challenges, because their objections to the VLS
relate specifically to family law custody proceedings. SER at 31,
Complaint 1; see also SER at 5679, Complaint 67, 77, 80, 81, 85, 91,
108, 113, 125, 135.
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court. Opening Brief at 4950. Because custody proceedings implicate
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fundamental custody rights, Opening Brief at 52, Plaintiffs contend that

the VLS constitutes an infringement of fundamental parental rights,
Opening Brief at 43.
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The district court correctly found that plaintiffs failed to state a claim
for these constitutional violations,4 based on the application of rational basis
review. This is the appropriate level of scrutiny, because self-represented
litigants are not a suspect class, and because prefiling requirements
applicable to civil litigation generally receive rational basis scrutiny. The
Supreme Court has applied heightened scrutiny to prefiling requirements in
only two very limited circumstances that are not present here. In any event,
the VLS survives both rational basis and heightened scrutiny.
Rational Basis Review Applies to Plaintiffs Equal
Protection and Due Process Claims.
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A.
Civil litigation prefiling requirements receive rational basis scrutiny,
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unless they contain a suspect classification, or unless they block access to

the courts for the purpose of filing for divorce or appealing the states
4
A claim under 42 U.S.C. 1983 requires allegations of two

essential elements: (1) that a right secured by the Constitution or laws of the
United States was violated, and (2) that the alleged violation was committed
by a person acting under the color of State law. Long v. Cnty. of Los
Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006).
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v. Connecticut, 401 U.S. 371 (1971). Rational basis is the appropriate

standard here because the VLS does none of these things.
Self-Represented Litigants Are Not a Suspect Class.
1.
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termination of parental rights. M.L.B. v. S.L.J., 519 U.S. 102 (1996); Boddie
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The VLS prefiling order applies to vexatious litigants seeking to file

new litigation in propria persona, i.e., as a self-represented litigant. Cal.
Code Civ. Proc. 391.7(a). Plaintiffs contend that the VLS thereby creates
suspect classifications based on the ability to obtain representation,
because parents who can afford or otherwise have representation are
shielded or immune from the VLS and have full and immediate access to
the courts. Opening Brief at 51.
Rational basis review applies to this equal protection challenge because
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in propria persona is not a suspect classification. The Supreme Court has

long held that a classification neither involving fundamental rights nor
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proceeding along suspect lines ... cannot run afoul of the Equal Protection
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Clause if there is a rational relationship between the disparity of treatment

and some legitimate governmental purpose. Armour v. City of
Indianapolis, Ind., 132 S. Ct. 2073, 2080 (2012) (quoting Heller v. Doe, 509
U.S. 312, 31920 (1993)). As this Court has previously found with respect
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scrutiny. Wolfe v. George, 486 F.3d 1120, 1126 (9th Cir. 2007).
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to the VLS, [f]requent pro se litigants are not a suspect class meriting strict
The in propria persona classification concerns a litigants legal
representation, and is not a classification focusing on a litigants financial
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condition. Even if it were, poverty is not a suspect classification. Harris v.

McRae, 448 U.S. 297, 323 (1980) (Supreme Court has held repeatedly that
poverty, standing alone, is not a suspect classification); see also Ortwein v.
Schwab, 410 U.S. 656, 660 (1973) (holding that because poverty is not a
suspect classification subject to heightened review, [t]he applicable
standard is that of rational justification) (citation omitted)).
Plaintiffs cite no authority for their contention that [i]n the context of
custody cases, unrepresented parents are a suspect class. Opening Brief at
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51. Nor do plaintiffs describe the in propria persona classification as one

involving fundamental rights. Rational basis review therefore applies to
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plaintiffs equal protection challenge.

2.
Plaintiffs fundamental rights claims do not warrant

heightened scrutiny.
Rational basis review also applies to plaintiffs challenge to the

application of the VLS in the context of custody proceedings. There is no
basis for applying heightened scrutiny here, because the VLS permits
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plaintiffs to access the courts, and does not prevent plaintiffs from filing for
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divorce or appealing the termination of parental rights.

Civil litigation prefiling requirements receive
rational basis scrutiny.
In the civil context, the general rule is that prefiling requirements
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ordinarily are examined only for rationality. M.L.B., 519 U.S. at 123
(citing Ortwein, 410 U.S. at 660). The Ninth Circuit has already held that
the VLSs prefiling requirement is subject to rational basis review. Wolfe v.
George, 486 F.3d at 1126 (we review the [VLS] for a rational basis).
And, the Supreme Court has applied rational basis review to uphold prefiling
requirements in a variety of contexts, including litigation regarding personal
bankruptcy, United States v. Kras, 409 U.S. 434 (1973), and welfare benefits,
Ortwein, 410 U.S. 656.
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Notably, the Ninth Circuit has applied rational basis review to another
statute designed to curb abuse of the judicial system. The decision in
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Rodriguez v. Cook involved a provision in the federal Prison Litigation

Reform Act that denies [in forma pauperis] status to prisoners who have
had three or more civil actions dismissed as frivolous, malicious, or because
the case fails to state a claim upon which relief can be granted, unless the
inmate is in danger of serious physical injury. 169 F.3d 1176, 1178 (9th
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Cir. 1999). The court recognized that without the ability to file in forma
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pauperis, some prisoners may be unable to prepay filing fees, and will
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thereby be unable to bring their actions immediately. However, non-
prisoners face similar concerns. Id. at 1180. The court noted that the
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statute does require prisoners to be fiscally responsible and make decisions

concerning the merits of their case, but that this does not infringe upon an
inmates meaningful access to the courts. Id. Because [this provision]
does not infringe upon prisoners fundamental rights and indigent prisoners
are not a suspect class, the three-strike rule need only satisfy a rational basis
test. Id.
Like the Prison Litigation Reform Act, the VLS still provides
meaningful access to the courts. Id. Vexatious litigants can file new
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litigation deemed to have merit, Cal. Code Civ. Proc. 391.7(a), and the
state is permitted to require litigants to make decisions concerning the
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merits of their case, either before or after being declared a vexatious litigant.
fundamental right, and rational basis is the appropriate level of scrutiny for
plaintiffs claims.
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Rodriguez, 169 F.3d at 1180. The VLS therefore does not infringe upon a
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Heightened scrutiny would apply only if a

prefiling requirement completely prevented
litigants from filing for divorce or appealing the
termination of parental rights.
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Plaintiffs contend that unlike regular civil cases, custody proceedings
involve parents fundamental rights, and that the VLS deprives parents of
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the opportunity to vindicate a fundamental right in court. Opening Brief at

40 (quoting Wolfe v. George, 486 F.3d at 1126). There is no dispute that
the Due Process Clause of the Fourteenth Amendment protects the
fundamental right of parents to make decisions concerning the care, custody,
and control of their children. Troxel v. Granville, 530 U.S. 57, 66 (2000).
Plaintiffs assume, however, that because custody disputes affect the exercise
of these fundamental rights, parents must have unlimited access to family
law courts so that they may repeatedly challenge adverse custody and
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visitation determinations. Under this theory, the state may never impose any
conditions on litigation involving custody disputes.
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This theory is incorrect. In the family law context, the Supreme Court
has applied heightened scrutiny to strike down prefiling requirements in only

two cases: Boddie v. Connecticut, 401 U.S. 371 (1971), and M.L.B. v. S.L.J.,
519 U.S. 102 (1996). In both cases, the Court expressly limited its analysis
to the specific facts before it. And in both cases, the litigants were
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completely unable to access the courts, in sharp contrast to the access
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permitted under the VLS. Because the VLS prefiling requirement does not
completely block access, these cases are inapposite here.
The appellants in Boddie challenged Connecticuts requirement for
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paying court fees and costs for service of process before filing a judicial
action seeking a divorce. Boddie, 401 U.S. at 372. Recognizing that a cost
requirement may offend due process because it operates to foreclose a
particular partys opportunity to be heard, id. at 380, the Court focused on
the appellants complete lack of access to the courts, due to their inability to
pay the required fees and costs. The Court applied a form of heightened
scrutiny in finding that the states interest in preventing frivolous litigation
or its attempt at resource allocation or cost recoupment were not adequate
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justifications for preventing appellants from filing for divorce. Id. at 382.
Finding that access to the courts in this situation is the exclusive
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precondition to the adjustment of a fundamental human relationship, the
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Court held that appellants must be permitted access regardless of ability to

pay. Id. at 383.
Boddie governs only where a fee requirement places the right of
access to the courts beyond reach, for the purpose of filing for divorce.
Id. at 382. The Court explicitly limited its holding to the precise
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circumstances faced by the appellants, and warned against a wider
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application of that holding: We do not decide that access for all individuals
to the courts is a right that is, in all circumstances, guaranteed by the Due
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placed beyond the reach of any individual . Id.
Process Clause of the Fourteenth Amendment so that its exercise may not be
Boddie described access to the courts as the exclusive precondition to

the adjustment of a fundamental relationship, in the context of persons
seeking to file judicial actions for divorce. Id. at 383. In M.L.B., the Court
considered the requirements for access to the courts when litigation concerns
a fundamental relationship, in the context of proceedings to terminate
parental rights. 519 U.S. 102 (1996). The M.L.B. Court applied heightened
scrutiny to a civil litigation prefiling requirement, but once again limited its
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holding to the specific circumstances of the case.
M.L.B. involved record preparation costs that Mississippi required civil
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litigants to pay as a condition of appeal. M.L.B. challenged this requirement
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in the context of her appeal of a decision terminating her parental rights,

because she could not afford to pay such costs. 519 U.S. at 10809.
The Supreme Court struck down the record preparation fee, relying
heavily on its earlier decision in Griffin v. Illinois, 351 U.S. 12 (1956). In

Griffin, the Court considered a prefiling requirement that effectively
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conditioned criminal appeals on the procurement of a trial transcript.
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M.L.B., 519 U.S. at 110. Finding that defendants without means to pay for
a transcript had no access to appellate review at all, Griffin had struck down
the transcript requirement. Id. As noted in M.L.B., the Court extended
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Griffin in Mayer v. Chicago, 404 U.S. 189 (1971), applying the rule to
appeals of convictions in which defendants do not face incarceration, and
holding that access to judicial processes in cases criminal or quasi criminal
in nature cannot turn on ability to pay. M.L.B., 519 U.S. at 124 (quoting
Mayer, 404 U.S. at 196). The M.L.B. Court explained that its decisions
concerning access to judicial processes, commencing with Griffin and
running through Mayer, reflect both equal protection and due process
concerns, particularly because due process does not, standing alone,
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provide a right to an appeal. 519 U.S. at 104.
In striking down the record preparation fee, the M.L.B. Court found that
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parental status terminations are irretrievabl[y] destructi[ve] of the most
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fundamental family relationship. Id. at 104. The Court placed decrees

forever terminating parental rights in the category of cases in which the State
may not bolt the door to equal justice. Id. at 124 (quoting Griffin, 351
U.S. at 24). Rejecting the countervailing government interest presented by
the statethe States legitimate interest in offsetting the costs of its court
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systemthe Court departed from the general rule that fee requirements
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ordinarily are examined only for rationality. Id. at 123. The Court thereby
align[ed] M.L.B.s case and Mayerparental status termination decrees
and criminal convictions that carry no jail timefor appeal access
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purposes. Id. at 123.
In doing so, the Court explicitly distinguished parental termination

proceedings from ordinary domestic relations matters: what sets parental
status termination decrees apart from mine run civil actions, even from other
domestic relations matters such as divorce, paternity, and child custody, is
that termination decrees create a unique kind of deprivation. Id. at 127
(citations and internal quotation marks omitted). The Court described the
termination of parental rights as among the most severe forms of state
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action, id. at 128, placing it in the same category as cases that are quasi
criminal in nature, id. at 124 (citation and internal quotation marks omitted).
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The decision in M.L.B. therefore establishes that when considering
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equal protection and due process requirements with respect to the

adjustment of a fundamental relationship, Boddie, 401 U.S. at 382, parental
status terminations are in a separate category from other domestic relations

matters such as child custody, M.L.B., 519 U.S. at 127. The heightened
scrutiny applied in M.L.B. is limited to prefiling requirements that
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completely prevent appeals of parental status terminations, and does not
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extend to the context of child custody disputes.
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Heightened scrutiny does not apply to plaintiffs

claims.
Unlike the fee requirements in Boddie and M.L.B., the VLSs prefiling
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requirement allows vexatious litigants to access the courts. Under the VLS,
a vexatious litigant may file potentially meritorious claims not intended
solely to harass or delay, so the courthouse doors are not closed to him.5
Wolfe v. George, 486 F.3d at 1125. [W]hile imposing limits on a vexatious
litigants future filings, [the VLS prefiling requirement] provides a workable
means by which a vexatious litigant may proceed with litigation. In re
R.H., 170 Cal. App. 4th 678, 691 (2009) (citing Forrest v. Dept of
Corporations, 150 Cal. App. 4th 183, 195 (2007)). See also Wolfgram, 53
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Cal. App. 4th at 60 (When a vexatious litigant knocks on the courthouse

5
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Under the VLS, any new filing seeking an order under the Family
Code constitutes new litigation subject to a prefiling order. Cal. Code Civ.
Proc. 391.7(d). A new filing seeking modification of a final judicial
determination of custody potentially has merit if there is a significant
change of circumstances indicating that a different custody arrangement
would be in the childs best interest. In re Marriage of Brown & Yana, 37
Cal. 4th 947, 956 (2006). Otherwise, requests for modifications of non-final
custody orders or of parenting or visitation schedules within a final custody
arrangement potentially have merit if they meet the best interests of the
child standard. In re Marriage of Lucio, 161 Cal. App. 4th 1068, 107680
(2008).
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door with a colorable claim, he may enter.). The prefiling requirement
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does not deny the vexatious litigant access to the courts, but operates solely
to preclude the initiation of meritless lawsuits and their attendant
expenditures of time and costs. Bravo v. Ismaj, 99 Cal. App. 4th 211, 221
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22 (2002) (citation omitted). This is in sharp contrast to the fee
requirements of Boddie and M.L.B., which prevented litigants from

accessing the court at all. The rational basis standard that normally applies
to civil litigation prefiling requirements should thus apply here.
Despite plaintiffs insistence that child custody matters are
constitutionally distinct from ordinary civil litigation, Boddie and M.L.B. do
not support the application of heightened scrutiny here. Not only did those
cases involve fee requirements that blocked all access to the courts, but in
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the family law context, M.L.B. authorizes strictly limited application of

heightened scrutiny.
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The M.L.B. decision was based on the unique nature of parental status
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terminations, and its holding was explicitly limited to appeals of those

determinations. The Court observed that [i]n contrast to matters modifiable
at the parties will or based on changed circumstances, such as awards of
child custody, termination adjudications involve the awesome authority of
the State to destroy permanently all legal recognition of the parental
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relationship. Id. at 12728 (citation and internal quotation marks omitted;
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emphasis added). In response to the dissents fears that the decision would
open floodgates to application of Griffin to all non-criminal cases, the
M.L.B. majority cited the limited authority of previous cases involving
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parental status terminations: Our Lassiter and Santosky decisions,
recognizing that parental termination decrees are among the most severe
forms of state action have not served as precedent in other areas. Id. at
128 (citations omitted). By grouping parental status terminations with
quasi-criminal actions and setting them apart from other domestic
relations matters, the M.L.B. decision recognized that these other domestic
relations matters do not warrant heightened scrutiny. Id. at 127.
This Court should draw the same conclusion and find that application
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of the VLS to custody disputes does not require heightened scrutiny. M.L.B.
applies only in the context of appeals of parental status terminations. As the
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district court noted, counsel for plaintiffs confirmed at the motion to
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dismiss hearing that none of the Plaintiffs has had their parental rights fully,
finally, and irrevocably terminated. ER-6 at 57. See also SER at 2122.
In addition, the VLS has no possible application to any appeals of
parental status terminations, because a court may not require a person who
has been determined to be a vexatious litigant in prior litigation to seek leave
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of the court before he may file an appeal in a case in which he is the
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Parents whose rights have been terminated in a termination proceeding have
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no basis for applying heighted scrutiny to plaintiffs claims.
a direct right of appeal, regardless of any VLS prefiling order. There is thus
The VLS Satisfies Rational Basis Review.
This Court has already found that the VLS prefiling requirement is
rationally related to a legitimate state purpose. Wolfe v. George, 486 F.3d
at 1126 (citation and internal quotation marks omitted). In George, the court
determined that vexatious litigants tie up a great deal of a courts time,
denying that time to litigants with substantial cases, and that the state has
an interest in protecting defendants from harassment by frivolous
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litigation .6 Id. The VLS does little more than require sua sponte
review of a vexatious litigants complaint to see whether it states a claim
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before imposing the burden of litigation on a defendant. The defendant
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could move to dismiss for the same reason, so the statute is not a substantial
See also Taylor v. Delatoore, 281 F.3d 844, 84950 (9th Cir. 2002)
(finding that Prison Litigation Reform Acts goal of deterring meritless
prisoner filings in the federal courts is one of the governments legitimate
interests, and holding that filing fee provisions survive rational basis
scrutiny (citation and internal quotation marks omitted)).
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can rationally distinguish litigants who sue and lose often, sue the same
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or irrational bar to access. Id. at 112627. The court found that [a] state
people for the same thing after they have lost, and so on, from other
litigants. Id. at 1127. The reasoning of Wolfe v. George applies to
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plaintiffs claims as well.
The VLSs distinction between represented and self-represented

litigants also survives rational basis review. It is rational to conclude that
prefiling requirements are appropriate for self-represented litigants, since
such litigants are not subject to oversight by the State Bar and are not
governed by the ethical and legal obligations of licensed attorneys. As
explained in a ruling on another challenge to the VLS (brought by one of the
plaintiffs here),7 there is clearly a rational reason for the difference in
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treatment: Attorneys for represented litigants are less likely to bring

frivolous actions because they are officers of the court and are subject to the
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sanction of disbarment if they engage in vexatious conduct. Hiramanek v.
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Clark, C-13-0228 EMC, 2013 WL 3803613, at *3 (N.D. Cal. July 19, 2013)
Once the action brought by plaintiff Adil K. Hiramenek results in a

final adverse judgment on the merits, issue and claim preclusion will bar his
claims in this action.
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(footnote omitted). The application of the VLS to self-represented litigants
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thus has a rational basis.

Even Under Heightened Scrutiny, the VLS Is Narrowly
Tailored to Meet a Compelling Governmental Interest.
Even if this Court were to determine that heightened scrutiny applies
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here, the VLS would survive such scrutiny. As California courts have
consistently found, the VLS is narrowly tailored. The VLS allow[s]
vexatious litigants to keep filing lawsuits, and is narrowly drawn so that
vexatious litigants simply must comply with reasonable limitations, such as
obtaining a prefiling order. Kobayashi v. Superior Court, 175 Cal. App.
4th 536, 541 (2009); see also Luckett v. Panos, 161 Cal. App. 4th 77, 80
(2008) (Being narrowly drawn, Californias vexatious litigant statutes allow
a vexatious litigant to continue to file lawsuits.). The VLS is akin to
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licensing or permit systems which are administered pursuant to narrowly
drawn, reasonable and definite standards which represent governments only
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practical means of managing competing uses of public facilities. Wolfgram,

53 Cal. App. 4th at 60 (citation and internal quotation marks omitted).
The VLS also serves a compelling government interest. The VLS
exists not only to help defendants but to curb misuse of the court system,
unreasonably burdened by obsessive litigants pursuing groundless
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interest in the unhindered and untrammeled functioning of our courts,
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litigation. In re R.H., 170 Cal. App. 4th at 703. The state has a compelling
which is part of the very foundation of our constitutional democracy. Cox
v. State of Louisiana, 379 U.S. 559, 562 (1965) (Since we are committed to
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a government of laws and not of men, it is of the utmost importance that the
administration of justice be absolutely fair and orderly.) As the district
court in Wolfe v. George found, the VLS is constitutional because it is
narrowly tailored to further the compelling interest in having a legal system
that is not needlessly disrupted by baseless and frivolous litigation. Wolfe v.
George, 385 F. Supp. 2d 1004, 1013 (N.D. Cal. 2005), affd, 486 F.3d 1120
(9th Cir. 2007). For the same reasons, this Court should find that the VLS
survives heightened scrutiny here.
PLAINTIFFS HAVE WAIVED THEIR REMAINING CLAIMS, WHICH

NONETHELESS FAIL
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V.
Plaintiffs have abandoned their remaining claims by failing to present
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substantive arguments on these claims in their opening brief. In addition to

the due process and equal protection claims, the Complaint asserts First
Amendment right to petition, ex post facto, bill of attainder, and privileges
and immunities claims, as well as other due process claims (for violation of
procedural rights, and for vagueness and overbreadth). Out of these claims,
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the opening brief mentions only the privileges and immunities, First
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Amendment, and procedural due process claims, and only in the section
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entitled Statement of Issues Presented For Review. Opening Brief at 8-10.
The Ninth Circuit deems issues unsupported by argument to be
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abandoned. U.S. ex rel. Meyer v. Horizon Health Corp., 565 F.3d 1195,
1201 (9th Cir. 2009); see also Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir.
1994) (We review only issues which are argued specifically and distinctly
in a partys opening brief. We will not manufacture arguments for an
appellant, and a bare assertion does not preserve a claim . (citations
omitted)). Nor can plaintiffs revive these claims in their reply brief, as the
Court deem[s] an argument waived if it is raised for the first time only in a
reply brief. Quan v. Computer Sciences Corp., 623 F.3d 870, 878 n.4 (9th
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Cir. 2010).
Even if plaintiffs had preserved their other claims, this Court has
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already rejected the same claims in Wolfe v. George, holding that:
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baseless litigation is not immunized by the First Amendment (486

F.3d at 1125);
the VLS gives fair notice to those who might violate the statute and
therefore is not unconstitutionally vague (id. (citation and internal
quotation marks omitted));
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the VLS is not overbroad, because there is no constitutional right to
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file frivolous litigation (id.); and
the VLS does not constitute a bill of attainder or an ex post facto law
(id. at 1127).
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Plaintiffs remaining claims would therefore still fail, even if plaintiffs had
properly preserved them.
CONCLUSION
For the foregoing reasons, defendants, the Chief Justice of California

and the Administrative Director of the Courts, respectfully request that this
Court affirm the district court.
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Dated: March 5, 2014
Respectfully submitted,
KAMALA D. HARRIS
DOUGLAS J. WOODS
TAMAR PACHTER
/s/ P. Patty Li
P. PATTY LI
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STATEMENT OF RELATED CASES
To the best of our knowledge, there are no related cases.
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Dated: March 5, 2014
Respectfully Submitted,
KAMALA D. HARRIS
DOUGLAS J. WOODS
TAMAR PACHTER
/s/ P. Patty Li
P. PATTY LI
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ADDENDUM TO ANSWERING BRIEF OF DEFENDANTSAPPELLEES

TABLE OF CONTENTS
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California Civil Procedure Code

391 ................................................................................................. A1
391.7 .............................................................................................. A3
391.8 .............................................................................................. A5
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West's Annotated California Codes

Code of Civil Procedure (Refs & Annos)
Part 2. Of Civil Actions (Refs & Annos)
Title 3A. Vexatious Litigants (Refs & Annos)
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West's Ann.Cal.C.C.P. 391

391. Definitions
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As used in this title, the following terms have the following meanings:
Currentness
(a) Litigation means any civil action or proceeding, commenced, maintained or pending in any state or federal court.
(b) Vexatious litigant means a person who does any of the following:
(1) In the immediately preceding seven-year period has commenced, prosecuted, or maintained in propria persona at least five
litigations other than in a small claims court that have been (i) finally determined adversely to the person or (ii) unjustifiably
permitted to remain pending at least two years without having been brought to trial or hearing.
(2) After a litigation has been finally determined against the person, repeatedly relitigates or attempts to relitigate, in propria
persona, either (i) the validity of the determination against the same defendant or defendants as to whom the litigation was
finally determined or (ii) the cause of action, claim, controversy, or any of the issues of fact or law, determined or concluded
by the final determination against the same defendant or defendants as to whom the litigation was finally determined.
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(3) In any litigation while acting in propria persona, repeatedly files unmeritorious motions, pleadings, or other papers, conducts
unnecessary discovery, or engages in other tactics that are frivolous or solely intended to cause unnecessary delay.
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(4) Has previously been declared to be a vexatious litigant by any state or federal court of record in any action or proceeding
based upon the same or substantially similar facts, transaction, or occurrence.
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(c) Security means an undertaking to assure payment, to the party for whose benefit the undertaking is required to be furnished,
of the party's reasonable expenses, including attorney's fees and not limited to taxable costs, incurred in or in connection with
a litigation instituted, caused to be instituted, or maintained or caused to be maintained by a vexatious litigant.
(d) Plaintiff means the person who commences, institutes or maintains a litigation or causes it to be commenced, instituted
or maintained, including an attorney at law acting in propria persona.
(e) Defendant means a person (including corporation, association, partnership and firm or governmental entity) against whom
a litigation is brought or maintained or sought to be brought or maintained.
A1
2014 Thomson Reuters. No claim to original U.S. Government Works.
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Credits
(Added by Stats.1963, c. 1471, p. 3088, 1. Amended by Stats.1982, c. 517, p. 2335, 98; Stats.1990, c. 621 (S.B.2675),
1; Stats.1994, c. 587 (A.B.3600), 3.5.)
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Editors' Notes
LAW REVISION COMMISSION COMMENTS
1982 Amendment
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Section 391 is amended to delete a provision duplicated in the Bond and Undertaking Law. See Section 995.710 (deposit in
lieu of undertaking). The other changes in Section 391 are technical. [16 Cal.L.Rev.Comm. Reports 501 (1982)].
Notes of Decisions (158)
West's Ann. Cal. C.C.P. 391, CA CIV PRO 391

Current with urgency legislation through Ch. 1 of 2014 Reg.Sess. and all propositions on the 6/3/2014 ballot.
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End of Document
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391.7.
Prefiling
order prohibiting
the filing of new litigation;...,
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West's Ann.Cal.C.C.P. 391.7
Effective: January 1, 2012

Currentness
391.7. Prefiling order prohibiting the filing of new litigation; contempt; conditions
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(a) In addition to any other relief provided in this title, the court may, on its own motion or the motion of any party, enter a
prefiling order which prohibits a vexatious litigant from filing any new litigation in the courts of this state in propria persona
without first obtaining leave of the presiding justice or presiding judge of the court where the litigation is proposed to be filed.
Disobedience of the order by a vexatious litigant may be punished as a contempt of court.
(b) The presiding justice or presiding judge shall permit the filing of that litigation only if it appears that the litigation has merit
and has not been filed for the purposes of harassment or delay. The presiding justice or presiding judge may condition the filing
of the litigation upon the furnishing of security for the benefit of the defendants as provided in Section 391.3.
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(c) The clerk may not file any litigation presented by a vexatious litigant subject to a prefiling order unless the vexatious litigant
first obtains an order from the presiding justice or presiding judge permitting the filing. If the clerk mistakenly files the litigation
without the order, any party may file with the clerk and serve, or the presiding justice or presiding judge may direct the clerk to
file and serve, on the plaintiff and other parties a notice stating that the plaintiff is a vexatious litigant subject to a prefiling order
as set forth in subdivision (a). The filing of the notice shall automatically stay the litigation. The litigation shall be automatically
dismissed unless the plaintiff within 10 days of the filing of that notice obtains an order from the presiding justice or presiding
judge permitting the filing of the litigation as set forth in subdivision (b). If the presiding justice or presiding judge issues an
order permitting the filing, the stay of the litigation shall remain in effect, and the defendants need not plead, until 10 days after
the defendants are served with a copy of the order.
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(d) For purposes of this section, litigation includes any petition, application, or motion other than a discovery motion, in a
proceeding under the Family Code or Probate Code, for any order.
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(e) The presiding justice or presiding judge of a court may designate a justice or judge of the same court to act on his or her
behalf in exercising the authority and responsibilities provided under subdivisions (a) to (c), inclusive.
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(f) The clerk of the court shall provide the Judicial Council a copy of any prefiling orders issued pursuant to subdivision (a). The
Judicial Council shall maintain a record of vexatious litigants subject to those prefiling orders and shall annually disseminate
a list of those persons to the clerks of the courts of this state.
Credits
(Added by Stats.1990, c. 621 (S.B.2675), 3. Amended by Stats.2002, c. 1118 (A.B.1938), 1; Stats.2011, c. 49 (S.B.731), 1.)
A3
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Editors' Notes
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OFFICIAL FORMS
2004 Main Volume
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<Mandatory and optional Forms adopted and approved by the Judicial Council are set out in West's California Judicial
Council Forms Pamphlet.>
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West's Ann. Cal. C.C.P. 391.7, CA CIV PRO 391.7

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West's Ann.Cal.C.C.P. 391.8
Effective: January 1, 2012

Currentness
391.8. Filing application to vacate prefiling order and remove name from Judicial Councils list
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(a) A vexatious litigant subject to a prefiling order under Section 391.7 may file an application to vacate the prefiling order and
remove his or her name from the Judicial Council's list of vexatious litigants subject to prefiling orders. The application shall be
filed in the court that entered the prefiling order, either in the action in which the prefiling order was entered or in conjunction
with a request to the presiding justice or presiding judge to file new litigation under Section 391.7. The application shall be
made before the justice or judge who entered the order, if that justice or judge is available. If that justice or judge who entered
the order is not available, the application shall be made before the presiding justice or presiding judge, or his or her designee.
(b) A vexatious litigant whose application under subdivision (a) was denied shall not be permitted to file another application
on or before 12 months has elapsed after the date of the denial of the previous application.
(c) A court may vacate a prefiling order and order removal of a vexatious litigant's name from the Judicial Council's list of
vexatious litigants subject to prefiling orders upon a showing of a material change in the facts upon which the order was granted
and that the ends of justice would be served by vacating the order.
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Credits
(Added by Stats.2011, c. 49 (S.B.731), 2.)
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Editors' Notes
OFFICIAL FORMS
2014 Electronic Update
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<Mandatory and optional Forms adopted and approved by the Judicial Council are set out in West's California Judicial
Council Forms Pamphlet.>

West's Ann. Cal. C.C.P. 391.8, CA CIV PRO 391.8
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CERTIFICATE OF COMPLIANCE
PURSUANT TO FED.R.APP.P 32(a)(7)(C) AND CIRCUIT RULE 32-1
FOR 13-17170
1. Pursuant to Fed.R.App.P. 32(a)(7)(C) and Ninth Circuit Rule 32-1, the attached
opening/answering/reply/cross-appeal brief is
Proportionately spaced, has a typeface of 14 points or more and contains 7,849 words (opening,
answering and the second and third briefs filed in cross-appeals must not exceed 14,000 words;
reply briefs must not exceed 7,000 words
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I certify that: (check (x) appropriate option(s))
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or is
Monospaced, has 10.5 or fewer characters per inch and contains ____ words or ___ lines of
text (opening, answering, and the second and third briefs filed in cross-appeals must not exceed
14,000 words or 1,300 lines of text; reply briefs must not exceed 7,000 words or 650 lines of
text).
March 5, 2014
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Dated
/s/ P. Patty Li
P. Patty Li
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Case Name:
Pierce v. Cantil-Sakauye
No.
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CERTIFICATE OF SERVICE
13-17170
ANSWERING BRIEF OF DEFENDANTS-APPELLEES
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I hereby certify that on March 5, 2014, I electronically filed the following documents with the
Clerk of the Court by using the CM/ECF system:
I certify that all participants in the case are registered CM/ECF users and that service will be
accomplished by the CM/ECF system.
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I declare under penalty of perjury under the laws of the State of California the foregoing is true
and correct and that this declaration was executed on March 5, 2014, at San Francisco,
California.
P. Patty Li
Declarant
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SA2013113465
40862380.doc
/s/ P. Patty Li
Signature
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v.

On Appeal from the United States District Court

for the Northern District of California
No. C 13-01295 JSW
The Honorable Jeffrey S. White, Judge
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SUPPLEMENTAL EXCERPTS OF RECORD

KAMALA D. HARRIS
DOUGLAS J. WOODS
TAMAR PACHTER
P. PATTY LI
State Bar No. 266937
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
Telephone: (415) 703-1577
Fax: (415) 703-1234
Email: Patty.Li@doj.ca.gov
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INDEX
District Court
Dkt No.
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Transcript of Proceedings, Hearing on Motion to Dismiss

and Motion for Preliminary Injunction (July 26, 2013) .............. SER 1
Complaint for Injunctive and Declaratory Relief Under 42

U.S.C. 1983; Attorney Fees Under 42 U.S.C. 1988
(Mar. 22, 2013) .......................................................................... SER 28
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12-1 Order Granting Motion to Dismiss, Cunningham v.

Mahoney, C 10-03211 JSW (N.D. Cal. Dec. 7, 2010)
(Exhibit D to Judicial Defendants Request for
Judicial Notice in Support of Motion to Dismiss;
Declaration of Daniel J. Powell) .................................... SER 84
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12-1 Judgment, Cunningham v. Mahoney, C 10-03211 JSW (N.D.

Cal. Dec. 7, 2010)
(Exhibit E to Judicial Defendants Request for
Judicial Notice in Support of Motion to Dismiss;
Declaration of Daniel J. Powell) .................................... SER 96
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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA
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Before The Honorable Jeffrey S. White, Judge
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RONALD PIERCE, KERRY HICKS,

)
ANDREW KARRES, MICHELE FOTINOS,)
ADIL HIRAMANEK, LISA
)
HUNT-NOCERA, NICOLE ANN RAY,
)
ARCHIBALD CUNNINGHAM, RICHARD )
RIFKIN, et al.,
)
)
Plaintiffs,
)
) NO. C 13-01295 JSW
vs.
)
)
)
CANTIL-SAKAUYE, Chair of
)
Judicial Council, and MR.
)
STEVEN JAHR, the Administrative)
Director of the Administrative )
Office of the Courts,
)
) San Francisco, California
Defendants, and
)
Does 1 THROUGH 10.
)
)
Friday, July 26, 2013
TRANSCRIPT OF PROCEEDINGS
APPEARANCES:
For Plaintiffs:
BY:
Office of the Attorney General

State of California
1300 I Street, Suite 11000
Sacramento, California 94244-2550
(916) 322-1067
(916) 324-8835 (fax)
KARI LYNN KROGSENG
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BY:
Archibald Robert Cunningham

Attornew at Law
1489 McAllister Lane
San Francisco, CA 94115
(415) 563-1828
ARCHIBALD ROBERT CUNNINGHAM
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For Defendants:
Reported By:
Lydia Zinn, CSR No. 9223, Official Reporter
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THE COURT:
Good morning, everybody.
Please be
THE CLERK:
Calling Case Number C. 13-1295,
seated.
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03/05/2014
Ronald Pierce, et al., versus Chief Justice Cantil Sakauye, et
al.
appearances.
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Good morning, Your Honor,
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MS. KROGSENG:
Parties, please step forward to the podiums and state your
Kari Krogseng, on behalf of defendants.
THE COURT:
10
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MR. CUNNINGHAM:
THE COURT:
All right.
Good morning.
So we're here on the motion to dismiss.
It's
14
the only thing on the docket this morning, and that is the only
15
thing I'm going to hear argument about this morning.
16
respect to that, the Court has certain issues that it wanted to
17
discuss with the parties, and questions that it had.
18
wanted to advise the parties that this is not an opportunity,
19
unless the Court specifically asks you to do so on a specific
And with
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And I
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issue, to reargue what's in your papers.
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questions that the Court has after reading your papers, and
22
needing this information in order to continue with the hearing.
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Archibald Cunningham, on behalf of
the plaintiffs.
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Good afternoon.
These are just
23
Just a moment, please.
24
And the only other issue that is obviously related to this
25
is the request for a motion for a preliminary injunction.
And
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the same rules will apply with respect to that, and the same
issues.
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So with some of these questions, I will give you a sort of

my thinking -- my current thinking, or preamble -- so you'll
understand the context of the question.
question to both sides.
particular party, then ask the other party to respond.
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And then I'll ask the
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And usually I'll begin with one
So the defendants argue that this case is barred by the

Eleventh Amendment.
In Wolfe versus Strankman, the plaintiff
10
brought claims under Section 1983, and asserted that the VLS
11
was unconstitutional.
12
a Ninth Circuit case decided in 2004.
13
expressly stated that the plaintiff's "claims against
14
Chief Justice George, Justice Strankman, and Ms. Silver fall
15
within the Ex Parte Young exception to sovereign immunity, and
16
are properly brought under Section 1983."
17
case at page 364.
In that case, the Court
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And that's the same
And see also Wolfe versus George, 486 Fed. 3d. 1120, at
1123 through 1124; a Ninth Circuit case decided in 2007, noting
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That's
18
That's at 39 Fed. 3d. 358, 361.
that the Court concluded in Strankman that, "Despite the
21
Eleventh Amendment," the plaintiff could seek declaratory and
22
injunctive relief against former Chief Justice George and the
23
California official who administered vexatious-litigant
24
statutes in their official capacities.
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So at least as to Chief Justice Cantil Sakauye --
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I probably mispronounced that.

