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Erin K. Baldwin Post Office Box 3141 Beaumont, CA 92223 (951) 323-7184 erinbaldwin@rocketmail.com Plaintiff Pro Se
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA, EASTERN DIVISION
ERIN K. BALDWIN, an Individual 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1. BANK OF AMERICA CORPORATION, CALIFORNIA STATE BAR, et al., and DOES 1-200, inclusive, Defendants. v. Plaintiff,
Case No. 5:11-EDCV-01300-Unassigned PLAINTIFF'S OPPOSITION TO DEFENDANT FRANZ E. MILLER'S MOTION TO DISMISS AND MOTION TO STRIKE AFFIRMATIVE DEFENSES BASED ON INSUFFICIENCY, PREJUDICE AND FRAUD; MEMORANDUM OF POINTS & AUTHORITIES & DECLARATION OF ERIN BALDWIN IN SUPPORT THEREOF Hearing Information Stayed Pending Appeal United States Ninth Circuit Court of Appeal Case No. 11-57210
Comes Plaintiff, Erin K. Baldwin ("Plaintiff"), to present this Opposition to Defendant Franz E. Miller's Motion to Dismiss ("Defendant Miller's MTD") filed on December 12, 2011, presently stayed pending appeal and/or set for hearing before United States District Court Judge David O. Carter ("Judge Carter") on January 30, 2012, at 8:30 a.m., in Courtroom 9D. Status of Hearing on this Motion & Showing of Bad Faith On December 19, 2011, Plaintiff filed an Appeal in this action, thereby shifting
jurisdiction in this case to the U.S. Ninth Circuit Court of Appeals. 2. On January 4, 2012, Judge Carter, the judicial officer before whom this motion
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was to be heard, was disqualified from this case. 3. On January 5, 2012, Judge Carter reassigned the case to U.S. District Court
Judge J. Spencer Letts ("Judge Letts") and it was promptly rejected by Judge Letts because he is a Senior Judge that only hears pre-existing criminal matters; never new civil cases. 4. On January 11 and 12, 2012, Plaintiff requested that moving parties vacate this
hearing date which they failed to do citing as its authority, Judge Carter's January 4, 2012 Order, to wit: "Ms. Baldwin, please refer to Judge Carter's 1/4 minute order." 5. On January 13, 2012, Plaintiff requested that Judge Carter's department vacate
the hearing date which event never occurred. 6. Since Judge Carter's January 4, 2012 Order is silent as to the effect the pending
appeal has on this motion, Plaintiff hereby timely presents her Opposition to said motion as a 11 12 13 7. 14 Sarah L. Overton, Esq., as a defendant to this action due in large part to her improper 15 16 17 18 19 20 21 22 23 24 25 26 27
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safeguard against potential duplicitous tactics of Defendant Miller and his counsel of record. Defendant Miller's Attorney Does Not Have Standing to Bring This Motion On November 14, 2011, Plaintiff named Defendant Miller's counsel of record,
extrajudicial ex parte communications with U.S. Magistrate Judge Sheri N. Pym ("Judge Pym") in connection with Defendant Miller's first Motion to Dismiss. 8. On November 21, 2011, Judge Pym recused herself from Plaintiff's case. To
date, Defendant Overton has failed to recuse herself, representing a direct violation of California Rules of Professional Conduct, Rule 5-210. 9. Rule 5-210 requires an attorney to self-recuse when any act places them in a
position to be called as a material witness in litigation before a jury: "A lawyer may not act as an advocate for a client before a jury who will hear testimony from that lawyer." Plaintiff will most certainly compel Defendant Overton's testimony during the jury trial in this matter and said testimony creates a conflict of interest demanding Defendant Overton's recusal. 10. In summary, disqualification is mandated because Defendant Overton will
certainly be called to testify at trial, 1 and, pursuant to Rule 5-210, her testimony will: (a) relate
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See, Comden v. Superior Court (1978) 20 Cal.3d 906, 145 Cal.Rptr. 9, 576 P.2d 971; Lyle v. Superior Court (4th Dist. 1981) 122 Cal.App.3d 470, 175 Cal.Rptr. 918.
-2Plaintiff's Opposition to Defendant Franz E. Miller's Motion to Dismiss
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solely to a contested matter; (b) will not relate solely to a matter of formality; (c) there is significant reason to believe that substantial evidence will be offered in opposition to the testimony; and (d) the testimony will not relate solely to the nature and value of legal services rendered in the case by the lawyer or his firm to the client. Motion to Dismiss is Subject to a Motion to Strike Based on Fraud 11. Defendant Overton's failure to self-recuse taints this Motion to Dismiss as to
disputed facts and warrants a Motion to Strike, Defendant Overton's involuntary disqualification, and sanctions against Defendant Overton for violation of Rule 5-210. 12. Plaintiff hereby reserves her right to file a Motion to Strike independent from
this Opposition to Defendant Miller's Motion to Dismiss based on prejudice, fraud, and insufficiency, in accordance with Federal Rules of Civil Procedure, Rule 11(b), to wit: 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11(c): a. the involuntary disqualification of Sarah L. Overton as attorney of (b) By presenting to the court a pleading, written motion, or other paper whether by signing, filing, submitting, or later advocating itan attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: (1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; (2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information. 13. Plaintiff hereby requests, pursuant to Federal Rules of Civil Procedure, Rule
record for Defendant Miller and sanctions at the discretion of the Court; or, in the alternative, b. an order to show cause why conduct specifically described in the order
has not violated Rule 11(b), whether said Motion to Dismiss was filed, and then not vacated as requested, in bad faith, requiring that Plaintiff expend time and financial resources to file this -3Plaintiff's Opposition to Defendant Franz E. Miller's Motion to Dismiss
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Opposition. 2 Defendant Miller's Grounds for Dismissal Are Boilerplate, Insufficient, & Inapplicable 14. Plaintiff's argument that this Motion to Dismiss is subject to a Motion to Strike
is also based on insufficiency. Having had the opportunity to review dozens of Defendant Overton's Motions to Dismiss in other cases, Plaintiff asserts that the subject Motion to Dismiss is a slightly altered boilerplate document Defendant Overton repeatedly uses in her defense of state and federal judicial officers in the state of California. 15. As will be demonstrated in the attached Memorandum of Point & Authorities,
this Motion to Dismiss is wholly insufficient, inapplicable to the facts of this case, and cites case law completely off-point to a Section 1983 Civil Rights Complaint. 16. This Opposition is in response to, and based on, the grounds alleged by
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Defendant Miller in his "Motion to Dismiss Plaintiff's Second Amended Complaint" against him pursuant to Federal Rules of Civil Procedure, Rule 12(b)(1) and (6), to wit: a. immunity; b. Defendant Miller claims the District Court lacks subject matter Defendant Miller claims Plaintiff's complaint is barred by judicial
jurisdiction as alleged by the Rooker-Feldman Doctrine; c. Defendant Miller claims the District Court lacks subject matter
jurisdiction as alleged by the Abstention Doctrine; d. Defendant Miller claims the District Court lacks subject matter
jurisdiction as alleged by the Eleventh Amendment of the United States Constitution; and e. Defendant Miller claims Plaintiff's complaint fails to state a claim upon
which relief may be granted. 17. Plaintiff's Opposition is based on the five aforementioned affirmative defenses
including facts and law to sustain arguments that said affirmative defenses are flawed at best and grossly unsubstantiated at worst. ///
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Roadway Express, Inc. v. Piper, 447 U.S. 752, (1980); Hall v. Cole, 412 U.S. 1, 5 (1973). Greater attention by the district courts to pleading and motion abuses and the imposition of sanctions when appropriate, should discourage dilatory or abusive tactics and help to streamline the litigation process by lessening frivolous claims or defenses.
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18.
In support of this Opposition, Plaintiff includes herein a Memorandum of
Points and Authorities, Declaration of Erin K. Baldwin, and Exhibits deemed as true and correct copies of court filings. Dated: January 17, 2012 Respectfully submitted,
________________________________ Erin K. Baldwin Plaintiff, Pro Se
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MEMORANDUM OF POINTS & AUTHORITIES Summary of Plaintiff's Arguments Defendant Miller's Motion to Dismiss Plaintiff's Pro Se Section 1983 Civil
Rights Complaint cannot succeed because: a. Defendant Miller is personally responsible for his "non-judicial" acts
that deprived Plaintiff of her constitutional rights. b. Defendant Miller failed to establish personal jurisdiction over Plaintiff,
chiefly because Plaintiff was never added as a defendant in the cases before him. 3 c. Since Defendant Miller failed to establish personal jurisdiction over
Plaintiff, there was a complete absence of subject matter jurisdiction over the issues raised as well as unsubstantiated and unconstitutional findings of fact and conclusions law, all of which are void.
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d.
Since Defendant Miller failed to establish personal and subject matter
jurisdiction, all actions taken by Defendant Miller were in the "clear absence of all jurisdiction," which places these acts in the category of "non-judicial acts." 15 16 17 18
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e.
Defendant Miller is not entitled to immunity for "non-judicial acts," and

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will be held liable for damages, including punitive damages. f.
Defendant Miller brought this Motion to Dismiss with unclean hands.