MS. KROGSENG:
THE COURT:
Pretty close.
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Pretty close?
-- what is the defendants' best argument that this Court is
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not bound by the Decision in Strankman, especially in light of
the Ninth Circuit statement in George?
Well, the best argument is that the
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MS. KROGSENG:
Strankman case did not consider the ex parte language with
respect to there needing to be some sort of connection with
10
enforcement of the statute under issue.
11
know, Ninth Circuit made that ruling, but I don't think it
12
necessarily comprehensively considered the requirements under
13
an ex parte act to apply this exception.
14
I appreciate that, you
One, there needs to be a connection with enforcement of the

And the Los Angeles County Bar Association Ninth Circuit
act.
16
case expanded on that, and said that it needs to be more than
17
just a generalized duty to enforce State law, or supervisory
18
power over the persons responsible for enforcing the provision.
19
And here, just to explain what the Judicial Council and the
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AOC's role is with respect to the Vexatious Litigant Statute,
21
they don't have any supervisory role over individual Judges
22
making decisions, applying the law in cases.
23
they can dictate to these Judges how to apply the law.
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So there's no way
What they're doing with respect to the Vexatious Litigant

Statute is, one, performing sort of a ministerial duty with
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respect to gathering all the litigants, and putting them on a
list, and then distributing it; but there's no enforcement
mechanism by which they enforce application of the law against
any of these people who have been deemed vexatious by an
individual Judge.
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The only other thing they do is they -- they may provide
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forums in order to facilitate efficient, you know, judicial
expenditures of resources.
forms with respect to the Vexatious Litigant Statute.
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And they have provided optional
So those are the only two roles they have in this statutory
11
scheme.
12
Ex Parte Young that they do have some sort of enforcement
13
connection to the statute that's being challenged.
14
15
THE COURT:
All right.
Mr. Cunningham, anything you
wish to say in response?
16
MR. CUNNINGHAM:
Yes, I do.
You know, first of all, you know, Ex Parte Young was an
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And neither of those fall under the requirement under
exception to the Eleventh Amendment, as everybody knows.
19
created the legal fiction that allowed for the
It
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U.S. Constitution to remain supreme; the supremacy of the
21
U.S. Constitution.
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As far as Ex Parte Young goes, there is language in
23
there -- that's an 1807 case, or something -- saying there
24
needs to be some connection with enforcement; but I think what
25
the defendants are arguing and saying is that that connection
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has to be such that somebody has to have an active role in
enforcing something.
So the problem with that is:
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It's kind of an expansive
reading and understanding of ex parte.
essentially swallow up any -- any Ex Parte Young exception to
the Eleventh Amendment.
could enact facially constitutional statutes, and the
defendants could come in and say, "Well, there's no enforcement
to that sort of situation."
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I mean, that would
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It would essentially mean that states
I'm sorry.
I don't -- I'm going to mispronounce your name,
11
so I'll just say:
12
L.A. County Bar as an example of that enforcement provision, or
13
to kind of expound upon that; but that case actually ruled that
14
the statute was -- could be challenged.
15
the State Bar had objected to the fact that Governor Wilson and
16
the Secretary of State, Margaret Fong Eu [sic], had not given
17
names for Judges to be appointed, and that there was vacancies,
18
and that a lot of cases were going undecided because judicial
19
positions weren't being filled.
The attorney for the defendants quote to
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And the State Court ruled in that situation that there
21
didn't need to be a role in enforcement.
22
the Secretary of State, March Eu, didn't have any connection.
23
And they said that the real issue was whether there was a
24
special connection.
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It was a statute where
25
Governor Wilson and
They went on to say that that statute was being enforced.
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They also stated -- and I quote -- "It is not simply the
type of statute that gives rise to enforcement proceedings."
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I mean, if you were to think about that, and if you were to

adopt the arguments of the attorney for defendant, it would
essentially gut significant cases; for example, Boddie versus
Connecticut; a state law that said there had to be filing fees.
Who's going to enforce that?
You can't file for divorce?
that situation, Boddie versus Connecticut would have never
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The Clerk of the County Court?

You don't have any filing fee?
In
10
happened, because the Clerk can hardly be said to be enforcing
11
something.
12
So in that sense, I think the argument that the attorney's
13
making regarding the enforcement is really in -- kind of an
14
overreaching and overly broad interpretation of Ex Parte Young.
15
16
THE COURT:
All right.
Thank you.
Anything further you want to say briefly on this?
17
A couple of things.
So just
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MS. KROGSENG:
mechanically, it is difficult to see how a decision in this
19
matter against defendants is going to effect any relief.
And
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that's sort of demonstrated by plaintiffs' motion for
21
preliminary injunction, where they're requesting basically that
22
Judges refrain from taking certain actions, or that they --
23
Judges do certain things.
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So basically at the end of the day, I think plaintiff would

admit that the reason why these two defendants were named is
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because plaintiff is aware that any of the Judges who are
actually taking these challenged actions are immune under
judicial immunity.
implicated, and is in some of the Complaint's allegations.
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Then Rooker-Feldman would also be
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But merely because this is the only way he can get around
judicial immunity in the Federal Court system does not mean
that the State's interpretation of Ex Parte Young is erroneous.
It just means that these constitutional issues where a Judge is
applying a vexatious-litigant law need to be brought, perhaps,
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in State Court under a variety of mechanisms.
11
outlet.
12
jurisdiction.
13
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15
It just isn't here.
THE COURT:
And the Court just doesn't have
All right.
We're going to get to the
Rooker-Feldman issue a little later on.
I have a question for plaintiffs' counsel now.
Continuing
with the Eleventh Amendment argument, the defendants correctly
17
note that, under Ex Parte Young, a State officer sued in his or
18
her official capacity "must have some connection with the
19
enforcement of the act, or else it is merely making him [or
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20
her] a party as a representative of the State, and thereby
21
attempting to make the State a party."
22
Parte Young, 209 United States, at 157.
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There is an
23
And I'm quoting from Ex
So what is the plaintiffs' argument that Mr. Jahr has the
24
requisite connection to the enforcement of the Vexatious
25
Litigant Statute?
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Well, first of all, this kind of
dovetails with the first question that you asked.
position on that -- and I think in the Wilbur case that was
cited by the attorney for the defendants, they said the simple
question of a civil rights 1983 motion was whether there is an
ongoing federal violation, and whether the party asks for
prospective injunctive relief.
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And my
And in our Complaint, we've asked for both of those things.
We allege facts showing ongoing federal violations of
10
fundamental custody rights, and we ask for prospective
11
injunctive relief that the State Court Judges be enjoined from
12
enforcing the Vexatious Litigant Statute against parties;
13
primarily the prefiling order.
14
Specifically with respect to your question about
15
Steve Jahr, his role isn't insignificant.
16
Commission on Judicial Performance.
17
policies and guidelines to enforce and ensure that State
18
statutes are kept up to constitutional muster.
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Superior Court -- that's 41 Cal. 4th 1337.
21
2007 -- referred this issue of access in family-law matters to
22
the Judicial Council.
23
Judicial Council to set up -- and I think his words were
24
"special procedures should be taken for self-represented
25
litigants."
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As such, he creates
For instance, Chief Justice George, in Elkins versus
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He's head of the
It was decided in
He actually instructed the
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So in that sense, Steve Jahr, being the Administrator of

the Judicial Council, is required to set up certain policies.
He was specifically instructed in the Elkins Task Force to
issue a form.
not sure about that section.
Code -- where he is supposed to issue Judicial Council forms.
The Elkins Task Force asked him to set up a form specifically
addressing the issue of self-represented litigants applying for
need-based fees.
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And this is under Government Code Section -- I'm
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I think it's 56, 187, Government
The significance of that is the Vexatious Litigant Statute
11
applies to litigants acting in propria persona;
12
self-represented litigants.
13
certainly, under the ruling of Shalant versus Girardi, a
14
representation is not absurd.
15
And in that case, the Court said representation isn't absurd.
16
So the point being with these forms:
17
issue forms allowing self-represented parents to apply for
18
need-based fees to get an attorney, and to shield themselves
19
from being targets of the Vexatious Litigant Statute.
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Steve Jahr has yet to
Parents who can afford attorneys have immediate access.
21
They're not restricted by prefiling orders.
22
restricted by the Vexatious Litigant Statute.
23
turn around and sue the self-represented litigant, under 391.1,
24
and say, "He's a vexatious litigant, because in this custody
25
dispute, he's repeatedly relitigated custody."
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And that's 51 Cal. 4th 1164.
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Now, if they could be represented,
They're not
And they can
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And anybody knows who's ever been in a custody dispute that
these things can drag on for years.
notoriously bitter.
presumably, the party with money, who can hire an attorney -- a
litigation weapon.
just used to eliminate vexatious litigation, but it becomes a
strategy by the represented parent to muzzle, gag, and shut
down the other party.
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They become and are
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And so it gives the represented party --
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The Vexatious Litigant Statute no longer is
In that sense, Steve Jahr -- if he'd come up with this
10
form, parties, parents who are self-represented, could show:
11
Yes, I've tried to shield myself from the Vexatious Litigant
12
Statute; I've tried to relieve myself of the burden of
13
self-representation, and there's no way of doing that.
14
sitting duck, whether I like it, or not.
15
And that's the present situation.
16
All right.
Thank you.
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THE COURT:
Counsel?
MS. KROGSENG:
Just to -- not to diminish at all the
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So Steve Jahr's role is
specific, it's definite, and it's unfulfilled at this point.
17
18
I'm a
important work that my clients are doing, but as plaintiffs'
21
counsel has said, what they're engaged in is policy and
22
administration of the courts.
23
interpreting statutes and informing Judges that they should
24
curtail their decisions in a certain way or another.
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They are not engaged in
And plaintiffs didn't request that this Judge -- this Court
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consider the judicial system's administration of forms.
There's no request for relief regarding the promulgation of a
form.
What plaintiffs did here was challenge a statute.
All they
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can -- all the relief they can seek here is an injunction, as
he's recently said, that would enjoin Judges from performing
their duties under the statute as it is written.
He's basically asking that this Court consider relief that
would require the Court's Administrative Branch to rewrite the
10
statute that the Legislature has, you know, put into place over
11
50 years ago.
12
13
THE COURT:
Any brief reply,
MR. CUNNINGHAM:
Yeah.
I think that's somewhat
15
disingenuous.
16
about the connection to enforcement.
17
issue.
18
fault with my Complaint and the sufficiency of my Complaint.
19
The statute that I challenge is on constitutional grounds, and
First of all, I was responding to a question

That's an Ex Parte Young
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The attorney here seems to have turned that into some
20
everything else.
21
oranges.
22
because you had asked me that specific question with respect to
23
Steve Jahr.
24
essentially that unless I sue the Judges who everybody admits
25
enforces the statute, that my statute is -- or my Complaint is
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All right.
Mr. Cunningham?
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So I think she's kind of mixing apples and
I mean, I'm talking about connections to enforcement,
And now she's faulting my Complaint, saying
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somehow insufficient.
The problem with that -- and as she mentions -- is that
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Judges have absolute judicial immunity.
the question I mentioned before or the issue I mentioned
before.
capacity or in their individual capacity because there's no
enforcement under Ex Parte Young, you certainly can't sue them
under the judicial capacity.
in terms of challenging a State statute, unless it's a statute
10
where the Attorney General, maybe, is enforcing the Clean Air
11
Act against a corporation; but when you're dealing with a
12
statute where there's no enforcement body, like an Attorney
13
General, there's -- under their argument, there's nothing.
14
There's no way to challenge that.
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Is -- if you cannot sue Judges in their administrative
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THE COURT:
So you're S.O.L. as a plaintiff,
All right.
Let me --
You want to just have the last word on this?
17
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MS. KROGSENG:
you don't mind.
19
is in State Court.
One:
There is a way to challenge this, and it
State Courts have routinely considered
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Just one quick or two quick things, if
these sorts of issues, and, for the most part, have ruled in
21
favor of the statute and its constitutionality.
22
because plaintiffs can't come before this Court and make these
23
arguments does not mean there is nowhere for them to make their
24
arguments.
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So just
I'll just leave it at that.
MR. CUNNINGHAM:
Could I respond to that?
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MR. CUNNINGHAM:
THE COURT:
MR. CUNNINGHAM:
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Yeah.
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Because that's really relevant.
All right.
I myself, personally, just sued in
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State Court on a 1983 action, naming Judges, naming the City of
San Francisco, naming various judicial parties.
represented by an attorney.
defendants and all the attorneys for the defendants came and
said, "Well, Mr. Cunningham, since you've been declared a
I was
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And the Court and all the
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vexatious litigant, yourself, and despite the fact that you're
11
represented under California Vexatious Litigant Statute
12
Section 391.1, you're going to need to post security if you
13
want to continue with your action."
14
$750,000 for me to proceed with that motion.
15
That motion -- it was an 80-page Complaint.
17
the Court to challenge the termination of all my parental
18
rights, because I haven't seen my daughter --
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pages involved a request for injunctive relief to get access to
20
THE COURT:
Let me interrupt here.
21
MR. CUNNINGHAM:
22
THE COURT:
Mm-hm.
We're not talking about Mr. Jahr anymore.
23
I understand your point.
24
point.
25
We're getting off
the point.
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Probably 40
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19
They required a bond of
I don't want to get into that at this
I'm going to move on to the next question.
And I'm going
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to ask a question of defense counsel.
that Mr. Cunningham's claims are barred by principles of
collateral estoppel.
argument relates solely to Mr. Cunningham's claims, rather than
any of the other named plaintiffs.
understanding?
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Is the Court correct in its
Yes, Your Honor.
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It's the Court's understanding that this
The defendants argue
8
9
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THE COURT:
All right.
because I'm just asking what they're contending.

Okay.
The next question:
Court dismissed his claims in Cunningham versus Mahoney,
12
10-CV-3211, on the basis of Rooker-Feldman.
13
argument, he contends that the doctrines of claim preclusion
14
and issue preclusion do not bar his claims in this case.
15
However, the Court expressly stated that Mr. Cunningham's
16
theory of the case was that the Vexatious Litigant Statute, "is
17
facially unconstitutional in the context of family-law
18
proceedings."
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Based on that
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It also expressly rejected Mr. Cunningham's facial
20
challenges to the Vexatious Litigant Statute.
21
7th Order at page 5, lines -- page 5 and 6 -- excuse me -- at
22
5, page 6, line 22 through 23; page 7, line 25 through 26; and
23
page 8, lines 17 through 18.
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Mr. Cunningham argues that this
11
19
I don't need a response,
See the December
24
With respect to claim preclusion, that doctrine "bars
25
litigation in a subsequent action of any claims that were
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raised or could have been raised in a prior action."
I'm citing Owens versus Kaiser Foundation Health Plan,
Incorporated -- I-n-c. -- 244 Fed. 3d. 708, at 713.
Ninth Circuit case decided in 2001, which, in turn, quotes
Western Radio Services Co. versus Glickman, 123 Fed. 3d. 1189,
at 1192, Ninth Circuit, 1997.
between two or more actions there is "One, an identity of
claims; two, a final judgment on the merits; and three,
identity or privity between parties."
or
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And there
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That's a
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11
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"Res judicata applies when, as
And that's the same
citation.
All right.
So the first question, which I'm going to
12
address to Mr. Cunningham:
13
Chief Justice -- the current Chief Justice.
14
pronounce her name again -- what is Mr. Cunningham's best
15
argument that this case and his previous case do not share the
16
requisite "identity of claims"?
17
Ju
MR. CUNNINGHAM:
As to claims against the

I won't try to
Well, that case was dismissed three
18
years ago, in 2010.
19
Rooker-Feldman and absolute immunity.
So as far as that goes,
rn
i
So -- and it was dismissed under
under Rooker-Feldman, that's a case that essentially says
21
there's no subject-matter jurisdiction in Federal District
22
Courts for de facto appeals.
23
understanding, under Rooker-Feldman.
24
merits.
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25
So you dismissed that, sir, in my

You didn't reach the
So I know that the attorney for -- for the defendants has
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argued that implicit in your ruling -- and they submitted
something for Judicial Notice -- that you had, in fact, reached
the merits of Cunningham versus Mahoney.
You know, far be it from me to say that a subject-matter --
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prohibition against subject-matter jurisdiction prevented you
from reaching the merits.
whole purpose of Rooker-Feldman if you could dismiss
procedurally for a de facto appeal, but at the same time, touch
the merits.
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11
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And it certainly would defeat the
That seems shield and sword, and judicially kind
of bait and switch, or something.
I'm not sure.
But in any event, I would also add that in the three years
12
since that ruling, there have been other pleadings and other
13
rulings by the State Court.
I have filed again and again over the course of two years.
15
I had my attorney, Jennifer Nicoletti, file a prefiling order,
16
asking for access to the Family Law Court for emergency
17
visitation.
18
pleaded for two years.
19
dismissal under Rooker-Feldman in 2010 up to this present
Summarily denied.
No merit.
I, myself, have
So from the time of your decision and
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14
20
21
I've alleged, as I did before, that Judge Mahoney
22
terminated my parental rights with a proposed order by my
23
ex-wife's attorney, where she signed -- or typed my name on the
24
signature line, because I would have never agreed to the
25
termination of all my parental rights.
if
o
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moment, I've been denied all access to the Family Law Court.
My position was --
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In any event, I won't belabor that point; but I will say

from the three years since that ruling and since your
dismissal, the Vexatious Litigant Statute has been used to deny
just not me, but my attorney, all access to the Court.
haven't been able to challenge that ruling from February 26th,
2010.
because the Court of Appeals Administrative Judge said that --
implicitly ruled that there was no merit to the case.
all they have to do:
10
THE COURT:
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I was denied the right to appeal in propria persona,
That's
boilerplate language.
So your argument is that the Court didn't
11
reach the merits, and the matter has never been subject to
12
appellate review?
13
14
MR. CUNNINGHAM:
facts and new rulings and new pleadings, as well.
15
16
And there's been three years of new
THE COURT:
Okay.
Thank you.
Response?
17
I would just first note that any of
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MS. KROGSENG:
plaintiff's counsel's litigation activity in State Courts over
19
the past few years had nothing to do with respect to whether
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20
21
Second I would note, as I'm sure the Court is aware, that
22
you -- the Mahoney Decision is based with Rooker-Feldman, and
23
on the substance on the merits of the constitutional claims,
24
particularly because, although claims against active Judges
25
were dismissed, plaintiff had named a couple other
if
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claims brought in Federal Court here are issue precluded.
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administrative officers who were -- were not dismissed under
Rooker-Feldman.
All right.
Did you want to say anything
MR. CUNNINGHAM:
THE COURT:
MR. CUNNINGHAM:
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in reply?
Yeah, just to belabor the point --
Just to belabor it, or not to belabor it?

I'm sorry.
Beating
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To belabor it.
THE COURT:
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a dead horse.
9
10
THE COURT:
MR. CUNNINGHAM:
Well, I would again just point out
the case of Kougasian versus TMSL, where, again, they say that
13
subject-matter jurisdiction is prohibited from that ruling.
14
under 28 USC Section 1257, only the U.S. Supreme Court has
15
jurisdiction to hear Cunningham versus Mahoney.
16
de facto appeal that should have gone up the State Court ladder
17
from a rejection of the State Supreme Court to the
18
U.S. Supreme Court.
19
you had authority to hear the merits in Cunningham versus
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if
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So
It was a
So again, I apologize, but I don't believe
Ju
12
20
al
So if you have
something new, you can say it, because I've read your briefing.
11
We don't need to do that.
Mahoney, under that ruling of Kougasian versus TMSL.

THE COURT:
All right.
As to claims against
22
Mr. Jahr, what is the defendant's best argument that there is a
23
the requisite identity or privity between parties?
24
25
MS. KROGSENG:
I think the only reason plaintiff has
admitted that he's bringing this action is because he's seeking
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enforcement of these statutes by the Court administrative
system.
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Just to be clear, he did name -- there's a Footnote 4 in
your Decision in Mahoney, which states that -- that discusses
the Wolfe issue regarding when a Chief Justice is sued in his
administrative capacity, and then also it notes that he had
brought claims against Justice Zelon in her administrative
capacity as Chair of the Family Task Force.
the same sort of administrative things.
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More fundamentally, the Judicial Council oversees the
11
Administrative Office of the Courts.
12
part and parcel.
13
and Steve Jahr is being sued, they're being sued because
14
they're of a combined entity that enforces administration of
15
the business of the Courts.
16
MR. CUNNINGHAM:
rules.
Well, again, Steve Jahr promulgates
20
statutes; the Legislature does that.
21
enforce the statutes.
22
in hand.
if
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Would you like to say
He promulgates statutes -- well, he doesn't promulgate
rn
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19
All right.
anything?
Ju
18
So they're all sort of
To the extent the Chief Justice is being sued
THE COURT:
17
These are all just
He promulgates rules that
Those rules and those statutes go hand
23
Without rules that understand and properly apply the
24
statute, one can be denied constitutional rights because the
25
forms and the rules, themselves, aren't up to muster, or they
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fail to grasp or properly implement the statutes.
sense, again, Steve Jahr seems to be intimately involved in the
enforcement of this Vexatious Litigant Statute.
All right.
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THE COURT:
Next question is for the
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So in that
plaintiff.
The Court understands that the plaintiffs take the position
that for some of them, the State Court rulings have resulted in
a de facto termination of their parental rights.
the plaintiffs had their parental rights actually terminated?
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And I'm citing for this proposition In Re:
170 Cal. App. 4th 678, at 705, cited in 2009, which in turn
12
cited M.L.B. versus S.L.J., 519 U.S. 102, at 121; a 1996 case,
13
in distinguishing between loss of custody, and termination of
14
parental rights.
18
Excuse me.
MR. CUNNINGHAM:
Well, the problem with the State
Court system is that there's Family Law Courts, and there are
rn
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19
Have any of the
plaintiffs had their parental rights actually terminated?
Ju
17
So the question, to go back to it, is:
16
20
Juvenile Courts.
21
welfare statutes that provide procedures the State has to do
22
when they formally go to terminate parental rights.
23
normally in situations where parents have drug addictions, or
24
they've shown some kind of, you know, serious personal
25
problems.
if
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R.H.,
11
15
Have any of
There's a whole series of statutes under the
That's
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On the other hand, there are Family Law Courts, where the
due-process procedures -- they don't fit properly with juvenile
cases.
Has somebody had their rights officially
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So you asked me:

terminated?
Certainly not terminated in the same way in Juvenile
or
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Courts, where the State comes in and presents arguments, and so
forth.
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But -- and that's why I used the term "de facto

termination."
And I will point the Court's attention, in my request for
12
Judicial Notice, to a ruling by Judge Clark in the Santa Clara
13
County Court, where he imposed a 50-year restraining order
14
against Adil Hiramanek (phonetic).
15
that's difficult to pronounce.
16
So he, apparently, violated the first restraining order his

ex-wife had against him, because he came within 50 feet of her
18
at a custody hearing.
And she alleged he had also parked his
19
car across the street.
And he denied that in the transcript.
rn
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17
20
And it's there in the transcript.
21
from the Superior Court, imposed a 50-year restraining order
22
not just against Adil and his wife, but he threw in the three
23
kids.
24
the year 2062 at midnight.
if
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Again, it's an Indian name
25
Nevertheless, Judge Clark,
Adil isn't allowed to see his kids until August 24th in
Why midnight?
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God only knows.
THE COURT:
MS. KROGSENG:
All right.
What's your response?
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03/05/2014
I would again just point out that the
examples that plaintiff's counsel provides sort of demonstrate
that what they're seeking here is for this Court to reopen a
State Court's decision.
not what this --
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Whether it's erroneous or not, that's
8
9
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THE COURT:
But the question really is:
any different information -- or not different information, but

any information with respect to what the Court was asking --
11
MS. KROGSENG:
12
THE COURT:
Right.
-- about whether any of the plaintiffs
13
have had their -- based upon State Court actions, have had
14
their parental rights terminated.
15
MS. KROGSENG:
16
THE COURT:
17
Right.
Actually terminated.
My understanding is the same as the
Ju
MS. KROGSENG:
court's; that none of them have been terminated.
19
involved in a variety of custody determinations.
rn
i
I would also note that what is being challenged is not any
21
decision to terminate or end custody rights.
22
challenged is a decision whether a person may bring additional
23
litigation in a Family Court.
if
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They're
18
20
Do you have
24
25
What is being
So in addition to there being a distinction between whether

parental rights are being terminated or not with respect to
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what sort of scrutiny might need to be applied for the
due-process claim, I would also say that what is before the
Judge right now is a question of whether a decision to deem
someone vexatious, and then after that, determine whether,
under the prefiling requirement, they are allowed to proceed
with a new proceeding, is not the same decision as whether to
terminate parental rights, or not.
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8
9
THE COURT:
Hypothetically, if there were any plaintiffs who have actually
10
had their parental rights terminated, would that alter your
11
argument -- the defendant's argument -- on the appropriate
12
standard of review for due-process claims?
13
is, whether in that circumstance, the Court could not evaluate
14
under a rational-basis review?
15
MS. KROGSENG:
I think it would be a more difficult
17
think there is still the issue of what was challenged there
18
is -- is just on a different scale, as opposed to the decisions
19
that are being challenged here and the statute in particular
rn
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that's being challenged here.
21
22
23
R.H., as you stated; but I
Ju
argument for the State under In Re:
if
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For example, that
16
20
Well, let me ask you this.
THE COURT:
All right.
Anything further you want to
say?
MR. CUNNINGHAM:
Again, the attorney for the defense
24
wants to put a nice, clear line between the merits of a custody
25
case, and access to the Court.
The problem with that is -- and
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this is where the de facto termination comes in -- is somebody
like Adil or somebody like myself, whose parental rights were
terminated.
access to challenge that ruling under the Vexatious Litigant
Statute.
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And I've been denied
This is analogous to the situation with the parents or the
Visitation was terminated.
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couple that wanted to get divorced in Boddie versus
Connecticut.
altering a fundamental relationship.
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Access was an exclusive precondition to their

Adil, myself,
10
Kerry Hicks, who hasn't seen her daughter in four years -- many
11
of these people, if they're not granted access, they cannot
12
alter their fundamental relationship, and it's frozen, as my
13
decision is frozen in place.
14
THE COURT:
15
Anything further?
MS. KROGSENG:
I would just distinguish Boddie in
particular, because plaintiffs all had access to their courts.
17
They just abused that access; and thus, they're now falling
18
under the vexatious-litigant scheme.
19
the same access as any other person in the state.
They all started off with
rn
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16
20
21
same way there was for Boddie, due to indigence, being not able
22
to pay filing fees.
if
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They were not -- there was no bar to them entering in the
23
So the access is there.
24
The issue now is they've abused that:
25
access the Court.
their right to
And the Court has constitutionally
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determined that they need to proceed with additional
requirements before they are allowed to proceed further.
All right.
Anything else,
Mr. Cunningham?
MR. CUNNINGHAM:
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THE COURT:
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Again, I -- I find it rather
personally -- I find it rather offensive to say I've abused the
situation.
8
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I noticed in Luckett versus Panos, Chief -- or Judge Sills,

in what I would call "judicial profiling," referred to
10
vexatious litigants as very likely to have mental disorders.
11
think he said they have a propensity for dishonesty.
12
a propensity to sue people as a way of life.
13
vilified them.
14
He all but
And so when I get a hint from the attorney that it's
16
I find it -- it just gets my hackles up, because I am fighting
17
to get my daughter back.
Ju
somehow the abuse of the judicial process in a custody dispute,
I've -- up until my Family Law custody case, I'd never sued
anyone anywhere ever.
rn
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19
20
THE COURT:
All right.
Well, the matter -- thank you
21
very much, counsel, for your argument.
22
helpful.
23
And you'll have another ruling.
24
(At 9:48 a.m. the proceedings were adjourned.)
if
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They have
15
18
It was very good and
And the Court will take the matter under submission.

Thank you very much, counsel.
25
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I certify that the foregoing is a correct transcript from the
record of proceedings in the above-entitled matter.
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4
5
November 19, 2013

Date
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Signature of Court Reporter/Transcriber

Lydia Zinn
8
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18
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Arch Cunningham
State Bar 210625
1489 McAllister St.
or
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X)
archcunnghm@yahoo.com
(415) 563-1828
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Attorney for Plaintiffs
e-)

FOR THE NORTHERN DISTRICT OF CALTFORNIA
SAN FRANCISCO/OAKLAND DIVISION
10
11\siz
12
13
14
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ONALD PIERCE, KERRY HICKS,

ANDREW KARRES, MICHELE FOTINOS,
AMIL HIRAMENK, LISA HUNT-NOCERA,
NICOLE ANN RAY, ARCHIBALD
CUNNINGHAM, RICHARD RIFKIN, et. al.
15
17
v.
c)
COMPLAINT FOR INJUNCTIVE AND

DECLARATORY RELIEF UNDER 42
U.S.C. 1983; ATTORNEY FEES UNDER
42 U.S.C. 1988
CLASS ACTION
Plaintiffs,
16
CaeNo. 1 3
IC4141
DEMAND FOR JURY TRIAL
18
Ju
CALIFORNIA CHIEF JUSTICE CANTIL-
SAKAUYE, Chair of Judicial Council, and

MR. STEVEN JAHR, the Administrative
20
Director of the Administrative Office of the

Courts.
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19
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23
Defendants, and DOES 1 through
10.
24
25
26
27
28
Class Action
Complaint
for
Injunctive
and
Declaratory
Relief
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TABLE OF CONTENTS
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I. INTRODUCTION
II. JURISDICTION
III. VENUE
IV. INTRADISTRICT ASSIGNMENT
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V. PARTIES
Plaintiffs
Ron Pierce
Andrew Karres
Michele Fotinos
A dil Hiramenk
Lisa Hunt-Nocera
Nicole Ann
Ray
Cunningham
Richard Rifkin
8
9
10
VII. FACTUAL ALLEGATIONS
19
Ju
VI. STATUTORY AND REGULATORY FRAMEWORK
rn
i
Facts Related to
Kerry Hicks,
Facts Related to Ron
if
o
Parent H
Pierce, Parent P
Facts related to Andrew
al
Kerry Hicks
Archibald
Karres, Parent K
19
.21
22
Facts related to Michele Fotinos/Parent F
22
Facts Related to Adil Hiramanek/Parent AH
23
Facts Related to Lisa Hunt-Nocero/Parent N
24
Facts Related to Nicole Ann
Facts Related to Archibald

Facts Related to Richard
Ray/Parent R
Cunningham/Parent C
Rifldn,
Parent RR
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VIII. CLASS DEFINITION AND ALLEGATIONS
26
IX. LEGAL CLAIMS
27
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FIRST CLAIM FOR RELIEF
Claim under 42 U.S.C. 1983, Deprivation of Federal Constitution RightsThe Vexatious Litigant Statutes As Applied Violates the Equal Protection
Clause of the 14th Amendment
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SECOND CLAIM FOR RELIEF
Claim under 42 U.S.C. 1983, Deprivation of Federal Constitution Rights
Violation of 14th Amendment's Due Process Clause and 1st Amendment Right
to Petition
35
THIRD CLAIM FOR RELIEF
Claim under 42 U.S.C. 1983, Deprivation of Federal Constitution RightsViolation of 14th Amendment's Due Process Clause (Imposition of VLS To
Custody Cases On Its Face and As Applied Is Unconstitutionally
and
Overbroad
42
FOURTH CLAIM FOR RELIEF
Claim under 42 U.S.C. 1983,
of Federal Constitution RightsThe Vexatious Litigant Statutes As Appliell Here Creates a Prior Restraint
in Violation of the 1st Amendment Right td Petition
Deprivationi
FIFTH CLAIM FOR RELIEF

Unwritten Rules and Procedures Implementing Prefiling Orders
Violates Due Process Clause of 14th Amendment
Ju
SIXTH CLAIM FOR RELIEF

Claim under 42 U.S.C. 1983, Deprivation of Federal Constitution
The VLS Functions as an Improper Bill of Attainder
if
o
rn
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SEVENTH CLAIM FOR RELIEF

The VLS Functions as an Improper Ex Post Law
44
.48
Rights50
Rights-
REQUEST FOR RELIEF
53
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I. INTRODUCTION
Chief Justice
Vexatious
Cantil-Sakauye and the Judicial
Litigant Statute (VLS)
it
applied in the context of family law custody proceedings.
its face and
as
to
curtail
on
docket, preserve scare judicial
The Plaintiffs do not doubt that the state has rational and
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is
urgent reasons
it is
2. The Plaintiffs understand the state's need to manage its
very
as
The Plaintiffs assert that the VLS
applied infringes on their fundamental custody rights.'
cases.
against
hope of overturning California's
protracted custody battles. The Plaintiffs challenge the constitutionality of the VLS
resources, and to curb meritless
action
amilies to family law litigants, particularly parents caught
in
civil litigant's
access
to the judicial process when such
litigant
filing frivolous or vexatious claims.2 They recognize that state courts have found that civil
10
litigants' general right to petition grievances under the First Amendment does not entitle them to
11
"clog the court system and impair everyone else's right to seek justice."' However,
12
time, the Plaintiffs know from their own unfortunate experiences
13
"parents,
14
that the state's
"unclogging its
whom had
no
choice in being
filed
17
disputes.
18
these parents to resolve their
19
same as
against them.
23
24
25
26
curtailing, restricting, or
at least half of
dragged into family law court once "dissolution" pleadings were
These parents have
absolutely no choice
in where to resolve their custody
family law courts are the "only forum" that the state of California has provided for
Ju
The
family law litigants
custody dispute.' Yet the state Legislature treats
for purposes of the VLS. While the
civil
litigants the
imposition of the VLS
affects
(1982) 455 U.S. 745; Stanley v. Illinois (1972) 405 U.S.645, 651; "A parent's interest in the
companionship, care, custody and management of his or her children rises to a constitutionally secured right, given
the centrality of family life as the focus of personal meaning and responsibility.")
2
"The constant suer for himself becomes a serious problem to others than the defendant he dogs. By clogging court
calendars, he causes real detriment to those who have legitimate controversies to be determined and to the taxpayers
who must provide the courts." (Taliaferro v. Hoogs (1965) 237 Cal. App. 2d 73, 74.)
Wolfgram v. Wells Fargo Bank (1993) 53 Cal. App. 4th 43, 56.
4
Lammers v. Superior Court (2000) 83 Cal.App.4th 1309, 1325: "[W]hen an enactment broadly and directly
impinges upon the fundamental constitutional rights of a substantial portion of those individuals to whom it applies,
it can be upheld only if, considering its general and normal application, its compelling justifications outweigh its
impingement upon constitutional rights and cannot be accomplished by less intrusive means."
Santosky v.
rn
i
if
o
22
docket" rationale for
litigants right to petition under the First Amendment, family law litigants suffer a double
civil
I
21
same
family law litigants, and as
litigants, the Plaintiffs here are parents in custody disputes,
16
20
court
as
at the
denying them access to family law courts is not rationale and certainly not compelling.'
3. Unlike civil
15
al
as
Council in the
on-going custody disputes, bring this class
in
or
k
Plaintiffs, who are parents
et
w
1.
Kramer
assert here due process rights as

the
resort
to
state
courts
think
because
the
is
plaintiffs,
appellants' plight,
only avenue to dissolution of
their marriages, is akin to that of defendants faced with exclusion from the only forum effectively empowered te
settle their disputes. Resort to the judicial process by these plaintiffs is no more voluntary in a realistic sense than
that of the defendant called upon to defend his interests in court."
*See, Boddie v. Connecticut (1971) 401 U.S. 371, 376-377: "Thus, although they
2would-be
7
we
Class Action
Complaint for Injunctive and Declaratory
Relief PAGE 2
SER 31
only is their procedural
rights related to custody are undermined.
process
2
imposing the VLS

3
4. In extreme but not

to
(*See, Factual Allegations).
on a
situations,
some
one
case,
Parent
AH).
In the
father has been denied
access to
Parent
C).
In
12
(*See Factual Allegations,
13
for the years lost
seen
as
by King Solomon.
Parent
H).
There is
no
cause
order
irreparable harm.
amount of money that
parents. The wisdom of threatening to
These cases,
on
the other
was
sever a
can
on
obtained
these
Some of these
only for token visits.
compensated them
child in two
was
demonstrated
hand, which severed the parent-child relationship

an
abundance of vitriol, and
failure of the
family law courts in the state of California.
II. JURISDICTION
5. This is
an
action for
declaratory and injunctive relief for violation of the Due Process
Equal Protection Clause of the Fourteenth Amendment as well as
Clause and
19
right to petition grievances under First Amendment.
Ju
18
rn
i
under the 42 U.S.C.
21
1983.
if
o
to
their children of period of up to three years and others
be characterized by the absence of wisdom,
17
6. Jurisdiction is based
on
28 U.S.0
At all times relevant to this
Court has
These civil
violation of the
rights violations are brought
1983.
1331, 1332, and 1343 for a violation of 42
U.S.C.
action, Defendants have acted under color of state law. The
Supplemental Jurisdiction over Plaintiffs'
California Government Code Section
state claim
pursuant
to 28 U.S.C.
1367
and
11135.
III. VENUE
24
7. Venue is proper in Northern District of California pursuant to 28 U.S.C.
25
6
27
family law courts to challenge an
short, the imposition of the VLS
parents have not
26
the
di
ci
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JB B
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ew
11
23
restraining order, the father is denied
only with his ex-spouse, but his three minor children until "midnight" in the year
parents in custody disputes has caused and continues
22
access
family law judge imposed a 50 year restraining order
10
20
Plaintiffs here have been denied
terminating his parental right, though the father asserts the termination
16
al
In
by fraud. (*See, Factual Allegations,
can
uncommon
(*See, Factual Allegations,
all contact not
order
15
way, the state's justification for
father.
2062. In another case,
14
same
family law courts after their parental rights have been severely curtailed by family law judges.
8
9
In the
but their substantive due
parents in custody disputes is doubly unjustified.'
on
right to petition affected,
due process
et
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1391(b)
Sup. Ct (2007) 41 Cal. 4th 1337, 1353: In other words, court congestion and 'the press ofbusiness' will
depriving parties of fundamental rights and a full and fair opportunity to present all competent and
material evidence relevant to the matter to be adjudicated.% Boddie v. Connecticut (1971) 401 U.S. 371:
"We are thus left to evaluate the State's asserted interest in its fee and cost requirements as a mechanism of resource
allocation or cost recoupment. Such a justification was offered and rejected in Griffin v. Illinois, 351 U. S. 12
(1956)."
Elkins
v.
not justify
Class Action
Complaint for Injunctive and Declaratory Relief
PAGE 3
SER 32
because Defendants operate and

purposes of venue, and because
18-2
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perform their officials duties therein and thus reside therein for
some
of the events and omissions
2
occur
in counties that
are
part of the Northern District of California.
IV. INTRADISTRICT ASSIGNMENT
or
3-2(c) this
action should be
Oakland Division of the Northern District of California, because
events and omissions
di
ci
C al
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N nc
.c h
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ew
Plaintiffs
9
substantial part of the
giving rise to the claims herein occur in counties in the Northern District oV. PARTIES
Kerry Hicks.
10
9.
Kerry Hicks
is
42 year old mother who has two minor
children,
7 and 10 years old.
11
She lives in Ventura, California. She filed for the dissolution of her
12
October 2, 2007.
13
April 30, 2008, at a hearing on a DVPA action, a visitation action and a vexatious litigant action,
the
14
(D323616). Initially,
custody orders were reversed.