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When Plaintiff discovered this fraud upon the court on November 24, 2011, she reported same to the District Court in two separate court filings asserting new and compelling evidence providing sufficient justification to grant Plaintiff's request for leave to amend her Complaint. Judge Carter denied Plaintiff's request by his December 2, 2011 Order wherein he mischaracterized Plaintiff's new evidence as "a rambling set of facts that provide no support to grant such a request. Plaintiff has simply not explained why an amendment is necessary." Court Filing No. 1: Plaintiff's November 28, 2011 "Request for Leave to Amend the 'Corrected' Second Amended Complaint," etc., Docket No. 23, Pages 15-17, 64-74. Please note, Judge Carter's December 2, 2011 Order denying Plaintiff Leave to Amend implied that Plaintiff had provided insufficient and/or disorganized facts. Accordingly, Plaintiff immediately prepared and filed an Amended Request ["Court Filing No. 2"], infra, to satisfy the deficiencies stated in Judge Carter's Order. Court Filing No. 2: Plaintiff's December 6, 2011 "Amended Request for Leave to Amend the 'Corrected' Second Amended Complaint," etc., Docket No. 25, Pages 2-15, 1-45. Please note, Plaintiff waited a full week after this filing before she filed her Motion to Disqualify Judge Carter, and nearly two weeks before she filed her Appeal. 4 The U.S. Ninth Circuit Court of Appeals decision in Rankin v. Howard, 633 F.2d 844 states: "If a court lacks jurisdiction over a party, then it lacks 'all jurisdiction' to adjudicate that party's rights, whether or not the subject matter is properly before it." Indeed, when the limits of legitimate authority are wholly abandoned, the judge's acts may cease to be "judicial." See, Lopez v. Vanderwater, 620 F.2d 1229, 1235 (7th Cir. 1980) (judge's prosecutorial acts were non-judicial; no immunity for such acts); Gregory v. Thompson, 500 F.2d 59, 64 (9th Cir. 1974) (judge's use of physical force to evict person from courtroom was "simply not an act of a judicial nature"). 5 In Smith v. Wade, the U.S. Supreme Court held that punitive damages in a tort case may be awarded not only when a defendant has an evil motive, but also when a defendant acts with "recklessness, callous indifference to, or disregard for, the rights of others." Plaintiff asserts that Defendant Miller's acts constitute same.
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g.
Defendant Miller issued over $700,000.00 in default judgments against

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Plaintiff without jurisdiction to do so. h.
Defendant Miller violated Plaintiff's First Amendment rights to freedom
of speech, freedom of the press, right to petition, right to assemble, and freedom to associate by issuing two permanent injunctions against Plaintiff without due process of law. i.
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Since he had no jurisdiction, ab initio, Defendant Miller's acts were non-
judicial as they conflict entirely with any known definition of "judicial function." Failure to honor the American and state constitutions and statutes converts a judges action from a judicial act to an individual act, as the act represents their own prejudices and goals. 2. For these reasons, inter alia, Plaintiff named Defendant Miller in his individual
capacity, primarily because, at no time, during the period comprising Plaintiff's claims, did 11 12 13 14 15 16 17 18 19 20 21 22 23 24
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Defendant Miller act in a judicial function as prescribed by the laws of the state of California, the United States Constitution, or the Code of Judicial Conduct. 3. Accordingly, the arguments within Defendant Miller's MTD that his actions are
all within the definition of "judicial acts" performed in his "official capacity" within the confines of his "judicial function," fails utterly in fact and law: "With regard to Judge Miller, after the first motion to dismiss was brought, plaintiff changed her complaint to allege that she was suing Judge Miller as a law professor, not as a judge." [Page 2, lns 1-5.] "Such claim, however, is belied by the factual allegations and claims for relief pled against Judge Miller, which all relate to the actions taken by Judge Miller in his capacity as the judicial officer presiding over the above mentioned state court cases." [Page 2, lns 16-19.] "Plaintiff has attempted to plead around the bar of judicial immunity by claiming that she is suing Judge Miller in his capacity as a law professor not as a judge. Plaintiffs claim is
In the Ninth Circuit decision in Rankin v. Howard, "a valid judgment imposing a personal obligation or duty in favor of the plaintiff may be entered only by a court having jurisdiction over the person of the defendant." 633 F.2d 844 (9th Cir.). Also, see: "Filling the Void: Judicial Power and Jurisdictional Attacks on Judgments, 87 Yale L.J. 164, 165 (1977): "At English common law proceedings in court without jurisdiction were deemed coram non judice, "before one not a judge." 7 The U.S. Supreme Court has expressly declared that "permanent injunctions that actually forbid speech activities are classic examples of prior restraints" because they impose a "true restraint on future speech." Alexander v. United States, 509 U.S. 544, 550 (1993): The Prior Restraint Doctrine "encompasses injunctive systems which threaten or bar future speech based on some past infraction."
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belied by the factual and legal claims which she has made against Judge Miller in her complaint. Clearly the actions taken by Judge Miller, as set forth in plaintiffs complaint, were judicial in nature because the actions concern Judge Millers orders and rulings." [Page 4, lns 9-14] Just because Defendant Miller made orders and rulungs does not mean he had
the jurisdiction to do so. Rather, Defendant Miller abandoned his role as an impartial judicial officer, ab initio, and made the conscious decision to use his power and influence to assert his "own prejudices and goals," and to advance the unlawful objectives of two powerful entities, The State Bar of California and UDR, Inc., who sought to silence Plaintiff's constitutionallyprotected speech in order to avoid financial responsibility for their intentional fraud against consumers. The State Bar of California ("Defendant CSB") Plaintiff researched and wrote truthful, fact-based, and legally-substantiated
investigative reports and journalistic articles. She published same in a public forum blog called "Bad Biz Finder" for the benefit of consumers in foreclosure susceptible to loan modification fraud. These reports and articles identified: (a) attorneys participating in said fraud; (b) Defendant CSB's failure to discipline said attorneys; (c) Defendant CSB's duty and financial responsibility to make restitution to consumers harmed by its attorney members through its Client Security Fund; and most importantly, (d) Plaintiff's mission to file a Writ of Mandate on behalf of the victims of California loan modification attorneys in order to compel Defendant CSB to make said restitution. 6. Since Plaintiff is not an attorney, Defendant CSB had no jurisdiction over her;
so it attached itself to a defamation lawsuit filed by another subject of Plaintiff's reports, loan 23 24 25 26 27 28
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modification fraud attorney, James M. Parsa and his "attorney-based" law firm, Parsa Law Group. The case, Parsa Law Group, APC v. Bad Biz Finder, 8 filed on January 26, 2009 by Defendant Miller's Whittier Law School co-adjunct professor of law, Daniel J. Kessler, Esq., partner at Burkhalter, Kessler, Goodman & George LLP alleging defamation per se,
Orange County Superior Court Case No. 30-2009-00117752 filed on January 26, 2009.
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intentional interference in business (and prospective business) relations (hereinafter referred to as the "Parsa Case"). 7. Five months later, on June 2, 2009, Defendant CSB achieved its objective when
Defendant Miller entered a permanent injunction against Plaintiff without due process of law and combined it with a $605,492.42 default judgment. (See, "Exhibit 1.")
UDR, Inc. (NYSE:UDR) ("Defendant UDR") 8. Plaintiff also wrote truthful, fact-based, and legally-substantiated investigative
reports and journalistic articles about the illegal clauses contained in the California statespecific residential lease agreements of Colorado-based landlord and real estate investment 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 trust UDR, Inc. 9. Again, Plaintiff published in a public forum blog called "Bad Biz Finder" for
the benefit of residential tenants susceptible to landlord-tenant fraud, including Plaintiff, who was at that time a UDR tenant. Plaintiff also also wrote about Defendant UDR's financial responsibility to make restitution to the tenants it had defrauded, and most importantly, Plaintiff's mission to file a class action lawsuit against Defendant UDR on behalf of its California residential tenants. 10. Defendant UDR hired the same law firm that successfully silenced Plaintiff's
constitutionally-protected speech in the Parsa Case and named Plaintiff as its primary defendant (even though she was never named as a defendant in the Parsa Case) and set out to achieve the same result as the Parsa Case. This second defamation lawsuit, UDR, Inc. v. Erin K. Baldwin, et al.,9 was filed on June 29, 2009, by another co-adjunct professor of law from the same law firm, Eric J. Goodman, Esq., again, partner at the Irvine law firm, Burkhalter, Kessler, Goodman & George LLP (hereinafter referred to as the "UDR Case"). 11. Five months later, on December 11, 2009, Defendant UDR achieved the exact
same goal as Defendant CSB when Defendant Miller entered a second permanent injunction against Plaintiff (without naming her as a defendant) thereby, once again, restraining her
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Orange County Superior Court Case No. 30-2009-00125305 for Trade Libel, Tortious Interference in Business Relations, Tortious Interference in Prospective Business Relations, and Civil Harassment.
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speech in perpetuity and holding her personally responsible for a $105,246.00 default judgment. (See, "Exhibit 2.") 12. Defendant Miller is named in his individual capacity as an adjunct professor of
law at Whittier Law School because it is in this role and environment that he assembled his coconspirators, fellow adjunct professors of law, Daniel J. Kessler, Esq. and Eric J. Goodman, Esq., partners at Burkhalter, Kessler, Goodman & George LLP that filed two lawsuits against Plaintiff in order to silence her protected speech about matters of public concern. Defendant Miller's Motion to Dismiss Fails to State Any Cognizable Reason Plaintiff's Complaint Should be Dismissed 13. Notwithstanding the fact that Defendant Miller had no jurisdiction over
10 Plaintiff whatsoever, resulting in zero immunity for his actions, Plaintiff's Complaint "contains 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 sufficient factual matter" of Defendant Miller's intentional non-judicial acts in compliance with the heightened Iqbal 10 and Twombley 11 standards, including "factual content that allows the court to draw reasonable inference" that Defendant Miller is liable for the misconduct alleged by Plaintiff in her Section 1983 Complaint. 14. Plaintiff notes that the arguments contained in Defendant Miller's Motion to
Dismiss are conclusory, vague and ambiguous. The Motion contains wide-sweeping notions but fails to directly quote even one single statement from Plaintiff's Complaint to substantiate its criticism of same. As will be demonstrated herein, this is because Plaintiff's Complaint contains hundreds of specific examples why Defendant Miller's arguments fail. 15. A motion to dismiss will only be granted if the complaint fails to allege
enough facts to state a claim for relief that is plausible on its face. 12 16. A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a probability requirement, but it
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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. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 11 A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806, 812 (9th Cir. 2010) (quoting Iqbal, 129 S.Ct. at 1949). 12 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
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asks for more than a sheer possibility that a defendant has acted unlawfully. 13 17. The Ninth Circuit, in Manzarek v. St. Paul Fire & Marine Ins. Co.,
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held:
We accept factual allegations in the complaint as true and construe the pleadings in the light most favorable to the non-moving party. 18. This Court cannot dismiss Plaintiff's Complaint against Defendant Miller
because she is far beyond the line separating the efficacy of the claims from "conceivable to plausible." 15 In addition, Judge Carter, who until recently, presided over this case, repeatedly denied Plaintiff's motions for effective assistance of counsel and leave to amend her Complaint.
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Before a Motion to Dismiss can be granted against a pro se civil rights litigant,
Plaintiff is entitled to amend her Complaint with assistance of counsel. 19. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Although Section 1983 cases do not require a "state of mind" element,
Plaintiff's Complaint establishes the heightened standard in the 1986 U.S. Supreme Court decision in Daniels v. Williams 17 by pleadings facts sufficient to demonstrate that Defendant Miller's non-judicial acts constituted "conscience-shocking conduct" as opposed to merely "negligent acts" previously required in the 1914 U.S. Supreme Court decision in Metzger Motor Car Co. v. Parrott. 18 20. One cannot "negligently" order two permanent injunctions constituting
intentional interference with individual First Amendment rights to protected speech about matters of public concern. These non-judicial acts were deliberately intended to injure
Plaintiff unjustifiable by any government interest. 19 21. In Daniels, the U.S. Supreme Court overruled its previous decision in Parrott
holding that the "Fourteenth Amendment Due Process Clause is not implicated by a state official's negligent act causing unintended loss of, or injury to, life, liberty, or property." Rather, this "conduct deliberately intended to injure [Plaintiff] in some way unjustifiable by
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Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). 519 F.3d 1025, 1030 (9th Cir.2008). 15 When the facts alleged do not nudge a plaintiffs claim across the line from conceivable to plausible, the court should dismiss the complaint. See Twombly, 550 U.S. at 570. 16 See, Sparling v. Daou, 411 F.3d 1006, 1013 (9th Cir. 2005): "If the complaint is dismissed, plaintiff generally should be afforded leave to amend unless it is clear the complaint cannot be saved by amendment." 17 474 U. S. 327 (1986). 18 233 U.S. 36 (1914). 19 See, Daniels v. Williams, 474 U. S. 327 (1986).
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any government interest. This is the sort of official action most likely to rise to the conscienceshocking level." 22. One of the first "conscience-shocking" non-judicial acts committed by
Defendant Miller was on June 2, 2009, in Parsa Law Group v. Bad Biz Finder, Erin K. Baldwin, et al.,
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when he knowingly, recklessly and maliciously ordered a permanent
injunction against Plaintiff (without jurisdiction to do so) that represented unconstitutional prior restraint of her First Amendment right to protected speech about matters of public concern. Said permanent injunction was also void for vagueness, overbroad, and failed to comport with Plaintiff's rights to due process of law. In connection with said injunction, Defendant Miller ordered Plaintiff to pay a judgment in the amount of $605,492.42, an amount large enough to prevent her from retaining an Anti-SLAPP contingency attorney on appeal. 21 23. On December 11, 2009, in UDR, Inc. v. Erin K. Baldwin, Bad Biz Finder, et
al.,22 Defendant Miller ordered a second permanent injunction against Plaintiff that also represented an unconstitutional prior restraint of her protected speech about matters of public concern, was void for vagueness, overbroad, and failed to comport with Plaintiff's rights to due process of law. In addition, he once again ordered her to pay a judgment in the amount of $105,246.00, an amount when combined with the first injunction was large enough to prevent her from seeking an Anti-SLAPP contingency attorney on appeal. 24. To facilitate the combination of injunctions and to protect the deep-pocketed
plaintiff, publicly-traded UDR, Inc., (NYSE:UDR), Defendant Miller related the UDR case, sua sponte, to the Parsa Case on September 2, 2009. To protect her interests, Plaintiff, pro se, filed a Peremptory Challenge
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against Defendant Miller two weeks later on September 17,
2009. On September 18, 2009, Defendant Miller summarily denied Plaintiff's challenge. 25. Plaintiff has been a party to over 40 separate acts of criminal and civil
retaliatory prosecution beginning in January of 2009 through and including the present, with
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Orange County Superior Court Case No. 30-2009-00117752 filed on January 26, 2009 for Defamation. The statute of limitations of California's Anti-SLAPP legislation (codified in California Code of Civil Procedure 425.16) is advisory, therefore does not prevent Plaintiff from evoking said provision of appeal. Any existing judgment in connection with a successful Anti-SLAPP motion must be paid first before attorneys' fees. Based on the fact that Plaintiff had a fee waiver in the case, Defendant Miller knew Plaintiff was a pro se indigent litigant and could not afford counsel. 22 Orange County Superior Court Case No. 30-2009-00125305 filed on January 26, 2009 for Defamation. 23 Pursuant to California Code of Civil Procedure 170.6.
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the express intent: a. To silence Plaintiff's truthful, fact-based and legally-substantiated
investigative reports and journalistic articles about matters of public concern; b. To conceal events leading up to the issuance of two unconstitutional
permanent injunctions to satisfy "a.," supra; c. d. To conceal the unconstitutional nature of these injunctions; To conceal the resulting criminal and civil retaliatory prosecution in
connection with these injunctions; and e. Now, to protect those that caused Plaintiff's harm and to conceal the
events and identities of the federal officials responsible for same. 26. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 27. litigants."
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All of the above was iniatiated by Defendant Miller's non-judicial acts and
collectively form the basis of Plaintiff's Section 1983 Civil Rights Complaint filed on August 16, 2011. To document same in one single complaint is overwhelming at best made even more difficult by the fact that parties associated with these injunctions have unlawfully seized the sum total of Plaintiff's personal property without due process of law on three (3) separate occasions over the past three years. In addition, Plaintiff's car was towed then sold, she was made homeless twice, has been falsely arrested, incarcerated, beat up and threatened by law enforcement officials. She has been the target of every imaginable form of defamation and character assassination to discredit and destroy her reputation, her personal security, and ability to make a living. Motion to Dismiss Standards Applicable to the Pro Se Litigant The Ninth Circuit upholds a "policy of liberal construction in favor of pro se Again, the Central District Court of California does not believe it is required to
succumb to policy and case precedent decided in its own Circuit Court of Appeal. 28. Other Ninth Circuit decisions: "Litigants have a statutory right to self-
representation in civil matters," 25 and "are entitled to meaningful access to the courts." 26
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Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998). See, 28 U.S.C. 1654 (1982). 26 Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998); Bounds v. Smith, 430 U.S. 817, 823 (1977); Wolff v. McDonnell, 418 U.S. 539, 579 (1974); Johnson v. Avery, 393 U.S. 483 (1969); Hatfield v. Bailleaux, 290 F.2d 632, 637 (9th Cir. 1961).
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29.
The Ninth Circuit in Balistreri v. Pacifica Police Dept.,27 in ruling on a Motion
to Dismiss, held: "Pro se pleadings are liberally construed. This court recognizes that it has a duty to ensure that pro se litigants do not lose their right to a hearing on the merits of their claim due to ignorance of technical procedural requirements." 30. Below, Defendant Overton criticizes Plaintiff's Complaint without taking into
consideration the Ninth Circuit's liberal, tolerant and patient viewpoint of pro se litigants and its duty to ensure fundamental fairness. 31. In Gonzalez v. Commission on Judicial Performance,
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the Commission held:
"Acts in excess of judicial authority constitutes misconduct, particularly where a judge deliberately disregards the requirements of fairness and due process." 32. Defendant Miller's MTD, Page 1, lns 17-21 and Page 2, lns 1-5, fails to
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incorporate the Ninth Circuit's posture toward pro se litigants: "Plaintiffs instant complaint as well as her prior complaints are based upon substantially the same set of 'facts.' "For the most part, plaintiffs complaint is a long rambling tale of events as she has perceived them over the past few years. "In particular, plaintiff is unhappy with the outcome of many civil and criminal cases which were brought against her in both Orange and San Bernardino Counties. "With regard to Judge Miller, plaintiff complains about various statements, rulings and judgments rendered by him in the following two state court cases: Parsa Law Group v. Erin K. Baldwin, Superior Court case 30-2009-00117752 and UDR, Inc. v. Erin K. Baldwin, Superior Court case 30-200900125305." 33. In addition, the text from Defendant Miller's MTD, supra, misleads the reader
into believing the only matter for which Defendant Miller is involved are the Parsa and UDR Cases. However, Plaintiff's "unhappiness" in the "civil and criminal cases brought against her in Orange and San Bernardino Counties," are directly attributable to Defendant Miller's non-judicial acts.
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901 F.2d 696, 699 (9th Cir. 1990). 33Cal. 3d, 359, 371, 374 (1983).
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34.
Throughout the 40 civil and criminal retaliatory actions against Plaintiff
beginning in January of 2009 through and including the present, Plaintiff has only been a pro se litigant based on lack of financial recourses and fear of The California State Bar as discussed, supra. 35. In Picking v. Pennsylvania Railway, 29 the Third Circuit Court of Appeals held:
"Where a plaintiff pleads pro se in a suit for protection of civil rights, the court should endeavor to construe plaintiffs pleading without regard to technicalities." 36. In Walter Process Equipment v. Food Machinery, 30 the United States Supreme
Court held: "In a motion to dismiss, the material allegations of the complaint are taken as admitted." 37. Accordingly, in Conley vs. Gibson, 31 the United States Supreme Court held:
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"From this vantage point, courts are reluctant to dismiss complaints unless it appears the plaintiff can prove no set of facts in support of her claim which would entitle him to relief." Further, in this case, Justice Black stated: "The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits." 38. In Puckett v. Cox, it was held: "a pro se complaint requires a less stringent
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reading than one drafted by a lawyer. " 39. 19 20 21 22 23 24 25 26

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Federal Rules of Civil Procedure, Rule 8(f) states: "All pleadings shall be
construed to do substantial justice. 40. It could also be argued that to dismiss a civil rights action or other lawsuit in
which a serious factual pattern or allegation of a cause of action has been made would itself be violative of procedural due process as it would deprive a pro se litigant of equal protection of the law vis a vis a party who is represented by counsel. In a fair system, victory should go to a party who has the better case, not the better representation. 41. When considering a motion to dismiss under Federal Rule of Civil Procedure
27 28
30 31 32
See, 151 F2d. 240. See, 382 U.S. 172 (1965). See, 355 U.S. 41(1957). 456 F2d 233 (6th Cir. 1972)
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21
12(b)(6), the court must determine whether the plaintiff has made factual allegations that are "enough to raise a right to relief above the speculative level." 33 42. Dismissal under rule 12(b)(6) "can be based on the lack of a cognizable legal
theory or absence of sufficient facts alleged under a cognizable legal theory." 34 43. "The court reviewing the Motion to Dismiss must treat all facts alleged in the
complaint as true, and all doubts are resolved in favor of the non-moving party." 35 44. Much like Judge Tucker, Defendant Overton is abnormally attentive to the
varying number of defendants Plaintiff has named in her Complaint -- when she need only concern herself with one, Defendant Miller, and now herself. 45. Defendant Miller's MTD, Page 1, lns 4-7, states: "Plaintiff has brought the instant second amended complaint because she claims that numerous people and agencies have violated her rights. "In fact, the instant complaint is pled against more than 230 defendants, including individuals, public agencies and private corporations." 46. Defendant Miller's MTD, Page 1, fn 2, states: "The original complaint was only pled against 168 defendants. Many of the defendants named in the original complaint are no longer in the present complaint. "Instead, plaintiff has added numerous new defendants, such as counsel for this moving party, although there are no causes of action pled against many of these defendants. In fact, plaintiff has apparently not served any defendant other than Judge Miller." 47. In Defendant Miller's MTD text set forth in 48, infra, it is crystal clear that "all
22 of the actions about which plaintiff complains relate to the actions taken by Judge Miller in his 23 24 25 26
33
judicial capacity." Accordingly, the MTD calls for the immediate dismissal of Plaintiff's Complaint without leave to amend. 48. Defendant Miller's MTD, Page 5, lns 3-6, states:
27 28
Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1959 (2007); Fed. R. Civ. P. 12(b)(6). Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). 35 NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986); Experimental Eng'g, Inc. v. United Tech. Corp., 614 F.2d 1244, 1245 (9th Cir. 1980).