10. At
she
was
Ms. Hicks
ganted legal
was
and physical
ordered to take
17
screened for substance abuse
18
live
or
psychologically evaluated,
Ju
testimony of the "Executive Director" (Ms.
who noted that Ms. Hicks acted
gifts
and
"inappropriately"
rn
i
Notice, RJN, Exhibit A, pg. 4-26).
21
conduct
if
o
22
was a
"red
parental
never
been
family law judge relied on the
at the four
supervised visits by bringing too
and distracted.
(Request for Judicial
Ms. Gonzales testified that she believed that Ms. Hick's

In her
report, she
recommended both the "termination of supervised visits" and that "mom be evaluated and have
random
24
program for evaluation
drug testing. (pg. 26).

11. At the
25
27
the
Hick's
Hicks had
flag" for substance abuse or mental illness.' (pg. 10).
23
26
on
Gloria Gonzales) of the Tri-County Executive
candy and appearing anxious, nervous,
many
custody. However,
July 10, 2008 hearing, the family law judge' terminated Ms.
rights, ruling that she posed a danger to her children. Although Ms.
20
on
supervised visitation at the Tri-
16
19
marriage to Jerry Hicks
Services.
County Family
15
al
California.
assigned to the San Francisco
8. Pursuant to Civil Local Rule
giving rise to the claims hereir
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"vexatious
as a
The judge
condition
agreed
and ordered Ms. Hicks into the
"Quick Start"9
precedent to regaining her custody rights.
July 10, 2008 hearing,
the judge also concluded that Ms. Hicks
litigant, apparently on the basis
of her
filing several
ex
was a
parte motions and the
Commissioner Gay Conroy.

Ms. Gonzales testified she had a "degree in criminal justice" from "California Poly San Luis Obispo." (pg. 5).
Quick Start was a program for "criminal" defendants as opposed to parents "suspected" of having substance abuse
issues.
Class Action
PAGE 4
SER 33
litigants." (pg. 162).
Ms. Hicks
hearing,
at the Ventura
showed
taking a prescription drug for "anxiety"
reactive to
Hick was screened. The results
and
custody/divorce issues." (RJN, Exhibit B).

seen
was
conjectured" that her "anxiety" was "possibly
her children in
over
four years and has been denied access to
family law courts by the "prefiling order" of the VLS.
di
ci
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JB B
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N nc
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ew
the
post child for vexatious
evidence of drug use in the last 12 months. The results noted that Ms. Hicks
13. Ms. Hicks has not
self-represented.
County Superior Court, Ms.
"like
July 17, 2008, a week after she was ordered by the judge to be evaluated by the
Quick Start program

no
was
was
et
w
12. On
At the
Hicks
testimony of the opposing counsel who stated that Ms.
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Ron Pierce
9
14. Ron Pierce is
father of three children, ages 16, 13, and 8. Before his dissolution
10
proceeding upended his life, he worked as an engineering assistance for the local government.
11
While at work he sustained
12
pending and he's seeking disability.
13
injuries and he filed a workers compensation claim.

He is homeless but is
regularly provided
His claim is
shelter by
family
and friend.
15. On
14
January 30, 2008,
15
Arreola. On March 3, 2008, the
16
time,
17
Saturday.
18
court's contracted
19
he
20
Services. A year
Ron Pierce filed for dissolution of his
half hours
on
Thursday nights and ten hours
Ju
In October of 2008, the court ordered that his visitation
stripped of all visitation on the basis
was
to take
local, private non-profit, Family Services Tulare County.
later,
in
At that
family court granted physical custody to Nadira Arreola.
Mr. Pierce had visitation of two and
was
marriage with Nadira
April 2010,
after
place with the
On
April 23, 2009,
of reports made by the office manager for

domestic violence
on
charge against Mr.
Family
Pierce was
dismissed, the family law court provided him visitation on every 1st, 3rd, and 5'h Saturday night.
16. On December 21, 2011, the Court of Appeals for the Fifth Circuit sent Mr. Pierce a
rn
i
21
al
if
o
22
23
"Notice of Hearing to Determine Vexatious

him to appear in less than four weeks to
24
Court of Appeals initiated the
25
appeals pending.
26
Pierce "vexation" in
27
hearing on January 21,
391.1 motion "on its
After argument
an
Litigant and Enter a Prefiling Order"
on
own"
January 17, 2012, the
even
2012.
and ordered
(RJN, Exhibit C).
The
though Mr. Pierce had no
Court of Appeals "declared" Mr.
"unpublished opinion" of January 19, 2012.
Andrew Karres
17. On October
1, 2001, Katina Rapton filed
Class Action
to dissolve her
marriage with Andrew
PAGE 5
SER 34
Karres in the
Superior Court of Sacramento. (01FL06813).
Karres has been in
18-2
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In the
protracted custody dispute with Ms. Rapton over their
18. In his November
ensuing twelve years,
12, 2012
statement of decision, the
custody dispute has "consumed volumes of motions
related to
14 year old
Mr.
daughtei
family law judge noted that thi
custody,
child travel, and child
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custody." (RJN, Exhibit G, pg. 7, paragraph 6).
attorneys for both side, "successive evaluators submitting numerous reports, and "various
judicial officers."
palpable, characterizing him as a "martyr of injustice" who "vocalized his antipathy forjudicial
orders."' (Exhibit G, pg. 16, fn 57).
custody" but
9
Mr. Karres is not
sanctioned $2500. He has since
19. On November
called for under Code of Civil Procedure
11
that the
denied
"50/50 shared
appealed. (C072936).
12
summarily finds that Mr.
391.2. (RJN, Exhibit II).
hearing is vacated. (RJN, Exhibit I).
months."
only "repeatedly"
Karres is
14, 2012, the family law judge "vacated" the vexatious litigant hearin
10
13
decision, the family law judge's disdain toward Mr.
di
ci
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JB B
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N nc
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ew
In his 20 page
He notes that there have been "successive"
In his November
Karres is "vexatious" under
In the
12, 2012
transcript, it is noted
statement of decision, h
391(a)(1&3) for his actions
in the last "1
Michele Fotinos
14
20. Michele Fotinos is

15
16
17
January 24,
case
and
Ju
charges that Mr.
rn
i
if
o
al
R. F.
now
Superior Court,
16, born July 11, 1996,
dissolution, John Fotinos was granted sole physical and joint legal
Fotinos filed
charges against Mr. Fotinos;
2003 at the San Mateo
custody of the children, which has resulted in an ongoing custody dispute since that time and
21
22
May 20,
on
A.F., now 14, born September 8, 1998.
20
on
They have two children, a daughter,
21. At the time of the
18
19
son,
mother age 51 years old. She was married to John Fotinos
1996. He filed for dissolution
number F075139.
a
well
as
misleading affidavits. (The district attorney has brought perjury
*See
People v. Fotinos, Case No. SC74375).
22. On November
11, 2012, in a probate proceeding involving her mother,
her attorney
declared vexatious
were
Ms. Fotinos
litigant. (RJN, Exhibit J). The probate judge ruled
23
24
25
26
27
10
The judge faults Mr. Karres for expressing his view of Judge Peter McBrien's order but the judge fails to note th
Judge McBrien was censured twice by the CJP. (*See, http://www.metnews.com/articles/2010/mcbr010610.htm.)
He was "severally censured" for walking out of a family law trial, an act the Court of Appeal described as "unusua
and "perhaps unprecedented." (In Re Carlsson (2008) 163 Cal. App. 4th 281). Also, the judge fails to mention that
the lawyer in that case, Sharon Huddle, is now Mr. Karres' attorney. Finally, the judge fails to mention that, after
being censured, Judge McBrien was elevated to "presiding judge" of the Sacrament Family Law Division. In view
of this, it seems his eagerness to dump everything on Mr. Karres is not only suspect but self-serving. By elevating
Judge McBrien to presiding judge, one is reminded of that old adage about the "lunatics running the asylum."
Class Action
Complaint for Injunctive and Declaratory Relief PAGE
SER 35
litigant" order would extend to the family law proceedings
that the "vexatious
she would file that. The judge also ruled that the "vexatious
2
Fotinos attorney and her attorney would be
23. Adil Hiramenk is
required to obtain "permission" before filing any new
52 year old father of three
10 years old. He resides in San
mother and spouse, filed for the dissolution of the
judge issued a "no
contact" and
2062.
11
supervised visitation.
12
24. On March
marriage in the Superior Court of Santa Clara
2010. After the
hearing,
Mr. Hiramenk.
(RJN, Exhibit x).
on
June
custody dispute that started
19
parents
Ju
18
were never
18 month
period
and then
only has
pleading entitled
several years after their
case
Litigant
26. At
an
order
imposing a "prefiling order" on
child, John Marsh, have been in
protracted
daughter was born on April 18, 2000. The
Superior Court of Riverside County. (TED 006074).
is filed in the
wrangling,
Ms. Hunt's
She has not had contact with her
parental rights were terminated on March 13, 2007.
daughter since then and has been denied access under the
Statute.
hearing on March 4, 2010 in the Superior Court of Riverside County,
the trial
24
judge, who had just only been assigned to the case for several weeks, ordered the parents
25
"mediation"
26
litigant." (RJN, Exhibit 0).
on
the
custody/visitation.
2010 Ms. Hunt received
The trial judge then declared Ms. Hunt
Ms. Hunt had
once a
no
contact with her
month visitation with her
no
holidays
and till this
daughter for over three years.
In
daughter and no summer vacation time
day still does not have any legal
Class Action
into
"vexatious
27
and
married, they never lived together, and they never accumulated community
property. The paternity
rn
i
if
o
sent Mr. Hiramenk
2, 2010, the judge filed
25. Lisa Hunt-Nocera and the father of their
23
period" when the family law
Subject Adil Hiramenk to a Prefiling Order as
17
Vexatious
"one year
On October
Litigant." (RJN, Exhibit x). The judge set a hearing for a month later on April 22,
After years of legal
al
22, 2010, the family law judge
Lisa Hunt-Nocera.
22
his children for
16
21
see
"Notice of Court's Own Motion and Motion to

Vexatious
20
year-old and twins who
"stay away" order against him and the children, effective until
He did not
(RJN, Exhibit L).
14
15
12
County. (1-09-FL-149682). The parents have been in a custody dispute since then.
10
13
Jose, California. On April 5, 2009 Kamal Hiramenk, the
18, 2010, Adil lost all his custody/visitation rights for

9
children,
di
ci
C al
JB B
N ra
N nc
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ew
are
apply to Ms.
Adil Hiramenk
statute would
litigant"
pleadings in family court.
and any pleadings
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or
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and is
routinely
SER 36
Case: 13-17170
03/05/2014
denied"permission" to file.(R JN Exhibit P).
law court
This order
$25
alleged
supervised visits at
non-profit hired by the Superior Court of Sacramento. Although she has
complied with court-mandated request for therapy,
she has been denied all
vexatious
Hancock filed
an
OSC to have the
litigant. (RJN, Exhibit Q).
The
judge,
11
"vexatious" for
12
condition to
13
stipulation or to have the "vexatious" label lifted have been denied. (RJN, Exhibit S).
Archibald
"trial
Her
request for "permission"
she had
agreed to "therapy" as
to file any
challenge to the
Cunningham lost his 50/50 shared custody agreement in a May 2, 2007
by declaration." At a February 26, 2010 hearing, he was stripped of all his visitation rights
16
for renouncing the
17
2010 until
18
family law court to request "emergency visitation." (RJN Exhibit U).
19
family law judge denied him a hearing under the new "Case Resolution Program"
Ju
30.At
"vexatious
if
o
he had
On
February 26,
access
to the
May 25, 2012, the

and stated that
litigant" action brought by a "nonparty" against Mr. Cunningham despite the fact that
plead the 5th Amendment in an ongoing contempt
24
either
25
pushed this
and
case.
(RN, Exhibit W).
only learned of it later.
The
Mr.
newly-appointed judge
ignored or did not know of the priority of scheduling given to the "contempt case" but he
action before the other actions,
including another vexatious litigant action brought by
the attorney for the ex-spouse. The second 'vexatious

the
Since
February 23, 2009 hearing, the "newly appointed" family law judge conducted a
Cunningham was not at that hearing
on
(RJN, Exhibit 7).
(RJN, Exhibit V.
23
26
"void."
January 22, 2012, Mr. Cunningham and his attorneys were denied all
21
22
custody order from that trial as
the termination order was "final."
rn
i
20
Cunningham
29. Archibald
15
21, 2011 (RN, Exhibit R), ruled that Ms. Ray was
renouncing a "stipulation" she signed in which
restoring visitation.
indigent
family law
10
in his minute order of June
access
challenge the visitation ruling and regain custody.
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
to
April 14, 2011, the attorney for Mr.
self-represented Ms. Ray declared
14
al
She gets
and 10.
she has
28. On
and
April 24, 2008, the family
upheld by Judge Matthew J. Gary on April 24, 2012.
was
family law courts under the VLS
to the
On
marriage with Nicole Aim
stripped Ms. Ray of any visitation rights with her three daughters, age 16, 14,
hour with the
an
Darren Hancock filed to dissolve his
Ray in the Superior Court of Sacramento County. (08FL00640).
January 28, 2008,
or
k
27. On
Ray
et
w
Nicole Ann
2
3
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same
27
$23, 000
litigant" action against Mr. Cunningham,

2010. He was sanctioned
grounds and by the same parties, was heard February 26,
at the first
hearing and $32, 000 at the next. (RN, Exhibit X).
Class Action
PAGE 8
SER 37
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Richard Rifkin
marriage to Kimberly Carty in Marin County
transferred to San Francisco
case was
Resolution Order #8, the
Superior Court.
In
September 14, 2012 "Case
family law judge stated that it was "undisputed" that Mr.
Rifkin has
et
w
but the
or
k
31. Mr. Rifkin filed for dissolution of his

2
"throat cancer, but the judge dismissed Mr. Rifldn's contention that the issuance of the CLETS
restraining order prevented him from obtaining a real
unemployment, found the source of his income "ambiguous,
income of $4330. The judge
and her "vexatious
10
represented by an attorney.
11
Defendants
13
"imputed" monthly
and
(RJN, Exhibit 1).
August 23, 2012, Mr. Rifkin appeared with his attorney to challenge Ms. Carty's
"move-away" request
At that
litigant" motion.
33. Defendant California Judicial Council is
12
questioned his
granted the Ms. Carty "move-away" request to Los Angeles
order Mr. Rifkin to pay $563 in child support.

32. On
and then
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
estate license. The judge
hearing, Mr.
state agency that is
Rifkin was
responsible for the
improvement of the administration of justice, including surveying judicial activities, making

recommendations to the Governor and
14
Legislature, and adopting rules for court administration,

The
practice and procedure that are consistent with both statutes and constitutional mandates.
15
Judicial Council is also
including the MC-700-704 forms used by "vexatious litigants" (and the parents in this case)
17
try to lift the "vexatious" branding!'

34. Defendant Chief Justice
20
Ju
state agency
responsible for assuring that the law, statutes,
rn
i
agency director
21
22
if
o
and court rules and
procedures
35. Defendant
Cantil-Sakauye is
are
Cantil-Sakauye is a public
responsible for a public entity, pursuant to 42 U.S.C. 12131(1)(A)
Defendant Chief Justice
to
Cantil-Sakauye is the Director of the Judicial Council, the
consistent with constitutional guarantees. Defendant Chief Justice
19
al
forms used in the state courts,
16
18
responsible for creating the various
sued in her official and administrative
&
(B).
capacity.
Judge Steven Jahr, the Administrative Director of the Courts, "is
23
Administrative Director of the Courts is accountable to the council and the Chief Justice for the
24
performance of the Administrative Office of the Courts.
25
"to
accomplish the council's goals
the
goals
26
27
11
12
of the Judicial
and priorities."
Council, are
to
13
The Administrative Director's
His various duties,
interpret policies,
charge is
including carrying out
allocate financial
resources
to achieve
*See, Cal. Const. Art 6, section 6(d).

*See, Gov. Code 68511.
"http://www.courts.ca.gov/policyadmin-aoc.htm
Class Action
PAGE 9
SER 38
goals." (*See Rule

administrative
regarding "progress toward achieving these
10.80. Administrative Director of the
He is sued in his official and
Courts.)
capacity.
36. The Vexatious
Statute
Litigant
(VLS),
et
w
VI. STATUTORY AND REGULATORY FRAMEWORK
since its enactment in 1963
(Stats. 1963, ch.
1, p. 3038), has expanded its reach both by amendments from the California Legislature
1471,
and by "broad
"moving defendant" in a civil

furnish
readings" of the VLS by various appellate courts.

case can move
The statute
the court for
an
As
order
applied in its current form, a
requiring the "plaintiff' to
contemplates a hearing with the right to
di
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security. (391.1).
provide evidence. (391.2).

9
and provide reports
goals, to accomplish the goals,
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section 391.7
In
1990, the Legislature broadened the
call witness and
scope of the VLS
by adding
1-3), which provided that once a litigant had been
(Stats. 1990, ch. 621,
found
10
"vexatious, the court,
11
"prefiling orders" on self-represented vexatious litigants trying to file "new litigation." (Stats.
12
1990, ch. 621,
13
litigant, acting "in propria persona,
"on it
motion
or
the motion
ofany party,
3, pp. 3072-3073). Before being allowed to file
The 1990 amendment also

14
own
first has to get the
"new
is authorized to
litigation,
impose
the vexatious
"permission" of the court. (391.7(a)).
expanded the definition of "plaintiffs" under the VLS
to include "an
attorney at law acting in propria persona."

15
37. In
1998, the first significant judicial expansion of the VLS occurred in the case of
16
McColm
17
Appeals for the First District expanded the type
18
under section
Westwood Park Assn.
(1998)
62 Cal.
App. 4th
1211. In
McColm, the Court of
of litigation that could be counted

and
Ju
391.1(a-d) to include writs, appeals,
petitions,
as
"vexatious
supra 1219-1220:
"Litigation" for purposes of vexatious litigant requirements encompasses civil trials and
special proceedings, but it is broader than that. It includes proceedings initiated in the
Courts of Appeal by notice of appeal or by writ petitions other than habeas corpus or
rn
i
19
20
v.
other criminal matters.
21
al
if
o
22
23
24
25
As
result, self-represented vexatious litigants
must obtain the
at the trial level
as
well
as
in
appellate
courts
"presiding judge's" permission before being allowed to file." Another significa:
expansion of the reach of the VLS
occurred in the
case
of Camerado Insurance Agency, Inc.
v.
'4
http://www. courts. ca.gov/cms/rules/index. cfin? title=ten&linkid=rule I 0_80

CCP 391.1: ....The motion must be based upon the ground, and supported by a showing, that the plaintiff is a
vexatious litigant and that there is not a reasonable probability that he will prevail in the litigation against the
moving defendant."
15
26
27
'6
nn
form that allows "vexatious litigants" to request permission to file

http://www.courts.ca.gov/documents/mc701.pdf). The court of appeals have their own forms.
The Judicial Council has created
new
litigation.(*See,
MC-701,
Class Action
10
SER 39
(1993)
between
at
14
15
attempts
cases are
are
In In
re
R.H., almost two years after
as a
basis for
cites the
using that statute as a "tool"

re
R.
legislative
for
gagging
H., 170 Cal. App. 678, 700 (2009)):
frivolous, that the trial judge made the right decision the first time, that custody
static and
Kramer
Ju
Santosky v.
immutable, and that custody matters don't involve fundamental rights. (*See,
(1982)
455 U.S.
20
to the courts to make that
circular argument, that is, that any
trying to
rn
i
if
o
al
Statute
19
24
custody disputes was most clearly
Implicit in her characterization of parent's attempt to "regain custody" is the belief that such
17
23
the VLS to resolve
di
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ew
13
22
security requirement of
(Bill History of Assem. Bill 1938, (2000-2001 Reg. Sess.), (enacted as Stats. 2002. ch.
1118.) "Under existing law, parties to family law and probate law proceedings, as well as
the court, may already use the vexatious litigant statutes if they so desire. [11] The intent
of this bill, according to the author and the proponents, is to point the way to the
vexatious litigant statutes to the parties engaged in these proceedings and to the court, as
a tool to discourage repeated motions by parents to regain custody of their children when
there are no changed circumstances to justify a different result." (Sen. Com. on Judiciary
Analysis of Assem. Bill No. 1938 (2001-2002 Reg. Sess.)
12
21
on
parents who try to regain custody of their children, (In
11
18
proof
Camerado ruled that
George's decision in Elkins v. Sup. Ct., Judge Jane Cardoza
history of the Vexatious Litigant

10
from the
845).
encouraged and promoted in a decision by Judge Cardoza.

Chief Justice
as
expand the reach of the VLS." In abrogating the distinction in the VLS
38. The trial courts' reliance
16
1990 amendments to the VLS
"representation" did not shield a previously declared litigant
reading of the VLS, the Court of
represented and self-represented litigants, the appellate court in
391.3. (supra,
838. In its broad
App. 4th
Appeals for the Fourth District in Camerado viewed the

of legislative intent to
12 Cal.
Court
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show
argument would be pointless. Therefore, denial of access

In this class
to
parent
action, there are members whc
rights terminated and then the trial courts have relied on the appellate
court's "denial of permission" to
appeal (the termination order)
emergency visitation is "final" and that there has been
Factual
predicated on a
"change of circumstance" argument is wrong and that access
"changed circumstances" is necessary.
have had their parental
in this way is
745). The use of the VLS
Allegations, Parent H, C, AH.).
In
no
short, the VLS
as
proof that a request for
"change of circumstances." (*See,

is not used
as
"a tool to
discourage
25
17
26
27
supra at 8 43-844: A review of the 1990 amendments demonstrates the Legislature's intent to broad(
of
the
vexatious litigant statute....Nothing in these amendments suggests a legislative intent to overturn tl
the reach
decision in Muller v. Tanner, supra, 2 Cal.App.3d 438, or otherwise limit the reach of the vexatious litigant statute.
The expansive nature of the amendments suggests just the opposite.
Camerado,
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repeated motions by parents
regain custody, but as
41 Cal. 4th
declarations
rule
as
as
or
10
11
15
In
as was
or
k
Chief Justice
George
Jeffrey Elkins, would
"shock, outrage, and anger." (Id., 1367). Chief Justice George also pointed out,
Ju
conmion
rn
i
al
if
o
27
reversing the trial court,
theme in the appellate decisions invalidating local rules, and one that also
appears in the present case, is that a local court has advanced the goals of efficiency and
conservation of judicial resources by adopting procedures that deviated from those
established by statute, thereby impairing the countervailing interests of litigants as well a
the interest of the public in being afforded access to justice, resolution of a controversy
on the merits, and a fair proceeding.
21
26
In
that have invalidated fast-track rules, supra 1353:
19
25
hearsay violation.
riffing on due process of law, Chief Justice George pointed out the "common theme" of cases
18
24
the
1345:
16
23
on
Although we are sympathetic to the need of trial courts to process the heavy case load of
dissolution matters in a timely manner, a fair and full adjudication on the merits is at least
as important in family law trials as in other civil matters, in light of the importance of the
issues presented such as the custody and well-being of children and the disposition of a
family's entire net worth. Although respondent court evidently sought to improve the
administration of justice by adopting and enforcing its rule and order, in doing so it
improperly deviated from state law. (emphasis added)
14
22
cross
answering the "constitutional questions."' Instead, he
family law litigants deprived of their "day in court,
express their
13
20
right to testify,
applied was inconsistent with the guarantee of due process, Chief Justice George relied or
noted that
12
17
denied the
testimony. Although Jeffrey Elkins argued that the local
the doctrine of "judicial restraint" to avoid
Ilsupra,
was
present evidence because he has failed to comply with a local rule requiring
to the nature of the oral
based his decision

9
1337, 1356). In Elkins, Jeffrey Elkins
et
w
(2007)
di
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ew
Judge Cardoza edict, Chief Justice George ruled that
by declarations" in family law proceedings violated the "hearsay rules." (Elkins v. Sup.
examine witness,
6
parent who the trial
"trials
Ct
way to lock out the
perceives as the culpable or "guilty" party in the custody dispute.

39. More than two years before
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I I Although Chief Justice George points out the need for "access to justice" and mentions that his
I I decision provides "guidance to trial courts,
Judge Jane Cardoza, more than two years later,
18
Elkins, supra 1357: The conclusion we reach also permits us to avoid the difficult question whether the local rule
and order violate petitioner's right to due process of law, "[m]indful [as we are] of the prudential rule of judicial
restraint that counsels against rendering a decision on constitutional grounds if a statutory basis for resolution
exists." (NBC Subsidiary (KIVBC-TV), Inc. v. Superior Court (1999) 20 Ca1.4th 1178, 1190.) [8] This rule directs
that "if reasonably possible, statutory provisions should be interpreted in a manner that avoids serious constitutional
questions." (Id.
at p.
1197.)
1346: In addition to providing guidance to the trial courts, our discussion highlights the unusual
burdens and restrictions that have been imposed upon family law litigants at the local level in response to increasing
case loads and limited judicial resources. We observe that this problem may merit consideration as a statewide
'Elkins, supra
Class Action
12
SER 41
family law judges
40. In Elkins, Chief Justice
the member of this class. He also
(family law)
have at least
directed that
9
11
12
13
14
15
16
As noted
showing a loss of "faith
one
pointed out that theses
surveys revealed that "80%
of the cases
unrepresented party by the time ofdisposition." (supra, 1368).
family law courts to "earn
In
the public trust, Chief Justice George
task force be set up by the Judicial Council.
(supra, 1369,
th
20):
accommodate self-representedfamily law
Ju
to
above, for Judge Jane Cardoza and family law judges of her ilk, the "special care taken
and curtail
20
state
or
Court's decision in Elkins, she neither
rationale of Elkins
many
litigants" is to declare them
"vexatious
litigants"
deny them access. Although Judge Cardoza's ruling was issued two years
Supreme
rn
i
if
o
al
statewide surveys
George referred to
(Emphasis added)
19
22
the Elkins Task Force.
We recommend to the Judicial Council that it establish a task force, including

representatives of the family law bench and bar and the Judicial Council Advisory
Committee on Families and the Courts, to study and propose measures to assist trial
courts in achieving efficiency and fairness in marital dissolution proceedings and to
ensure access to justicefor litigants, many of whom are self-represented. Such a task
force might wish to consider proposals for adoption of new rules of court establishing
statewide rules of practice and procedure for fair and expeditious proceedings in family
law, from the initiation of an action to postjudgment motions. Special care might be
taken to accommodate self-represented litigants. Proposed rules could be written in a
manner easy for laypersons to follow, be economical to comply with, and ensure that a
litigant be afforded a satisfactory opportunity to present his or her case to the court.
10
21
or
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view of the failure of the
18
to
I and confidence" in the family law courts. (supra, 1368). That is on-going sentiment shared by
George.
17
access
of this class have found
"discourage"
predisposed to follow the recommendations of Judge Cardoza rather
are
than those of Chief Justice
"tool" to
as a
trying to "regain custody." Unfortunately, the members
those parents
that
family law judges use of the VLS
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or
how the
use
of the VLS in
after the
explained how here ruling squared with the
custody disputes "ensured access for litigants,
of whom are self-represented."

41. The Elkins Task Force has done
23
Justice
George's
cry for
more access
and
nothing to quash the pitched battle between Chief
Judge Cardoza's yell
for less
access.
Judge Laurie D.
24
Zelon, the Chairperson of the Elkins Task Force, after a lengthy and "comprehensive review" of
25
family law courts, issued her final recommendations, which are cited here:2
26
27
Our task force's recommendations fall under five broad categories:
policy matter,
and suggest to the Judicial Council that it establish
task force for that purpose.
http://www. courts.ca. goy/documents/20100423 itemj.pdf

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Efficient and Effective Procedures to Help Ensure Justice, Fairness, Due Process, and
Safety
II. More Effective Child Custody Procedures for a Better Court Experience for Families
III.
Ensuring Meaningful Access to Justice for All Litigants
IV.
Enhancing the Status of and Respect for, Family Law Litigants and the Family Law
Process Through Judicial Leadership
or
k
I.
4
5
et
w
and Children
Laying the Foundation for Future Innovation
V.
6
On
April 23, 2010, the Judicial
fails to
9
10
judges" and by Chief Justice George for greater access

address the
subject of the Vexatious Litigant
12
submitted
13
Judge Cardoza and using the VLS
on
role in
to
18
Recom):,
to the fact that
27
In the final
parents acting "in propria
for "vexatious
litigant" actions under 391.1.
"potential difficulties" for self-represented parents, she
seems
to have
Ju
rn
i
al
if
o
26
Judge Zelon states that the "Legislature
some
cases" and drafted the
has
recognized the difficulties with self-representation in
Sargent Shriver Civil Counsel Act (AB
590
[Feuer];
Stats.
2009, ch.
457), which became law and "was funded, commencing October 1, 2011, for several pilot projects
needs."
22
representation
to
low-income parties
on
critical legal issues
affecting basic human
Judge Zelon conceded in her fmal recommendations that most family law litigants would
remain unrepresented
even
if the Act
were
passed.' In short, the "potential problems" consist of the
21
http://www.ca1iforniaprobono.org/news/artic1e.310603-Judicial_Council_Accepts_Elkins_Task_Force_Report
*See pg. 1: http://www.courts.ca.gov/documents/AB-590.pdf
23
*See pg. 79: http://www.courts.ca.gov/documents/20100423itemj.pdf
22
nc)
to
Cases in which one side has counsel and the other does not can pose a variety of potential
difficulties for the unrepresented litigant, the attorney, and the judicial officer.
Representation may be available in more of these cases if courts were to make early
needs-based attorney fee awards.
that will provide
25
opinion as
totally outflanked by the interest Judge Cardoza was promoting. (*See fn 7, pg. 79, Final
21
24
no
19
23
She does not
unclog their crowded family court dockets, to curtail
custody disputes by labeling one of the parents "vexatious."
While she did allude to

been
"family law litigants."
family courts. By the time the final recommendations were being
persona" in custody disputes could becomes targets

17
for
Statute and the Task Force offered
recommendations, Judge Zelon seemed oblivious
22
she
April 23, 2010, family law judges throughout California were following the lead of
access, and to end
15
20
Judge Zelon's
recognize the battle being waged by Judge Cardoza for use of the VLS by "family law
whether the VLS has
16
While
repeated the lofty goals and gilded promises of Chief Justice George,
11
14
adopted the recommendations.'
di
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final recommendations
8
Council
Class Action
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PAGE 14
SER 43
problem that "unrepresented" parents have been and remain targets
(for "acting in propria persona")

"on their
own
motions" under
42. The
391.7
constitutionality of the VLS has been upheld.
The constitutional
VLS,
on
its face
or as
challenges
to
applied, violated their fundamental custody rights. (Stanley
I I v. Illinois (1972) 405 U.S. 645). In Shalant v.
Girardi, (2010), 183 Cal. App. 545, the Court of
Appeals cautioned against "broad interpretations"
of the VLS, supra, 557:
Given the important constitutional concerns that section 391.7 implicates, we

conclude that the statute should not be broadly interpreted. Rather, it should be
applied strictly according to its terms. (emphasis added).
8
9
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
by the opposing party (parent) or by the "presiding judges"
I I VLS, however, have always been brought by civil litigants, not family law litigants/parents who
assert that the
litigant"
actions
of "vexatious
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The Court of Appeals noted that it is "incorrect" to
11
VLS has been
12
impermissively invade the right the right of access to the courts."24 (Shalant, supra, 556-557).
13
The
upheld on the grounds that they have been "narrowly drawn and thus do not
Supreme Court adopted the "plain reading" (strict construction) approach to the VLS,
cautioned courts to "observe the limits set

14
distinction by the
15
absurd."
passage from the
17
1177:
As the
by statutory scheme" of the VLS,
Legislature between "represented"
(Shalant v.
16
Girardi
(2011)
51 Cal.
and "in
and noted that the
propria persona" litigants "was not
4th 1164, 1176). Further, the Supreme Court lifted a
appellate decision that scolded courts for acts
legislation,
supra at
"We
sympathize with the plight
Ju
appellate court below remarked:
of judicial
of already
overburdened trial courts that are forced to contend with the abusive conduct of vexatious
litigants. But in their efforts to deal with the problem of vexatious litigants, courts must
observe the limits set by the applicable statutory scheme. If those limits are too confining
then it is the function of the Legislature, not the courts, to expand them."
18
rn
i
19
20
"broadly interpret" the VLS because the
21
Judicial officers
al
if
o
22
this class.
(Evid.
are
presumed to follow the law, but that is not always
Code
evident to the members of
601, 604). The case here is rift with family law judge and appellate
23
24
24
supra at 556: "Taken as a purely descriptive claim, the statement is probably truesection 391.7 does
have been interpreted broadly. (See Forrest, supra, 150 Cal.App.4th at pp. 195-196 & fn. 4 [collecting
cases].) But taken as a normative claim--that section 391.7 should be interpreted broadly--the statement is incorrect,
because the Court of Appeal has repeatedly upheld the vexatious litigant statutes (including section 391.7) against
constitutional challenges on the ground that the statutes are narrowly drawn and thus do not impermissibly invade
the right of access to the courts. (See Wolfgram v. Wells Fargo Bank (1997) 53 Cal.App.4th 43, 55-57, 60; Luckett
v. Panos (2008) 161 Cal.App.4th 77, 81; In re R.H. (2009) 170 Cal.App.4th 678, 702; Kobayashi v. Superior Court
(2009) 175 Cal.App.4th 536, 541.) Given the important constitutional concerns that [183 Cal.App.4th 557] section
391.7 implicates, we conclude that the statute should not be broadly interpreted. Rather, it should be applied strictly
according to its terms."
Shalant,
appear to
25
26
27
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broadly and inconsistently with the holding in Shalant v.
construe the VLS both
43. While the Elkins Task
Force, under Category IV, seeks
to "ensure the status and
respect offamily law litigants

a
it's clear that
have less
visitation rights if they had, in
to courts than criminal defendants
176 Cal.
of the vexatious litigant's propensity for dishonesty..." (supra, 541).
ofsuing people as a way oflife" and they "watch
11
shows."
12
"in forma pauperis status" and "use their
(supra,
at
94).
too
He characterized "vexatious
costs to
themselves
"mental
orders, (supra, 91):
In Luckett
(supra,
at
94).
He
much
day time
television full
conjectured that "vexatious litigants"
litigants probably do suffer from
"habit
at
very
who
likely had
some
sort of
18
"perfectly imaginable" that "vexatious litigants" could also be like Professor Moriarty, the
Ju
Then, apparently not wishing to define the group
criminal mastermind of Conan
91-92). While Judge Sills
20
"criminal
rn
i
21
if
o
22
narrowly, Judge Sills
and the
stated that it was
arch-enemy of Sherlock Holmes.' (supra

a
"mental disorder"
or was
mastermind, he did rule that he should not be allowed to file any more actions for
only after he's
shown "remorse" for
being a "vexatious litigant."
(supra, 92, 96).

44. The
family law litigants in this class
Mr. Luckett
25
in Luckett v. Panos remains
was a
"civil
action
can
take little consolation in the fact that
litigant" as opposed to a "family law litigant." The ruling of Judge Sills
24
27
Doyle's fiction,
too
did not decide if Mr. Luckett suffered from
"no less than four years" and
23
26
sue
virtually no
17
19
v.
ofjudge
litigants" as unemployed deadbeats
"typewriters as weapons, filing lawsuits
is
mental disorder, a fact that trial court staff around the state would appear to have first
hand knowledge.
16
al
and less
App. 4th, 535, a decision rendered after Elkins and during the "public
To be sure, of course, many vexatious
molesters)
fact, committed "murder." For instance, in Kobayashi v. Superior
10
15
fact,
and vilified and
Panos, (2008) 161 Cal. App. 4th 77, Judge Sills suggested that vexatious litigants have
14
In
phase of the Elkins Task Force, Judge Sills opined that "much vexatious litigation
the product
13
child
(murders, rapists,
di
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comment"
litigants who've been declared "vexatious" are judicially profiled
access
(2009)
order that
judge's
Court
family law litigant "vexatious" in a custody dispute would achieve that goal.
it's unclear how
et
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"declares"
through judicial leadership,
Girardi.
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binding precedent, applicable to both civil and family law litigants.
In view of the Luckett holding, the class members
recognize that their branding as
"vexatious
25
Luckett, supra 92: "And it is perfectly imaginable that a very sane, if wrongfully-minded person Conan Doyle's
fictional Moriarty comes to mind who would be perfectly willing to pursue a course of vexatious litigation in the
course of some ulterior purpose."
Class Action
16
SER 45
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2
on
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various levels. First, their
"no less than four years."
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Second, the "branding" is
an
implicit psychological evaluation,
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they suffer "mental disorders" or are "criminal masterminds." Third, it is not the family law
et
w
judge that must "earn the publics' trust" as Chief Justice George stated in Elkins, but the family
4
law "vexatious" parents who must show "remorse." The Elkins Task Force recommendation that
family law litigants should be shown "respect" is replaced with a requirement that they must
show "remorse." In this sense, the
psychological evaluation that the members have
supporting declarations
untreatable illness. In Luckett,
out that Mr. Luckett's
points
some
Judge Sills
show that he has not "mended his ways,
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
"branding" is not merely a judicial judgment or decision but a
(supra, 92):
9
All Luckett's declaration shows is that, instead of devoting his life to something
productive, he has spent the last 16 years suing people. That fact only confirms the very
trait of character on which the determination of vexatious litigant was first based.
10
11
None of the class members here

12
13
14
"trait
of character." Chief Justice George, in Elkins, realized
law courts
are
systemic.
16
custody disputes and a quick fix to managing their dockets.