34
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 /// /// /// /// 49.
"In the present case, there can be no dispute that all of the actions about which plaintiff complains relate to the actions taken by Judge Miller in his judicial capacity. Thus, the complaint must be dismissed without leave to amend as to Judge Miller because his is entitled to absolute judicial immunity." However, here, Defendant Overton, on behalf of Defendant Miller, is critically
astute as to the murky nature of Plaintiff's claims, the incomplete status of Plaintiff's Complaint and the high degree of disorganization of Plaintiff's Claims for Relief. Quite frankly, these concerns, although diametrically opposed to the statements contained in 48, supra, provide an excellent supportive declaration for Plaintiff's Motions for Leave to Amend her Complaint, all of which were denied. 50. Defendant Miller's MTD, Page 2, lns 6-13, states: "Plaintiffs 269-page second amended complaint is very difficult to follow. Many of her claims for relief are not numbered and those that are numbered do not all follow in consecutive order. "The first numbered claim for relief is plaintiffs Ninth Claim for Relief on page 214. After plaintiffs TwentySecond Claim for Relief, plaintiff jumps to her TwentyNinth Claim for Relief. "Thereafter, she has set forth her Twenty Third Claim for Relief which is then followed by her Forty-Third Claim for Relief. Further, within various claims for relief there are separate counts set forth. "To add to the confusion, the claims for relief set forth in the caption are not all set forth in the body of the complaint. Indeed, plaintiff has not alleged any common law causes of action, although many are set forth in the caption. "Nevertheless, it appears that, in general, plaintiff is alleging violations of various Constitutional rights and 42 U.S.C. 1983."
1 2 3 4 5 6 7
Plaintiff's Section 1983 Civil Rights Claims Are Prejudiced By Federal Judges Attempting to Protect Defendants Miller, Cormac J. Carney and Sheri Pym 51. Armed with the above-stated facts, Plaintiff petitioned the federal court seeking
redress for her grievances. However, instead of redress, Plaintiff experienced further violation of her constitutional rights and aggravated impediments to petition for a redress of her grievances. Instead of protecting Plaintiff constitutional rights, various federal officials at the Central District Court of California, violated these rights, choosing instead to protect the parties that caused Plaintiff's Section 1983 claims, including, but not limited to Defendant
8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Miller, U.S. District Court Judge Cormac J. Carney ("Judge Carney") and Judge Pym. 52. Pro se litigants, as well as those represented by counsel, are entitled to
meaningful access to the courts. 36 Sufficient access to the courts, a right protected by the Due Process Clause of the Fourteenth Amendment
37
and the First Amendment,

39
38
guarantees to
all persons use of the judicial process to redress alleged grievances.
For some reason, the
Central District Court of California does not believe it is required to succumb to U.S. Supreme Court precedent. 53. On December 13, 2011, the day after Defendant Miller filed the subject Motion
to Dismiss, Plaintiff filed a Motion to Disqualify Judge Carter based on prejudicial and biased events leading up to the filing of Defendant Miller's Motion to Dismiss. With Plaintiff's lodged objection on file, the evaluation of Plaintiff's Motion to Disqualify was assigned to United States District Court Judge Josephine Staton Tucker ("Judge Tucker"). 54. Judge Tucker was appointed to the bench on the same date as Defendant Miller,
served as an Orange County Superior Court judge alongside Defendant Miller for eight years, and came upon her appointment under the same influence as Defendant Miller, i.e., Thomas
36
See, Bounds v. Smith, 430 U.S. 817, 828 (1977); Wolff v. McDonnell, 418 U.S. 539, 579 (1974); Ross v. Moffitt, 417 U.S. 600, 612-15 (1974); Johnson v. Avery, 393 U.S. 483, 485 (1969); Rudolph v. Locke, 594 F.2d 1076, 1078 (5th Cir. 1979). Although access to the courts includes at least the opportunity to file a complaint, see Wolff, 418 U.S. at 576; Bonner v. City of Prichard, 661 F.2d 1206, 1212 (11th Cir. 1981); Hatfield v. Bailleaux, 290 F.2d 632, 637 (9th Cir.), cert. denied, 368 U.S. 862 (1961), it is not unrestricted. See Bounds, 430 U.S. at 823; Wolff, 418 U.S. at 578-79. 37 Wolff v. McDonnell, 418 U.S. 539, 579 (1974); Corpus v. Estelle, 409 F. Supp. 1090, 1097 (S.D. Tex. 1975), aff'd, 542 F.2d 573 (5th Cir. 1976). 38 See, Cruz v. Beto, 405 U.S. 319, 321 (1972) (right to petition Government for redress of grievances); NAACP v. Button, 371 U.S. 415, 428-29 (1963)(same). 39 See, Bounds v. Smith, 430 U.S. 817, 825 (1977); Wolff v. McDonnell, 418 U.S. 539, 579 (1974); Johnson v. Avery, 393 U.S. 483, 488 (1969).
1 2 3 4 5 6 7 8 9 10
Layton, California State Bar investigator and member of the judicial selection committee of Governor Gray Davis in 2002. The State Bar of California and Thomas Layton are defendants in Plaintiff's Complaint. 55. On December 19, 2011, at 10:05 a.m., Plaintiff filed a Notice of Appeal on
Judge Carter's December 2, 2011 Order, thereby shifting the jurisdiction of this case to the United States Ninth Circuit Court of Appeal.40 Accordingly, commencing December 19, 2011, 10:06 a.m., no other matters, pending or otherwise, should have been ruled upon, ordered, filed, decided, discussed or acted upon, with the exception of ministerial acts not affecting the record on appeal. But that is not what happened. 56. On December 21, 2011, Judge Tucker ruled on a pending motion, one that
41
directly affected the record on appeal. 11 12 13 14 15 16 17 18

40
She did so because she believed Plaintiff wouldn't

42
know that she had no jurisdiction to do so, constitutional rights to due process of law. 57.