45.
scare
clear procedures,
the Judicial Council has
(1993)
53 Cal.
rn
i
20
judicial resources to brand parents
no
written
as
family law judges
"vexatious"
as a
way of ending
recently added 391.8 to the VLS', this seems more a response to the
App. 4th 43
that the "vexatious
Wolfgram in Wolfgram
v.
Wells Fargo Bank
litigant" declaration functioned as a "permanent
branding." It also raise a question if a party that files a 391.8 request is entitled to
22
hearing.
23
this
if
o
21
24
25
26
27
In this way, the Court of Appeals for the Second
stated,
an
evidentiary
Appellate District was "troubled" by
"permanent" branding issue. (PBA, LLC v. KPOD, Ltd. (2003)
FBA court
find it
standards, and no practical way to erase the branding. While
"constitutional concern" first raised by John E.
19
problems with the family
Finally, after being labeled vexatious, the class members here have found that there
Ju
are no
hat the
Instead of trying to "earn the public' respect,
better use of their
and
"something unproductive" or the product of some defective
time with their children is
15
18
al
prepared to concede that their fight to "regain custody"
more
17
are
112 Cal.
App. 4th 965)). The
supra 976:
(a). A vexatious litigant subject to a prefiling order under Section 391.7 may file an application to
prefiling order and remove his or her name from the Judicial Council's list of vexatious litigants subject to
prefiling orders. The application shall be filed in the court that entered the prefiling order, either in the action in
which the prefiling order was entered or in conjunction with a request to the presiding justice or presiding judge to
file new litigation under Section 391.7. The application shall be made before the justice or judge who entered the
order, if that justice or judge is available. If that justice or judge who entered the order is not available, the
application shall be made before the presiding justice or presiding judge, or his or her designee.
Section 391.8
vacate the
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or
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While there is much to recommend this reasoning, the conclusion section 391.7 is to be a
permanent, irrevocable restriction is troubling. Although section 391.7 does not
absolutely exclude the "pro per" litigant from the courts, we believe fundamental fairness
requires the "vexatious litigant" brand be erasable in appropriate circumstances.
This
5
"prefiling order" under CCP 391.7 is not an "absolute exclusion."
ruling was predicated upon the language in Wolfgram, which stated that when a vexatious
litigant "knocks on
the courtroom door with
colorable claim, he may enter."' In Luckett,
et
w
The PBC court ruled that
Judge Sills
stated that the branding
Procedures
553, which could be lifted with a showing of "changed circumstances." (supra, 93).
In Luckett,
10
an
injunction under Code of Civil
as
noted
above, Judge Sills invented factors, such
courts could consider before
spell
tantamount to
di
ci
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JB B
N ra
N nc
.c h
om N
ew
was
out the
as
his "remorse"
erasing the vexatious litigant branding.
factor, which
While the VLS does not
"appropriate circumstances" for erasure, the class members here are faced with the
judge-created "factors" of "remorse" and "no less than four year" banishment from filing. Judge
11
12
Sills' factors, while harsh and
severe even
for civil
litigants,
46. The battle line here is between
family law judges
who want to
unclog their dockets of
well-informed judiciary who know the
14
"difficult cases" and parents who expect and deserve
15
law, the Family Code, Title Five Rules, and the facts of a particular case. The class members
not treated with
16
"respect." Instead,
the
17
essence, any
19
and the class members
Ju
judges make up the rules, have
47. It's this
make "vexatious
rn
i
21
if
o
22
23
24
25
26
27
For
to
are
self-represented and often indigent parent.
In
attempt to "resolve" the custody dispute has been scuttled. In this rigged game, the
18
20
family law judges and lawyers for ex-spouses have taken
up the club of the VLS and used it to beat down the
al
nothing short of tyrannical and
inquisitional in the context of custody cases.
13
are
are
all the power, exercise it with
driven into the
impunity and "absolute immunity,
ground both financially and psychologically.
disparity in power and treatment between family law litigants and judges who
litigant rulings" that further undermines "confidence and trust" in the judiciary.
instance, Judge McBride, then the Presiding Judge of the San Francisco Superior Court, tried
deny one class member the right to appeal a "vexatious litigant" order issued by a family law
judge. (*See, RJN, Exhibit Z). Although the Administrative Presiding Judge of the Court
of
Plaintiffs notes, having been repeatedly denied the right to file anything, that the issue of what is a "colorable"
claim as applied in custody case is unconstitutionally vague because there is no clear standard (Grayned v. City of
Rockford, 408 U.S. 104, 108-109 (1972) quoted in Village ofHoffman Estates v. The Flipside, 455 U.S. 489, 498
(1982). Plaintiffs also notes that the presiding judges have applied the prefiling order in such a way as to deny them
and their attorneys access to the family law courts in violation of the Due Process Clause of the 14th Amendment and
his 1" Amendment right to petition (*See, Boddie v. Connecticut 401 U.S. 371 (1971).
impinges
on
fundamental
custody rights (Stanley v. Illinois)
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Appeals for the First District would overrule Judge McBride (*See, RJN, Exhibit ZZ), the entire
judges' confusion over the right of litigants to "appeal"
4
litigant order.
vexatious
and
one
witness intimidation charge
(against his ex-spouse) that were brought against
on
defendant's
the
he would remain
right to a "speedy trial,
di
ci
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JB B
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.c h
om N
ew
seated
bench, trying to deny a father the right to appeal
patois of the proletariat, Judge McBride would be referred to as
"vexatious
litigant" order.
"wife-beater" and
10
judge." (One can only guess
11
Oddly, the judges of the San Francisco Superior Court elected Judge McBride,
12
to the rank of Presiding
13
irony is that these judges will overlook or excuse Judge McBride's

related to domestic
14
at how
Judge
Sills
to run the whole show at the San Francisco
Judge,
15
In the
"crooked
might describe one of his "fellow" judges.).

the
"wife-beater,
Superior Court.3 The
indiscretions
(felony charges
battery and abuse) but they do not hesitate to brand parents as
trying to regain custody (and then deny them access after stripping them
"vexatious" for
of custody
rights).
The
tragedy is that the family law litigants have to bear the entire burden of this disparate treatment.
16
VII. FACTUAL ALLEGATIONS
Facts Related to
18
48. At the
Ju
17
law judge
19
rn
i
substance abuse
if
o
22
23
24
25
26
July 10th,
Parent H.
2008
hearing on visitation and a vexatious litigant motion, the family
charge of overseeing supervised visits) that Ms.
but Ms. Gonzales
21
Kerry Hicks,
adopted not only the recommendation of Ms.
in
al
charges (against
spouse)
altering dates to circumvent a criminal
In
him.' While the CJP would eventually censor him for disrespecting public defenders and
20
about
special treatment and an imbalance in the equation of power.
Performance with respect to three misdemeanor domestic violence and battery

his
was
Presiding Judge McBride was not publicly censored by the Commission on Judicial
that sense,
It
et
w
the appearance of disparate and
or
k
twist of events undermined the class member's "trust" in the judicial system. It was not just the
2
opinion that Ms.
or
mental
Hick's
Gonzales
(the manager of the non-profit
Hicks not have any further
supervised visits
alleged "inappropriate behavior" was a "red flag" for
illness, (FUN, Exhibit A, pg. 172):
THE COURT: The last seven minutes you talked and you looked down the whole time.
You never looked up and made eye contact except one moment at the end.
THE WITNESS: I'm trying to concentrate so fiercely.
THE COURT: The problem is there's something going on, and it may be something
going on that can be treated with medication, it can be something else. I want to see you
28
http://www.sfweek1y.com/1999-05-12/calendar/cothran/full/
http://www. cjp. ca. gov/res/docs/Public Admon/McBride 130_11-18-08.pdf;
http://www.abajournal.comlnews/article/san_franciscojudge_reprimandedfor_putdowns_pd_dismissals
27
II
http://www.sanfranciscosentinel.com/?p=14185
Class Action
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or
k
et
w
3
4
THE COURT: They're going to be assessing whether or not there is a problem with
alcohol, with drugs, with some sort of mental health problem. I want to find out what's
going on because I don't want to see you in such pain, but right now I can't let you have
this visitation with your kids because I'm concerned.
di
ci
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ew
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with your children. This is the most painful case I've ever had in here, but I don't know
what's happening here.
THE WITNESS: I can tell you if you give me time.
THE COURT: No. Somebody else is going to tell me.
THE WITNESS: I've got evidence.
THE COURT: This is called the Quick Start program, and I'm ordering you to go to the
Quick Start program for an assessment.
ID: 9003597
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Ms. Hicks has not
seen
her children since then
Quick Start showed no signs
even
of substance abuse and
though a week later her "results" from the

no
mental illness.
(RJN, Exhibit B).
She's
been locked out of the court by virtue of the VLS.

11
12
13
49.
a
Although the family law judge presumed that Ms.
"impaired"
and such
respect to the "vexatious litigant" motion brought against her. In that regard, the attorney for her
14
II ex-spouse noted, in a fit of condescension, that Ms. Hicks did not jump through her hoops and
15
respond to her demands for a response to the charge of being "vexatious, (Exhibit A, pg. 164):
MS. KARCZAG: She was supposed to file a response by July 8th.
This is what happened. The vexatious litigant that I bought stated to Miss Hicks
I'mmy intention to grant this unless you can give me a reason why I shouldn't and I
want a response filed by July 8th. There's no response and instead of written response she
noticed more ex-partes. I think she's like almost a poster child for vexatious litigants.
There's so many ex-partes and motions, meritless frankly your Honor. I'm exhausted
17
Ju
18
19
from all this.
20
rn
i
Although an attorney's
21
22
if
o
al
was so
potential threat that she couldn't see her children, he let her proceed "in propria persona" with
16
Hicks
statements
are
not "evidence" because
they are not made under oath, tl
family law judge apparently considered this evidence of "vexatious litigation." Further, the trial
court did not
even
address the second prong of a
23
likelihood of prevailing in the
24
Ms. Hicks'
25
Facts Related to Ron
391.1 motion, that is, the "reasonable
litigation." Apparently, the family law judge, having terminated
rights as a parent, unilaterally mooted any issue of "prevailing" in a custody dispute.

Pierce, Parent P
31
26
27
Evidence is "testimony, writings, material objects, or other things presented to the senses that are offered to prove
the existence or nonexistence of a fact." (Evid. Code, 140.) "Testimony" refers to statements made under oath.
(People v. Belton (1979) 23 Cal. 3d 516, 524 [153 Cal.Rptr. 195, 591 P.2d 485].) Thus, attorneys' statements do not
constitute evidence. (Van de Kamp v. Bank of America (1988) 204 Cal. App. 3d 819, 843 [251 Cal.Rptr. 530].).
Again, he was not explained or offered any proof that the TICA is valid other than his bold allegations.
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50. On December
21, 2011, the California Court of Appeals for the Fifth District send
pleading entitled "Notice of Hearing To Determine Vexatious Litigant and Enter

At that
Prefiling Order." (RJN, Exhibit C).

noted that Mr. Pierce had, in the
six
determined
391(b)(1)).
oral argument, not
even an
di
ci
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JB B
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N nc
.c h
om N
ew
9
10
The first obvious
of section
problem with this "view" of the VLS
the plain
13
(2011)
14
the second prong of the
15
"plaintiff' is a vexatious litigant
"plain language"
It also contradicts
and that there is
no
nor
anyone else
can
showing that the
"reasonable probability he will prevail in

if there is
no
"pending litigation,
then
prevail. Third, Mr. Pierce is not the "plaintiff' nor is the
appellate court the "moving defendant." Finally,

motion" to enter
section 391.7 allows
presiding judge "on its
"prefiling order" against a "vexatious litigant." Clearly,
the "condition
20
has been found to be
rn
i
precedent" to entering a prefiling order is a finding, presumably by the trial court, that a litigant
enter a
22
if
o
al
19
21
is that it contradicts that
391.1 motion meaningless. Section 391.1 requires
litigation against the moving defendant." Clearly,
own
individual
4th 1164. The second problem with the appellate court's position is that it renders
51 Cal.
Ju
18
brief,
language reading" doctrine announced by the Supreme Court in Shalant v. Girardi,
neither Mr. Pierce

17
an
391.132, which states ".[I]n any litigation vending in any court...".
12
the
no
opposing party), the appellate court, in explaining why it had
"There need not be pending litigation for a court to move to declare

vexatious litigant and subject him to a prefiling order."
16
appellate
"opinion" (though there was no notice of appeal, no appeal record,
morphed into a trial court, stated, (Exhibit D., pg 3):
11
The
"preceding seven-year period, prosecuted "in propria persona"
to him under
adversely"
51. In their
no
"pending" appeal.
appeals or writs (five of which were related to his family law case) which had been "finally
6
7
no
time, there was
or
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"vexatious
"prefiling order" before Mr.

52. On
24
25
26
27
providing Mr.
(Exhibit E).
Pierce
appellate court presumes to
Pierce filed
MC-703 form
trial court.
asking that the "vexatious"
gyounds that there was no legal basis for an "impromptu
on
the
On
February 25, 2013, Judge Kane "denied" the motion without
23
motion.
Pierce's case, the
Pierce was found to be "vexatious" by
February 21, 2013, Mr.
litigation "opinion" be lifted

391.1
litigant." In Mr.
hearing or without stating a reason for the denial. (Exhibit F).
This raises
32
391.1. In any litigation pending in any court of this state, at any time until fmal judgment is entered, a defendant
may move the court, upon notice and hearing, for an order requiring the plaintiff to furnish security or for an order
dismissing the litigation pursuant to subdivision (b) of Section 391.3. The motion for an order requiring the plaintiff
to furnish security shall be based upon the ground, and supported by a showing, that the plaintiff is a vexatious
litigant and that there is not a reasonable probabiliry that he or she will prevail in the litigation against the moving
defendant.
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"perpetual branding" concern raised by Jeffrey Wolfe over 20 years ago.
Facts related to Andrew
Karres,
Parent K.
or
k
the
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Court of Sacramento
statement of decision, the
family law judge in the Superior
50/50 shared
custody, ordered his attorney not
County denied Mr.
to mention the sexual orientation of the
54. On November
Karres
mother33, and designated him a "vexatious litigant."
14, 2012, Sharon Huddle, the attorney for Mr. Karres, was present
family law judge "vacated" the scheduled hearing on the "vexatious litigant" motion.
12, 2012
et
w
53. In its November
when the
Although section 391.2 provides that a litigant is entitled to a "hearing" with the right to provide
"any" evidence, both "oral
and
the
by affidavit,
family law judge denied any hearing.
di
ci
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JB B
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N nc
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om N
ew
The
attorney for Mr. Karres has appealed the "vexatious litigant" ruling and has challenged the
9
family law judge's "gag-order"
attorney, Ms. Huddle explains, in pleadings
11
how the
12
Facts related to Michele Fotinos/Parent F.
14
"gag-order" infringes
55. At
15
due process.
Fotinos' attorney in her
The
At the
hearing, the judge found that Ms.
17
of whether there was
18
was
19
unsuccessful motions" in the probate
Ju
not
rn
i
likely to "prevail."
apply to Ms.
21
behalf of Ms. Fotinos's
if
o
(RJN, Exhibit II).'
as
as
It
seems
after
"vexatious
was
(RN, Exhibit J, pg. 3, lines 7-12).
"vexatious" but did not consider the issue
ofprevailing" in the litigation because the case
the trial judge count Ms. Fotinos "five more"
case as
At the
her attorney,
Fotinos
"reasonable likelihood
essentially over at that point.
would also
22
Fotinos
well
16
was
is relevant and
court-appointed probate attorney sought to have a "prefling
imposed against Ms.
she
appeal, why the sexual orientation
family law case substituted into the probate case
order"
20
on
Karres'
probate hearing on November 9, 2012 involving her mother's estate", Michele
litigant" motion was filed.
al
referring to the mother's "sexual orientation." Mr.
10
13
on
evidence of "vexatiousness"
hearing, the judge
stated that the
as
well
as
proof that
391.7 prefiling order
Fotinos' attorney and would extend to any motions the attorney filed
on
family law case.
56. In the November 15, 2012 notice of order, the judge did not sanction Ms. Fotinos'
23
attorney under Code of Civil Procedure 128.7 but imposed the "vexatious litigant" order against
24
the attorney,
25
26
27
nr,
ruling that (RJN, Exhibit K, pg. 6, line 11-19):
*See Exhibit x in which Mr. Karres' attorney explains why this matter is relevant to the arguments that she is
making in the custody case and how it related to statutory rights.
Implicit in the "gag-order" is the judge's own bias that if the husband refers to his ex-wife's sexuality, he is
"misogynistic" or discriminating on the basis of "sexual orientation." However, Ms. Huddle, the attorney and a
woman, is raising this issue. The judge just issues the "gag-order" without explaining the difficult if not absurd task
of how a female attorney might be "misogynistic" or "sexually discriminating" by raising the orientation issue.
35
The Conversatorship of Ester Boyles, San Mateo County Case No. 121437.
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Attorney Patricia Barry offered evidence at the hearing to the effect that she had been
guiding and facilitating the in propria persona flings by Ms. Michele Fontinos. This court
finds that Attorney Patricia Barry has acted as a mere conduit for unmeritorious filings
and therefore that the above order prohibiting Ms. Michele Fontinos from filing any
petition, application, or motion other than a discovery option, for any order in propria
persona without first obtaining leave of the presiding judge shall also prohibit Patricia
Barry from filing any petition, application, or motion other than a discovery motion, for
any order on behalf of Ms. Michele Fontinos without first obtaining leave of the
presiding judge. (See In re Shieh (1937) 17 Cal. App. 4th 1154, 1167).
or
k
1
2
4
5
et
w
Barry's representation of Ms.
Ms.
Fontinos in her
family law case will require Ms.
Apparently,
Barry to file out MC-701 "vexatious litigant" forms and get "permission" from the presiding
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
judge before being allowed to file. This is inconsistent with the Supreme Court's ruling in
9
Shalant v. Girardi and contradicts Weissman
v.
10
1194, which stated that the VLS "by its
11
Facts Related to Adil Hiramanek/Parent AH.

57. In
12
13
14
an
came
conference) and,
at a
18
on
(at a mandatory settlement
line
13).
The
family law judge stated
Ju
parental rights
are
not just
a
rn
i
if
o
al
23
24
25
26
27
(pg. 7,
line
7-8). Hence,
criminal act. His request for need-based fees under
Family Code 2032, which would have provided him "representation"
22
law
simply terminated, but any attempt to speak with his
progeny in the next 50 years becomes
36
or
'a
the restraining order shall be for 50 years, and shall expire at midnight
2062. The children shall be listed as protected persons."
Mr. Hiramanek's
restraining
deposition, allegedly sat near his ex-spouse and "stared at her with
enforcement purposes,
August 24,
Hiramanek violated the
with 100 feet of his wife at the court house
17
21
179 F3d
apply to attorneys.'
restraining order of 50 years because the judge found that Mr.
hateful stare.' (RJN, Exhibit M, pg. pg.
20
Cal.)
Request to Renew Restraining Order, the family law
16
19
terms" does not
Cir.
judge in the Santa Clara Superior Court extended a one year restraining order to a "permanent"
order when he
15
"Order RE Petitioner's
own
Quail Lodge, Inc. (1999 9t1
and shielded him from the
(1999, 9th Cir Cal) 179 F3d 1194. The court explained that the reason that
an attorney could not be declared a "vexatious litigant" was "because the vexatious litigant doctrine was never
intended to control attorney conduct and because an attorney appearing on behalfofa client could not by definition
be sanctioned as a "vexatious litigant, as he was acting as an attorney not a litigant." (supra, at 1999; emphasis
added). The court went on to explain: "Insofar as our research has uncovered, no court in this circuit has ever
imposed a vexatious litigant order on an attorney. We do not believe that the vexatious litigant doctrine was ever
intended to control attorney conduct and we do not propose to approve its application in this case as a means of
controlling attorney conduct. For example, the California vexatious litigant statute limits the definition of a
"vexatious litigant" to one who acts "in propria persona." Cal. Civ. Proc. Code 391.7. Similarly, the only district
court in this circuit to have adopted a vexatious litigant rule provides that the court may "proceed by reference to the
391 -391.7." Cent. Dist. of Calif.
Vexatious Litigants statute of the State of California, Cal. Code Civ. Proc.
of
a client cannot be sanctioned as a
behalf
on
Local R. 27A.4. We therefore conclude that an attorney appearing
a
as
not
and
as
an
he
she
is
or
vexatious litigant; by definition,
litigant.
attorney
acting
*See,
Weissman
v.
Quail Lodge,
Inc.
no
Class Action
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Case: 13-17170
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were
(RJN, Exhibit NN).
denied.
58. On March
22, 2010, the family law judge filed
Own Motion and Motion to

3
motion entitled "Notice
motion, the family law judge lists
In this
Hiramanek's various "unmeritorious" motions and notes that the two motions to
for
ruling in Shalant v.
391.7 provides that "prefiling orders"
1179). Nevertheless, the express language in
at
conditioned upon both
previous finding of being
ignores these
filing of "new litigation" (in propria persona). Here, the family law judge
express "condition precedents" and
10
"prefiling order" but for a 391.1
11
2010
12
under
13
are
Girardi that trial courts must "observe the statutory limits" of the VLS and
readings" of the statute. (supra,
"vexatious" and the

9
disqualify him
avoid "broad
Mr.
denied.' This motion was filed about 15 months before the state Supreme Courn
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
cause were
of Court's
Subject Respondent Adhil Hiramanek to a Prefiling Order as a
Litigant." (RJN, Exhibit N).
Vexatious
or
k
VLS,
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motion
purports to "move
on
(and then a prefiling order).
its
own
motion,
Of course, at the
not for
April 22,
hearing, the family law judge finds that Mr. Hiramanek has filed "unmeritorious motions"
391(b)(3).
likelihood" of his
The judge, not
surprisingly,
does not consider whether there is
"reasonable
prevailing in his custody dispute as required by 391.1.
Facts Related to Lisa Hunt-Nocero/Parent N.

14
59. While all her

15
County,
parental rights were terminated by the Superior Court of Riverside
Ms. Hunt-Nocero filed MC-701 forms
16
Vexatious
17
family court to deny any parent-child relationship." (RNJ, Exhibit P).
18
request for a hearing
19
rights was
20
picked up a pen,
Litigation) requesting a hearing on the issue of whether it is "unconstitutional for a

the issue of the
Ju
on
"denied" without
and
if
o
al
September 14, 2010
The
presiding judge simply exercised his discretion,
placed his X in the "Denied" box. This present case raises the companion
question of whether the VLS
22
Her
constitutionality of the termination of all her parental
explanation.
rn
i
21
(Request and Order to File New Litigation By
can
be
applied to deny all access to a family law court to challenge
de facto termination order.
Facts Related to Nicole Ann
23
60. Ms.
Ray/Parent R.
Ray has been declared
"vexatious" by the
family law judge of the
Sacramento
24
Superior Court but she has not been added to the official list maintained by Administrative
25
Office of the Courts. She has
26
CCP
27
37
553 and to
serve
sought to get the "vexatious label" lifted as
the "ends of justice." As
an
impoverished mother,
an
"injunction" under
she
can
only afford to
*Note: The fact that the family law judge initiated this "vexatious litigant" motion "on its own motion" shortly
after Mr. Miramanek's motion to disqualify for cause were denied certainly speaks to retaliation. In view of the 50
year restraining order, it would seem there is a compelling inference not just for bias but for retaliation.
Class Action
PAGE 24
SER 53
visit her three

2
daughter once
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month and pay the
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"non-profit" firm the $25
providing the "supervised visits" for the County of Sacramento.
She
that demand for
splits the hour into three
or
k
Case: 13-17170
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segments because the "nonprofit" firm that oversees supervised visitation only allows
visit with
one
child at
time.
Facts Related to Archibald
61. Since his
Cunningham/Parent
to
C.
parental rights were terminated on February 26, 2010 by the opposing
counsel's
request (MC-701) he filed for "emergency visitation." (RJN, Exhibit U). His attorney was forced
Exhibit
U).
10
denied
11
litigant order"
12
court to
13
hearing (as well
14
no
Appeals
fewer than
of March 5, 2009
was
used
as
the basis to
as
the termination order and
overturned the
$22, 167 fee
62. On
DVPA
Rifldn,
Ju
rn
i
pg 4-5). In
declaring Mr.
21
if
o
litigant order,
of
the Court of
precluded the $32, 193
The
391(b)(3) for filing "unmeritorious" motions
family law judge lists
change in custody/visitation and many for contempt,

(pg.
though the Court
September 14, 2012, the family law judge for the San Francisco Superior Court
pleadings. (RJN, Exhibit Y, pg. 3, line 7).
"denied."
even
Parent R.
or
22
order). Finally,
appeal.
19
v.
deny him "permission" by the appellate
and whether principles of res judicata
ruled that Mr. Rifkin was "vexatious" under section
for
the judge's first "vexatious
sanction from the first vexatious
18
20
denied by use of the MC-701 form.
deny his appeal of the second vexatious litigant order from the February 26, 2010
Facts Related to Richard
17
was
"eight times." (RJN, Exhibit VV). Further,
fee sanction in the second
16
553
His requests to be relieved of the burden of self-representation have been
Appeals refused to hear his appeal

15
denied every
forms, which were denied by the presiding judges. (Exhibit U). His request to
motion to lift the vexatious label under CCP
Superior Court has
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
file
the presiding judges of the SanFrancisco
fraud,
to file MC-701
al
parent
et
w
Allenby (2010)
190 Cal.
App. 4th
Rifkin
616 for the
38
the many
motions, some
which Mr. Rifkin filed but which
were
"vexatious, the family law judge relied on Golin
proposition that a "litigation tactic" designed to
grind down" an opponent shows an "improper motive" that amounts to "vexatious litigation."391
23
24
38
25
26
27
v. Westwood Park Assn (1998) 62 Cal. App. 4th 1211, the Court of Appeals noted that the VLS
apply to "criminal matters" such as the criminal contempt case here where Mr. Rifkin's ex-spouse was
Under McColm
was
not to
appointed an attorney in the criminal contempt case.

Golin, supra at 639: But the court's
comments at the hearing suggest that it reached the conclusion that the Golins
vexatious not because of individual unmeritorious filings but because of their litigation tactics--their regular
practice of revisiting issues and the volume of their supplemental and amended filings that cumulatively evidenced a
"level of vexatiousness." According to the trial court, together these spoke to an improper motive to "grind down the
other side" or to keep them from 'being able to move forward' in the litigation. This goes to the third, disjunctive
prong of section 391, subdivision (b)(3)--engaging in tactics that are frivolous or solely intended to cause
were
unnecessary
delay.
Class Action
PAGE 25
SER 54
Case: 13-17170
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(supra, 639).
to
The judge, however, does not
18-2
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explain how this rationale for this
civil
protracted custody disputes involving a "move-away" request.

VIII. CLASS DEFINITION AND ALLEGATIONS
23(a) and Rule (b)(1)(A)(B)
the Plaintiffs
bring this action on behalf of themselves and all
this action
on
law courts
(and on appeal with appellate courts)
California
Vexatious
64.
Numerosity:
Plaintiffs
The Plaintiff class is
11
parties that have been declared "vexatious:""
impracticable.
bring
in the family
who have been declared 'vexatious' under the
Litigant Statute and whose access
members would be
to state courts,
or
both trial courts and
denied."
so numerous
and
so
uncertain that joinder of all its
The Administrative Office of the Court maintains
list of
Duties
The Judicial Council maintains a record of vexatious litigants subject to such prefiling
orders and annually disseminates a list of such persons to the court clerks. (Code
13
Civ.
Proc.,
14
391.7(f).)
15
However, the Administrative Office of the Court lumps all vexatious litigants together, whether
16
they're civil or family law litigants." Upon information and belief there could be hundreds
17
parents in the class. Joinder of the class is impracticable because the list is not
evinced
there
are
cases
(*See,
fir.
40).
tens of thousands of spouses in
involve
custody disputes.
While all of these parents
are
"potential" class member, not all
only because of the size and uncertainty of the class, but because class members
if
o
of
Further, joinder of the class is impracticable not
22
means
does
family law dissolution proceedings, but not all of these
the parents have yet been "declared "vexatious."
financial
name
impracticable because
21
23
of
complete list as
declared "vexatious" but whose
Joinder of all parents in the class is
rn
i
20
not appear on the list.
Ju
19
by the fact that Plaintiff (Ms. Ray) who was
18
al
similarly situated.
consisting of "parents engaged in custody disputes
10
12
other persons
behalf of a class
appellate courts, has been curtailed, restricted,

9
Procedure,
Pierce, Rifkin Fotinos, Hicks, Hunt-Nocero, Hiramanek, Cunningham and Karres
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
of the Federal Rules of Civil
et
w
63. Pursuant to Rule
applied
case
or
k
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to maintain individual actions and
are
lack the
geographically disbursed throughout the
sate.
24
65.
25
Commonality.
issues that could be raised
There
are common
by individual
questions of law and fact predominate over specific
vexatious
litigant parents.
One
common
question among
26
40
27
41
http://www.courts.ca.gov/documents/Vexatious_Litigants.pdf
http://www.courts.ca.gov/documents/vexlit.pdf
Class Action
26
SER 55
Statute
propria persona" in custody cases
"suspect
class" under the
relationship,
"42
is
violation of their 1st Amendment
are
constitutionally vague or overbroad.
66. Plaintiffs
paragraph set forth previously.

67.
California,
Plaintiffs, parents in custody disputes in the family law courts throughout the state of
are
precondition
visitation
17
subject as self-represented litigants (and even when represented by attorneys) to
to
the
or
should know that parental
Ju
reasons
for
interest
of natural parents in the care, custody,
doing so. (*See, Santosky v.
not
Kramer
custody rights
(1982) 455,
been model parents
interest in preventing the irretrievable destruction
with forced dissolution
24
protections than do those resisting state
25
moves
to
"an exclusive
is, their custody and
are
fundament
are
rights
compelling
753-754: "The fundamental
and management
their child to the State. Even when blood relationships
23
26
that
which the state cannot interfere with without providing due process of law and
rn
i
al
if
o
22
Litigant Statue as
rights.
evaporate simply because they have
21
of the Vexatious
adjustment of a fundamental human relationship,
68. Defendants know
20
Rights-
reallege and incorporate herein by reference each and every allegation and
prefiling orders and "security" under 391.7
19
their
there is the issue of whether
IX. LEGAL CLAIMS

FIRST CLAIM FOR RELIEF
The Vexatious Litigant Statutes As Applied Violates
the Equal Protection Clause of the 14th Amendment
13
18
as
procedures of the VLS
10
16
to
parents
the
15
on
right to petition as well
against parents is an improper and "permanent" branding. Further,
14
whether the restrictions
question of law is
of
II right to due process of law. There is also the question of law whether the imposition of the VLS
12
common
Equal Protection Clause
family law courts, the only forum provided by the state for "the adjustment of a
to
fundamental
11
creates a
as
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
Litigant
access
applied to parents acting "in
all class members is whether the Vexatious
the 14th Amendment. Another
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or
liberty
of their child does not
have lost temporary
strained, parents retain
custody of
vital
of theirfamily life. If anything, persons faced
of their parental rights have a more critical need for procedural

intervention into
destroy weakened familial bonds,
ongoing family affairs. When the State
it must provide the parents with fundamentally fair
procedures.").
69. Defendants know
or
should know that
27
42
Boddie,
43
Boddie
nn
family law courts are "entirely stated-created"
supra, at 383.
v.
Connecticut, supra at 383.

Class Action
PAGE 27
SER 56
Case: 13-17170
03/05/2014
matters and are the
"only forum' the
state has
18-2
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of 55 59 of 101
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provided family law litigants,
and class members
here, which is "effectively empowered to settle" their custody disputes. (Boddie, supra,
376).
70. Defendants know
or
should know
as
Chief Justice
393,
George noted in Elkins v. Sup. Ct.,
et
w
at
or
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that 80% of parents in
They know or should know that the Elkins Task Force stated in its Final Recommendations
"[F] ar too
steps
are
self-represented. (Elkins,
Californians are unable to afford counsel." and that the state "needs
take
that the Elkins Task Force, in its initial recommendations, found that
propria persona" because "they have no
family law litigants act "in
choice"in view of their lack of resources.
10
Defendants know
11
Council
12
http://www.courts.ca.gov/documents/20100423itemj.pdf, pg 60-69.)
or
Finally,
should know that the Elkins Task Force recommended that the Judicial
provide statewide rules regarding award of attorney fees for family law litigants. (*See,
The Elkins Family Law Task Force recommends:

1. Attorney fees
a. Statewide rules and forms. The Judicial
COncil should
that needs
information
the
statewide
rules
regarding
adopt
to be submitted to the court to obtain an award of attorney
fees. A form setting out these requirements should be
considered. Consistency in these requirements would allow
attorneys and self-represented litigants seeking attorneys to
provide the information needed by the court for an award
of attorney fees.
13
14
15
16
17
Ju
18
Defendants know that
help "erase"
20
to
that
(*See Final Recommendations, pg. 59). Further, Defendants know or should know
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
their cases."
19
1368).
provide litigants with the appropriate levels of assistance they need to proceed with
to
8
9
supra, at
many
family law proceedings
"vexatious
published any rules
rn
i
they have created new forms
as
of January 1, 2013 that
are
designed to
litigant" ruling (MC-703, 704) but they have provided no forms or
for parents to seek need-based fees
as
they are required to do under Gov.
21
al
if
o
22
23
24
25
26
27
44
http://www.courtinfo.ca.gov/jc/tflists/documents/draft-finalrec.pdf. "Given the complexity of family law, why do

people represent themselves? All too often the answer is that they have no choice. There is no right to appointed
counsel in family law matters. Given tremendous funding limitations, legal services agencies in California are able
to serve relatively few persons who have family law issues. Generally, because of funding restrictions, only victims
of domestic violence can be provided representationand far too few of those victims can be served.
Legal services agencies serve low-income people. But those with low income are not the only people who
are fmding themselves in court without lawyers. The average family law attorney in California charges more than
$300 per hour and requires a retainer of approximately $5, 000. Families increasingly are fmding themselves with no
paycheck, a diminished amount of equity in their homes, and reduced savings, leaving them unable to afford
attorneys. Even people who start out with attorneys at the beginning of their cases often run out of money and
become self-represented before their cases are over."
n n
Class Action
Complaint
for Injunctive and Declaratory Relief
PAGE 28
SER 57
Case: 13-17170
03/05/2014
45
(under 391.7)
court to have
as
well
as
the
should know that the courts may,
or
self-represented family law litigant parents declared
the VLS.
before
should know that all the "declared vexatious"
litigant class members here have had their access
after their
some
situations, have been denied all access
to
family law court for years
custody rights have been terminated. (*See Fact
for Parent H, Parent N, Parent C, Parent AD).
Indigent/Impoverished Parents v. Affluent Parents.
10
72. The Defendants know
or
creates several
11
family law litigants,
12
who don't have the money to hire
13
family law courts.
should know that the VLS,
an
its face and
as
applied to
attorney to fight their custody battle in the "state-created"
they are forced to file
or
indigent unrepresented parents become targets
"in propria
persona."
suspect class of indigent parents is denied immediate and full

15
on
suspect classes. The suspect class consists of those parents
This class of unrepresented
for the VLS because

14
Once branded vexatious, this
access.
They are denied the right I
full-evidentiary hearing under Family Code 217 on their "orders to show cause." They are
16
also denied the immediate right to call witnesses under Title Five Rule 5.113 and denied the rig]
17
to call their own children under Title Five Rule 5.250 to voice an
19
condition precedent to being
rn
i
as a
20
21
if
o
22
23
24
25
26
27
opinion about their custody
preferences. They are subject to the screening process of "prefiling orders" under 391.7,
including the requirement of obtaining "permission" from a presiding judge or posting "security
Ju
18
al
of
they may be allowed to file any "new litigation" under 391.7). The Defendants know or
Allegations
391.1
(These parents may have prefiling orders imposed against them as well as security
family law courts restricted, curtailed, and, in
the
8
"vexatious" under
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
to
their "own motion"
opposing attorney for the other parent may "move" the family law
on
or
k

2
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granted access to family law courts or appellate courts.

or
should know that
appellate cases proclaiming that vexatious
litigants with "colorable claim" will be allowed access" to courts may pass constitutional muster
but, in reality, both trial
courts and
appellate
courts
routinely deny MC-701
"permission" to file appeals. (*See, RIN, Exhibits P, S,
and
motions
or
U). The Defendants know or should
I I know that some class members here have been denied permission to file for "emergency
Gov. Code section 68511: The Judicial Council may prescribe by rule the form and content of forms used in the
of this state. When any such form has been so prescribed by the Judicial Council, no court may use a different
form which has as its aim the same function as that for which the Judicial Council's prescribed form is designed. Tht
Judicial Council shall report periodically to the Legislature any statutory changes needed to achieve uniformity in
the forms used in the courts of this state.
In Wolfgram, supra 53 Cal. App, 4th 43, 60: The Court of Appeals stated that when a vexatious litigant "knocks on
the courtroom door with a colorable claim, he may enter."
courts
Class Action
Complaint for Injunctive and Declaratory Relief PAGE 29
SER 58
rights have been termination. (*See,
visitation" after all their parental
N, Parent AD, Parent C). Here, the class members

2
law courts
3
access
18-2
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of 55 61 of 101
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are
Factual
Allegations Parent
denied full and often any
access
to
solely on the "insidious basis of wealth" while the represented and affluent spouse's
is free and clear.
(Boddie,
supra
385, "Affluence does
not pass muster
under the
Equal
Protection Clause for determining who must remain married and who shall be allowed to
separate.").
Parents Denied Need-Based Fees Under
74. Defendants know
or
Code
2030
Family Code 2030 and 2032 was implemented to
playing fields" that exists where one wealthier parent is
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
address the issue of the "unlevel
should that
Family
family
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or
k
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represented but the indigent parent is unable to pay for an attorney.' The Defendants know or
9
should know that the result
or
effects of imposing the VLS
parents occasion other unfair, unequal, unconstitutional treatment, and a second suspect class.
11
That suspect class consists of those "vexatious
12
based attorney fees" under
14
the
15
2030 and 2032 and thereby are
Marriage of Hatch (1985)
169 Cal.
for the trial
App.
court to
the burden of self-represented by
17
Parents
3d 1213 where the
deny fees where it was shown
Ju
a
creates
or
One
or
Both
should know that
rn
i
if
o
parent could afford
an
third suspect class. This class consists of the
to the VLS
(because one or both parents
parents such
in their
as
cannot afford
Sharon Stone and Phil Bronstein
can
Self-Represented Indigent Parents.
imposing the VLS
on
custody disputes
family law cases not subject to the VLS
(because both parents are affluent and can hire attorneys)
23
one
requesting need-based fees under 2030. (Factual Allegations,
Subject to VLS v.
19
22
appellate court found it was an
AD, Parent C,48).
Affluent Parents Not
18
21
not shielded from the VLS because
attorney but the other couldn't.). For instance, here class members have sought to be relieved of
16
20
litigant parents" who have been denied "need-
family law court has refused to relieve them of the burden self-representation. (*See, In re
abuse of discretion
al
unrepresented and/or indigent
10
13
on
and the class of custody battles
representation).
hire
For
subject
instance, wealthy
top-notch attorneys to represent them
custody dispute and dissolution proceeding, which can last for years
and which
they can
24
47
25
26
27
In re Marriage of Tharp (2010) 188 Cal. App. LIth 1295, 1315: The public policy purpose behind sections 2030
and 2032 is "leveling the playing field' and permitting the lower-earning spouse to pay counsel and experts to
litigate the issues in the same marmer as the spouse with higher earnings." The appellate court remanded the case,
ordering that need-based fees be made available to the indigent spouse before the "conclusion of the case." Id., at
1316. The appellate court also directed the trial court to make a "needs-based analysis."
48
*See Exhibit VV, the family law judge berated Parent C for requesting "need-based fees" for the "eighth time"
and then turned around and declared the parent "vexatious" for the second time for having no money to hire an
attorney to be relieved of the burden of self-representation and subject to the VLS.
Class Action
30
SER 59
Case: 13-17170
03/05/2014
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public view.' Access to family law courts is
tampered with for the
not
or
k
wealthy, but not so for poor or impoverished parents. (*See Factual Allegations, Parent N,
H, Parent AD, Parent P. etc.).
unclogging its
courts of frivolous
unmeritorious claims may stand up in civil cases, but in the context of family law
the state's rationale is neither
know that the state's rationale for the VLS, at least with respect to matters
are
thus
mechanism
of resource allocation or cost recoupment.

v.
Illinois, 351
U.S. 12
77. Defendants have violated the
11
U.S.
12
equal
Constitution, by,
access
to the
among other
Members of rights,
14
Supreme Courts. (Boddie, supra,

its fee and cost
Such
requirements
as
jusfification was offered and
(1956)".
Equal Protection
clause of the 14th Amendment to the
things, creating suspect classes that deprive Plaintiffs of
family law courts.
78. In all of this, Defendants
13
and federal
left to evaluate the State's asserted interest in
rejected in Griffin
10
rejected by the state'
touching on
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
382: "We
8
has been
rights,
custody cases,
compelling nor narrowly drawn.' The Defendants know or should
fundamental
or
et
w
76. The state's rationale of managing its dockets and
privileges
or
have, under color of state law, deprived Plaintiffs and Class
immunities
security to them by the Constitution of the United
States, in violation of 42 U.S.C. 1983.

15
SECOND CLAIM FOR RELIEF

Violation of 14th Amendment's Due Process Clause
and 1st Amendment Right to Petition
16
17
Ju
18
79. Plaintiffs
19
and
incorporate herein by reference each and every allegation and
II
Due Process Clause of the
14th Amendment
rn
i
20
reallege
Rights-
21
al
if
o
22
80. The Plaintiffs have the right under the Due Process Clause of the 14th Amendment to
II
I I a "meaningful opportunity" to be heard in their custody cases. (Boddie, supra, 377).
23
24
25
26
The case number for the family law case

wealthy and privileged people and litigate to their
http://www.people.com/people/article/0%2C%2C20228302%2C00.html:
of Bronstein v. Stone is not "available to the public." Apparently,
hearts contend and "seal their records" from the general public.:
http://webaccess.sftc.org/Scripts/Magic94/mgrqispi94.d11?
APPNAME=IJS&PRGNAME=CaseSearchProcess22&ARGUMENTS=-A, -A,-N0, -N1,-A, -ASTONE\%2C

%20SHARON%20B, -A
50
*See fn 4 above, Lammers v. Superior Court (2000) 83 Cal.App.4th 1309, 1325: "[W]hen an enactment broadly
directly impinges upon the fundamental constitutional rights...

Elkins v. Sup.Ct. of Contra Costa Co., 41 Cal. 4th 1337 (2007), "In other words, court congestion and 'the press
of business' will not justify depriving parties of fundamental rights and a full and fair opportunity to present all
competent and material evidence relevant to the matter to be adjudicated."
and
27
51
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81. The Defendants know that
in their
custody disputes.
parental fundamental
7
8
(1972)
405 U.S.
Defendants know that in
645; Santosky v.
know that "vexatious
"society's hierarchy
Kramer
(1982)
parents" under the VLS
are
455 U.S.
745).
denied full
lst Amendment-Right to
82. Plaintiffs have the
of values" that
custody rights are amongst the highest. (Stanley v.

Defendants know
access
they are acting "in propria persona."
and, often,
11
petition as opposed to direct appeals. (Powers v. City ofRichmond (1995)
12
"...the Legislature may
14
Illinois
should
Section 11 of
"appellate review, though the Legislature may restrict review to a writ

regulate
the mode
ofappellate review,
it may do
4th 85, 110:
10 Cal.
so
only to
the extent
thereby "substantially impair the constitutional powers of the courts,
or
practically defeat their exercise."').
83. The Defendants know that the

15
parent's
any access, if
right under the 1St Amendment and under Article VI,
the state constitution to
that it does not
or
lawy
Appeal/Writ
10
13
to hire
Elkins, that parents don't have the funds
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
statements in
constitutional
or
k
George's
noted in the Elkins Task Force's final recommendations
et
w
and Chief Justice
as
custody dispute and denial of "full access" to that forum raises "grave"
concerns.' The Defendants know,
family courts are the only forum provided by the state to
to resolve their
parents
2
18-2
(118 of 156)
of 55 63 of 101
Page34Page:
to
appellate review under Cal.
Const. Art.
Legislature has replaced a litigant's constitutional right

I, Section 10 with procedures under the VLS, which
16
call for
17
Similarly, the Legislature substitutes a vexatious parent's right to appellate review by a "three
18
judge court" as well as the requirement for the "concurrence
19
(Cal.
Ju
Const. Art. I. Sec.
Const. Art.
rn
i
(Cal.
I, Sec.
file.
(*See,
of two judges...for
3) with VLS procedures spelled under 391.7. Likewise,
order provisions of 391.7
20
"prefiling orders" as well as an appellate judge's "permission" to
Exhibit
C).
judgment"
the prefiling
replaces a litigant's right to a "written decision" with "stated reasons"
14)53 and the right to oral argumentm (CRC 8.256) with a "presiding
21
al
if
o
22
23
24
25
52
at 375-376: Thus, this Court has seldom been asked to view access to the courts as an element of
The
due process.
legitimacy of the State's monopoly over techniques of fmal dispute settlement, even where somc
are denied access to its use, stands unimpaired where recognized, effective alternatives for the adjustment of
differences remain. But the successful invocation of this governmental power by plaintiffs has often created serious
problems for defendants' rights. For at that point, the judicial proceeding becomes the only effective means of
resolving the dispute at hand, and denial of a defendant's full access to that process raises grave problems for its
legitimacy.
53
26
27
Boddie, supra
I, Sec 14: Sec. 14. The Legislature shall provide for the prompt publication
of
opinions the Supreme Court and courts of appeal as the Supreme Court deems appropriate, and those
opinions shall be available for publication by any person.
Decisions of the Supreme Court and courts of appeal that determine causes shall be in writing with reasons stated.
Cal. Rules of Court, Rule 8.256(a)(1): Each Court of Appeal and division must hold a session at least once each
Cat Cong. Art
of such
quarter.
Class Action
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PAGE 32
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Case: 13-17170
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judge's"
summary determination that
provides no written and merely provides the "recitation"
or
should know that by
making 391.7 of the VLS
as
the
"essential mode" of appellate review in
effectively deprived Plaintiffs of any appellate review as is their right under the 1St Amendment
and the state constitution.
the Defendants know
55
applied here,
or
should know that Plaintiffs
"vexatious parents"
are
denied either the
Defendants know
the "orders"
11
City ofBeverly Hills (1968)
12
requiring security are nonappeable interlocatory orders; *Also,
14
Cal.
declaring them "vexatious litigants"
App. 616,
639: "An order
App.
on
2d 306; 307; Orders
the mandate for
is not
18
"liberal construction" and ruled that "...we deem Luckett's
security. (Horton
Allenby (2010)
v.
On the other hand,
v.
190
some
appeal" under CRC
dissolve the permanent
rn
i
86.
Plaintiffs
an
appeal
can
be taken. Roston
App. 3d 842, 84656; Likewise, Judge Sills in Luckett, supra
Ju
to
127 Cal.
of Civil Procedure
if
o
regarding
8.821(a)(2) to rule that a declared "vexatious litigant" is not appealing from the nonappealable
(1982)
22
see, Golin
"liberal construction" of "notices to
17
21
of mandate
declaring a party vexatious and
directly appealable."
interlocutory order, but from the dismissal and, thus,
20
should know that the
and requiring them to post
16
19
routinely and
determining a party to be a vexatious litigant and requiring the
posting ofsecurity under section 391.3

courts have relied
15
261 Cal.
or
right to file direct appeals or writs
10
13
are
regularly denied "permission" under the VLS by presiding judges to file motions in their custody
disputes. (*See Factual Allegation, Parent H, P, N, C).
Legislature has
of "vexatious parents" that the
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
cases
85. As
al
or
k
plate" language of "no merit.").
et
w
back the "boiler
18-2
(119 of 156)
of 55 64 of 101
Page35Page:
appeal has "has merit." (*See fn 65; Appellate judges provide no reasons and merely spit
that the
2
3
ID: 9003597
DktEntry:
Document1
Fi1ed03122113
(prefiling) injunction..
appeal to
at
be from
which it noted was
v.
Edwards
90, relied on the
an
order refusing
appealable under the Code
904.1(a)(6)).
Despite these rulings,
the Defendants know
or
should know that the trial courts
deny
"permission" to file custody motions and then the appellate courts deny attempts to
"appeal" the denial of permission from the trial court, creating a procedural loop where all
23
24
25
26
1,7
55
Powers, supra at 110: "...If it could be demonstrated in a given case, or class of cases, that, for whatever reason,
the Courts of Appeal or this court could not effectively exercise the constitutionally granted power of appellate
review by an extraordinary writ proceeding, then such a proceeding could not constitutionally be made the exclusiv
mode of appellate review."
56
Roston, supra 846: Notices of appeal should be liberally construed in favor of their sufficiency. (Rule 1(a), Cal.
Rules of Court.) It is apparent plaintiffs intended to appeal from the fmal judgments of dismissal of their respective
nonappealable interlocutory orders. No one has been misled and defendants have not been
prejudiced. Consequently, we treat these appeals as being from the appealable judgments of dismissal. (Collins v.
City & Co. of S. F. (1952) 112 Cal.App.2d 719, 722-723 [247 P.2d 362].)
actions and not from the
Class Action
PAGE 33
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Case: 13-17170
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appellate review is denied.' The Defendants know or should know, particularly after amending
on
January 1,
2013 and
the permanent "vexatious
litigant" branding), that "vexatious parents"
know that the
"vexatious" label,
"vexatious."
(*See,
Factual
Allegations,
(*See, RJN, Exhibit E).

of access under the VLS and made their "status"

absolute barrier to
10
with their children.
11
their 1St Amendment

88.
12
14
access
and the
as
"vexatious"
an
"vexatious"
"essential precondition" if
They should know that this contradicts the ruling in Boddie v. Connecticut,
right to petition,
By imposing the VLS
Plaintiff's due process
rights
are
on
and the Plaintiffs'
rights under the
parents in custody cases
violated when
state constitution.
at the trial and
appellate level,
they are locked out of the family law courts (and
appellate courts) under the VLS solely because they cannot afford to hire an attorney to relieve
Having money to pay for an attorney or
having the good fortune to find a "pro bono" attorney then becomes, as
16
effect of the VLS, another "essential precondition" to the vexatious
17
custody orders
and to vindicate their parental
Ju
18
19
as
"adjustment of the fundamental relationships" they have
them of the burden of having to act "in propria persona."

15
should
Legislature has deprived the Plaintiffs
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
or
or
the request to lift the
ruling that the appeals of order permanently branding parents
an
P, C.). The Defendants know
appellate courts then deny "permission" to appeal
has "no merit."
not
Parent
as
13
right to
et
w
status
denied the
are
appeal the trial court's refusal to even allow for a hearing on the issue of "erasing" or lifting their
adding 391.8 (which purports to create a procedure to "erase"
or
k
the VLS
2
3
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Members of rights,
consequence
or a
direct
parents' right to challenge
rights. (Boddie, supra at 400-401).58
have, under color of state law, deprived Plaintiffs and Class
privileges or immunities security to them by the Constitution of the United
57
*See A130206: After all his parental rights were terminated, the trial court denied Parent C's request for an ex
parte hearing on "emergency visitation" and then the Court of Appeals summarily determined that Appellant, who
had been denied any contact with his daughter for over 9 months, had "no merit."
rn
i
20
21
22
if
o
al
http://appellatecases.courtinfo.ca.gov/searchicase/dockets.cfin?dist=l&doc_id=1960835&doc_noA130206
23
24
25
26
27
11/24/2010 Other involuntary dismissal BY THE COURT: Archibald Cunningham has previously been found to be a vexatious
litigant and is subject to a prefiling order. On November 8, 2010, Mr. Cunningham filed an application for permission to appeal
the trial court's October 18, 2010 orders denying his requests for permission to file a document entitled "Ex Parte Hearing for
Emergency Visitation and Appointment of Minor's Council [sic]." The application for permission to appeal is denied. Mr.
Cunningham has failed to show a reasonable possibility that his appeal has merit. (See Code Civ. Proc., 391.7.)
58
Boddie, supra, 400: We do not decide that access for all individuals to the courts is a right that is, in al
circumstances, guaranteed by the Due Process Clause of the Fourteenth Amendment so that its exercise may not b(
placed beyond the reach of any individual, for, as we have already noted, in the case before us, this right is th(
adjustment of a fundamental human relationship. The requirement that these appellant;

judicial process is entirely a state-created matter. Thus, we hold only that a State may not, consisteni
with the obligations imposed on it by the Due Process Clause of the Fourteenth Amendment, preempt the right tc
dissolve this legal relationship without affording all citizens access to the means it has prescribed for doing so.
exclusive precondition to the
resort to the
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THIRD CLAIM FOR RELIEF

Violation of 14th Amendment's Due Process Clause
realleges
and
incorporates herein by reference each and every allegation
II
et
w
(Imposition of VLS To Custody Cases On Its Face and As

Applied Is Unconstitutionally Vague and Overbroad
90. Plaintiffs
paragraph previously set forth.

Undefmed Terms
91. In the context of custody
10
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
and
as
instance, the VLS provides under section
391(b)(1) that a person can be declared "vexatious" if the person has suffered
term
a seven
year
period.
face
The VLS, however, does not
"finally determined adversely to the person." In Wolfgram,
five
"final adverse
provide a definition of the
the Court of Appeals ventures
reasonable guesses at what this
13
experience even many meritorious suits fail, due to the vagaries

of the trial process if nothing else. Many more colorable suits fail, either due to
disposition or failure to persuade the trier of fact. Yet, loss of five
pretrial
is remarkable. Most people never sue anybody. While that
suits in but seven years
not
lessen
does
right to sue to correct real or perceived injustices, it
any person's
drawn from the statute is, despite
does suggest that the inference to be
those citizens who decline to
narrow:
Only
Wolfgram's contrary view, relatively
sixth suit
hire lawyers, lose five suits in seven years, then undertake a
17
18
19
21
if
o
22
23
matter of common
which lacks merit, will be labeled vexatious.
I As noted by Wolfgram, suits can be dismissed or "adversely determined" on procedural grounds

even
though they are "meritorious." The Wolfgram
court also reads into the VLS
between "colorable claims" and "meritorious" claims. Yet, nowhere in the express
rn
i
20
supra 58:
Ju
16
As
language might mean,
15
al
For
constitutionally vague on its
12
14
the VLS is
proceedings,
applied by trial courts and appellate courts.
determinations" in
11
Rights-
or
k
States, in violation of 42 U.S.C. 1983.
the VLS
can
distinction
language
these distinctions be found. Instead, the VLS leaves trial courts to their
to construe this
"adversely determined" phrase.
In
Wolfgram, the court's view
own
of this
of
devises
phrase was
24
predicated on the assumption that the "suits" are civil rather than family law custody motions.
The Wolfgram's view that "most people never sue anybody" may apply in civil suits, but in
25
family law matters,
26
the
27
explained in the Elkins Task Force. Further,
where up to 50% of marriages end in
Wolfgram's assumption that people "decline
party could lose "five suits" in

Class Action
seven
to
hire
divorce, it is simply wrong. Likewise,
lawyers" flies in the face of the realities
it may be "remarkable" to the
years, but Class Members know that
Wolfgram
court that
they can, in their

35
SER 64
Case: 13-17170
03/05/2014
litigations" within seven weeks."

2
the Elkins Task Force, that
know
creates immediate
court may
ambiguities
on
391.1 provides that a
for instance,
one
Class Member who
Although the family law court did not comply with the requirement to
dismiss the
11
reasonably argue that if there was a dismissal
12
have been consistent with
13
that the VLS preempts
Defendants cannot
custody dispute under 391.4 for failure to post security,
of the
parent's custody rights.
custody case under the VLS
Nor could the Defendants
parents due process rights in the custody
case
that it would
reasonably argue
if they fail to
Language Readings of VLS As
93. In Shalant v. Girardi,
51 Cal.
(2011)
Mandated
4th 1164,
civil case, the state
Supreme
17
directed courts to "observe the limits set
18
"it's the function
Ju
rejected "broad readings"' of the VLS in favor of "plain language reading." (1173,
of the Legislature,
not
rn
i
not absurd."
(supra,
at
the courts to
94. In
expand them." (supra, 1176).
"represented" litigants
fn 4). It also
It also stated
and those "in propria
persona"
1176).
Raising Section 391.1
21
Court
by the applicable statutory scheme" and pointed out that
that the distinction in the statute between

was
if
o
cannot
By Shalant
16
22
or
post security.
Plain
20
Defendants
security, under 391.4, the family law court was required to
10
19
have
exclusively in custody disputed was ordered to post $5000 in security. (*See, RJN,
"dismiss" the case."
15
Motions in
Custody Disputes
custody disputes, after Shalant v. Girardi, must the "moving defendant" (parent)
petition the court under 391.1
to have the
"plaintiff' (parent) show both that the "moving
23
al
self-represented.
the face of the statute. For instance,
security is not provide. Here,
Exhibit X). After he failed to post
14
for being
are
require the declared "vexatious litigant" to post security and 391.4 provides that a
involved
subject to the VLS
who
applying the VLS to unrepresented parents in custody disputes
suit "shall" be dismissed if the

was
are
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
or
particularly after the final recommendations o
family law courts are rift with unrepresented parents
"no choice" in this matter and who
should know,
or
or
k
lose "five
et
w
custody disputes,
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25
26
59
391.7(d) defmes "litigations" as motions. Hence, a parent could lose a pretrial motion for a 730
evaluator, a pretrial motion for minor's counsel, a motion for need-based fees under Family Code 2030, a motion tc
modify visitation, a motion to recuse for cause, and with one more lost motion to increase child support the parent
would be sunk.
CCP 391.4: When
dismissed
61
27
Section
as to
In Shalant
v.
is not furnished
ordered furnished.
security that has been ordered furnished
the defendant for whose benefit it
was
as
ordered, the litigation shall be
Girardi, (2010), 183 Cal. App. 545, the Court of Appeals cautioned against "broad interpretations"
of the VLS, supra, 557:"Given the important constitutional concerns that section 391.7 implicates, we conclude that
the statute should not be broadly interpreted. Rather, it should be applied strictly according to its terms." (emphasis
added).
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defendant" is vexatious and has
simple showing of "vexatiousness,
suffice in such
391.3
any parent
the VLS suggest that
motion in
found
only the "defendant" parent, not the "plaintiff' parent,
custody dispute?
right to make a 391.1
"nonparty" jump into
suspend the right to a hearing promised by 391.2
12
Finding, Parent C &K).

95.
the VLS,
how does
If,
one
an
as
the
for
civil suit (as
18
context of a
custody dispute, a legal
19
parent,
Ju
change the "old" custody dispute into
not in the
26
2,7
as
occurred to Parent K here?
and
that there
one
for "new
are
against a
(*See, Factual
two remedies under
litigation" (391.7) then
required to obtain "permission" to file?

fiction
better parent than
Member who has lost
represented?
"new"
Does
custody dispute?
being declared
Or is
this, in the
allowing a court to step in and essentially muzzle one
Is there any
reason
to believe that
self-represented one? (*See Factual Allegations.
parental rights has been "self-represented.").
"represented" parent
*Note that each Class
The Defendants know of
recognize these facially ambiguous provisions as applied by family law courts in custody
disputes.
Represented Parents
24
25
motion
hopes of resolving the custody dispute, but in simply ending the litigation in
favor of the parent who is
rn
i
if
o
23
parent? And can a
ongoing custody dispute morph into or transform into "new litigation" for which the
"vexatious"
should
the vexatious
happened to a Parent C)? Can the trial court
"pending litigation" (under 391.1)
17
22
on
Supreme Court pointed out in Shalant62
6`defendant/vexatious/ parent" is
21
"defendant"
Custody v. New Custody Case
16
Would this violate due process of law?

Old
is
bring a 391.1
"plaintiff' mother never would? Once
going custody dispute and conduct his own 391.1
11
14
al
an on
prefiling order"
"a
father that has sued the nonparty in
20
language of
"vexatious, does the custody dispute then mysteriously become "new litigation" under
13
motion but
10
15
can
In the context of custody cases, would that mean that
391.7 for purposes of imposing

9
Does the plain
"prevail" in a custody dispute that may endure for years?
father would have the
391.1 motion in family court? Should 391.1 be read together with
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
showing of a reasonable likelihood of
ambiguity or should the legislative record be considered? Any how does
to resolve any
et
w
prevailing,
without
custody dispute?
reasonable likelihood of prevailing in the
Or does
no
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Shalant v. Girardi (2011) 51 Cal. 4'11164, 1171: To summarize, our vexatious litigant statutes provide courts anc
nonvexatious litigants with two distinct and complementary sets of remedies. In pending litigation, a defendant may
have the plaintiff declared a vexatious litigant and, if the plaintiff has no reasonable probability of prevailing,
391.1-391.6.
ordered to furnish security. If the plaintiff fails to furnish the security, the action will be dismissed.
In addition, a potential defendant may prevent the vexatious litigant plaintiff from filing any new litigation in propri
persona by obtaining a prefiling order and, if any new litigation is inadvertently permitted to be filed in propria
391.7.)
persona without the presiding judge's permission, may then obtain its dismissal.
Class Action
Relief
PAGE 37
SER 66
96. After Shalant
v.
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Girardi, the application of the VLS
disputes begs questions of its constitutionality.
parents in protracted custody
For instance, is it proper for
family law judges
to
F,
Parent
C).
If a parent is
represented in a family law proceeding, but declared
et
w
Parent
"vexatious" in
parent in the family law courts? Can the court impose the prefiling order against the represented
parent and the attorney in the custody
probate proceeding,
the trial court
case as
impose a prefiling order against the
occurred her with Parent F?
(Factual Allegations,
F). Faced with a 391.1 motion, may a parent hire or obtain a "pro-bono attorney" and
391.1
motion because the party is
no
longer acting "in propria persona"?
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
"moot" the
97. Would
9
can
Parent
63
pro-bono attorney representing the parent and defending against a 391.1
motion be allowed to have
continuance to review that
charges against the
client? Or could the
10
trial judge rule that the pro-bono attorney
11
VLS
12
during the 391.1 hearing and while trying to defend her client was found to be a puppet and had
a
13
was a
prefiling order imposed against her.).
court be
acting in excess
In
attorney of the right
16
Parent F's
pro-bono attorney was
found to
of or in the clear absence of all
authority because the VLS, by definition
apply to attorneys? Would the judge be depriving the
practice law? Would the judge be denying the client the right to have an
attorney?'
17
Permanent
98. As noted by
Ju
18
of the "vexatious
19
Wolfgram
20
to
puppet" under In re Shieh and impose the
imposing the VLS against the attorney, would the trial
and in view of the Shalant ruling, does not

15
"mere
against the attorney? (*See Factual Allegations.
14
v.
rn
i
21
I (2003)
if
o
22
23
24
25
Judge Sills
litigant" label.
Branding of Parents
As Vexatious.
in Luckett v. Panos, the VLS raises
This issue
was
raised 20 years ago
an
issue of the duration
by John E. Wolfgram in
Wells Fargo Bank and then addressed by the Court of Appeals for the Second
Appellate District was
al
to
impose provisions of the VLS against parents who are represented? (*See Factual Allegations,
18-2
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k
Case: 13-17170
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112 Cal.
"troubled" by this
App. 4th 965)). The PBA
"permanent" branding issue. (PBA, LLC v. KPOD, Ltd.

court
stated, supra:
While there is much to recommend this reasoning, the conclusion section 391.7 is to be a
permanent, irrevocable restriction is troubling. Although section 391.7 does not
absolutely exclude the "pro per" litigant from the courts, we believe fundamental fairness
requires the "vexatious litigant" brand be erasable in appropriate circumstances.
While the Judicial Council
on
January 1,
2013 added section 391.8 to the VLS
along with forms
26
63
27
n
*See, Factual Allegations: Plaintiff K had obtained
an
attorney prior to the 391.1 hearing and the family law
judge "vacated" the hearing, denying the parent the right to present any evidence, "written or oral" or "by witness or
affidavit" and ruled the parent was a "vexatious litigant" in his statement of decision.
64
*See, fn 23, Weissman v. Quail Lodge, Inc. (1999 9th Cir. Cal.) 179 F3d 1194.
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703, this does not resolve the issue but just begs more questions. Why did it
respond to the "perpetual branding" question? Does
right to a full evidentiary hearing with the right to
years"
Code of Civil Procedure
to refuse to dissolve
Sills
8
as
to
Is the
"branding"
injunction under
Judge Sills concluded, which would be appealable as
injunction under 904.1(a)(b)?
pondered in
lichen?
how Luckett,
succeed in
(supra, 89-90).
Is
Judge Sills statement,
or
any other
person
having that determination lifted,
and his
12
have
13
unconstitutionally vague or overbroad? (9 Witkin,
Is that
493; However, where the
and the
error
scores
of unanswered
inability to present
Impromptu
17
or
Cal. Procedure
(4thed. 1997) Appeal, 446,
results in denial of a fair healing, the
error
is reversible per
at
se.
Fewel
431, 433.).
Section 391.1 Motions
99. For that matter,
can a
By the Appellate Courts
Court of Appeals,
conduct
on
its
own
"On Their Own Motions.
motion under
391.7 and while
391.1 motion on the basis of 'unsuccessful"
there is
19
appeals of family law decisions? (*See Factual Allegation, Parent P). Would the party called to
pending litigation on appeal,
Ju
no
defend himself before the
rn
i
become the
21
court's
22
if
o
al
evidence
18
20
can
questions it raises, renders the VLS
Denying a party the right to testify or to offer evidence is reversible per se. (Fewel v.
16
roadmap
implicitly suspect after the strict constructionist view taken in Shalant? Does
evidentiary hearing,
23 Cal. 2d
listing of "factors" impermissibly judicial
the uncertain duration of the branding of "vexatious parents, the

an
"we also provide
already adjudicated to be a vexatious litigant,
11
(1943)
order
391.8 motion to erase the branding be an interlocutory nonappealable "order" as Judge
legislating?
15
an
On the other hand, would the refusal to
10
14
an
an
as
parent"
Family Code 217
allow
Judge Sills recommended in Luckett v. Panos?

533
call witness under
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
as
"vexatious
Is the minimum duration of the branding "at least four
seeking to "lift" the "injunction"?
when
or
k
take them 20 years to

2
have the
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appellate court be the "plaintiff'?
Would the Court of Appeals be
"moving defendant" as those terms are defined by the statute? Would the appellate
impromptu 391.1 motion, when there is no "pending litigation,
need for
or
"summons and
work to preempt the
complaint, the requirements for a "response, and service of process
23
under the Code of Civil Procedure? Would the Court of Appeals then be
24
issuing a "vexatious litigant order" or would it remain an appellate court issuing an "appellate
25
opinion"? Would the vexatious litigant parent-plaintiff-appellee then be allowed to appeal this
26
an
impromptu trial cour
"order/opinion"? And to whom? The Supreme Court? How would this impact the RookerFeldman doctrine if the "vexatious
27
challenge the "constitutionality"
Class Action
parent" was
denied
of the VLS? These
access
are
to the state courts but
not rhetorical
sought to
questions but actual
39
SER 68
considerations
as
Parent P must consider after being confronted
Multiple Vexatious Litigant Motions With Multiple

100. As occurred here to
Parent C
Fee Award.
motion
(*See, Factual Allegations, Parent C), may a family
law judge conduct multiple vexatious
grounds and then sanction him multiple times? Would this application of the VLS be supported
by a "plain reading"
391.1 motions with multiple sanctions against the
appeal
second vexatious
of the first vexatious
litigant hearing?
the outcome of the first vexatious
11
judge,
12
Procedure? After the first vexatious
13
14
on
the
same
multiple
grounds by the same
of res judicata and collateral
estoppel? Would
litigant order "automatically stay" (under CCP 916) th,

hearing pending
hearing be supported by a "plain reading" of the VLS?

as
Did the
preempting the Code of Civil
litigant fee award was overturned (Al24717), did that also
litigant order?
Or did the
appellate court's refusal
to
igant
Are
family law judges conducting multiple vexatious litigant hearings?

*Right to Appellate Review, Denial
16
101. In Powers
17
the
18
litigant the right to
v.
City ofRichmond (1995)
"appellate jurisdiction" provision of
Ju
Court noted that the
"direct
of Permission to
10 Cal.
Appeal,
4th 85, the Supreme Court held that
article VI, section 11 of the Constitution did not grant
appeal" as opposed to a "writ of mandate." While the Supreme
litigant did not have a right to appeal with a decision on the merits, oral
argument, and that the Legislature could "regulate the mode ofappellate review, the Supreme
rn
i
Court noted that the
21
same
permission to appeal the second vexatious litigant order violate the l' or 14th Amendments?
15
20
father
allowing the second hearing, improperly read the VLS
overturn the second vexatious
other
19
same
the
Court in Shalant? Would
Would the judge's refusal to stay the second
10
in
Supreme
on
mandated by the
father
as
family law judge improperly preempt principles

the parent's
of the VLS
litigant hearings against the same
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
Legislature
could not
"impair" or "practically defeat"
an
appellate
courts'
exercise of appellate review."
22
if
o
al
by an impromptu 391.1
by an appellate court.
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102. In view of Powers, the
imposition of the VLS
on
"vexatious
parents" begs
23
65
24
25
26
27
Powers, supra 110: This does not mean, however, that the "appellate jurisdiction" provision imposes no
restrictions on the Legislature's authority to allocate appellate review as between direct appeals and extraordinary
writ petitions. As we have seen, the plain language of the provision reveals that it is a grant of judicial authority and
this form of grant has been interpreted to mean that, although the Legislature may regulate the mode of appellate
review, it may do so only to the extent that it does not thereby 'substantially impair the constitutional powers of the
courts, or practically defeat their exercise.' (In re Jessup, supra, 81 Cal. 408, 470, italics omitted; see also Haight,
supra, 8 Cal. 297, 300.) If it could be demonstrated in a given case, or class of cases, that, for whatever reason, the
Courts of Appeal or this court could not effectively exercise the constitutionally granted power of appellate review
by an extraordinary writ proceeding, then such a proceeding could not constitutionally be made the exclusive mode
of appellate review.
(emphasis added).
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questions. Unlike civil litigants, "vexatious parents" seek to appeal judgments

involving their fundamental custody rights. Likewise, they seek to appeal orders involving child
support and visitation'', which often tie in with restraining orders. Do the forms used by the
appellate courts to determine if a request to appeal
writ "has merit"
(*See, MC-700,
701
comply with a parent's right to "appellate review" that is guaranteed by the
constitution? Can it
reasonably be argued by Defendants that these "requests for permission"
forms demanded by
appellate courts provide any,
10
13
14
parental rights
for
102. In the
same
way, if a Class Member
appellate court and wishes to appeal,

the
(such as
Parent
does he first have to file
P) is declared
Court? Does the

action
ambiguity and uncertainty resulting from the appellate court's 391.1

petition?
Can it reasonably be
the
appellate level when these courts,
Ju
the trial and
does not offend the
almost
Can it
reasonably
right to petition at the trial court or on
categorically, deny all requests?
Legislature has created a facially vague statute and has improperly delegated to
appellate judges the job of ferreting out the meaning of each and every sentence in
almost every
provision.
contradictory.
rn
i
procedural
argued by Defendants that the right to appellate review is not
17
103. The
an
impinge on the right
infringed upon because the "vexatious parents" have the right to hire a lawyer?
18
"vexatious" by
motion for reconsideration with
appellate court or must he file a petition with the state Supreme
argued by Defendants that the VLS
21
after the
failing to post a bond (as has occurred here)r can the
be
20
"represented" parent is denied the right to file an "order to show cause"
16
19
appellate
right to petition?
to
15
sufficient
appellate court refuse to review the 30 page writ filed by the represented parent/appellant on the
grounds that the writ does not contain "sufficient documentation"? Does that offend the parent's
11
12
or
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
let alone effective
state and federal
review? If a
termination of all
8
"lift" the label
The
The branding
are
rulings amongst the court are themselves inconsistent and often

as
"vexatious" is of an indefinite duration and the
uncertain. The
Legislature has delegated to the trial
procedures to
courts the
right to fill in
22
if
o
al
file
or
et
w
or
k
constitutional
23
24
25
66
*See A130206: http://appellatecases.courtinfo.ca.gov/searclilcase/dockets.cfm?

dist=l&doc id=1960835&doc_tio=A130206:
11/24/2010 diher involuntary dismissal BY THE COURT: Archibald Cunningham has previously been found to be a vexatious
litigant and is subject to a prefiling order. On November 8, 2010, Mr. Cunningham filed an application for permission to appeal
the trial court's October 18, 2010 orders denying his requests for permission to file a document entitled "Ex Parte Hearing for
Emergency Visitation and Appointment of Minor's Council [sic]." The application for permission to appeal is denied. Mr.
Cunningham has failed to show a reasonable possibility that his appeal has merit. (See Code Civ. Proc., 391.7.)
67
26
27
*See, A130282: http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfra?

dist=1&doc id=1961615&doc no=A130282:
11/23/2010 &der denying petitiorfiled. Petitioner, a vexatious litigant who is now represented by counsel, has filed a petition
for writ of mandate challenging the trial court's requirement that petitioner post a bond to have an order to show cause placed on
calendar. Without commenting on the merits of the petition or whether petitioner is allowed to file such a petition without
posting a bond we deny the petition without prejudice because it does not contain sufficient documentation for the court to
consider the merits of the claim. (See Serna v. Superior Court (1985) 40 Ca1.3d 239, 246.)
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impermissibly delegates basic policy matters
an
application."; Grayned v. City ofRockford,

104. Defendant's
(1972)
by the Constitution of the United
and
reallege
106. The Class Member's
States in violation of 42 U.S.C.
Rights-
incorporate herein by reference each and every allegation
and
fundamental
right
protected by the
14
State of California.
(Art. I,
107. As noted
15
"tool
to
16
are no
right to petition for redress
of grievances is
1st Amendment and of the United States Constitution and the Constitution of the
13
2, 3. ).68
above, Judge Cardoza has urged family law judges
discourage repeated motions by parents
to
to
use
the VLS
changed circumstances to justib; a different result." to "(In re R.H., supra 700). The
requirement for a "prefiling order" and/or security before being allowed to file motions in a
19
enjoining any "speech" (argument, contentions, etc.) related to the custody dispute.
20
the VLS functions
Ju
custody dispute is an unconstitutional prior restrain.
as a
rn
i
if
o
26
27
The VLS, in
custody
cases, is directed at
prior restrain on the right to petition by limiting, restricting,
the presentation of relevant evidence and
This use of
or
curtailing
testimony that could be used by a parent to prove a
"change of circumstances" justifying a need to change in visitation or custody. By imposing the
VLS
on
custody cases, the
23
25
as a
regain custody of their children when there
18
24
or
12
al
408 U.S. 104, 108-1093,
105. Plaintiffs
22
on
dangers or arbitrary and discriminatory
10
21
vague law
andjuries for resolution
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
policemen, judges,
FOURTH CLAIM FOR RELIEF

The Vexatious Litigant Statutes As Applied Here
Creates a Prior Restraint in Violation of
the 1st Amendment Right to Petition
17
subjective basis. ("A
1983.
11
ad hoc and
actions, orders and rulings deprive Plaintiff of his rights, privileges
immunities secured to him
to
ad hoc and subjective basis, with the attendant
on an
or
k
the gaps and uncertainties in the procedures
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any relevant
state
purports
to allow
family law courts to enjoin the presentation of
evidence, including evidentiary hearing (Family Code 217), live testimony (Family
68
The right of petition, like the other rights contained in the First Amendment and in the California constitutional
Declaration of Rights, is accorded "a paramount and preferred place in our democratic system." (American Civil
Liberties Union v. Board of Education (1961) 55 Ca1.2d 167, 178; The Supreme Court has stated that "the rights to
assemble peaceably and to petition for a redress of grievances are among the most precious of the liberties
safeguarded by the Bill of Rights. These rights, moreover, are intimately connected, both in origin and in purpose,
with the other First Amendment rights of free speech and free press." (Mine Workers v. Illinois Bar Assn. (1967)
389 U.S. 217, 222 [19 L.Ed.2d 426, 430, 88 S.Ct. 353]; see also Thomas v. Collins (1945) 323 U.S. 516, 530 [89
L.Ed. 430, 440, 65 S.Ct. 315]; De Jonge v. Oregon (1937) 299 U.S. 353, 364 [81 L.Ed. 278, 283, 57 S.Ct. 255].)
Class Action
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Rule 5.113,
and relevant evidence under Evidence Code
right to petition. (Nebraska Press Assn.
Bozek (1982) 31 Cal. 3rd 528; "The
speech
equivalent provisions of the California
analyzed,
it does contain
activities
13
16
right ofpetition
is
ofparallel importance
Constitution.
Although
to
the
it has seldom been
ability of those who perceive themselves
ofgovernmental authorities
to
v.
right offree
rights contained in the First Amendment and in
inherent meaning and scope distinct from the
law courts in turn
been
seek redress
impinges
on
or
through
to
be
independently
right offree speech.
aggrieved by the
all the channels
should know that the VLS' restraint
fundamental
custody rights.
"change of circumstance" unless they have access

testimony. By using the VLS
to
deny access,
as
live
an
opportunity to present their custody case.
14
15
Stuart, 427 U.S. 539 (1979); City of Long Beach
of
government
11
12
an
or
custody issue constitutes a prior restraint on their
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
10
v.
and the other overlapping, cognate
is essential to protect the
on a
tool to muzzle
et
w
parents in advance of a court hearing
as a
or
k
should know that the use of the VLS
gag
or
353 that a parent needs to
"regain custody rights."