nor that in so doing, she violated Plaintiff's
Judge Tucker's December 21, 2011 Order denied Plaintiff's good faith Motion
to Disqualify Judge Carter based narrowly on Title 28 U.S.C. 455(b)(1) and Code of Judicial Conduct, Canon 3(C)(1)(a). Instead of evaluating the motion on Plaintiff's specific arguments, Judge Tucker cited inapplicable case law,
43
code sections,
46
44
and advisory opinions,

47
45
misrepresented attached documentary evidence,
ignored an entire statutory element,
and
19 20 21 22 23 24 25 26 27 28
Subsequently assigned Case No. 11-57210. The Ninth Circuit, in Kern Oil & Refining Co. v. Tenneco Oil Co., 840 F.2d 730 (9th Cir. 1988), held: "The appellate court is entitled to review a fixed, rather than mobile record." 42 In Griggs v. Provident Consumer Discount Company (459 U.S. 56 (1982)), the U.S. Supreme Court held, "The timely filing of a notice of appeal in U.S. District Court transfers jurisdiction over orders and judgments encompassed by the notice to the Court of Appeals." 43 Judge Tucker cited Pulliam v. Allen (466 U.S. 522) by extracting, out of context, parts of the United States Supreme Court decision that fit her objectives. However, Plaintiff read the entire opinion, including the fact that the High Court held that "Congress intended 1983 to be an independent protection for federal rights, and there is nothing to suggest that Congress intended to expand the common-law doctrine of judicial immunity to insulate state judges completely from federal collateral review." This speaks directly to Plaintiff's opposition of Judge Miller's Motion to Dismiss. 44 Judge Tucker cited Local Rule 72-5 as procedural authority to disqualify a U.S. District Court Judge, when, in fact, it explicitly pertains to the procedural authority to disqualify a U.S. Magistrate Judge. She also cited General Order 08-05 which does not apply to pro se Section 1983 complaints rather than General Order 05-07. 45 Judge Tucker cited Advisory Opinion 103 that addressed attorneys or litigants that repeatedly file unmeritorious formal Complaints against a judge. Rather, Plaintiff was appropriately using applicable code sections to file a motion to disqualify a judge she deemed impartial to her interests, the very reason the code was enacted. 46 Judge Tucker misrepresented that a person-to-person interview with Judge Cormac J. Carney published in an industry newsletter constituted a "hearsay article." 47 Judge Tucker's Order failed to acknowledge or evaluate Plaintiff's meritorious argument that Judge Carter should be
41
1 2 3 4 5 6 7 8 9 10
made libelous statements about Plaintiff without supporting evidence and contrary to easily verifiable evidence contained in Plaintiff's Complaint. 48 58. The objective of Judge Tucker's December 21, 2011 void Order was to establish
for the record on appeal (without jurisdiction to do so or evidence to support her claims) that Plaintiff's motives were unclean, that she lacked credibility and as such, her entire Complaint should be dismissed as frivolous, deemed brought by a vexatious litigant, and unworthy of review. Judge Tucker's acts (with the intent to protect Judge Carter, inter alia) constitute grave judicial misconduct and obstruction of justice. 49 59. Plaintiff's appeal is based, in large part, upon Judge Carter's December 2, 2011
Order wherein he deliberately denied Plaintiff's constitutional rights in order to protect his friends, fellow judicial officers and defendants in this actions, Defendants Carney, Pym and 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Miller. Contrary to Judges Tucker's and Carter's allegations, these are the only judges named in Plaintiff's complaint, and they are so named for legitimate reasons. 60. On December 28, 2011, Plaintiff filed a "Notice of Related Appeal [Pursuant to
Federal Rules of Appellate Procedure, Rule 28-2.6] and Motion to Disqualify Judge Tucker [Pending Appeal]" thereby documenting the facts set forth, supra, and relating Judge Tucker's December 21, 2011 Order to Judge Carter's December 2, 2011 in the pending appeal filed on December 19, 2011. On January 13, 2011, The Ninth Circuit Court of Appeal assigned this related appeal Case No. 12-55081. 61. On January 4, 2012, the Court on behalf of Judge Carter entered an Order on a
form entitled, "Order to Reassign Case Due to Self-Recusal Pursuant to Section 3.2 of General Order 08-05," states: "The undersigned Judge, to whom the above-entitled case was assigned is hereby of the opinion that he or she should not preside over said case by reason of Plaintiff's past pattern of behavior and present allegations
disqualified because he had personal knowledge of disputed facts by way of his (and Judge Tucker's) Courtroom Deputy, Dwayne Roberts. Mr. Roberts was directly involved in a 2009 controversy that forms the basis of one of Plaintiff's claims. 48 Judge Tucker launched a malicious campaign to prejudice Plaintiff's constitutional claims by stating that Plaintiff was "harassing" Judge Carter based on her "pattern of behavior to name as defendants in her Complaint any judge that has ever ruled against her." A cursory review of Plaintiff's Complaint would reveal the identity of twenty (20) judges that ruled against Plaintiff during the period relevant to her Complaint, none of whom were named in Plaintiff's Complaint. 49 In Plaintiff's December 28, 2011 Notice of Related Appeal Plaintiff reserved the right to bring a Motion to Disqualify Judge Tucker pending appeal for gross misconduct in violation of Title 28 U.S.C. 455, 144, the Code of Judicial Conduct, and her Oath of Office set forth in Title 28 U.S.C. 453.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22
suggesting that Judge David O. Carter will likely soon be named as a defendant in the above-captioned case. It is hereby ordered that this case be reassigned by the Clerk in accordance with Section 3.2 of General Order 0805. This self-recusal has been ordered within 120 days of the Court being assigned said case." 62. This Order is wrought with error, to wit: a. It was not brought "within 120 days of the Court being assigned the
case," it was brought on the 141st day, three weeks beyond the date Judge Carter avowed by his signature, in accordance with the "computing time" rules set forth in Federal Rules of Civil Procedure, Rule 6(a).50 b. This form is to be used before a Motion to Disqualify is filed, evaluated
and denied. Judge Carter failed to self-recuse in compliance with 28 U.S.C. 455(b)(1) and Code of Judicial Conduct, Canon 3(C)(1)(a). c. The federal disqualification process is self-recusing by nature. The onus
is not on Plaintiff to force Judge Carter to acknowledge any conflict of interest; rather it is on Judge Carter to act with honor and integrity to uphold the obligations of his position. d. Instead of acting in accordance with his obligations, Judge Carter made
the conscious choice to act without jurisdiction to adversely affect the record on appeal thereby violating the law and Plaintiff's constitutional rights. He also subjected Plaintiff to: i. Judge Tucker's December 21, 2011 prejudicial and defamatory
Order filed without jurisdiction; ii. His own January 4, 2012 prejudicial and defamatory Order filed
without jurisdiction, wherein he concurred, adopted, and advanced Judge Tucker's defamatory and prejudicial statements; and iii. This subject form wherein Judge Carter adopts as his own said
23 24 25 26 27
defamatory and prejudicial statements. e. As demonstrated in Plaintiff's Second Notice of Related Appeal, there
is no "past pattern of behavior" whereby Plaintiff "names as defendants every judge who has ever ruled against her." In said pleading, Plaintiff identified twenty (20) judges that have ruled
50
28
FRCP 6(a): "When the period is stated in days or a longer unit of time, exclude the day of the event that triggers the period, count every day, including intermediate Saturdays, Sundays, and legal holidays, and include the last day of the period."
1 2 3 4 5 6 7 8 9 10
against her in the period relevant to her Complaint, none of whom are named as defendants. f. In addition, there are no "present allegations suggesting that Judge
David O. Carter will likely soon be named as a defendant in the above-captioned case." g. As previously stated, General Order 08-05 does not apply to Plaintiff's
case; the applicable General Order is 05-07. Notwithstanding this ongoing and intentional "oversight," Section 3.2 of General Order 08-05 applies to "Self-Recusal by Assigned Judge." Plaintiff has already established, supra, that Judge Carter failed to voluntarily self-recuse in accordance with the procedural statutes, 28 U.S.C. 455 and 144, and procedural ethical guidelines, Code of Judicial Conduct, Canon 3(C)(1)(a). Since self-recusal did not occur
within 120 days of the assignment of this case, Section 3.2.1, entitled, "Self-Recusal After 120 Days," applies. It states: 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 order to pave the way for the dismissal of 27 28 - 22 Plaintiff's Opposition to Defendant Franz E. Miller's Motion to Dismiss
"If the self-recusal is exercised after 120 days of being assigned the civil case, the receiving judge shall have the option, within 20 days, of transferring a case of equal or similar weight and complexity from his or her calendar to the judge who exercised the self-recusal." ["Continuing with 3.2.2, "Review of Return Transfer."] If the receiving judge exercises the option under Section 3.2.1 of transferring a case to the selfrecusing judge, the self-recusing judge may appeal the case selected for transfer as not being "a case of equal or similar weight and complexity" to the Committee. The Committee shall approve or disapprove the transfer. If the General Order No. 08-05 Committee disapproves the transfer, the case shall be returned to the receiving judge, who shall select another case for transfer. h. Since Judge Carter did not comply with self-recusal standards set forth
in the United States Codes, he wasted valuable judicial resources, and set into motion this ridiculously complex procedure of "passing his mess on to another judge." Plaintiff's case
will now be transferred to another judicial officer complete with defamatory orders mischaracterizing Plaintiff and her claims as frivolous, vexatious, and harassing; as well as false assertions that Plaintiff is prone to a "pattern of behavior" to name any and every judge that rules against her in her Complaint, when there is no evidence of same. i. Plaintiff theorizes that Judge Carter decided to disqualify himself in Plaintiff's Appeal and to move quickly to
Defendant Miller's Motion to Dismiss, thereby avoiding altogether the unconstitutional
1 2 3 4 5 6 7 8 9 10
permanent injunctions. These tactics will be raised in a separate Motion directed to the Court of Appeal. Defendant Miller Claims He is Entitled to Absolute Judicial Immunity 63. Defendant Miller's arguments that his "judicial acts" were all performed in his
"official capacity," within the confines of his "judicial function," fail utterly, and as such, he is not entitled to absolute judicial immunity or any immunity for that matter. 64. In Dennis v. Sparks
51
and Scheur v. Rhodes,
52
the U.S. Supreme Court
rejected absolute judicial immunity in circumstances when a judge engaged in a conspiracy to deprive a person of their constitutional rights. 65. "No man in this country is so high that he is above the law. No officer of the
law may set that law at defiance with impunity. All the officers of the government, from the 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
51 52 53
highest to the lowest, are creatures of the law and they are bound to obey it. " 53 66. Defendant Miller's MTD, Page 3, lns 8-11, states: Judicial officers are absolutely entitled to unqualified immunity. The U.S. Supreme Court established the rule that judges are immune from civil suits arising out of the exercise of their judicial functions. Mireles v. Waco, 502 U.S. 9, 11, 112 S. Ct. 286, 116 L. Ed. 2d. 9 (1991). 67. From Plaintiff's reading, the U.S. Supreme Court in Mireles v. Waco, held:
"Judicial immunity can be defeated when the judges act is not taken in a judicial capacity or though judicial in nature, the act is taken in complete absence of jurisdiction." 68. Defendant Miller's MTD, Page 3, lns 12-16, states: [I]t is the general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own conviction, without apprehension of personal consequences to himself. Bradley v. Fisher, 80 U.S. 335, 346, 20 L. Ed. 646, 649 (1872). 69. From Plaintiff's reading, the U.S. Supreme Court in Bradley v. Fisher, held: "It
is a principle of our law that no action will lie against a judge of one of the superior courts for
432 449 U.S 24 (1980) 416 U.S. 232 (1974). United States v. Lee (1882) and Buckles v. King County (Wash.) 1999.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
a judicial act. [] A distinction must be here observed between excess of jurisdiction and the clear absence of all jurisdiction over the subject matter. Where there is clearly no jurisdiction over the subject matter any authority exercised is a usurped authority, and for the exercise of such authority, when the want of jurisdiction is known to the judge, no excuse is permissible. 70. Defendant Miller's MTD, Page 3, lns 17-25, states: The immunity is broadly construed. The U. S. Supreme Court set forth the scope of judicial immunity. This immunity applies even when the judge is accused of acting maliciously and corruptly and is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public whose interest it is that the judges should be at liberty to exercise their functions with independence and without fears of consequences. (Citations.) Pierson v. Ray, 386 U.S. 547, 554 87 S.Ct 1213, 1218, 18 L.Ed.2d 288, 294 (1967). 71. From Plaintiff's reading, the U.S. Supreme Court in Pierson v. Ray, held: "The
settled common-law principle that a judge is immune from liability for damages for his judicial acts was not abolished by 1983. [] It is a judge's duty to decide all cases within his jurisdiction that are brought before him, including controversial cases that arouse the most intense feelings in the litigants. []The immunity of judges for acts within the judicial role is equally well established, and we presume that Congress would have specifically so provided had it wished to abolish the doctrine. 72. Defendant Miller's MTD, Page 3, lns 26-27 and Page 4, lns 1-7, states: In the present case, plaintiffs complaint claims that Judge Miller issued various rulings which, she claims, violated her rights. However, all of these actions about which plaintiff complains were taken by Judge Miller in his judicial capacity while he was presiding over plaintiffs state court cases. The Court in Stump v. Sparkman, 435 U.S. 349, 362, 98 S. Ct. 1099, 1107, 55 L.Ed. 2d 331, 342 (1973), stated that: [T]he factors determining whether an act by a judge is a "judicial" one relate to the nature of the act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity. 73. From Plaintiff's reading, the U.S. Supreme Court in Stump v. Sparkman, held: - 24 Plaintiff's Opposition to Defendant Franz E. Miller's Motion to Dismiss
1 2 3 4 5 6 7 8 9 10
"The Court of Appeals correctly recognized that the necessary inquiry in determining whether a defendant judge is immune from suit is whether, at the time he took the challenged action, he had jurisdiction over the subject matter before him." 74. Plaintiff concurs that Defendant Miller is a superior court judge, a state official,
54
so appointed by Governor Gray Davis in 2002. 75.
Plaintiff also concurs that Defendant Miller took certain actions against
Plaintiff concerning court orders and court rulings from which he would ordinarily be immune if he had jurisdiction over the parties and the subject-matter of the case. In that situation, the actions would be considered "judicial acts" within the definition of the "judicial function." 76. However, the case at bar is a Section 1983 case that holds Defendant Miller
personally responsible for his non-judicial acts that deprived Plaintiff of her constitutional 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
54
rights. Intentional violations of Plaintiff's constitutional rights without jurisdiction represent non-judicial acts because said violations could never be construed as being within the definition of the "judicial function." 77. Defendant Miller egregiously violated not only Plaintiff's First Amendment
rights but many others (see, Declaration of Erin K. Baldwin, infra). Defendant Miller has and continues to act far beyond his jurisdiction and has broken the law countless times in connection with his non-judicial acts causing extraordinary harm to Plaintiff. 78. Many of the defendants named in Plaintiff's Section 1983 case acted in concert
with Defendant Miller, and as such, are also absent immunity. In Yates v. Village of Hoffman Estates, Illinois, 55 the federal court held: "Case law states that when a judge acts 'ultra vires,' beyond his powers, and as a trespasser of law; when a judge does not follow the law, he then loses subject matter jurisdiction and the judges orders are void and of no legal force or effect." 79. Defendant Miller's MTD, Page 4, lns 15-19, states: "Furthermore, if plaintiff disagreed with the orders and rulings of Judge Miller, plaintiff had a remedy. Her remedy
On the same exact date as Orange County Superior Court Judge Josephine Staton Tucker ("Judge Tucker"), now the United States District Court Judge that was assigned to evaluate and rule on Plaintiff's Motion to Disqualify Judge David O. Carter. 55 209 F.Supp. 757 (1962)
27 28
1 2 3 4 5 6 7 8 9 10 11 80.
was to file an appeal or petition for writ of mandate to a higher state court. Her remedy was not to file a federal civil action seeking money damages, an injunction in the state court action and declaratory relief." In the future, perhaps Defendant Overton might consider reading a Complaint
before she attempts to dismiss it. Because, if she had, she would have known that Plaintiff "filed an appeal and petitions for writs of mandate to a higher state court," in fact several, in a furtive attempt to salvage her constitutional rights trampled on by Defendant Miller. a. On September 2, 2009, Plaintiff filed an Appeal in the Parsa Case in the
California Court of Appeal, Fourth District, Division Three, Case No. G042561. b. On September 17, 2009, Plaintiff filed a Peremptory Challenge against
Defendant Miller after he joined the UDR and Cancilla cases with the Parsa Case. c. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On March 17, 2011, Plaintiff filed a Writ of Mandate in the Parsa Case
in the California Court of Appeal, Fourth District, Division Three, Case No. G044953. d. On April 18, 2011, Plaintiff filed another Writ of Mandate in the Parsa
Case in the California Court of Appeal, Fourth District, Division Three, Case No. G045100. e. On April 25, 2011, Plaintiff filed a Writ of Mandate in the UDR Case in
the California Court of Appeal, Fourth District, Division Three, Case No. G045132. f. On May 9, 2011, Plaintiff filed a Notice of Removal of the Parsa Case
to the United States District Court based on Federal Question/Diversity Jurisdiction, Case No. SACV-8:11-cv-00708-CJC-AN. g. On May 17, 2011, Plaintiff filed a Notice of Removal of the UDR Case
to the United States District Court based on Federal Question/Diversity Jurisdiction, Case No. SACV-8:11-cv-00845-CJC-AN. 81. In response to the second half of Defendant Overton's statement, "Her
[Plaintiff's] remedy was not to file a federal civil action seeking money damages, an injunction in the state court action and declaratory relief." 82. Perhaps Defendant Overton is unfamiliar with the historical and legislative
intent behind 42 U.S.C. 1983, because, in fact Section 1983 is entitled, "Civil Action for Deprivation of Rights" and is directly applicable to the case at bar. - 26 Plaintiff's Opposition to Defendant Franz E. Miller's Motion to Dismiss
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27
56
83.
In Carey v. Piphus, 56 the United States Supreme Court held: "The purpose of 1983 is to deter public officials from using the badge of their authority to violate persons constitutional rights and to provide compensation and other relief to victims of constitutional deprivations."
84.
Title 42 U.S.C. 1983 states:
"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, . except that in any action brought against a judicial officer for an act or omission taken in such officers judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable." 85. Plaintiff has already established that Defendant Miller was not, at any time
relevant to Plaintiff's Section 1983 Complaint, acting in a judicial capacity. Therefore, the last two points, supra, do not apply to him. 86. Instead, he chose to misuse his power. The U.S. Supreme Court, in United
States v. Classic, held: "Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken `under color of' state law." 57 87. And, as the direct result of Defendant Miller's misuse of power via non-judicial
acts, Plaintiff has been deprived of the most coveted and fundamental rights under the Constitution, inter alia, Plaintiff's First Amendment right to free speech and freedom of the press. 88. Defendant Miller's MTD, Page 4, lns 20-24, states:
28
57
435, US 247, 253 (1978). 313 U.S. 299, 326 (1941).
1 2 3 4 5 6 7 90. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27
58
As well articulated in Duvall v. County of Kitsap, 260 F.3d 1124, 1144 (9th Cir. 2001): As the Supreme Court has observed, "most judicial mistakes or wrongs are open to correction through ordinary mechanisms of review, which are largely free of the harmful side-effects inevitably associated with exposing judges to personal liability." (Citation.) 89. From Plaintiff's reading, the Ninth Circuit in Duvall v. County of Kitsap, held:
"However, absolute judicial immunity does not apply to non-judicial acts." Defendant Miller's MTD, Page 4, lns 25-28 and Page 5, lns 1-2, states: In addition, it is of no importance as to whether plaintiff is seeking money damages, injunctive or declaratory relief. As the court in Moore v. Brewster, 96 F.3d 1240, 1243 (9th Cir. 1996) stated, "[t]he judicial or quasi-judicial immunity available to federal officers is not limited to immunity from damages, but extends to actions for declaratory, injunctive and other equitable relief." 91. From Plaintiff's reading, the Ninth Circuit in Moore v. Brewster, held: "The
doctrine of judicial immunity knows two limits [] First, a judge "will be subject to liability ... when he has acted in the clear absence of all jurisdiction." [] Second, only judicial acts are protected." Defendant Miller Claims This Court Lacks Subject Matter Jurisdiction Pursuant To The Rooker-Feldman Doctrine 92. The Rooker-Feldman Doctrine states that the lower federal courts do not have
jurisdiction to reverse or modify a state-court judgment. 58 However, there is an exception. 93. As is abundant in Plaintiffs case, The Rooker-Feldman Doctrine does not
prevent the lower federal courts from reviewing state-court judgments that were allegedly procured through fraud. 59 94. Judgments are denied recognition where extrinsic fraud exists. Since both state
court judgments relevant to Defendant Miller's Motion to Dismiss were procured by fraud, the Rooker-Feldman Doctrine fails as an affirmative defense.
28
59
544 U.S. 280, 283-84 (2005). See, In re Sun Valley Foods Co., 801 F.2d 186 (6th Cir. 1986).
1 2 3 4 5 6 7 8 9 10
95.
In addition, fraud was committed when Defendant Miller joined the cases
together. Defendant Miller knew the permanent injunctions were unconstitutional and he knew the act of relating two additional cases against Plaintiff was a serious dereliction of duty. Plaintiff attempted multiple times to force Defendant Miller's disqualification because he simply refused to recuse himself. As such, he violated Plaintiff's right to due process of law. If the other two cases were so alike as to merit relating them to the Parsa Case, Defendant Miller had an legal and ethical obligation to recuse himself. Here's why: a. He had already determined that Plaintiff was guilty of defamation to
such a degree that the most extraordinary remedy, a permanent injunction, was, in his judgment, appropriate. b. He had already determined that Plaintiff was guilty of causing
11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
irreparable damage to the reputation and future financial prospects of Parsa Law Group that the most extraordinary remedy, a $605,000 judgment, was, in his estimation, appropriate. c. If the other two cases as "related matters," arose from the same facts and
law, parties, and events, then he was already handicapped in his ability to be impartial in decided the UDR and Cancilla-Laverty Cases. 96. In 2004, the United States Court of Appeals for the Ninth Circuit adopted this
fraud exception to the Rooker-Feldman Doctrine in Kougasian v. TMSL, Inc. 60 "The plaintiffs assertions of extrinsic fraud in the procurement of the state-court judgment prevented Rooker-Feldmans application. [] At first glance, a federal suit alleging a cause of action for extrinsic fraud on a state court might appear to come within the Rooker-Feldman doctrine. It is clear that in such a case the plaintiff is seeking to set aside a state court judgment. [] A plaintiff alleging extrinsic fraud . . . is not alleging a legal error by the state court; rather, he or she is alleging a wrongful act by the adverse party. 97. In creating this exception, the Ninth Circuit relied on two sources: a. California state law providing its courts with the equitable power to set
aside judgments on grounds of fraud, mistake, or lack of jurisdiction; 61 and
60
27 28
359 F.3d 1136 (9th Cir. 2004). Kougasian v. TMSL, Inc., 359 F.3d 1136 at 1140 (9th Cir. 2004) (citing Zamora v. Clayborn Contracting Grp., Inc., 47 P.3d 1056, 1063 (Cal. 2002)); Zamora v. Clayborn Contracting Grp., Inc., 47 P.3d at 1063 (citing In re Estate of Sankey, 249 P. 517, 523 (Cal. 1926) that held: "Under the law of this state a judgment or order may be set aside on the ground of fraud,
61
1 2 3 4 5 6 7 8 9 10
b.