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secondary effect of the denial
The
on access
to
family
Parents cannot prove that there has
and the
"vexatious
right to present evidence, such
litigant" parents are deprived of
deprivation of due process
of law is the
of access. In this sense, the VLS is tantamount to
mandatory
17
presumption that any challenge to a final custody order is without merit. The imposition of thc
VLS in custody disputes is hopelessly circular both procedurally and substantively. (Vexatious
18
parents
Ju
case.). Here,
Class Members have lost
to
present
custody rights in "trials by declarations" without
69
Bozek, fri 4: The legislative history of California Constitution article I, section 3, reveals an intent to make the
California provision at least as broad as the First Amendment right of petition. Article I, section 10 of the California
Constitution, originally enacted in 1849, stated: "The people shall have the right to freely assemble together to
consult for the common good, to instruct their representatives, and to petition the Legislature for redress of
grievances." (Italics added.) On November 5, 1974, the voters of this state adopted the following amended and
renumbered provision: "The people have the right to instruct their representatives, petition government for redress
grievances, and assemble freely to consult for the common good." (Italics added.) (Cal. Const., art. I, 3.) The
amendment was clearly intended to broaden the right of petition to make it extend to petitions to all branches of
government, not merely to the Legislature. (See Proposed Revision of the California Constitution, Articles I, XX,
rn
i
20
their
"changed circumstances" because the VLS denies them access
19
cannot show
21
al
if
o
22
23
24
25
26
27
xxII, 5 Cal. Const. Revision Com. Rep. (1971) p. 23.)
George noted that any presumption that a custody order was fmal depended on a there
hearing." A postjudgment motion for modification of a fmal child custody order, for
"fully-litigated
having
example, requires the moving party to demonstrate a significant change of circumstances warranting departure fron
the judgment. (Montenegro v. Diaz, supra, 26 Cal.4th at p. 256.) A presumption exists that the judgment is correct
and should not be disturbed a presumption that would not be well founded were the judgment to be based upon
hearsay (unless admitted into evidence upon stipulation of the parties).
In Elkins, Chief Justice
been
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being given having a "fully litigated hearing" as noted by Chief Justice George in Elkins.
petition under
110. Defendants have violated the Class Member's Pt Amendment right to

2
3
by,
things, applying the VLS
among other
prior restraint.
have, under color of state law, deprived Plaintiffs and
Class Members of rights,
United States, in violation of 42 U.S.C.
privileges or immunities security to them by the Constitution of the

1983.
FIFTH CLAIM FOR RELIEF

Unwritten Rules and Procedures Implementing Prefding Orders
Violates Due Process Clause of le Amendment
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
112. Plaintiff realleges and
as a
et
w
the U.S. Constitution,
or
k
every
and
incorporates herein by reference each and every allegation
parafgaph previously set forth.
10
113. Defendants know

11
Process
or
should know that the U.S.
Supreme
guarantees apply to family law proceedings in Boddie
12
371, 377-378).
13
In
settle their claims

15
opportunity
16
to
abstract words
17
Connecticut
(1970)
401 U.S.
Boddie, the U.S Supreme court explained: "[Nue process requires,
minimum, that absent a

14
v.
Court declared that Due
countervailing state
interest
at
ofoverriding significance, persons forced to
ofright and duty through the judicial process must be given a meaningful
be heard...
Although '(m)any controversies have raged about the ayptic and
of the Due Process Clause,
'there
can
be
no
doubt that at a minimum
they
require that deprivation of life, liberty or property by adjudication be preceded by notice and
Ju
18
opportunity for hearing appropriate to the nature of the case.' (Boddie, supra,
19
20
rn
i
Elkins
v.
Sup.
Ct.
of Conta
or
at
377-378).
should know that the California Supreme Court has ruled in
Costa Co.
(41
Cal. 4th 1337
(2007)) that courts may not adopt local
21
rules
procedures that are inconsistent with statute, rules of the Judicial Council, case
law
or
22
if
o
al
or
constitutional law!'
23
24
25
26
27
71
Elkins, supra, at 1351-53. The scope of a court's inherent rulemaking authority has been discussed in various
decisions (see, e.g., Rutheiford, supra, 16 Cal.4th at pp. 967-968), and the outer limits of such authority are clear. A
trial court is without authority to adopt local r rules or procedures that conflict with statutes or with rules of court
adopted by the Judicial Council, or that are inconsistent with the Constitution or case law. (Rutheiford, supra, at pp.
967-968; see also Hall v. Superior Court (2005) 133 Cal.App.4th 908, 916-918.) As provided in Government Code
section 68070, subdivision (a): "Every court may make rules for its own government and the government of its
officers not inconsistent with law or with the rules adopted and prescribed by the Judicial Council." (Italics added;
see also 2 Witkin, Cal. Procedure (4th ed. 1996) Courts,
204, p. 272; id. (2006 supp.) 204, pp. 87-88.).
"C)
Class Action
PAGE 44
SER 73
State shall
should know that the 14th Amendment provides that
"deprive any person oflife, liberty,
or
or
property, without due process of law."72
should know that under CCP
deny a party the right to file if the judge
finds the submitted
391.7(b) a presiding judge
pleadings lacks "merits" or are
may
being filed to "harass" or cause "delay." They also know that Judicial Council
provides an informal procedure which the presiding judge uses to decide if the party's
"merit" and should be allowed to file. The form does not
of any evidence,
filed." Further, the VLS does not indicate whether the presiding judge's "merit" determination
hearing or the presentation of evidence. Nor does the
should involve
11
name
12
the "merit" order. The form MC 701, however, does
13
three boxes
14
pages
15
to
factors to
consider,
or
are no
VLS set out procedures,
provide any standards to be used by the presiding judge in rendering
instructions
provide a section for an "ORDER" with
and another box for "Attachment to
(Granted, Denied, or Other)

There
on
the form
as
to whether the
order; Number of
presiding judge is required
provide a written response and "attach" its response/decision to the order.

117. In making its "merit" determination, neither the VLS nor the Judicial Council MC-
17
applied'', what factors should be considered, when the
ruling should be made or whether the Plaintiff has a right to "appeal" the order. However,
merit
Ju
the courts presume judges
obey all laws, particularly the
state and federal
Constitutions, which
they are sworn to uphold. (Evid. Code, 664 [presumption that official duty "regularly
20
performed"];
19
if
o
22
23
24
25
Civ.
Code,
3548
["law has been obeyed"].) The "merit determination, being
completely an opaque process without written reasons or explanations is beyond scrutiny and
rn
i
21
action has
testimony, but requires the party to "attach a copy" of the "document to be
10
18
form MC 701
provide for a hearing, the presentation
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
or
701 form state what standards should be
al
or
no
16
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devoid of any
proof to support the determination. (This creates
presumption under Hicks v.
Feiock
(1988) 485
118. The Due Process Clause
requires
379
to their full
(1971),
improper mandatory
624).
states to afford civil
opportunity to be heard" by removing obstacles
(*See, Boddie v. Connecticut, 401 371,
U.S.
an
fees for
litigants a "meaningful
participation in judicial proceedings.

filing divorce; ML.B.
v.
S.L. J. 519
26
27
72
See
73
In
also, Cal.
Const. Art.
1, 7.
R.H., 170 Cal. App. 4th 678 (2009). The standard used by a presiding judge after a prefiling order has been
imposed is, "the simple showing of an arguable issue." (Id, at 705).
re
Class Action
PAGE 45
SER 74
hearing required by the due process

of the case.'
*See, Bell v. Burson,
due process in
one
context may not
Thus, procedures adequate
to
Compare Goldberg v. Kelly,
10
determine
or
welfare claim may not suffice
unwritten rules
case.
to
try a felony
charge."
270-271, with Gideon v. Wainwright, 372 U.S. 335
change to
without
rules
14
The unwritten rules include the absence of any meaningful
apparently allow presiding judges to refuse
his behalf without any
The unwritten
The
"vexatious
parent's" attorney to file
explanation or citation to any authority for doing so. (*See
Exhibit
U).
procedures involve allowing the presiding judge to make the merit determination
written decision
or
opinion, or one word of explanation.
apparently also involve the denial
courts have stated that the VLS is
of any
right to appeal
or
The unwritten procedures and
review
or
reconsideration. Whik
applied with distinct standards, the reality of family law courts
is different.'
16
or
17
as
18
Appeals for the First District. (RJN, Exhibit AAA).
"Application for Permission to Appeal
Ju
the
with the MC-701 form
or
appellate courts use their own forms,
to File Writ Petition" that is used
The
same
due process
such
by the Court of
concerns
associated
apply equally to the appellate forms.

391.7(b) coupled with the MC-701
form
rn
i
121. While the "merit" determination of CCP
20
every
making a "merit" determination, with delays for months and months.
time frame for
12
19
"A procedural rule that may satisft
should know that Class Members' requests for
implementing the VLS.
on
15
"appropriate to the nature
custody or visitation orders will be decided using form MC 701 and by the unwritten procedures
11
13
and
necessarily sails& procedural due process in
397 U.S. at
and rules
9
535, 541-542:
(1963)").74
7
8
402 U.S.
"'meaningful'
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
clause must be
proceeding). The
costs of transcripts needed to defend termination
(1996), the
18-2
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21
al
if
o
22
23
24
25
26
74
Bell v Burson, supra, at 539: "Once licenses are issued, as in petitioner's case, their continued possession may
become essential in the pursuit of a livelihood. Suspension of issued licenses thus involves state action that
adjudicates important interests of the licensees. In such cases, the licenses are not to be taken away without that
procedural due process required by the Fourteenth Amendment. Sniadach v. Family Finance Corp., 395 U. S. 337
(1969); Goldberg v. Kelly, 397 U. S. 254 (1970). This is but an application of the general proposition that relevant
constitutional restraints limit state power to terminate an entitlement whether the entitlement is denominated a
"right" or a "privilege." Sherbert v. Verner, 374 U. S. 398 (1963) (disqualification for unemployment
compensation); Slochower v. Board ofEducation, 350 U. S. 551 (1956) (discharge from public employment);
Speiser v. Randall, 357 U. S. 513 (1958) (denial of a tax exemption); Goldberg v. Kelly, supra (withdrawal of
welfare benefits). See also Londoner v. Denver, 210 U. S. 373, 210 U. S. 385-386 (1908); Goldsmith v. Board of
Tax Appeals, 270 U. S. 117 (1926); Opp Cotton Mills v. Administrator, 312 U. S. 126 (1941)."
75
27
[section 391.7] keeps vexatious litigants from clogging courts, it is closer to 'licensing or permit
administered pursuant to narrowly drawn, reasonable and defmite standards' which represent
'government's only practical means of managing competing uses of public facilities[T (Wolfgram v. Wells Fargo
Bank (1997) 53 Cal. App. 4th 43, 60.
"To the extent
systems which
are
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appellate forms may be "narrowly drawn" and satisfy due process requirements
context of civil suits
involving licensing requirements
for baby
strollers,
it cannot be said that
2
summary
involving fundamental parental rights.
122. In the context of a
family law proceeding with an issue of the termination of a
stake, it
cannot be said that the state's interest in
parents visitation rights
litigation and its methods for achieving that legitimate interest

have been shut off from the
an
only forum in which he can regain his visitation rights.
argument for efficacy in managing the docket does
infringement of fundamental rights.'.

9
rights
10
to
Constitution of the United States in violation of 42 U.S.C.
15
124. Plaintiffs
16

125. The VLS
reallege and incorporate herein by reference each
as
Ju
19
Bill of Attainder
applied in custody cases, the VLS changes
rn
i
several ways. First, visitation orders that have
"permission" to file challenges
23
the VLS has been used to lock parents out of court after
if
o
and
provides
Class Members visitation rights in
drastically curtailed or terminated parental rights
22
27
allegation
post facto Law shall be passed."'
126. As
or ex
become
26
and every
applied to custody cases in family law proceedings amounts to an illegal
21
25
Rights-
bill of attainder prohibited by the U.S. Constitution Article I, Section 9; Clause, which
"[N]o
24
1983.
SIXTH CLAIM FOR RELIEF

The VLS Functions as an Improper Bill of Attainder
17
al
privileges or immunities secured to him by the
12
20
not justify an
actions, orders and rulings, taken under color of law individually and in
consort, deprive Plaintiff of his rights,
14
explained
meaningful opportunity to be heard.
123. Defendants'
13
As
This violates his Fourteenth Amendment Due Process
11
18
narrowly drawn where parents
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
in Boddie and Elkins,

8
is
curbing "vexatious"
at
et
w
procedure used here by Defendants satisfies due process in the context of "merit"
decision
in the
or
k
and
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"permanent" as the result of family law judges'

to visitation and
refusal to grant vexatious
parents'
custody orders. (*See, Factual Allegations where

terminating all
their
parental rights.).
76
Boddie, supra, at 401. We are thus left to evaluate the State's asserted interest in its fee and cost requirements
mechanism of resource allocation or cost recoupment. Such a justification was offered and rejected in Griffin v.
as a
Illinois, 351 U.S. 12 (1956). *See also, Elkins v. Sup.Ct. of Contra Costa Co., 41 Cal. 4th 1337 (2007), "In other
words, court congestion and 'the press of business' will not justify depriving parties of fundamental rights and a full
and fair opportunity to present all competent and material evidence relevant to the matter to be adjudicated."
*See Cal. Const. Art. I, section 9: A bill of attainder,

contracts may not be passed.
Class Action
ex
post facto law,
or
law
impairing the obligation
PAGE 47
of
SER 76
restricts
that there has been

2
disputes creates
3
access
and the
18-2
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ability of "vexatious parents"
"change of circumstance."
The effect of applying the VLS to
third series of problems. Those temporary orders
(which become "de facto
termination orders"
to prove, as noted
as a
result of being
termination of all
(*See Factual Allegations, Parent H, AD, N, C), serves
Family Code 3011 (how is
to
The de facto terminations
Family Code 3041.
custodial
11
them of custodial
rights
are
thus altered
by the VLS
that
negate
be
parent's right
The Class Members'
adversely affect them as parents, thus depriving
or
should know,
as
pointed out by Judge Cardoza in In re
R., H., that the VLS is specifically applied to the class of parents in custody disputes. They know
or
should known that this constitutes
14
legislative determination that "custody disputes" are
unmeritorious motions and that they should be denied before

that
they are even heard despite the fact
custody disputes involve fundamental rights and parents have the right to "evidentiary
16
hearings" under Family Code 217 and the right to
17
Their
18
stated. The constitutional defects arise from the statutes' text
19
requirements of 391.7)
live
testimony under Title Five 5.113, 5.250.
Ju
"blameworthy conduct" is nothing more than trying to "regain custody" as Judge Cardoza
process of law
20
to
can
rights that other parents in California enjoy.
12
15
serve
"frequent and continual contact" under Family Code 3040, 3080.
10
13
parental rights in the "best interest" of a
negates the requirement for a "detriment" finding before parental rights
terminated under
9
to rewrite the "best interest" test of
It
child?).
The de facto
has occurred to Class Member here
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
the termination of all
as
of custody
beyond challenge since no
access), change parental rights under the Family Code and Title Five Rules.
five years
custody
depriving parents
parental rights for three, four,
above,
or
k
Second, the VLS
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as
and
(the prefiling order and security
legislatively determining "quilt" without the protections
of due
Adm'r
of Gen.
provided by the Family Code and Title Five Rules.
Nixon
v.
rn
i
Servs., 433 U.S. 425, 468, 97 S.Ct. 2777, 2802, 53 L.Ed.2d 867 (1977).
21
al
if
o
22
23
24
25
26
27
nn
"if it
128. Under the
prevailing case law, a law is prohibited under the bill of attainder
(1) applies with specificity,
and
(2) imposes punishment." BellSouth Corp.
v.
clause
FCC, 162
II F.3d 678, 683 (D.C. Cir. 1998). The element of specificity may be satisfied if the statute singles
out
person
States
v.
or
class
by name or applies to "easily ascertainable members of a group."
United
Lovett, 328 U.S. 303, 315, 66 S.Ct. 1073, 1078-79, 90 L.Ed. 1252 (1946). The Supreme
Court ruled in that the second element of punishment'
was
shown by
legislative act that
78
The U.S. Supreme Court noted that the question of a statute imposes punishment, a court should pursue a
three-prong analysis:(1) whether the challenged statute falls within the historical meaning of legislative punishment;
(2) whether the statute, "viewed in terms of the type and severity of burdens imposed, reasonably can be said to
Class Action
PAGE 48
SER 77
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father's
"deprivation ofparental rights" and the "opprobrium of being braded a
criminal child abuser." Doris R. Foretich,
129. In view of Judge Cardoza and

3
al.
et
v.
United States, 351 F.3d 1198
(D.C.App. 2003)."
or
k
resulted in
18-2
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Judge Sills statements, it cannot reasonably be argued
by Defendants that the "vexatious parents" are not being vilified as having "mental disorders" or
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being "criminal masterminds." This is unmistakable evidence
contempt and ignominy for "vexatious litigants, including "vexatious parents, is personified b)
the "list" maintained for
digital
age. The fact that the Judicial Council has created
allow vexatious parents to
&
forms, MC-703
our
public view, which is the functional equivalent of public pillorying in

MC-704, which
petition to remove themselves from the "lists" does not diminish the
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
of "punitive intent. The public
public shaming.
9
130. Nor
can
the Defendants reasonable contend that the VLS
10
custody disputes is "nonpunitive" or narrowly drawn.
11
curbing "vexatious" or frivolous litigation in civil
12
impinges the right to petition and undermines custody rights
13
the termination of all custodial

131. Nor
14
can
rights. (*See,
15
16
access.
The state could
not reach to "criminal matters"
Ju
18
"need-based" fees
rn
i
S. Ct. at
21
if
o
al
24
25
26
27
"10
as
to "civil cases"
as
and has, in
some
cases, resulted in
narrowly drawn in the context of
as
alternative
recommended
on
"vexatious
parents" simply by
opposed to "family law litigants" (the VLS does
pointed out in McCohn,
supra
or
by providing funds for
by the Elkins Task Force. (*See, Nixon,
433 U.S. at
482, 97
2810).
132. Defendants have violated the state and federal constitution by
"vexatious parents, which functions
22
23
custody cases the use of the VLS
litigate their custody dispute without restrictions and
impose "less burdensome"
limiting the reach of the VLS
20
legitimate interest in
perpetually while impoverished parents who have been declared "vexatious" are often denied all
17
19
can
Allegations).
the Defendants argue that the VLS is
custody disputes where affluent parents
applied to parents in
The state may have
cases, but in
Factual
as
Class Members of rights,
privileges
as a
applying the VLS
on
bill of attainder.
have, under color of state law, deprived Plaintiffs and
or
immunities
security to them by the Constitution of the
further nonpunitive legislative purposes"; and (3) whether the legislative record "evinces a congressional intent to
punish." Selective Serv. Sys. v. Minn. Pub. Interest Research Group, 468 U.S. 841, 852, 104 S.Ct. 3348, 3355, 82
L.Ed.2d 632 (1984) (quoting Nixon, 433 U.S. at 473, 475-76, 478, 97 S.Ct. at 2805, 2806-2807, 2808).
79
Foretich, supra: In this case, the legislative history is replete with evidence that the statutory purpose of the
Elizabeth Morgan Act was to "correct an injustice" and take sides in a notorious custody dispute. Hearing at 8, J.A.
41 (statement of Rep. Molinari). The focus of the Act and the unusual committee hearing in consideration of the bill
demonstrate that the legislative process in this case amounted to precisely that which the Bill of Attainder Clause
was designed to prevent: a congressional determination of blameworthiness and infliction of punishment."
Class Action
49
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United States, in violation of 42 U.S.C.
reallege and incorporate herein by reference each and every allegation and
II
I I paragraph set forth previously.

135. The VLS
as
applied to custody cases in family law proceedings
post facto law prohibited by the
state and federal constitutions.
(U.S.
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
9, Clause 3).
136. The VLS looks to past
"litigations
amounts to
Const. Article
an
1, Section
ex
et
w
134. Plaintiffs
Rights-
1983.
SEVENTH CLAIM FOR RELIEF

The VLS Functions as an Improper Ex Post Law
18-2
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litigation to determine "vexatious" conduct, particularly
that have been finally determined adversely" to the person
(*See, 391(b)(1)
&
10
However, the VLS does not define the term "finally determined adversely' and has relied
11
trial judges and

such
appellate decisions on an ad hoc basis to define the meaning of various terms
137. In McColm
v.
Westwood Park Assn, the Court of Appeals judicially
definition of litigation" under
391(b) to include writs, appe9.1s,
and petitions.
14
later
15
those
16
appellate courts have ruled that "summary denials" cannot be counted as
17
because such summary denials do not involve
expanded the
(supra, 1219). But,
appellate courts have retrenched, refusing to define "littation" under the VLS
as
including
petitions and writs that are "summarily denied" without ever reaching the "merits". These
"adverse determination"
on
the merits of a
'final determination,
case.
Ju
18
on
"litigation."
as
12
13
(2).
(Fink v.
Shemtov
that
"vexatious
litigation"
is, that there
(2010)
180 Cal.
was no
App. 48'
1160).8' (In Leone v. Medical Board (2000) 22 Cal. 481660, 669, the California Supreme Court
the
21
or
22
given a retroactive operation "unless
23
intent."
if
o
al
"a summary denial of a writ petition
24
25
26
27
n
on a
pretrial issue does not establish the law of
case.").
rn
i
20
explained,
19
(Kaiser Aluminum
should have known that the state statutes

it is
& Chemical
clearly made
Corp.
v.
to appear
Bonjorno,
that such
494 U.S.
was
not to be
are
the
legislative
827, 855 (1990); Aetna Cas.
80
In Wolfgram, supra at 58, the Court of Appeals riffed that "[1] et, loss offive suits in but seven years is
remarkable. Most people never sue anybody. most people don't sue anyone." The fact that statistic show that 50% o
married couples, many with children, end up in dissolution proceedings seems to be have been lost on the court. In
making this observation, Plaintiff illustrate the fact that most courts construe and consider the language of the VLS
in terms of "civil, not "family law" litigations.
81
Fink, supra at 1172: Although a writ proceeding generally qualifies as a litigation within the meaning of section
391, subdivision (a) (see McColm v. Westwood Park Assn., supra, 62 Cal.App.4th at p. 1216), for the reasons we
next explain, we hold the summary denial of a writ petition does not necessarily constitute a litigation that has been
determined adversely to the person" within the meaning of section 391, subdivision (b)(1).
""fmally
Class Action
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Ind. Acc. Corn. 30 Cal.
"[no] part of [this Code]

2
&
3
(g);
transactions
new
Law
or
(8th ed. 1974) Constitutional Law, 288, pp. 3578-3579.).
impairs vested rights acquired under existing laws,
obligation, imposes a new duty,
or
considerations
already past,
attaches
or
must
a new
no
391(a)
is to include
express
to
USI
or
apply (retroactively) to past writs, petitions, and appeals.
is to
that
provides that the definition of "litigation" under
"writs, appeals, and petitions" whether they are "adversely determinee or
10
not
11
acting in propria persona while "filing writs, petitions,
or
12
(Fink, Leone, etc.) that "summary denials" of writs
petitions
13
determinations" for purposes of the VLS, it's clear that there is
14
or
should know that the VLS does not contain any plain
language in the VLS
There is
respect
Landgraf v.
be deemed retrospective.
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
language that the VLS
express
or
in
disability,
IIFilm Products, 511 U.S. 244, 280 (1994)).
takes away
(Every statute, which

creates a
retroactive, unless expressly so declared."; Calif. Family Code, 4(e)(
Witkin, Summary of Cal.
is
2nd, 388;; California Civil Code section 3, declaring
or
k
v.
et
w
Co.
Surety
&
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adversely determined.' Nor is a "vexatious litigant" defined under 391(a)(1-4)
or
as a
person
appeals." After the appellate decisions

cannot count
no
as
"finally adverse
Legislative intention, only
judicial legislation, that provides for a retroactive application of the VLS
to
appeals, writs,
and
petition (whether of civil litigants or family law litigants.).

15
application of the VLS
to
appeals,
writs and
17
appeal.
18
litigant loses their "sixth litigation" in seven years. (Wolfgram, supra 58; "Only those citizens
Ju
As noted by the
rn
i
if
o
22
as
lose five suits in
"litigation" for purposes
visitation, support issues,

141. The U.S.
24
Clause protect
25
may not be
27
lauyers,
litigants'
kicks in under
seven
391(a)(1) after a family law
years, then undertake
391.7(d) defines
of the VLS,
decision to exercise their right to
"motions" that
sixth suit which lacks
family law litigant
family law litigant involved in a custody
dispute could quickly be declared "vexatious" for "adverse determinations" on requests
23
26
on
Wolfgram court, the VLS
merit, will be labeled vexatious."). Since
may file
21
petitions will also have a chilling affect
who decline to hire
20
al
16
19
or
or even ex
Supreme
parte motions for orders
for
to travel with their minor children.
Court has held that the Due Process Clause and the
Taking
party's fundamental rights (deprivation of custody rights, right to petition)
that
compromised by retroactive legislation. The Supreme Court has noted that a state
as the
may have "sufficient justifications" in giving prospective application to a statute (such
Uveges, 34 Cal. 4th 915, 928 (2004). CCP 391-391.7, by changing "the future legal consequences of
past transactions, so-called secondary retroactivity, a form of retroactivity, has engaged in improper conduct
unless there is clear intent shown to give the statute retroactive effect.) (emphasis added).
82
Elsner v.
Class Action
PAGE 51
SER 80
Litigant Statute) but that "may not suffice
Vexatious
the Due Process Clause.
(Landgraf v.
USI Film
Landgraf court explained that this is
party possessed when he acted." (supra,
because
142.
at
to warrant its retroactive
application" under
Products, 511 U.S. 244. 265-266, (199). The

a
retroactive effect is
that
one
"impairs rights a
280). Defendants know or should have known this!'
By declaring various Class Member "vexatious" on the basis of their writs, appeals,
petition of custody judgments/orders, the Defendants violate the due process
or
Amendments) by retroactively creating liability for Plaintiffs' past
clauses
conduct in
so
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(of the 5th
filing
and 14th
writs and motions and other pleadings. At the time the various Class Members filed their writs,
appeals, or petitions related to custody judgment/orders, they were acting legally and within his
rights
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
to seek
appellate review under the state constitution!'
143. Defendants'
actions, orders and rulings, taken under color of law individually and in
10
consort, deprive Plaintiffs of their rights,
11
Constitution of the United States in violation of 42 U.S.C. 1983.

X.
12
15
Issue
2).
violates
17
judicial declaration that California's Vexatious Litigant
Statute does not
apply
judicial declaration that California's Vexatious Litigant Statute, on its face,
parent's rights under the Due Process Clause of the
3).
Issue
Ju
14th Amendment.
judicial declaration that California's Vexatious Litigant Statute,
parents in custody disputes in family law courts, violates
as
applied to
parent's rights under the Due Process
Clause of the 14th Amendment.
4).
Issue
20
REQUEST FOR RELIEF
attorneys of vexatious litigants, by definition, and under any circumstance.
to
19
Issue
1).
14
18
secured to them by the
WHEREFORE, Plaintiffs pray that the Court order the following relief and remedies:
13
16
privileges or immunities
judicial declaration that California's Vexatious Litigant Statute, as applied to
rn
i
parents in custody disputes in California family law courts, violates the Equal Protection Clause
21
22
if
o
al
of the 14th Amendment.
5).
Issue
judicial declaration that California's Vexatious Litigant Statute, on its face and
23
as
24
under the 14th Amendment.
applied to parents in custody disputes in California family law courts, is void for vagueness
6. Issue
25
judicial declaration that California's Vexatious Litigant
Statute
as
applied to
83
26
27
Defendants may argue that the VLS's prefiling order is not unconstitutional because it only purports to affect
filings. However, the determination of "vexatiousness" is based on past conduct, such as the filing of writs,
appeals, or petitions. At the time of those filings, the Class Members were acting well within their rights.
"future
84
/1 CI
that, except when a judgment of death has been

of appeal have appellate jurisdiction when superior courts have original jurisdiction
*See, Calif. Const. Section 11 of Article VI, which
pronounced, the
"courts
Class Action
states
PAGE 52
SER 81
Case: 13-17170
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parents in custody disputes is
18-2
(139 of 156)
of 55 84 of 101
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improper ex post facto law.
judicial declaration that California's Vexatious Litigant Statute, on its face al

as applied to parents in custody disputes, is an improper bill of attainder.
Issue
or
k
7).
judicial declaration that the "vexatious litigant" orders issued by judicial

officers under California's Vexatious Litigant Statute were made in excess of their jurisdiction.
Issue
9). Award Plaintiffs costs and

U.S.C.
expenses,
including reasonable attorney's fees under 42
1988;
is just and proper.
di
ci
C al
JB B
N ra
N nc
.c h
om N
ew
10). Award such further and additional relief as
et
w
8).
In accordance with Fed. R. Div. P.
10
38(b),
and Northern District Local Rule 3-
6(a), Plaintiffs hereby demand a jury trial on all issues triable by a jury.
11
Iiysubu tea,
esp
12
13
14
toad
"ngham,
Plaintiffs
for
Attorney
Dated:
15
16
17
zz__
o.
Ju
18
rn
i
19
20
an
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NOT FOR CITATION
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA

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ARCHIBALD CUNNINGHAM,
Plaintiff,
For the Northern District of California
v.
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JUDGE PATRICK J. MAHONEY, et al.
13
Defendants.
ORDER GRANTING MOTION TO

DISMISS, AND JOINDERS
THEREIN, AND DENYING AS
MOOT MOTION FOR
PRELIMINARY INJUNCTION
14
15
INTRODUCTION
16
Now before the Court for consideration are: (1) the Motion to Dismiss, filed by Judge
Patrick J. Mahoney (Judge Mahoney), in which Chief Justice Ronald M. George (Chief
18
Justice George), Presiding Justice William R. McGuiness (Justice McGuiness), Presiding
19
Judge James McBride (Judge McBride), Maria Schopp, Esq. (Ms. Schopp), and Mary
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Wang (Ms. Wang), have joined; and (2) the Motion for a Preliminary Injunction, filed by
21
Plaintiff Archibald Cunningham (Mr. Cunningham).1
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10
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No. C 10-03211 JSW
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Judge Mahoney originally filed his motion to dismiss on August 11, 2010, and
filed a request for judicial notice on that date as well. (Docket Nos. 7, 8.) On August 20,
2010, Judge Mahoney re-filed the motion, with some minor changes. (Docket No. 16.) The
Court shall consider the arguments presented in the later filed motion.
1
Ms. Schopp and Ms. Wang filed a notice of joinder to Judge Mahoneys motion on
August 17, 2010, and filed a further notice of joiner on August 24, 2010. (See Docket Nos.
16 and 24.)
Mr. Cunningham filed an opposition to Judge Mahoneys motion on August 19,
2010, and an opposition to the joinder filed by Ms. Schopp and Ms. Wang on August 24,
2010. (Docket Nos. 17. 22.)
When the matter was reassigned to the undersigned, the Court issued a briefing
schedule on Judge Mahoneys re-noticed motion, because the Court inadvertently overlooked
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Having considered the parties papers, relevant legal authority, the record in this case,
and having had the benefit of oral argument, the Court HEREBY GRANTS the motion to
dismiss and the joinders therein, and DENIES AS MOOT, the motion for a preliminary
injunction.
BACKGROUND
Mr. Cunningham brings this action for declaratory and injunctive relief pursuant to the
Civil Rights Act, 42 U.S.C. 1983, asserting a constitutional challenge to the California
Vexatious Litigant Statute, Cal. Code Civ. P. 391, et seq., in the context of family law
proceedings. (Compl., 1, 10.) The instant action arises because, during the course of a
10
custody dispute between him and his ex-wife, Ms. Wang, Mr. Cunningham was declared a
11
vexatious litigant and has been required to post security and ordered to pay attorneys fees in
12
connection those proceedings. (See Compl., 1-13, 64-161.)
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Based on the allegations in the Complaint, Mr. Cunningham brings the following claims
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for relief: (1) Unconstitutional Denial of Access, Imposition of $5,000 Bond; (2) Fee Sanctions
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for Vexatious Litigation Violation Are an Unconstitutional Taking; (3) Fee Sanctions for
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Vexatious Litigation Violation Amounts to Prohibited Ex Post Facto Law; (4) the Vexatious
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Litigant Statute As Applied to Family Law Proceedings Improperly Impinges on Fundamental
18
Rights; (5) Multiple Vexatious Litigant Actions Violates Due Process; (6) the Vexatious
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Litigant Statute Violates Due Process by Denying Right to Appeal; and (7) the Vexatious
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Litigant Statute is Void for Vagueness.