A 1878 U.S. Supreme Court case 62 holding that, under Louisiana law, a
judgment is a nullity if obtained through fraud, bribery, forgery of documents, etc. 63 98. In raising this issue, Plaintiff in no way implies that this Court should broach
the subject of setting aside these permanent injunctions and judgments, sua sponte or otherwise, because quite frankly, the Ninth Circuit has not expressly stated its leanings in that direction. Nonetheless, Plaintiff must validate the sustaining power of a 25-year old decision in Plaintiff's favor. 99. This is not to say that the Ninth Circuit has rejected In re Sun Valley Foods Co.,
because it has not. Rather, it has, on occasion adopted the basic framework of the case in more recent decisions. For example, in a 2010 case, Frame v. Lowe ,64 the Ninth Circuit did not cite In re Sun Valley Foods Co., but it did cite McCormick v. Braverman,
65
a more recent Sixth
11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Circuit decision holding: "Plaintiff asserts independent claims that those state court judgments were procured by certain Defendants through fraud, misrepresentation, or other improper means." 100. Fabrication of evidence by an attorney is always considered extrinsic fraud and
as such, "a wrongful act by the adverse party." On November 28, 2011, Plaintiff presented to this Court facts constituting extrinsic fraud in the underlying cases that led directly to final judgments against Plaintiff procured by fraud. 66 (Docket No. 23, pp. 15-17, 64-74). Plaintiff did so specifically to justify her request for leave to amend her Complaint. 101. However, in his December 2, 2011 Order denying Plaintiff's Request for Leave
to Amend, Judge Carter stated: "First, Plaintiffs request for leave to amend her corrected Second Amended Complaint is DENIED. Plaintiffs rambling set of facts in the Motion 17-24 provide no support for granting such a request. Plaintiff has simply not explained why any amendment is necessary." [By Judge Carter's own Order, he made his decision based on a completely irrelevant portion of the pleading, i.e., "Motion 17-24."]
mistake or lack of jurisdiction." 62 Kougasian, 359 F.3d at 1141 (citing Barrow v. Hunton, 99 U.S. 80 (1878)). 63 Barrow, 99 U.S. at 84. 64 Frame v. Lowe, No. 09-2673 (RBK/AMD), 2010 U.S. Dist. LEXIS 10494, at *16 (D.N.J. Feb. 8, 2010). 65 451 F.3d 382, 392 (6th Cir. 2006) 66 See, Plaintiff's Request for Leave to Amend the Second Amended Complaint., Docket No. 23, pp. 15-17, 64-74
1 2 3 4 5 6 7 8 9 10
102.
Judge Carter completely ignored the relevant section of Plaintiff's pleadings,
i.e., pp. 15-17, 64-74, beginning with the heading, "Factual Basis of Requests: Introduction," and, by so doing, bypassed the main thesis of the section containing facts constituting extrinsic fraud in the underlying cases that led to final judgments against Plaintiff procured by fraud on the court. 103. Instead, Judge Carter began his review at the completion of the main thesis, the
bottom of page 17, 75, with a section entitled, "Additional Facts to Support Plaintiff's Request for Leave to File a Third Amended Complaint." As the title implies, this section contains secondary arguments arising from the primary argument set forth in the main thesis contained in pp. 15-17, 64-74. 104. Bribery of a judge is always considered extrinsic fraud and as such, "a wrongful
11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
act by the adverse party." As stated, supra, Defendant Miller abandoned his role as a judicial officer when he allowed Defendant BKGG to appear before him without recusing himself, without disclosing on the record that he maintained an extra judicial ex parte relationship with BKGG as co-adjunct professors of law simultaneously opposing counsel in three cases before him. 105. Bribery, a form of corruption, is an act implying money or gift giving that Bribery constitutes a
altered the behavior of the recipient, in this case Defendant Miller. crime and is defined by Black's Law Dictionary as:
"The offering, giving, receiving, or soliciting of any item of value to influence the actions of an official or other person in charge of a public or legal duty. The bribe is the gift bestowed to influence the recipient's conduct. It may be any money, good, right in action, property, preferment, privilege, emolument, object of value, advantage, or merely a promise or undertaking to induce or influence the action, vote, or influence of a person in an official or public capacity." 106. In addition, "preventing a party from getting evidence to defend against a
lawsuit" is also always considered extrinsic fraud and as such, "a wrongful act by the adverse party." This can be demonstrated by the unlawful search and seizure of Plaintiff's property by the plaintiffs in these three state court actions before Defendant Miller, which depriving Plaintiff of evidence defend against these lawsuits. - 31 Plaintiff's Opposition to Defendant Franz E. Miller's Motion to Dismiss
1 2 3 4 5 6 7 8 9 10
107.
In fact, one of the state court actions, the UDR Case, was filed thirteen (13)
67
days after evicting Plaintiff from her apartment,
seizing its entire contents, attempting to
extort $2,200.00 from Plaintiff to get the property back, and then selling Plaintiff's property to James Parsa
68
the namesake of the first state court action, Parsa Law Group v. Bad Biz
Finder, Erin Baldwin, et al.69 108. The Rooker-Feldman Doctrine cannot survive as an affirmative defense in the
70
face of fraud. In Exxon Mobil Corp. v. Saudi Basic Indus. Corp.,
The United States
Supreme Court decided that the Rooker-Feldman doctrine is separate and distinct from both preclusion and abstention doctrines; that "parallel litigation in both state and federal courts does not automatically trigger Rooker-Feldman, and that federal courts must give state court judgments preclusive effect under the Full Faith and Credit Act, 28 U.S.C. 1738."
11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
67
109.
In determining whether Rooker-Feldman bars a claim, courts must look to the
source of the injury that the plaintiff alleges in the federal complaint. If the source of the plaintiffs injury is the state court judgment itself, then the Rooker-Feldman doctrine bars the federal claim. On the other hand, if there is some other source of injury, such as a third partys actions, then the plaintiff asserts an independent claim. Such is the case with Plaintiff's Complaint. 110. Defendant Miller's MTD, Page 8, lns 6-13, states: Under the Rooker-Feldman Doctrine, [t]he United States District Court, as a court of original jurisdiction, has no authority to review the final determinations of a state court
Despite a stay of eviction pending a scheduled meeting promised by Kelli Beltran and Dwayne Roberts. Plaintiff spoke with Dwayne Roberts as she was being evicted and he did nothing to stop it. A few days later (after UDR seized Plaintiff's property) he called Plaintiff and told the meeting was cancelled due to the fact that no evidence of impropriety had been found in her case. Dwayne Roberts is now Courtroom Deputy to the judge assigned to this case, U.S. District Court Judge David O. Carter as well as to U.S. District Court Judge Josephine Tucker, who was assigned to evaluate Plaintiff's Motion to Disqualify Judge Carter. Both Judges Carter and Tucker had personal knowledge of disputed facts in Plaintiff's Section 1983 Case and should have immediately recused themselves from proceedings over Plaintiff's matters. 68 As communicated to Plaintiff through her Public Defender Martin F. Schwartz by James Parsa's attorneys, Eric J. Goodman and David A. Berstein on September 13, 2009. Minutes before appearing in the Parsa Law Group contempt hearing, Attorneys Goodman and Berstein offered to return Plaintiff's property if she would agree not to appear at the hearing minutes away and sign an agreement to cease blogging. Plaintiff's Public Defender failed to inform the court and demand Plaintiff's property from Parsa's attorneys. 69 Orange County Superior Court Case No. 30-2009-001177552; Judge Franz Miller, Presiding. 70 544 U.S. 280, 283-84 (2005).
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 115. 113. 111.
in judicial proceedings. Worldwide Church of God v. McNair, 805 F.2d. 888, 890 (9th Cir. 1986). The Rooker-Feldman Doctrine applies to the decisions of both the states highest court as well as the lower state courts. Id. at 893, n. 3. To the extent that plaintiff is seeking to have any final determinations made in the state court cases overturned, the Rooker-Feldman Doctrine applies. From Plaintiff's reading, the Ninth Circuit in Worldwide Church of God v.
McNair, held: "State courts have an obligation and the ability to uphold federal law; rejecting the argument that state judges will not be faithful to their constitutional responsibilities. [] Although the federal district court may not exercise appellate jurisdiction over the judgment of a state court, a district court does have jurisdiction over a "general" constitutional challenge that does not require review of a final state court decision in a particular case." 112. Defendant Miller's MTD, Page 8, lns 14-18, states: The purpose of the Doctrine is to protect state court judgments from collateral federal attack. Because district courts lack power to hear direct appeals from state court decisions, they must decline jurisdiction whenever they are in essence called upon to review the state court decision. Doe & Associates Law Offices v. Napolitano, 252 F.3d. 1026, 1029 (9th Cir. 2001). From Plaintiff's reading, the Ninth Circuit in Doe & Associates Law Offices v.