The Court shall address specific additional facts, as necessary, in its analysis.
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A.
ANALYSIS
Applicable Legal Standards.
When a defendant moves to dismiss a complaint or claim for lack of subject matter
25
jurisdiction, the plaintiff bears the burden of proving that the court has jurisdiction to decide the
26
claim. Thornhill Publn Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979).
27
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the fact that the matter had been fully briefed. Accordingly, Mr. Cunningham filed further
opposition briefs on November 4, 2010, and November 5, 2010. (Docket Nos. 48, 49.) In
the interests of justice, the Court shall consider each of Mr. Cunninghams opposition briefs.
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Federal courts can only adjudicate cases which the Constitution or Congress authorize them to
adjudicate: cases involving diversity of citizenship, or those cases involving a federal question,
or where the United States is a party. See e.g., Kokkonen v. Guardian Life Ins. Co. of Am., 511
U.S. 375, 377 (1994).
Where an attack on jurisdiction is a facial attack on the allegations of the complaint, as is the
case here, the factual allegations of the complaint are taken as true and the non-moving party is
entitled to have those facts construed in the light most favorable to him or her. Fedn of African
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facial or factual. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).
Am. Contractors v. City of Oakland, 96 F.3d 1204, 1207 (9th Cir. 1996).
A motion to dismiss is proper under Federal Rule of Civil Procedure 12(b)(6) where the
12
pleadings fail to state a claim upon which relief can be granted. The Courts inquiry is limited
13
to the allegations in the complaint, which are accepted as true and construed in the light most
14
favorable to the plaintiff. Lazy Y Ranch LTD v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008).
15
Even under the liberal pleading standard of Federal Rule of Civil Procedure 8(a)(2), a
16
plaintiffs obligation to provide the grounds of his entitle[ment] to relief requires more than
17
labels and conclusions, and a formulaic recitation of the elements of a cause of action will not
18
do. Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 555 (2007) (citing Papasan v. Allain,
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478 U.S. 265, 286 (1986)).
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Pursuant to Twombly, a plaintiff must not merely allege conduct that is conceivable but
must instead allege enough facts to state a claim to relief that is plausible on its face. Id. at
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A motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) may be
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570. A claim has facial plausibility when the plaintiff pleads factual content that allows the
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court to draw the reasonable inference that the defendant is liable for the misconduct alleged.
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Ashcroft v. Iqbal, 556 U.S. __, 129 S. Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 556).
25
If the allegations are insufficient to state a claim, a court should grant leave to amend, unless
26
amendment would be futile. See, e.g., Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th Cir.
27
1990); Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv., Inc., 911 F.2d 242, 246-47 (9th
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Cir. 1990).
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As a general rule, a district court may not consider any material beyond the pleadings
in ruling on a Rule 12(b)(6) motion. Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994),
overruled on other grounds, Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002)
(citation omitted). However, documents subject to judicial notice may be considered on a
motion to dismiss. In doing so, the Court does not convert a motion to dismiss to one for
summary judgment. See Mack v. South Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir.1986),
overruled on other grounds by Astoria Fed. Sav. & Loan Assn v. Solimino, 501 U.S. 104
(1991).2
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The Motion to Dismiss is Granted, Without Leave to Amend.
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Each of Mr. Cunninghams claims are brought pursuant to Section 1983. In order to
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state a claim under Section 1983, a plaintiff must allege two essential elements: (1) that a right
12
secured by the Constitution or laws of the United States was violated and (2) that the alleged
13
violation was committed by a person acting under the color of state law. West v. Atkins, 487
14
U.S. 42, 48 (1988); see also Ketchum v. Alameda County, 811 F.2d 1243, 1245 (9th Cir. 1987).
15
A.
The Claims Against Judge Mahoney, Presiding Judge McBride, Presiding Justice
Kline, and Presiding Justice McGuiness Are Dismissed, With Prejudice.
16
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The Ninth Circuit has concluded that judicial defendants who are sued in their judicial
capacity are improper defendants in a Section 1983 action, in a situation where, as here, a party
19
challenges the constitutionality of a state statute.3 See Wolfe v. Strankman, 392 F.3d 358, 366
20
Mr. Cunningham filed a request for judicial notice in conjunction with his
complaint, by which he seeks judicial notice of state court records (Plaintiffs RJN).
(Docket No. 4.) Judge Mahoney filed a request for judicial notice in conjunction with his
motion to dismiss (Defendants RJN), by which he seeks judicial notice of records filed in
Cunningham v. Mahoney, 10-CV-1182-JSW and Cunningham v. Superior Court, No. CGC09-485501. The requests for judicial notice are GRANTED.
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In large part, Mr. Cunninghams claims against Judge Mahoney, Presiding

Judge McBride, and Justice McGuiness relate to actions taken in their judicial capacity.
(See, e.g., Compl. 2-11, 29-30, 33, 34, 64-70, 76-161 Exs. E-V) Apart from conclusory
allegations that they acted in excess of their jurisdiction, there are no facts to support those
allegations. Therefore, the claims against these defendants also should be dismissed on the
basis that they are entitled to absolute judicial immunity. See Stump v. Sparkman, 435 U.S.
349, 356-57 (1978) (A judge will not be deprived of immunity because the act he took was
in error, was done maliciously, or was in excess of his authority.); see also Mireless v.
Waco, 502 U.S. 9, 11 (1991); Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986).
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(9th Cir. 2004) (Strankman); Rupert v. Jones, 2010 WL 3833982, at *5 (N.D. Cal. Sept. 29,
2010). In Strankman, the Ninth Circuit reasoned that a court should not enjoin judges from
applying statutes when complete relief can be afforded by enjoining other parties, because it is
ordinarily presumed that judges will comply with a declaration of a statutes unconstitutionality
without further compulsion. Strankman, 392 F.3d at 366 (quoting In re the Justices of the
Supreme Court of Puerto Rico, 695 F.2d 17, 23 (1st Cir. 1982)). The court, therefore, dismissed
claims the plaintiff had brought against a number of judicial defendants.4
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Cunninghams theory is that the Vexatious Litigant Statute is facially unconstitutional in the
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context of family law proceedings and as it has been applied to him by the judicial defendants.
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However, Mr. Cunningham also has named Chief Justice George as a defendant, in his capacity
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as Chair of the Judicial Council. Thus, if he could prevail on the merits, Mr. Cunningham could
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obtain complete relief from Chief Justice George in that capacity. Strankman, 392 F.3d at 358;
14
see also Rupert, 2010 WL 3833982, at * 5 (dismissing claims challenging constitutionality of
15
state statutes against judicial defendants where plaintiffs claims against them pertained solely to
16
their roles as adjudicators, not administrators).
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Accordingly, the Court grants, in part, the motion to dismiss, and each of the claims
against Judge Mahoney, Presiding Judge McBride, Presiding Justice McGuiness, and Presiding
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Justice Kline are dismissed on this basis. Moreover, because it appears that granting leave to
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amend the Section 1983 claims against these defendants would be futile, the claims are
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dismissed with prejudice.
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Judicial immunity applies however erroneous the act may have been, and however
injurious in its consequences it may have proved to the plaintiff. Id. (quoting Cleavinger v.
Saxner, 474 U.S. 193 (1985)).
The Wolfe court concluded, however, that because the plaintiff also had sued
Chief Justice George in his administrative capacity as Chair of the Judicial Council,
dismissal on the basis of judicial immunity was not warranted. Id. At the hearing on the
motion, Mr. Cunningham also explained that he brought his claims against Justice Zelon in
her administrative capacity as Chair of the Elkins Family Law Task force. Although Justice
Zelon has not yet been served, for the reasons set forth in the remainder of this Order, all
claims against her are dismissed with prejudice.
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B.
Mr. Cunninghams Constitutional Challenges Fail.

1.
In his first claim for relief, Mr. Cunningham contends that Judge Mahoneys decision in
the custody dispute to impose a $5,000 bond to cover any future costs Petitioner [Ms. Wang]
may be enforced [sic] to incur in this litigation, pursuant to Cal. Code Civ. P. 391.7(a), denies
him access to the courts and violated his due process rights by interfering with his ability to
vindicate his custodial rights. (See Compl. 77-87; Plaintiffs RJN, Ex. G (Order dated April
12, 2010).) In his fourth claim for relief, Mr. Cunningham similarly contends that the
Vexatious Litigant Statute impairs [his] access to all courts, and in the context of family law
10
proceedings, impinges on [his] fundamental rights as a father.... (Compl. 108-119.) In his
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sixth claim for relief, Mr. Cunningham argues that application of the Vexatious Litigant Statute
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violates his due process rights by impairing his ability to appeal decisions made in the custody
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dispute. (Id. 132-145.)
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First, the fact that the Vexatious Litigant statute permits a court to impose a security
requirement or pre-filing requirement does not render the statute unconstitutional on its face.
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See Wolfe v. George, 486 F.3d 1120, 1126-27 (9th Cir. 2007) (George). As the Ninth Circuit
17
noted in George, before a court can require a person deemed to be a vexatious litigant to post
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security, it must ... make an individualized determination of the appropriate amount of
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security. Id. at 1127; cf. Wolfgram v. Wells Fargo Bank, 53 Cal. App. 4th 43, 60-61 (1997)
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(noting that judge reviewing a pre-filing request presumably will take the nature of the action
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into consideration).
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The Court also finds Mr. Cunninghams facial challenges to the Vexatious Litigant
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Statute in the context of family law proceedings to lack merit. See In re R.H., 170 Cal. App. 4th
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678, 704-705 (2009) (rejecting constitutional challenges where proceedings did not terminate
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parental rights). Moreover, even when the Court liberally construes Mr. Cunninghams
26
allegations, the import of these claims pertain to the actual application of the Vexatious Litigant
27
Statute as it applies to Mr. Cunninghams case. Any such claims are precluded under the
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Rooker-Feldman doctrine, which provides that district courts lack jurisdiction to review the
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final determinations of a state court in judicial proceedings. See, e.g., District of Columbia
Court of Appeals v. Feldman, 460 U.S. 462, 487-87 (1983); Rooker v. Fidelity Trust Co., 263
U.S. 413, 415 (1923); Branson v. Nott, 62 F.3d 287, 291 (9th Cir. 1995). For each of these
reasons, Mr. Cunninghams first, fourth, and sixth claims for relief are dismissed with
prejudice.
In his second claim for relief, Mr. Cunningham asserts that Judge Mahoneys decision to
award attorneys fees and costs in connection with the vexatious litigant proceedings amounts
to an unconstitutional taking. (See Compl., 90-99.) The Takings Clause of the Fifth
Amendment prohibits the government from taking private property for public use without just
10
compensation. This right is applicable to the states through the Due Process Clause of the
11
Fourteenth Amendment. Ward v. Ryan, 623 F.3d 807, 810 (9th Cir. 2010) (citing Webbs
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Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 160 (1980)).
13
To the extent Mr. Cunningham alleges only that the ability to impose security or award
attorneys fees in connection with Vexatious Litigant Proceeding amounts to a taking, the
15
facial challenge to the statute fails because the fees imposed are not for public use. As set
16
forth above in note 3, Judge Mahoney would be entitled to judicial immunity on such a claim
17
and dismissal is warranted on that basis as well. Finally, even when the Court liberally
18
construes the Complaint, Mr. Cunningham is arguing that the decision to impose the fees in his
19
case amounts to legal error. Such claims are barred by the Rooker-Feldman doctrine.
For each of these reasons, Mr. Cunninghams second claim for relief is dismissed with
prejudice.
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In his third claim for relief, Mr. Cunningham alleges that the Vexatious Litigant Statute
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is akin to an ex post facto law, although he acknowledges that this is not a criminal case. (See
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Compl., 103.) Mr. Cunninghams facial challenge to the Vexatious Litigant Statute on this
26
basis fails. See George, 486 F.3d at 1127 (The Double Jeopardy and Ex Post Facto Clauses do
27
not apply because the vexatious litigant statute does not impose criminal penalties.) With
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respect to his as applied challenge, as set forth above in note 3, Judge Mahoney would be
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entitled to judicial immunity on such a claim and dismissal is warranted on that basis as well.
Finally, even when the Court liberally construes the Complaint, Mr. Cunningham is arguing that
the application of the statute in his case amounts to legal error. Such claims are barred by the
Rooker-Feldman doctrine.
For each of these reasons, the third claim for relief is dismissed with prejudice.
4.
In his fifth claim for relief, Mr. Cunningham argues that Judge Mahoneys decisions to
The fifth claim for relief is dismissed with prejudice.
declare him a vexatious litigant more than once during the course of the family law proceedings
amounts to a violation of his due process rights. (Compl. 123-128.) As set forth above in
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note 3, Judge Mahoney would be entitled to judicial immunity on such a claim and dismissal is
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warranted on that basis as well. Finally, even when the Court liberally construes the Complaint,
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Mr. Cunningham is arguing that the application of the statute in his case amounts to legal error.
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Such claims are barred by the Rooker-Feldman doctrine.
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For each of these reasons, the fifth claim for relief is dismissed with prejudice.
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5.
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In his seventh claim for relief, Mr. Cunningham argues that the Vexatious Litigant
The seventh claim for relief is dismissed with prejudice.
Statute is void for vagueness and overbreadth. (Compl. 149-159.) Mr. Cunninghams facial
18
challenges to the Vexatious Litigant Statute on these grounds fail. See George, 486 F.3d at
19
1125 (rejecting vagueness and overbreadth challenges). Moreover, even when the Court
20
liberally construes the Complaint, Mr. Cunningham is arguing that the application of the statute
21
in his case amounts to legal error. Such claims are barred by the Rooker-Feldman doctrine.
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C.
For each of these reasons, the seventh claim for relief is dismissed with prejudice.
Mr. Cunninghams Claims Against Ms. Schopp and Ms. Wang Fail Because He
Fails to Allege Facts to Show They Are State Actors.
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In their joinder to Judge Mahoneys motion, Ms. Schopp and Ms. Wang move to dismiss
26
on the additional basis that they are not state actors, an essential element of Mr. Cunninghams
27
claims under Section 1983. Generally, private parties do not act under color of state law. Price
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v. Hawaii, 939 F.2d 702, 707-08 (9th Cir. 1991). The complaint, therefore, must allege facts
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tending to show that the private parties conduct has caused a deprivation of federal rights that
may be fairly attributable to the State. Id. at 708 (holding that conclusionary allegations of
action under color of state law, unsupported by facts, will be rejected as insufficient to state a
claim (quoting Jones v. Community Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984)
(internal quotations and brackets omitted). A two-part test exists to determine whether private-
party action causes a deprivation that occurs under color of state law. Lugar v. Edmonson Oil
Co., 457 U.S. 922, 937 (1982). First, the deprivation must be caused by the exercise of some
right or privilege created by the State; by a rule of conduct imposed by the state; or by a person
for whom the State is responsible. Id. Second, the party charged with the deprivation must be a
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state actor. Id. A person may become a state actor by performing a public function or being
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regulated to the point that the conduct in question is practically compelled by the State. Vincent
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v. Trend Western Technical Corp., 828 F.2d 563, 569 (9th Cir. 1987).
All of the allegations in the Complaint against Ms. Schopp and Ms. Wang relate to their
14
conduct in litigating the custody dispute, as well as contempt and vexatious litigant proceedings
15
that arose out of the custody dispute. (See, e.g., Compl., 20-27, 55-56, 76-161; see also
16
Docket No. 22 (Plaintiffs Opp. Br. at 2:27-4:20); 24 (Supp. Opp. Br. at 2:12-13:5); 48 (Second
17
Supp. Opp. at 2:14-16:4).) Notwithstanding Mr. Cunninghams arguments to the contrary, the
18
allegations in the Complaint are insufficient to allege that Ms. Schopp and Ms. Wang are state
19
actors. Further, based on those allegations, the exhibits submitted in support of his opposition,
20
and his arguments in his brief and at the hearing, the Court concludes that it would be futile to
21
grant him leave to amend the claims against Ms. Schopp and Ms. Wang.
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as well.
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CONCLUSION
For the foregoing reasons, the motion to dismiss and the joinders therein are
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GRANTED, without leave to amend. Mr. Cunninghams motion for a preliminary injunction is
DENIED AS MOOT. This case is dismissed with prejudice, a separate judgment shall issue,
and the Clerk shall close the file.

IT IS SO ORDERED.
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JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE
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28
10
SER 94
13-17170
03/05/2014 Document12-1
Document57
ID: 9003597 Filed12/07/10
Filed04/15/13
DktEntry: 18-2
Page11
Page63
Page:
of
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97
66 of 101
(152 of 156)
FOR THE
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Case Number: CV10-03211 JSW
Plaintiff,
ARCHIBALD CUNNINGHAM et al,
v.
9
di
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10
12
13
14
15
That on December 7, 2010, I SERVED a true and correct copy(ies) of the attached, by
placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter
listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an
inter-office delivery receptacle located in the Clerk's office.
16
17
20

Richard W. Wieking, Clerk
By: Jennifer Ottolini, Deputy Clerk
rn
i
21
Ju
19
Archibald Cunningham
1489 McAllister St.
18
I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.
Defendant.
11
22
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if
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28
11
SER 95
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ID: 9003597 Filed04/15/13
Page:
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EXHIBIT E
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03/05/2014 Document12-1
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ID: 9003597 Filed04/15/13
Filed12/07/10
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IN THE UNITED STATES DISTRICT COURT
6
7
ARCHIBALD CUNNINGHAM,
No. C 10-03211 JSW
Plaintiff,
v.
12
13
Defendants.
JUDGMENT
14
15
For the reasons set forth in this Courts Order granting the motion to dismissand the
16
joinders therein, JUDGMENT IS HEREBY ENTERED in favor of Defendants and against
17
Plaintiff.
18
20

JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE
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IT IS SO ORDERED AND ADJUDGED.
10
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FOR THE NORTHERN DISTRICT OF CALIFORNIA

8
22
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23
24
25
26
27
28
SER 97
Case: 13-17170
03/05/2014
Document12-1
Document58
ID: 9003597 Filed04/15/13
Filed12/07/10
Page2
Page:
of
of100
266 of 101
(155 of 156)
FOR THE
et
w
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k
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6
Case Number: CV10-03211 JSW
Plaintiff,
ARCHIBALD CUNNINGHAM et al,
v.
9
di
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JB B
N ra
N nc
.c h
om N
ew

10
12
13
14
15
That on December 7, 2010, I SERVED a true and correct copy(ies) of the attached, by
placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter
listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an
inter-office delivery receptacle located in the Clerk's office.
16
17
20

Richard W. Wieking, Clerk
By: Jennifer Ottolini, Deputy Clerk
rn
i
21
Ju
19
Archibald Cunningham
1489 McAllister St.
18
I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.
Defendant.
11
22
al
if
o
23
24
25
26
27
28
SER 98
Case: 13-17170
03/05/2014
ID: 9003597
DktEntry: 18-2
Page: 101 of 101

(156 of 156)
No.
13-17170
et
w
Case Name: Pierce v. Cantil-Sakauye
or
k
SUPPLEMENTAL EXCERPTS OF RECORD
I hereby certify that on March 5, 2014, I electronically filed the following documents
with the Clerk of the Court by using the CM/ECF system:
di
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C al
JB B
N ra
N nc
.c h
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ew
I certify that all participants in the case are registered CM/ECF users and that service will
be accomplished by the CM/ECF system.
I declare under penalty of perjury under the laws of the State of California the foregoing
is true and correct and that this declaration was executed on March 5, 2014, at San
Francisco, California.
al
if
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rn
i
Ju
P. Patty Li
Declarant
/s/ P. Patty Li
Signature
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Sacramento Family Court News

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23 March 2013
SHORTCUTS TO POPULAR
SUBJECTS AND POSTS
Tani Cantil-Sakauye Defendant & Jaime R. Roman Implicated in Federal

Class Action Lawsuit for Misuse of Vexatious Litigant Law
JUDICIAL MISCONDUCT
(72)
Controversial Order for Judge Pro Tem Attorney

Charlotte Keeley by Judge Jaime Roman Challenged
in Federal Class Action Lawsuit
ATTORNEY MISCONDUCT
(37)
Taxpayers Face Financial Liability
JUDGE PRO TEM

(51)
MATTHEW J. GARY
(34)
KICKBACKS
(33)
FLEC
(28)
PETER J. McBRIEN
(26)
ARTS & CULTURE
(23)
CHILD CUSTODY
(23)
ROBERT SAUNDERS
(22)
SCBA
(22)
CJP
(21)
JAMES M. MIZE
(21)
CHARLOTTE KEELEY
(19)
Supreme Court Chief Justice Tani Cantil-Sakauye is named as a defendant in this federal court litigation stemming from a vexatious
litigant court order issued by Sacramento Family Court Judge Jaime Roman for Judge Pro Tem Charlotte Keeley.
EMPLOYEE MISCONDUCT
(19)
WATCHDOGS
(19)
SACRAMENTO FAMILY COURT NEWS EXCLUSIVE

A November, 2012court order designating a Sacramento Family Courtparty as a vexatious litigant is being
challenged in a landmark federal class action lawsuit filed yesterday in United States District Court in San
Francisco. The controversial order was issued by family court Judge Jaime Roman at the request of temporary
judge and veteran family law attorneyCharlotte Keeley in a case with a long-running child custody dispute
between Andrew Karres andMel Rapton Honda heiress Katina Rapton.
PRO PERS
(18)
The order blacklisted [pdf] Karres as a vexatious litigant [pdf] and raised eyebrows in the legal community
because Roman issued the ruling without providing Karres the court hearing required under state law and the due
process provisions of the state and federal Constitutions.
ROBERT HIGHT
(14)
The vexatious litigant designation severely restricts a litigants access to the courts by requiring them to get preapproval from a presiding judge before they are permitted to file pleadings in any court in the state.Sacramento
Family Court News in Nov. 2012 reported exclusively on Judge Roman's unorthodox order, which also is
pending review by the Third District Court of Appeal in Sacramento. Taxpayers likely will now get two substantial
CARLSSON CASE
(12)
DIVORCE CORP
(17)
DOCUMENTS
(17)
PAULA SALINGER
(15)
SACRAMENTO SUPERIOR
COURT
(13)
RAPTON-KARRES
(12)
APPEALS
(11)
bills in connection with the Keeley-Roman ruling.
The state court appeal will cost the public between $8,500 and $25,500, according to recent appellate court
decisions. The public cost of defending the federal case could be significantly higher. For several years, court
watchdogs and whistleblowers have asserted that full-time judges give preferential treatment to judge pro tem
attorneys. They charge that the Rapton-Karres case is one of several cases emblematic of judge-attorney
cronyism and its effects, including the unnecessary use of scarce court resources and the financial burden on
taxpayers.
COLOR OF LAW SERIES
(11)
CONFLICT OF INTEREST
(11)
SATIRE
(11)
WHISTLEBLOWERS
(11)
To continue reading, click Read more >>below:
WOODRUFF O'HAIR
POSNER and SALINGER
(11)
Named as defendants in the federal class action lawsuit are

California Supreme Court Chief Justice and Judicial
Council Chair Tani Gorre Cantil-Sakauye and Steven Jahr,
the Administrative Director of the Administrative Office of
the Courts.
JAIME R. ROMAN
(10)
LAURIE M. EARL
(10)
In addition to Karres, the plaintiffs include eight other family

court parties from throughout the state. All have been
blacklisted as vexatious litigants in their respective courts.
"Plaintiffs, who are parents in on-going custody disputes,
bring this class action against Chief Justice CantilSakauye and the Judicial Council in the hope of
overturning California's Vexatious Litigant Statute
(VLS) as it applies to family law litigants, particularly
parents caught in protracted custody battles. The
Plaintiffs challenge the constitutionality of the VLS as it
is applied in the context of family law custody
proceedings. The Plaintiffs assert that the VLS on its
face and as applied infringes on their fundamental
custody rights," reads the introduction section of the
complaint.
NO CONTACT ORDERS
(10)
SHARON A. LUERAS
(10)
FERRIS CASE
(9)
JESSICA HERNANDEZ
(8)
ROBERT O'HAIR
(8)
CANTIL-SAKAUYE
(7)
JULIE SETZER
(7)
Justice Cantil-Sakauye is a former Sacramento
County Superior Court Judge.
Click here to read the complete lawsuit filed March 22. Sacramento Family Court News will provide continuing
coverage of the case.
MATTHEW HERNANDEZ
(7)
YOUTUBE
(7)
3rd DISTRICT COA
(6)
CIVIL RIGHTS
(6)
Related articles and posts:
CHRISTINA ARCURI
(5)
Click herefor our complete coverage

of the Rapton-Karres case.
CONTEMPT
(5)
Click herefor our reporting on Judge

Jaime R. Roman.
Click herefor coverage of judicial
misconduct.
MIKE NEWDOW
(5)
Click herefor our special Judge Pro

Tem Page.
THADD BLIZZARD
(5)
Posted by
PR Brown
at
8:19 PM
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Labels:
CHARLOTTE KEELEY,
CHILD CUSTODY,
CHILD SUPPORT,
FEDERAL LAWSUITS,
JAIME R. ROMAN,
JUDGE PRO TEM,
JUDICIAL MISCONDUCT,
NEWS EXCLUSIVE,
RAPTON-KARRES,
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FAMILY LAW FACILITATOR
(4)
LUAN CASE
(4)
Location:
US District Court Clerk Northern District Of California, 450 Golden Gate Avenue #36060, San Francisco, CA 94102,
MALPRACTICE
(4)
USA
THOMAS M. CECIL
(4)
CHILD ABDUCTION
(3)
5 comments
VANCE W. RAYE
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VEXATIOUS LITIGANT
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SUBJECTS AND POSTS
Sacramento Superior Court Part-Time Judge

Program Controversy
JUDICIAL MISCONDUCT
(72)
JUDGE PRO TEM
(51)
ATTORNEY MISCONDUCT
(37)
Judge-Attorney "Cartel" Controls Court Operations Constitutes Racketeering Enterprise, Charge

Whistleblowers
MATTHEW J. GARY
(34)
KICKBACKS
(33)
FLEC
(28)
PETER J. McBRIEN
(26)
Sacramento Family Court News Exclusive Investigative Report

This special investigative report is ongoing and was last updated in October, 2015. Hyperlinks throughout this
report link to original source material including whistleblower leaked documents, records obtained under
public records law, public court documents, and our previously published articles with hyperlinks to source
CHILD CUSTODY
(23)
ROBERT SAUNDERS
(22)
material.
SCBA
(22)
As many of the articles on our main page

reflect,Sacramento Superior Court employee
whistleblowers and other court watchdogs contend
that a "cartel" oflocal family lawattorneys receive
kickbacks and other forms ofpreferential treatment
from family courtjudges, administrators and
employees.
CJP
(21)
JAMES M. MIZE
(21)
CHARLOTTE KEELEY
(19)
EMPLOYEE MISCONDUCT
(19)
The whistleblowers assert that lawyers in the

privileged group receive an assortment of illegal perks
because they volunteer towork as part-time
judgesand run the family court settlement
conference program on behalf of the court.
WATCHDOGS
(19)
PRO PERS
(18)
DIVORCE CORP
(17)
The kickbacks usually consist of "rubber-stamped"

court ordersissued when the attorneys represent
clients in court. The orders consistently are contrary
to established law, and the rulings cannot be
attributed to the exercise of judicial discretion.
As a matter of law, the orders are illegal, according

to court reform advocates, "outsider" attorneys, and
thelaw practice reference publicationsused by
judges and lawyers.SFCN hasposted the
ordersonline atScribdand other document
publishingsites. Order links are provided throughout
this report.
ARTS & CULTURE

(23)
DOCUMENTS
(17)
PAULA SALINGER
(15)
ROBERT HIGHT
(14)
SACRAMENTO SUPERIOR
COURT
(13)
Sacramento Superior Court reform advocates assert that collusion
between judges and local attorneys deprives pro per court users of
their parental rights, community assets, and due process and access
to the court constitutional rights.
CARLSSON CASE
(12)
RAPTON-KARRES
(12)
APPEALS
(11)
Scheme Primarily Targets Divorce Cases Where Only One Side Has a Lawyer
Most of the demonstrablyillegal orders are issued against indigent, or financially disadvantaged "pro per"
parties without an attorney. Manypro per litigants-who make up over 70 percent of court users -also are
disabled.
In most cases, pro pers - who have little or no knowledge of family law - are unaware that the orders issued against
them are illegal. In addition, court clerks and employees are trained or encouraged tointentionally, and illegally
mislead unrepresented parties about their appeal rights. Pro pers who do attempt to file an appeal are forced to
navigate a gauntlet of unlawful obstructionserected by court employees andtrial court judges,and most
eventually give up.
Further handicapping pro pers, when representing clients in court judge pro tem lawyers are allowed to obstruct an
opposing parties' court access and ability to file documents through the court-sanctioned misuse ofvexatious
litigant lawand Family Codecase management law,according to whistleblowers andcourt records.The illegal
litigation tactic effectively deprives pro per litigants of their constitutional right of access to the courts, a violation of
federal law.
In exchange for acting as sworn temporary judges, operating the settlement program and reducing the caseload
and workload of judges and court employees, the attorneys also receive preferential trial scheduling, an
unlawful "emolument, gratuity or reward" prohibited by Penal Code 94.
The ultimate consequences of the systemic divorce court corruption include one-sided divisions of community
property, illegal child custody arrangements and the deprivation of parental rights, and unlawful child and
spousal support terms.
Court reform advocates also assert that the racketeering enterprise enables rampant fee churningandunjust
enrichmentby judge pro tem divorce lawyers, results in pro per financial devastation,homelessness, and
imprisonment, and hascaused, or contributed to at least two child deaths.
Years of illegal, pay-to-play child custody orders have resulted in the formation of several Sacramento-based court
reform and oversight organizations, including Fathers 4 Justice, California Protective Parents Association, and
the Family Court Accountability Coalition. The same family court watchdog group phenomenon has not
occurred in any other county in the state.
COLOR OF LAW SERIES
(11)
(11)
SATIRE
(11)
WHISTLEBLOWERS
(11)
WOODRUFF O'HAIR
POSNER and SALINGER
(11)
JAIME R. ROMAN
(10)
LAURIE M. EARL
(10)
NO CONTACT ORDERS
(10)
SHARON A. LUERAS
(10)
FERRIS CASE
(9)
JESSICA HERNANDEZ
(8)
ROBERT O'HAIR
(8)
CANTIL-SAKAUYE
(7)
JULIE SETZER
(7)
MATTHEW HERNANDEZ
(7)
YOUTUBE
(7)
3rd DISTRICT COA
(6)
CIVIL RIGHTS
(6)
CHRISTINA ARCURI
(5)
CONTEMPT
(5)
MIKE NEWDOW
(5)
THADD BLIZZARD
(5)
(4)
During three days of sworn testimony at his Commission on Judicial Performance misconduct prosecution, Judge Peter McBrien
inadvertently revealed aspects of an alleged RICO racketeering enterprise operating in the Sacramento County family court system.
LUAN CASE
(4)
MALPRACTICE
(4)
The alleged criminal conduct also deprives victims of their state and federal constitutional rights, including due
process, equal protection of law, access to the courts, and the fundamental liberty interest in the care,
management and companionship of their own children, according to several "outsider" attorneys.
Court watchdogs charge that the settlement conference kickback arrangement between the public court and private
sector attorneys constitutes aracketeering enterprisewhich also deprives the public of thefederally
protectedright tohonest government services.
THOMAS M. CECIL
(4)
CHILD ABDUCTION
(3)
VANCE W. RAYE
(3)
VEXATIOUS LITIGANT
(3)
The alleged federal crimes also include thetheft, misuse, or conversion of federal fundsreceived by the court,
predicate acts ofmail or wire fraud,andpredicate state law crimes, including obstruction of justice,child
abduction, and receipt of an illegal emolument, gratuity, or reward by a judicial officer(Penal Code 94).
RACKETEERING
(2)
With the help of court employeewhistleblowers, Sacramento Family Court News has partially reconstructed the
framework of the alleged criminal enterprise that, in scale and scope, rivals theKids for Cashcourt scandal in
Luzerne County, Pennsylvania, and the Orange County Superior Court case-fixing corruption scheme recently
exposed by the FBI.
WE SUPPORT
Electronic Frontier
Foundation
Settlement Conference Program Quid Pro Quo Arrangement
Californians Aware
The current day Sacramento County Family Court

system and judge pro tem attorney operated
settlement conference program was set up in 1991
by Judge Vance Raye,Judge Peter McBrien and
lawyers from theSacramento County Bar Association
Family Law Section, according to the sworn
testimony of McBrienat his 2009Commission on
Judicial Performancemisconduct prosecution.
LAW BLOGS WE LIKE

Family Law Professor Blog
Law Librarian Blog
Law Professor Blogs
Thurman Arnold Family
Law Blog
Click here to read the transcript of the controversial

judge's testimony.
In his own testimony during the same proceedings,

local veteran family law attorney and judge pro tem
Robert J. O'Hair corroborated McBrien's testimony
and attested to McBrien's character and value to
Sacramento County Bar Association Family Law
Section members. Click here to view this excerpt of
O'Hair's testimony. To view O'Hair's complete
testimony, click here.
Kafkaesq
Above the Law
The Divorce Artist
3rd District Court of Appeal Presiding Justice Vance Raye

is the co-architect of the current Sacramento County Family
Court system. Click here for details.
Judge Vance Raye is now the Presiding Justice of

the 3rd District Court of Appeal in Sacramento, the
court responsible for hearing appeals from Sacramento Superior Court. The appellate court has been embroiled in
a number of controversies surrounding the review of Sacramento family court cases.
In 2012,troubled Sacramento County Judge James Mize, - a personal friend of McBrien - further privatized
family court services and expanded the ability of ostensibly "volunteer" temporary judge lawyers to earn kickbacks
and other preferential treatment with his so-called "One Day Divorce Program."
Court watchdogs charge that the system was designed to, and does servethe needs and financial interests of
family law lawyers at the expense of the 70 percent of family court users who cannot afford representation.
LEGAL NEWS &

INFORMATION
California Lawyer Magazine
Courthouse News Service
Metropolitan News
Enterprise
California Official Case Law
Google Scholar-Includes
Unpublished Case Law
California Statutes
Reducing the Caseload and Workload of Judges and Court Staff in Exchange for
Kickbacks
One objective of the allegedlyillegal public-private

partnership is to significantly reduce the caseload, and
workload of full-time judges by having private sector
lawyers - instead of judges or court staff - operate the
settlement program, according to watchdogs.
CALIFORNIA JUDICIAL
BRANCH
California Courts
Homepage
California Courts YouTube
Page
At the settlement conferences, judge pro tem attorneys

pressure divorcing couples to settle cases so they won't
use the trial court services, including law and motion
hearings, ordinarily required to resolve a contested
divorce.
Judicial Council
Commission on Judicial
Performance
Sacramento County Family
Court
In many cases, two lawyers - one acting as a temporary

judge - with social and professional ties team up against an
unrepresented pro per to compel one-sided settlement
terms. Accounts of coercive and deceptive tactics are
common.
3rd District Court of Appeal

State Bar of California
State Bar Court
In sworn testimony during his judicial misconduct

prosecution by the Commission on Judicial Performance,
Judge McBrien inadvertently revealed that an incredible 90
percent of cases assigned to his courtroom settled. "And so
I, frankly, have a very light calendar on law and motion
mornings," the judge added.
Sacramento County Bar

Association
The 2014 documentary film Divorce Corp exposed court

corruption throughout the United States and designated
Sacramento County as the worst-of-the-worst.
Under the quid pro quo agreement, in exchange for

reducing the workload of judges and court staff, as opportunities arise the temporary judge attorneys are provided
reciprocalkickbacks, gratuities, or emoluments when representing clients in court. The issuance and receipt of
the reciprocal benefits violates several state and federal criminal, and civillaws.
Local & National Family CourtFamily Law Sites & Blogs (may
be gender-specific)
ABA Family Law Blawg
Directory

Reciprocal benefits include the issuance ofdemonstrably illegal court orders that have ignored, and even
authorized criminal conduct by judge pro tem attorneys and their clients, including criminal child abduction.
In one case, a judge ordered the illegal arrest and assault of a disabled pro per to benefit the opposing, part-time
judge attorney. A court employee whistleblower leaked a courtroom security video of the incident. The judge pro
tem lawyer subsequently was caught on court reporter transcript defending the judge andlying about the arrest
and assault, portraying the disabled victim as being at fault.
The consistent, statistically impossible in-court success rate of judge pro tem attorneys has provided
themprominence, client referrals, wealth, and a substantial monopoly on the Sacramento County divorce and
family law business. Whistleblowers point out that this benefit of the alleged criminal organization also implicates
consumer protection andantitrust laws, including the CaliforniaUnfair Business Practices Act.
California Coalition for

Families and Children
California Protective
Parents Association
Center for Judicial
Excellence
Courageous Kids Network
Divorce & Family Law News
Divorce Corp
Divorced Girl Smiling
Racketeering Scheme Insulates Members from Government Oversight and

Accountability
Family Law Case Law from

FindLaw
Family Law Courts.com
Family Law Updates at
JDSupra Law News
Fathers 4 Justice
HuffPost Divorce
Leon Koziol.Com
Moving Past Divorce
News and Views Riverside
Superior Court
Weightier Matter
Total Pageviews
188145
Whistleblowers claim that Sacramento Family Court corruption results in the misuse of federal funds, deprives the public of the federally
protected right to honest government services, and deprives unrepresented, disabled, and financially disadvantaged court users of their
civil rights.
182
The quid pro quo arrangement also involves what whistleblowers assert is a reciprocal protection racket that
conceals the organization from discovery by law enforcement agencies and state oversight authorities, including
the Commission on Judicial Performance, responsible for judge misconduct, and the State Bar Association,
responsible for attorney accountability and discipline.
Case audits conducted by SFCN show that judge pro tem attorneys routinely violate state law, court rules, and
attorney ethics rules, but are never reported to the State Bar, or assessed fines, penalties or "sanctions" by fulltime judges as required by state law.
Pro pers who attempt to report judge pro tem attorney misconduct to the State Bar are told they need a court
order from a judge before a disciplinary investigation against an opposing attorney can take place. There are no
known instances where a judge issued such an order.
Court records leaked by whistleblowers also indicate that the under quid pro quo agreement, judges effectively
shield attorneys from criminal investigation and prosecution for alleged crimes, including witness intimidation,
childabduction,filing counterfeit documents, and violations of state and federal civil rights laws.
On the other hand, at the request of cartel attorneys, pro per litigants are routinely punished by judges with illegal
fines, draconian financial sanctions, and other types of punishment to discourage them from returning to
court, and to coerce them to accept settlement terms dictated by the opposing judge pro tem lawyers.
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2011 SACRAMENTO/MARIN
AUDITS
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3rd DISTRICT
COA
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AB
1102
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AB 590
(1)
ABA JOURNAL
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LAW
(1)
ADA
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ADMINISTRATORS
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AGGREGATED NEWS
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AL SALMEN
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AMERICAN BAR ASSOCIATION

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ANALYSIS
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FURILLO
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ANDY
AOC
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Attorneys provide judges reciprocal protection by not reporting the judicial misconduct, Code of Judicial Ethics
violations, and criminal conduct committed by full-time judge cartel members. And the lawyers do more.
To help conceal and ensure the continuity of the enterprise, on the rare occasion when full-time judges doface
investigation by the Commission on Judicial Performance, members of the cartel provide false, misleading, or
otherwise gratuitous character witness testimony and other forms of support for the offending judge. The
testimony and support is designed to, and does reduce or eliminate potential punishment by the CJP, ensuring
judge members remain on the bench.
APPEALS
(11)
ARCHIBALD
CUNNINGHAM
(1)
ARTHUR G.
SCOTLAND
(5)
ARTS &
CULTURE
DISCIPLINE
(4)
ATTORNEY
ATTORNEY
MISCONDUCT
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ETHICS
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ATTORNEYS
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BAR
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BARACK
OBAMA
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BARTHOLOMEW
and WASZNICKY
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BUNMI
Racketeering Conduct of Court Clerks, Supervisors and the Family Law Facilitator
AWONIYI
The racketeering activity includes startling coordination, kickbacks, andpattern and practice misconductby court
clerks, supervisors, and theFamily Law Facilitatoroffice. Court clerks routinelyrefuse to filelegallysufficient
paperworkfor pro per parties, while at the same timefilinglegallyinsufficient, andeven counterfeitpaperwork which they arerequired by lawto reject for filing - for judge pro tem attorneys.
In some cases, judges and court clerks
work in tandem toprevent pro per
partiesfrom filing documentsat court
hearingsfor the benefit of judge pro
tems, deliberately creating an
incomplete and inaccurate trial court
record in the event the pro per files an
appeal.
Court records showthat clerks also
deliberately withhold and delay the
filing of time sensitive pro per
documents until after filing deadlines
have expired.
CALIFORNIA
(1)
CALIFORNIA
LAWYER
(1)
CALIFORNIANS AWARE
(1)
CAMILLE HEMMER
(3)
CANTIL-SAKAUYE
(7)
CARLSSON CASE
(12)
CECIL and CIANCI

(2)
CEO
(4)
CHARLOTTE
KEELEY
(19)
CHILD
ABDUCTION
(3)
CHILD
CUSTODY
(23)
CHILD
SUPPORT
(4)
CHRISTINA
ARCURI
(5)
CHRISTINA
VOLKERS
(7)
CIVICS
(1)
CIVIL LIABILITY
(1)
CIVIL
RIGHTS
(6)
CJA
(3)
CJE
(2)
In this case, a court clerk illegally "unfiled" a notice of appeal filed by an indigent,
disabled pro per litigant. Click here for details.
Alleged RICO Racketeering Enterprise Evidence
Court reform and accountability advocates assert that the local family law bar- through the Family Law
ExecutiveCommitteeor FLEC - continues to control for the financial gain of members virtually all aspects of court
operations, and have catalogued documented examples of judge pro tem attorney preferential treatment and
bias against unrepresented litigants and"outsider" attorneys,including:
Judge pro tem attorneys Charlotte

Keeley, Richard Sokol, Elaine Van
Beveren and Dianne Fetzer are each
accused of unethical conduct in the
problem cases included in the movie.
The infamous Carlsson case,
featuring judge pro tem attorney
Charlotte Keeley and Judge Peter
McBrien is the central case profiled in
the documentary, with Sacramento
(1)
JUDICIAL CONDUCT HANDBOOK
Family Law Facilitatorstaff provide pro per litigantswith false informationdesigned to concealstate law
violationsby court clerks and supervisors. Judges regularly provide attorneys withlegal advice and "bench
tips."When pro pers ask facilitator staff for similar information, they are told that facilitator employees are
prohibited from giving legal advice.
Divorce Corp, a documentary film that

"exposes the corrupt and collusive
industry of family law in the United
States" was released in major U.S.
cities on January 10, 2014. After a
nationwide search for the most
egregious examples of family court
corruption, the movie's production
team ultimately included fourcases
from Sacramento County in the film,
more than any other jurisdiction.
(23)
ATTORNEY
(4)
ATTORNEY
CJEO
CJP
(21)
(1)
ClientTickler
(2)
CNN
(1)
CODE
OF
JUDICIAL
ETHICS
(12)
CODE OF
SILENCE
(2)
COLLEEN
MCDONAGH
(3)
COLOR OF
LAW
SERIES
(11)
(11)
CONSTITUTIONAL
RIGHTS
(3)
CONTEMPT
(5)
CORRUPTION
(1)
COURT
CONDITIONS
(2)
COURT
EMPLOYEE
(1)
COURT EMPLOYEE
CODE OF ETHICS
(1)
COURT
POLICIES
(1)
COURT RULES
(4)
COURTS
(1)
CPG FAMILY LAW
(1)
CRIMINAL CONDUCT
(13)
CRIMINAL LAW
(3)
CRONYISM
(2)
DAVID
KAZZIE
(4)
DEMOTION
(1)
RICHARDS
(1)
DIANE
WASZNICKY
(2)
DISQUALIFICATION
(2)
DENISE
DIVORCE
(7)
DIVORCE
ATTORNEY
(5)
DIVORCE
CORP
(17)
DIVORCE
LAWYER
(5)
DOCUMENTS
(17)
DONALD TENN
(3)
DONNA
GARY
(2)
DSM-301.7
(1)
EDITORIAL
(1)
EDWARD
FREIDBERG
(2)
EFF
(2)
EFFICIENCY
IN
GOVERNMENT
ELAINE VAN
BEVEREN
(13)
ELECTIONS
(1)
AWARD
(1)
EMILY
GALLUP
(3)
EMPLOYEE CODE OF ETHICS
(4)
EMPLOYEE
MISCONDUCT
(19)
EQUAL
PROTECTION
(2)
County portrayed as theGround

Zeroof family court corruption and
collusion in the U.S. Click here for our
complete coverage of Divorce Corp.
Divorce Corp, chronicling Sacramento Superior Court corruption,

is available on Netflix.
(2)
EX PARTE
(1)
F4J
(4)
FAMILY COURT
(9)
FAMILY
Judge Thadd Blizzard issued a rubber-stamped, kickback order in November, 2013 for judge pro tem
attorney Richard Sokol authorizing an illegal out-of-state move away and child abduction by Sokol's
client, April Berger. The opposing counsel is an "outsider" attorney from San Francisco who was
dumbfounded by the order. Click here for our exclusive report, which includes the complete court
reporter transcript from the hearing. Click here for our earlier report on the unethical practice of
"hometowning" and the prejudicial treatment of outsider attorneys.
Whistleblower leaked court records indicate that Sacramento Bar Association Family Law
Executive Committee officer and judge pro tem attorney Paula Salinger engaged in obstruction of
justice crimes against an indigent, unrepresented domestic violence victim. The victim was a witness in
a criminal contempt case against a Salinger client. The circumstances surrounding the obstruction of
justice incident also infer collusion between Salinger and controversial Judge Matthew J. Gary. For
our complete investigative report,click here.
Two "standing orders" still in effect after being issued by Judge Roland Candee in 2006 override a
California Rule of Court prohibiting temporary judges from serving in family law cases where one party
is self-represented and the other party is represented by an attorney or is an attorney. The orders were
renewed by Presiding Judge Laurie M. Earl in February, 2013.Click here for details.
Sacramento Family Court judges ignore state conflict of interest laws requiring them to disclose to
opposing parties when a judge pro tem working as a private attorney represents a client in family
court. Click here for our exclusive investigative report. Click here for a list of other conflict of interest
posts.
Family court policies and procedures, including local court rules, are dictated by the SCBA Family Law
Executive Committeefor the financial benefit of private sector attorneys, and often disadvantage the
70 percent of court users without lawyers, according to family court watchdogs and whistleblowers.
For example, in sworn testimony by Judge Peter McBrien before the Commission on Judicial
Performance,McBrien described seeking and obtaining permission from FLEC to change a local rule.
Click here and here.
COURT
COURT
AUDITS
(1)
FAMILY
CONDITIONS
(2)
FAMILY COURT
MEDIA COVERAGE
(1)
FAMILY COURT PROCEDURE
(1)
FAMILY
COURT
SACRAMENTO
(2)
FAMILY
COURTHOUSE
(1)
FAMILY
(9)
LAW
FAMILY
LAW
COUNSELOR
(4)
FAMILY
LAW
FACILITATOR
(4)
FATHERS FOR JUSTICE

(1)
FEDERAL LAW
(2)
FEDERAL
LAWSUITS
(2)
FEE WAIVERS
(2)
FERRIS CASE
(9)
FIRST
AMENDMENT
(2)
FIRST
AMENDMENT COALITION
(2)
FLEC
(28)
FOIA
(2)
FOX
(1)
FREDRICK COHEN
(4)
GANGNAM STYLE
(1)
GARY E.
RANSOM
(1)
GARY
M.
APPELBLATT
(2)
GEORGE
NICHOLSON
(1)
GERALD UELMEN
(1)
GREGORY DWYER
(1)
HAL
BARTHOLOMEW
(1)
HATCHET
DEATH
(1)
HAZART SANKER
(2)
HONEST SERVICES
(4)
INDIGENT
(1)
INFIGHTING
(1)
J.
STRONG
(2)
JACQUELINE
ESTON
(2)
JAIME R.
ROMAN
(10)
JAMES
BROSNAHAN
(2)
JAMES
M. MIZE
(21)
JEFFREY
In November, 2012 Sacramento

Family Court Judge Jaime R.
Romanissued a rubber-stamped,
kickback orderdeclaring a family
court party a vexatious litigant and
ordering him to pay $2,500 to the
opposing attorney, both without
holding the court hearing required by
law. The opposing attorney who
requested the orders is Judge Pro
Tem Charlotte Keeley. The
blatantly illegal orders resulted in
both an unnecessary state court
appeal and federal litigation,
wasting scarce judicial resources
and costing taxpayers significant
sums.Click here for our exclusive
coverage of the case.
Judge Matthew Gary used an
unlawful fee waiver hearing to both
obstruct an appeal of his own orders
and help a client of judgepro tem
attorney Paula Salinger avoid
paying spousal support. Click here
for our investigative report.
EUGENE L. BALONON
(1)
EVIDENTIARY OBJECTIONS
POSNER
(6)
(1)
JERRY
JERRY BROWN
GUTHRIE
(1)
JESSICA HERNANDEZ
(8)
JODY PATEL
(1)
JOE SORGE
(2)
JOHN E.B. MYERS
(1)
JOSEPH
SORGE
(1)
JOYCE KENNARD
(1)
JOYCE TERHAAR
(1)
JRC
(1)
JUDGE
(1)
JUDGE
TEM
(51)
SALARIES
(1)
JUDICIAL
PRO
JUDGE
JUDGES
(10)
CONDUCT HANDBOOK
(1)
JUDICIAL
COUNCIL
(6)
JUDICIAL
MISCONDUCT
(72)
JUDY HOLZER
Divorce attorney Charlotte Keeley (R) and her client Katina Rapton of
Mel Rapton Honda leave a court hearing. Keeley reportedly has billed
Rapton more than $1 million in connection with a child custody dispute.
An unrepresented, disabled 52-year-old single mother was made homeless by an illegal child support
order issued by Judge Matthew Gary for SCBA Family Law Section attorney Tim Zeff, the partner of
temporary judge Scott Buchanan. The rubber-stamped, kickback child supportorder, and other
proceedings in the case were so outrageous that the pro per is now represented on appeal by a team
of attorneys led by legendary trial attorney James Brosnahan of global law firm Morrison & Foerster.
For our exclusive, ongoing reports on the case, click here.
Judge pro tem attorneys Richard Sokol and Elaine Van Beverenhelped conceal judge misconduct
and failed to comply with Canon 3D(1) of the Code of Judicial Ethics when they were eyewitnesses to
HERSHER
(1)
JULIE SETZER
(7)
KICKBACKS
(33)
KIDS FOR CASH

(2)
LAURIE
M. EARL
(10)
LAW LIBRARY
SCHOOL
(5)
(1)
LAW
LAWYER
(1)
LAWYERS
(7)
LEGAL AID ASSOCIATION of

CALIFORNIA
(1)
LEGISLATURE
(1)
LEON KOZIOL
(1)
LINCOLN
(1)
LISTS
(4)
LOLLIE ROBERTS
(5)
LOUIS MAURO
(1)
LUAN
CASE
(4)
MALPRACTICE
(4)
MARTIN HOSHINO
(2)
MARY
MOLINARO
(1)
MATTHEW
HERNANDEZ
(7)
MATTHEW J. GARY
an unlawful contempt of court and resisting arrest incident in Department 121. Both Sokol and Van
Beveren failed to report the misconduct of Judge Matthew Gary as required by state law.Van
Beveren isan officer of the SCBA Family Law Executive Committee.Click here for our exclusive
report...
...Four years later, Sokol and Van Beveren in open court disseminated demonstrably false and
misleading information about the unlawful contempt of court and resisting arrest incident. The
apparent objective of the judge pro tem attorneys was to discredit the victim of Gary's misconduct,
trivialize the incident, and cover up their own misconduct in failing to report the judge. For our follow-up
reports, click here. In 2014, a video of the illegal arrest and assault was leaked by a government
whistleblower. Click here for details.Watch the exclusive Sacramento Family Court News video
below:
(34)
MCGEORGE
SOL
(2)
MEDIA
(1)
MICHAEL T. GARCIA
(1)
MIKE NEWDOW
(5)
NANCY GRACE
(1)
NANCY
PERKOVICH
(4)
NEW YORK
NEWS
(32)
NEWS EXCLUSIVE
(24)
NEWS YOU CAN USE
TIMES
(2)
(3)
News10
(1)
NO CONTACT
ORDERS
(10)
OPEN
GOVERNMENT
(2)
OPINION
(12)
PARENTAL
PAULA
ALIENATION
(1)
SALINGER
(15)
PERJURY
(1)
PETER
J. McBRIEN
(26)
PHILLIP HERNANDEZ
(3)
PRESIDING JUDGE
(2)
PRO
PERS
(18)
PROTEST
(9)
PSY
(1)
PUBLIC RECORDS
(1)
RACKETEERING
(2)
RAOUL M.
THORBOURNE
(1)
RAPTONKARRES
(12)
RECOGNITION/AWARDS
(4)
REVISIONISM SERIES
(2)
RICHARD SOKOL
(12)
RICO
(2)
ROBERT HIGHT
(14)
ROBERT O'HAIR
(8)
ROBERT SAUNDERS
(22)
ROLAND
In 2008controversial family courtJudge Peter J. McBriendeprived a family court litigant of a fair trial
in a case where the winning party was represented by judge protemattorney Charlotte Keeley. In a
scathing, published opinion, the 3rd District Court of Appealreversed in full and ordered a new
trial. 6th District Court of Appeal Presiding Justice Conrad Rushing characterized McBrien's
conduct in thecase as a "judicial reign of terror."McBrien subsequently was disciplined by the
Commission on Judicial Performance for multiple acts of misconduct in 2009.Click here to read the
court of appeal decision. Click here to read the disciplinary decision issued by the CJP.
Judge pro tem attorneysCamille Hemmer,Robert O'Hair,Jerry GuthrieandRussell Carlsoneach
testified in support ofJudge Peter J. McBrienwhen thecontroversialjudge was facing removal from
the bench by theCommission on Judicial Performancein 2009.As a sworn temporary judges aware
of McBrien's misconduct, each wasrequired byCanon 3D(1)of theCode of Judicial Ethicsto take or
initiate appropriate corrective action to address McBrien's misconduct. Instead, each testified as a
character witnessin supportof the judge. In theCJP'sfinal disciplinary decision allowing McBrien to
remain on the bench, theCJPreferred specifically to the testimony as a mitigating factor that reduced
McBrien's punishment.Click here. Court records indicate thatJudge McBrienhas not disclosed the
potentialconflict of interestto opposing attorneys and litigants in subsequent appearances by the
attorneys in cases before the judge.Click hereforSFCNcoverage of conflict issues.
Judge pro temattorneysTerri Newman,CamilleHemmer,Diane WasznickyandDonna
Reedwereinvolved in a proposedscheme to rig a recall electionofcontroversialJudgePeter J.
ROBIE
(1)
RUSSELL CARLSON
(4)
RUSSELL L. HOM
(1)
RYDER
SALMEN
(2)
S. HINMAN
(3)
SACRAMENTO BEE
(4)
SACRAMENTO
COUNTY
SUPERIOR
COURT
(2)
SACRAMENTO
FAMILY
COURT
(14)
SACRAMENTO
SUPERIOR COURT
(13)
SANCTIONS
(2)
SANTA
CLARA
LAW SCHOOL
(1)
SARAH ANN
STEPHENS
(1)
SATIRE
(11)
SCBA
(22)
SCHWARZENEGGER
(1)
SCOTT
BUCHANAN
(5)
SCOTT
KENDALL
(1)
SCSD
(1)
SEATON
CASE
(1)
SELF-HELP
(1)
SETTLEMENT CONFERENCE
(2)
SFCN READERSHIP DATA
(4)
SHARON A. LUERAS
(10)
SHARON HUDDLE
(6)
SO YOU WANT TO GO TO
LAW
SCHOOL
(4)
SOCIOECONOMIC BIAS
(5)
STATE AUDITOR
(6)
STATE BAR
(5)
STEPHEN
WAGNER
McBrienin 2008. The plan involved helping McBrien defeat the recall by electing him "Judge of the
Year" before the November election.Click herefor theSacramento News and Reviewreport.
Judge pro tem attorney
Robert J. O'Hair testified
as a character witness for
controversial Judge Peter
J. McBrien at the judge's
second CJP disciplinary
proceeding in 2009.Paula
Salinger, an attorney at
O'Hair's firm,Woodruff,
O'Hair Posner &
L. CANDEE
(1)
RON BURGUNDY
(1)
RONALD
(2)
STEUART
STEVE
WHITE
(2)
STEVEN GEVERCER
LEAVENWORTH
(1)
STEVEN
(1)
SPIELBERG
(1)
SUNDAY FUNNIES
(15)
SUNSHINE WEEK
(2)
SUPERIOR COURT
(2)
SUPREME COURT
(3)
TAMI
BOGERT
(1)
TAXPAYERS
(1)
TERRY FRANCKE
(1)
BLIZZARD
(5)
THADD
THADDEUS
STEVENS
(1)
THE RUTTER GROUP
(1)
THOMAS M. CECIL
(4)
Salingerwas later granted

a waiver of the
requirements to become
ajudge pro tem. A family
court watchdog asserts
the waiver was payback for
O'Hair's testimony for
McBrien.Click hereto
read our exclusive
investigative report.
THOMAS WOODRUFF
(5)
TIMOTHY ZEFF
(6)
TOMMY
ULF
LEE
JONES
(1)
CARLSSON
(7)
UNITED
NATIONS
(1)
UPDATE
(2)
VANCE W. RAYE
(3)
VEXATIOUS LITIGANT
(3)
VICTORIA HENLEY
(1)
VICTORY
Court records show that Judge Jaime Roman (L) and Judge Matthew Gary
routinely issued demonstrably illegal court orders for the benefit oflocal
attorneyswho also work as part-time judges in family court. Both judges
have been reassigned out of the family courthouse.
In cases where one party is

unrepresented, family court
clerks and judges permit judge pro tem attorneys to file declarations which violate mandatory state
court rule formatting requirements. The declarations- on blank paper and without line numbers - make
it impossible for the pro per to make lawful written evidentiary objections to false and inadmissible
evidence. Click here for our report documenting multiple state court rule violations in a motion filed
bySCBA Family Law Section officer and temporary judgePaula Salinger. To view the pro per
responsive declaration objecting to the illegal filing click here, and click here for the pro per points &
authorities.
Family court clerks and judges allow judge pro tem attorneys to file a fabricated "Notice of Entry of
Findings and Order After Hearing" in place of a mandatory Judicial Council Notice of Entry of
Judgment FL-190 form. The fake form omits critical appeal rights notifications and other information
included in the mandatory form. Click here for our exclusive report.
Sacramento Family Court temporaryjudgeandfamily law lawyerGary Appelblatt was charged with
13-criminal counts including sexual battery and penetration with a foreign object. The victims were
clients and potential clients of the attorney.The judge pro tem ultimately pleaded no contest to fourof
the original 13-counts, including sexual battery, and was sentenced to 18-months in prison. Court
administrators concealed from the public that Appelblatt held the Office of Temporary Judge.Click
hereto read our report.
Judge pro tem and SCBA Family Law Section attorneyScott Kendall was disbarred from the practice
of law on Nov. 24, 2011. Kendall was disbarred for acts of moral turpitude, advising a client to violate
the law, failing to perform legal services competently, and failing to keep clients informed, including not
telling a client about a wage garnishment order and then withdrawing from the same case without
notifying the client or obtaining court permission. Court administrators concealed from the public that
Kendall held the Office of Temporary Judge.Click here to view our report.
Judge pro tem attorneys Nancy Perkovich and Jacqueline Estonin 2008 helped Donna Gary - the
wife of Judge Matthew J. Gary - promote and market ClientTickler, a client management software
program for attorneys. The judge reportedly has never disclosed the conflict of interest as required by
the Code of Judicial Ethics. Click here for our exclusive report on the controversy.
In February, 2013 the website of family law firm Bartholomew & Wasznicky cut off the public from the
only online access to The Family Law Counselor, a monthly newsletter published by the Sacramento
Bar Association Family Law Section. Lawyers at the firm include judge pro tem attorneys Hal
Bartholomew, Diane Wasznicky and Mary Molinaro. As SFCN has reported, articles in the
newsletter often reflect an unusual, collusive relationship between SCBA attorneys and court
administrators and judges.Click here for our report.
Family court reform

advocates assert that judge
pro tem attorneys obtain
favorable court rulings on
disputed issues at a
statistically improbable
rate. The collusion
between full-time judges
and judge pro tem
OUTREACH
CHURCH
(1)
VL-
CLASS-ACTION
(1)
WALL STREET
JOURNAL
(1)
WASTE
(1)
WATCHDOGS
(19)
WHISTLEBLOWER
PROTECTION
ACT
(2)
WHISTLEBLOWERS
(11)
WHITE HOUSE
(1)
WOODRUFF
O'HAIR POSNER and
SALINGER
(11)
XAPURI B.
VILLAPUDUA
(3)
YOLO
COUNTY
(1)
YOUTUBE
(7)
attorneys constitutes
unfair, fraudulent, and
unlawful business
practices, all of which are
prohibited under California
unfair competition laws,
including Business and
Professions Code
17200, reform advocates
claim.
Sacramento Superior Court Judge James Mizetestified as a characterwitness in

support of controversial Judge Peter McBrien when McBrien was facing removal
from the bench by the state Commission on Judicial Performance.
Unfair competition and the collusion between judges and judge pro tem attorneys ultimately results in
unnecessary appeals burdening the appellate court system, and other, related litigation that wastes
public funds, exposes taxpayers to civil liability, and squanders scarce court resources.
Watchdogs point out that the court operates what amounts to a two-track system of justice. One for
judge pro tem attorneys and another for unrepresented, financially disadvantaged litigants and
"outsider attorneys." Two-track systems are prohibited by the Code of Judicial Ethics, according to
the Commission on Judicial Performance and the California Judicial Conduct Handbook, the gold
standard reference on judge misconduct.Click here for articles about the preferential treatment given
judge pro tem attorneys. Click here for examples of how pro pers are treated.
After representing a client in Sacramento Family Court, San Francisco attorney Stephen R. Gianelli
wrote "this is a 'juice court' in which outside counsel have little chance of prevailing...[the] court has now
abandoned even a pretense of being fair to outside counsel." Click here to read Gianelli's complete,
scathing account.
The Sacramento County Bar Association Family Law Section is led by an "Executive Committee"
("FLEC") of judge pro tem attorneys composed ofChair Russell Carlson, Vice Chair Elaine Van
Beveren, Treasurer Fredrick Cohen and Secretary Paula Salinger. Three of the four have been
involved in legal malpractice litigation, violations of the Code of Judicial Ethics, or as a defendant in
federal civil rights litigation. Click here to read SFCN profiles of the Executive Committee members.
Click here for otherarticles about FLEC.
Judge pro tem attorneys are by law required to take or initiate corrective action if they learn that
another judge has violated any provision of the Code of Judicial Ethics, or if a lawyer has violated any
provision of the California Rules of Professional Conduct. Family court watchdogs assert that
temporary judges regularly observe unethical and unlawful conduct by family court judges and attorneys
but have never taken or initiated appropriate corrective action, a violation of the judge pro tem oath of
office. To view the applicable Code of Judicial Ethics Canons,Click here. For a Judicial Council
directive about the obligation to address judicial misconduct, a critical self-policing component of the
Code of Judicial Ethics, click here.
For information about the role of temporary judges in

family court,click here.For officialSacramento County
Superior Courtinformation about theTemporary Judge
Program click here.
Using public records law, Sacramento Family Court

News obtained the list of private practice attorneys
who also act as judge pro tems in Sacramento Family
Law Court. Each lawyer on the list below is currently a
temporary judge, or was a temporary judge in 2009,
2010, 2011, 2012 or 2013.SFCN cross-checked each
name on the Sacramento Countyjudge pro tem list
withCalifornia State Bar Data. The first name in each
listing is the name that appears on the Sacramento
County judge pro tem list, the second name, the State
Bar Number (SBN), and business address are derived
from the officialState Bar data for each attorney. The
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17 April 2013
SUBJECTS AND POSTS
Hon. Jaime R. Roman Misconduct: Rewrites California Vexatious Litigant

Law for Judge Pro Tem Divorce Lawyer Charlotte Keeley
JUDICIAL MISCONDUCT
(72)
Judge Jaime Roman Misstates Law, Uses Overruled

Case to Justify Vexatious Litigant and Other Orders
Without Court Hearing
ATTORNEY MISCONDUCT
(37)
News Analysis & Opinion by PelicanBriefed
MATTHEW J. GARY
(34)
KICKBACKS
(33)
FLEC
(28)
The Sacramento Family Court Newsanalysis

teamhas been working overtime scrutinizingand
trying to make sense of a controversial20-page
statement of decision issued on Nov. 14 of last year
by Supervising Family Court Judge Jaime R.
Roman. Click here for our initial report from 2012.
PETER J. McBRIEN
(26)
ARTS & CULTURE
(23)
CHILD CUSTODY
(23)
ROBERT SAUNDERS
(22)
Roman's decision is now being challenged in both the

Third District Court of Appeal, and in a federal
class action lawsuit filed March 22 in U.S. District
Court in San Francisco. It is certain that taxpayers
will get a substantial bill for each case.
SCBA
(22)
CJP
(21)
JAMES M. MIZE
(21)
Court watchdogs contend Roman's order exemplifies

the overt lawlessness that occurs weekly in family
court, and the preferential treatment that full-time
judges provide for-profit attorneys who also serve as
temporary judges.
The unprecedented ruling - which was made-to-order

for Judge Pro Tem attorney Charlotte Keeley rewrites California vexatious litigant law and
procedure. Watchdogs hold Judge Roman
responsible for putting taxpayers on the financial hook
for the costs of yet another unnecessary appeal from
family court, and the federal litigation.
JUDGE PRO TEM

(51)
CHARLOTTE KEELEY
(19)
EMPLOYEE MISCONDUCT
(19)
WATCHDOGS
(19)
PRO PERS
(18)
Judge Jaime R. Roman denied a family courtlitigant the right
to a court hearing and oraltestimony - fundamental components
of the right to dueprocess of law.
DIVORCE CORP
(17)
DOCUMENTS
(17)
PAULA SALINGER
(15)
In another pointless appeal caused by judicial misconduct,Judge Matthew J. Gary unsuccessfully attempted a
similar rewrite of putative spouse law and in 2011 was reversed in full by the Third District Court of Appeal. Our
analysis indicates that Judge Roman's order likely is headed for the same fate.
ROBERT HIGHT
(14)
To continue reading, click Read more >> below:
CARLSSON CASE
(12)
Off-the-Rails at Conjunction Junction
SACRAMENTO SUPERIOR
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The confusing legal rationale of Judge Roman's 20-page decision is constructed from a series of allegedly
consistent conjunctions conjoining components of the Family Code, Code of Civil Procedure, and court rules.
For example, Roman writes at page six:
"Sacramento Superior Court Rule 14.02(C), consistent with Code of Civil Procedure
section 2009, in conjunction with Family Code section 210.." and
"Code of Civil Procedure section 1008(a), inconjunctionwith Family Code section 210..."
at page eight, and
"California Code of Civil Procedure section 2009 in conjunction with Family Code section
210...California Rules of Court rule 3.1306(a), in conjunction with California Rules of
Court, rule 5.21...See Family Code section 217(c); California Rules of Court, rule
3.1306(b), in conjunction with rule 5.21 and rule 5.119," at page 19.
Judge Roman's statute and court rule references, and calculated omission of contrary authority suggest an intent to
cherry-pick law - including law not applicable to a vexatious litigant proceeding - to reach a predetermined result for
the benefit of Judge Pro Tem attorney Charlotte Keeley. In our first report on the decision, veteran court
watchdog Robert Saundersastutely observed that the judge used reverse engineering. "In other words, he
knew how he wanted to rule and from there worked backwards to try and justify an unjustifiable ruling," Saunders
said in 2012.
Saunders' analysis appears to be substantially accurate, according to the family and civil law reference books
used by judges, attorneys and Sacramento Family Court News. The logically inferred intent of Roman's risible,
convoluted conjunctions is to enable himself to designate a family court party a vexatious litigantandissue a
$2,500 sanctions assessment and 13 additional orders against the same party - all without a court hearing and oral
argument. ButJudge Roman is off-the-rails at conjunction junction.
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MATTHEW HERNANDEZ
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CHRISTINA ARCURI
(5)
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(5)
MIKE NEWDOW
(5)
THADD BLIZZARD
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(4)
LUAN CASE
(4)
MALPRACTICE
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THOMAS M. CECIL
(4)
CHILD ABDUCTION
(3)
VANCE W. RAYE
(3)
California Practice Guide:Civil Procedure Before Trial, the gold standard civil law reference work used by
judges and attorneys, indicates that Judge Roman attempted to create the illusion that his order was grounded
inlegitimatelaw by misstating and misapplying Code of Civil Procedure 2009,Family Code 210, and217,
andCalifornia Rules of Court rules 3.1306 and 5.21.The perplexing rationale Roman cobbled together from
parts of each is preempted and effectivelynullified by the vexatious litigant statute and decisional law,
according to the Guide.
Court watchdogs and whistleblowerscharge that Judge Roman's prejudgment, unlawfully vacated hearing and
erroneous statement of decision are more examples of Chris Volkers, Julie Setzer and other
courtadministratorsfailing to adequatelytrain, supervise, and discipline family court judges. They point out that
Judge Roman, the supervising family law, probate and ADA judge has limited family court experience, and often
confuses civil law with family law. At the end of her own two-year stint in family court, Judge Sharon Lueras
confessed to the family law bar that, at the beginning of her family court assignment, she knew nothing about
VEXATIOUS LITIGANT
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Electronic Frontier
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Californians Aware
family law. The consequences of inadequate training andsupervisioncan be tragic. Unrepresented litigant
Jessica Hernandez blames Lueras for the death of her son at the hands of her ex-husband. Click here for our
coverage of the Hernandez case.
The Disappearing Hearing
LAW BLOGS WE LIKE

Family Law Professor Blog
Law Librarian Blog
As we reported in our original coverage, Judge

Roman unilaterally cancelled a family court
hearing calendared for Nov. 14, 2012. The
hearing was scheduled for the purpose of
arguing and resolving 15 disputed issues in the
case Katina Rapton vs Andrew Karres.
Law Professor Blogs

Thurman Arnold Family
Law Blog
Kafkaesq
On the day of the hearing, the parties and

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

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

The Divorce Artist
LEGAL NEWS &

INFORMATION
California Lawyer Magazine
Courthouse News Service
Metropolitan News
Enterprise
California Official Case Law
Divorce attorney Charlotte Keeley (R) with her client Katina Rapton of
Mel RaptonHonda. The lawyer works as a part-time judge in the
family law courthouse and has a close relationship with several
judges, according to court watchdogs. Keeley reportedly has billed
Rapton more than $1 million in connection with a child custody dispute.
Virtually all of the rulings were in favor of

Rapton and against Karres. Rapton, the Mel
Rapton Honda heiress is represented by
veteran family law attorney and temporary judge Charlotte Keeley. The orders requested by Keeley and granted
by Roman included designating Karres a vexatious litigant, and ordering the financially disadvantaged litigant to
pay Keeley $2,500 in sanctions. The vexatious litigant designation severely restricts Karres' access to every court
in California by requiring him to get pre-approval from a presiding judge before he can file anything, anywhere in
the state.
Conjunction Malfunction
The relationship between family law, civil law and the court rules applicable to each can be confusing. But the family
law procedure manual used by judges and attorneys, California Practice Guide: Family Law neatly sorts it all
out in just two pages, which,apparently, is news to Judge Roman who clumsily cut, conjoined, and pasted
conflicting laws and rules to justify his vexatious litigant order.
An assessment of the legality of Roman's order blacklisting Andrew Karres as a vexatious litigantbegins with the
law itself.California's vexatious litigant law is codified at Code of Civil Procedure391-391.8. Wikipedia
explains how the law works at this link. The law was intended to limit frivolous litigation by unrepresented, pro per
parties in civil courts. When a judge issues an order designating a self-represented litigant as a vexatious litigant,
the Constitutional rights of access to the courts, due process of law, equal protection of law and the right to
petition the government for redress are severely restricted. Due to the harsh consequences of the vexatious
litigant label, California law requires full due process before the order can be issued, including notice and a court
hearing where written or oral evidence is presented. The notice and hearing requirements of the vexatious litigant
statute are difficult to misconstrue:
"At the hearing upon the motion the court shall consider any evidence, written or oral, by
witnesses or affidavit, as may be material to the ground of the motion," reads the law at section
391.2.
At 391.3, the vexatious litigant law specifies, twice, that a decision is made "after hearing the evidence on the
motion." The California Practice Guide for civil law recites the procedure for a vexatious litigant determination,
including the required court hearing. Based on the 2002 appellate court caseBravo v. Ismaj,"[a] party may not be
declared to be a 'vexatious litigant' without a noticed motion and hearing which includes the right to oral argument
and the presentation of evidence," according to the Guide.
Google Scholar-Includes
Unpublished Case Law
California Statutes
CALIFORNIA JUDICIAL
BRANCH
California Courts
Homepage
California Courts YouTube
Page
Judicial Council
Commission on Judicial
Performance
Sacramento County Family
Court
3rd District Court of Appeal
State Bar of California
State Bar Court
Sacramento County Bar
Association
Local & National Family CourtFamily Law Sites & Blogs (may
be gender-specific)
ABA Family Law Blawg
Directory
Since the 2002 Bravo case, at least 20

other published and unpublished
appellate court decisions have relied on
and mirrored the controlling holding in
Bravo, including these two cases from
2009 and 2012.
California Coalition for

Families and Children
California Protective
Parents Association
Center for Judicial
Excellence
In a single paragraph and four footnotes

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

Divorce & Family Law News
Divorce Corp
Divorced Girl Smiling
Family Law Case Law from
FindLaw
Notably absent from the justification is

any reference to the Bravo line of cases,
Judge Jaime R. Roman conjoined statutory law, court rulesand overruled
the notice and hearing requirements of
decisionallawtorewrite vexatious litigantprocedurein California.
the vexatious litigant statute, and the
instruction of the California Practice Guides, all of which contradictRoman's justification for denying Karres a
hearing with oral argument and the presentation of evidence. Roman does cite to a single case law reference,
Reifler v. Superior Court, a 1974 case which was effectively overruled by the Legislature as of January 1,
2011, and which in any event has no legitimate connection to the procedure for declaring a litigant vexatious.
Judge Roman gives his reasons for blacklisting Karres statewide as a vexatious litigant at pages 15-18 of his 20page statement of decision. Absent from the ruling is the boilerplate recital that "The Court has considered the
moving and responding papers, the evidence and argument presented at the hearing, and the files herein,"
which appears on page one of this vexatious litigant order from a family court case in Santa Clara County.
Judge Roman's unlawful order declaring Karres a vexatious litigant is now the subject of both a costly appeal and
federal civil rights litigation against Judicial Branch officials. The appeal and federal case will cost the parties
and taxpayers significant sums. The current cost to taxpayers for a single appeal is between $8,500 and $25,000,
according to recent appellate court decisions. Ironically, vexatious litigants are routinely accused of, and punished
for wasting scarce appellate court resources with frivolous litigation.
"Other appellate parties, many of whom wait years for a resolution of bona fide disputes, are
prejudiced by the useless diversion of this court's attention. [Citation.] In the same vein, the appellate
system and the taxpayers are damaged by what amounts to a waste of this court's time and
resources," reads a line of cases from 1988 to 2012, beginning with Finnie v. Town of Tiburon.
Family Law Courts.com

Family Law Updates at
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Fathers 4 Justice
HuffPost Divorce
Leon Koziol.Com
Moving Past Divorce
News and Views Riverside
Superior Court
Weightier Matter
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The same should be said about the unnecessary appeal and federal litigation against the government compelled by
Judge Roman's order.
Related articles:
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Click here for our reporting on Judge Jaime R. Roman.
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Click here for our special Judge Pro Tem Page.
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Case: 13-17170

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RONALD PIERCE, et al.,

CALIFORNIA CHIEF JUSTICE

On Appeal from the United States District Court

ANSWERING BRIEF OF DEFENDANTSAPPELLEES

Jurisdictional Statement ................................................................................. 2

Statement Regarding Addendum ................................................................... 3

Standard of Review ................................................................... 9

Sovereign Immunity Bars All Claims ..................................... 10

Sovereign Immunity Bars the Claims Against the

Sovereign Immunity Bars the Claims Against the

Plaintiff Cunninghams Claims Are Barred ............................ 16

The District Court Properly Dismissed Plaintiffs Equal

Self-represented litigants are not a suspect

Plaintiffs fundamental rights claims do not

Civil litigation prefiling requirements

Heightened scrutiny would apply only

Heightened scrutiny does not apply to

The VLS Satisfies Rational Basis Review ................... 32

Even Under Heightened Scrutiny, the VLS Is

Plaintiffs Have Waived Their Remaining Claims, Which

Adams v. California Dept of Health Services

Armour v. City of Indianapolis, Ind.

Coal. to Defend Affirmative Action v. Brown

Cox v. State of Louisiana

Cruz v. Intl Collection Corp.

Davis v. HSBC Bank Nevada, N.A.

Estate of Magnin v. C.I.R.

Guerrero v. RJM Acquisitions LLC

Mahdavi v. Superior Court

San Remo Hotel, L.P. v. San Francisco City and County

U.S. ex rel. Meyer v. Horizon Health Corp.

United States v. Kras

United States Code, Title 28

United States Code, Title 42

California Code of Civil Procedure

United States Constitution

Federal Rule of Appellate Procedure

Page: 10 of 55 (10 of 156)

Plaintiffs seek a declaration that applying the California Vexatious

Litigant Statute (VLS) in the context of custody disputes violates their

vexatious litigants subject to a prefiling order to obtain prior court approval

These claims fail on several grounds. As a preliminary matter,

preclusion bar plaintiff Archibald Cunninghams claims. The claims also

prefiling requirement completely blocked access to the courts, for the

Page: 11 of 55 (11 of 156)

pursuant to 28 U.S.C. 1331.

This appeal is from an order granting a motion to dismiss, which is a

Appellate Procedure 4(a)(4)(A)(iv).

Chief Justice of California and the Administrative Director of the Courts,

Page: 12 of 55 (12 of 156)

2. Do issue and claim preclusion bar plaintiff Archibald Cunninghams

3. Can the VLS apply to litigants in custody disputes consistent with

STATEMENT REGARDING ADDENDUM

In accordance with Ninth Circuit Rule 28-2.7, the addendum to this

STATEMENT OF THE CASE

California adopted the VLS to ease the unreasonable burden placed

upon the courts by groundless litigation. Wolfgram v. Wells Fargo Bank,

to enter a prefiling order requiring a vexatious litigant to obtain the

Page: 13 of 55 (13 of 156)

litigation, including an appeal or writ proceeding.1 Cal. Code Civ. Proc.

requiring the permission of the administrative presiding justice before a

vexatious litigant subject to a prefiling order may proceed). The litigation

Under the VLS, a vexatious litigant is one who, while acting in