Napolitano, held: "Federal district courts do have jurisdiction over a "general constitutional challenge," i.e. one that does not require review of a final state court decision in a particular case." 114. Defendant Miller's MTD, Page 8, lns 19-22, states: The federal district court lacks the jurisdiction to review the state court determination even when the challenge to the state court decision involves federal constitutional issues. Branson v. Nott, 62 F.3d. 287, 291-292 (9th Cir. 1995); Worldwide Church of God v. McNair, 805 F.2d. 888, 890-891 (9th Cir. 1986). From Plaintiff's reading, the Ninth Circuit in Branson v. Nott, held: "A
complaint should be dismissed for failure to state a claim "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. [] To - 33 Plaintiff's Opposition to Defendant Franz E. Miller's Motion to Dismiss
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
warrant relief under 1983, the plaintiff must allege and show that the defendants' acts or omissions caused the deprivation of the plaintiff's constitutionally protected rights. [] A person deprives another of a constitutional right, within the meaning of section 1983, if he does an affirmative act, participates in another's affirmative acts, or omits to perform an act which he is legally required to do that causes the deprivation of which [the plaintiff complains] [] There must be an actual causal connection or link between the actions of each defendant and the deprivation alleged to have been suffered by the plaintiff." 116. Defendant Miller's MTD, Page 8, lns 23-28, states: Any time the federal claims are inextricably intertwined with the state courts decision, the District Court does not have jurisdiction. D.C. Court v. Feldman, supra, 460 U.S. at 483, n.16. Where the district court must hold that the state court was wrong in order to find in favor of the plaintiff, the issues presented to both courts are inextricably intertwined. (Citations.) Doe & Associates Law Offices v. Napolitano, supra, 252 F.3d. 1026, 1029 (9th Cir. 2001). 117. Again, in Doe & Associates Law Offices v. Napolitano, the Ninth Circuit held:
"Federal district courts do have jurisdiction over a "general constitutional challenge," i.e. one that does not require review of a final state court decision in a particular case." 118. Defendant Miller's MTD, Page 9, lns 1-4, states: In the present case, plaintiffs entire complaint is inextricably intertwined with the state court actions. Plaintiff is seeking to circumvent the decisions and rulings already made in the state court cases. However, the RookerFeldman Doctrine strictly forbids the relief which plaintiff seeks. 119. Plaintiff's Complaint does not "seek to circumvent the decisions and rulings
already made in the state court cases"; rather, seeks to demonstrate that the state court had no jurisdiction over Plaintiff with which it could exert its decisions and rulings. 24 25 26 27 28 120. Defendant Miller Claims The Court Lacks Subject Matter Jurisdiction Pursuant To The Abstention Doctrine Defendant Miller fails to state which Abstention Doctrine he is calling upon
in this affirmative defense. Certainly he must have one in mind due to the choice of words - 34 Plaintiff's Opposition to Defendant Franz E. Miller's Motion to Dismiss
1 2 3 4 5 6 7 8 9 10
the abstention doctrine. Since there are six different abstention doctrines, it is difficult to oppose any given doctrine on the merits. Therefore, until Defendant Miller defines the nature of this particular affirmative defense, Plaintiff will oppose all six. A summary of these six abstention doctrines follow: a. The Pullman Abstention Doctrine states: "The lower federal courts
should not adjudicate the constitutionality of state enactments fairly open to interpretation until the state courts have been afforded a reasonable opportunity to pass on them.
71
The state
court not only passed on the "constitutionality" of these cases, said constitutional issues were never a part of the equation. b. The Younger Abstention Doctrine states: The lower federal courts
cannot hear a civil rights tort claim brought by a person who is currently being prosecuted for 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 a matter arising from that claim in state court.
72
Plaintiff is not currently being prosecuted
for a matter arising from a claim in the state court as there is no District Attorney nor crime. The contempt cases were brought as civil contempt. c. The Burford Abstention Doctrine states: The lower federal courts
while sitting in diversity jurisdiction cannot hear a case where the state courts likely have greater expertise in a particularly complex area of state law.
73
There are no "complex areas
of state law" present in the state court cases; there is, however, federal questions to decide. d. The Thibodaux Abstention Doctrine states: The lower federal courts
while sitting in diversity jurisdiction chooses to allow a state to decide issues of state law that are of great public importance to that state, to the extent that a federal determination would infringe on state sovereignty.
74
There are no issues of "great public importance to the state"
in these cases; there are, however, significant federal constitutional issues at bar. e. The Colorado River Abstention Doctrine states: When parallel
litigation is being carried out, particularly where federal and state court proceedings are simultaneously being carried out to determine the rights of parties with respect to the same
71
See, Railroad Commission v. Pullman Co., 312 U.S. 496 (1941) and Huffman v. Pursue, Ltd., 420 U.S. 592, 43 L.Ed.2d 482, 95 S.Ct. 1200 (1975). 72 See, Younger v. Harris, 401 U.S. 37 (1971). 73 See, Burford v. Sun Oil Co., 319 U.S. 315 (1943). 74 See, Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25 (1959).
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
questions of law, it makes little sense for two courts to expend the time and effort to achieve a resolution of the question. f.
75
No parallel litigation exists in this situation.
The Rooker-Feldman Doctrine can also be considered an abstention
doctrine, because it prohibits federal court review of state court actions. However, it does not require federal courts to abstain from hearing cases pending action in the state court, but instead deems that federal courts lack jurisdiction to hear cases already fully decided in state courts. Both of the state court cases are still open; they have not been fully decided in state court. 121. Defendant Miller's MTD, Page 5, lns 9-14, states: A party may bring a motion to dismiss where there is a lack of jurisdiction over the subject matter. Fed. Rules of Civ. Proc., Rule 12(b)(1). As discussed more fully below, this court does not have subject matter jurisdiction to intercede in the state court actions or reverse any orders or judgments. Further, plaintiff cannot maintain an action against the state, a state agency or a state official pursuant to the Eleventh Amendment. 122. Plenty of jurisdiction exists at the federal level. It is in the state courts that no
jurisdiction ever existed. 123. Defendant Miller's MTD, Page 5, lns 17-20, states: It is the general rule that federal courts must abstain from granting injunctive or declaratory relief that would interfere with pending state judicial proceedings. Younger v. Harris, 401 U.S. 37, 40-41, 91 S.Ct. 746, 748, 27 L.Ed. 669, 673 (1971). 124. Plenty of jurisdiction exists at the federal level. It is in the state courts that no
jurisdiction ever existed. 125. Defendant Miller's MTD, Page 5, lns 20-25, states: "Absent 'extraordinary circumstances,' abstention in favor of state court proceedings is required if the state court proceedings: (1) are ongoing, (2) implicate important state interests, and (3) provide the plaintiff an adequate
75
See, Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976).
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 131. 130. 128. 126.
opportunity to litigate federal claims. Hirsh v. Justices of the Supreme Court of the State of California, 67 F.3d 708, 711 (9th Cir. 1995). Plenty of jurisdiction exists at the federal level. It is in the state courts that no
jurisdiction ever existed. 127. Defendant Miller's MTD, Page 5, lns 26-28 and Page 6, lns 1-2, states: In civil cases, abstention has been upheld where a party seeks to invoke federal jurisdiction for the purpose of Restraining state proceedings or invalidating a state law. See United States v. Adair, 723 F.2d 1394, 1402 n.5 (9th Cir. 1983). Thus, when abstention under Younger is appropriate, dismissal of the federal action is required. Plenty of jurisdiction exists at the federal level. It is in the state courts that no
jurisdiction ever existed. 129. Defendant Miller's MTD, Page 6, lns 3-11, states: In plaintiffs original complaint she specifically requested that this court disqualify Judge Miller from presiding over plaintiffs state court cases. Plaintiff also requested that this court issue an injunction in the state court cases. In the second amended complaint, plaintiff failed to include any prayer for relief. However, she has stated on the first page of the second amended complaint that she is seeking an injunction and declaratory relief. Thus, to the extent that plaintiff is requesting that this court intercede in the state court cases, this court is prevented from doing so pursuant to the Abstention Doctrine. As stated, supra, Plaintiff's Complaint does not "seek to circumvent the
decisions and rulings already made in the state court cases"; rather, seeks to demonstrate that the state court had no jurisdiction over Plaintiff with which it could exert its decisions and rulings. Defendant Miller Claims The Court Lacks Subject Matter Jurisdiction Pursuant To The Eleventh Amendment The Eleventh Amendment guarantees states and state agencies immunity in
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27
federal court. 76 a. However, as stated in 1, supra, Defendant Miller is sued in his
individual capacity as an adjunct professor of law at Whittier Law School. Accordingly, the Eleventh Amendment is not a relevant affirmative defense. b. Nevertheless, a government official is entitled to qualified immunity
unless his "act is so obviously wrong, in the light of preexisting law, that only a plainly incompetent officer or one who was knowingly violating the law would have done such a thing."
77
Again, Defendant Miller's acts were "so obviously wrong," that no immunity exists
for him in this case. 135. Defendant Miller's MTD, Page 7, lns 3-5, states: A suit against the Superior Court is a suit against the state and barred by the Eleventh Amendment. Greater Los Angeles Council on Deafness v. Zolin, 812 F.2d 1103, 1107 (9th Cir. 1987). 136. As stated by Defendant Miller, supra, Plaintiff's Complaint does not include the
Superior Court as a defendant. 137. Defendant Miller's MTD, Pages 1-2, fn 3, states: Plaintiff did not include the Superior Court in the instant second amended complaint. Therefore, the Superior Court is no longer a party to this action. 138. Nonetheless, it can be said that the "Superior Court" is a party to this action As in, when a judge
insofar as it is interchangeable with the term "Superior Court Judge."
refers to itself as "the court." Plaintiff acknowledges that Defendant Miller is a Superior Court Judge; however, due to Defendant Miller's lack of jurisdiction over Plaintiff, he is sued in his individual capacity to hold him personally liable. 139. Defendant Miller's MTD, Page 6, lns 13-17, states: The Eleventh Amendment to the United States Constitution states [t]he judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of
76
28
77
See, Edelman v. Jordan, 415 U.S. 651 (1974). See, Lassiter, 28 F.3d at 1149; Ensley v. Soper, 142 F.3d 1402, 1406 (11th Cir. 1998).
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 141. 140.
another state, or by citizens or subjects of any foreign state. Defendant Miller is sued in Plaintiff's Complaint as an adjunct professor of law
at Whittier Law School, not as a judicial officer. Defendant Miller Claims Plaintiffs Complaint Fails To State A Claim Upon Which Relief May Be Granted By stating this affirmative defense, Defendant Miller is attempting to respond
to the Complaint as to procedural flaws in the filing of the complaint only, to avoid responding to the merits of the case. This would be as expected considering the overwhelming evidence presented that indicates that Defendant Miller acted without any jurisdiction whatsoever and with reckless and callous disregard for, and deliberate indifference to, Plaintiff's constitutional rights. 142. A complaint may be dismissed under Rule 12(b)(6) for failure to state a claim if
the plaintiff fails to state a cognizable legal theory, or has not alleged sufficient facts to support a cognizable legal theory. Balistreri v. Pacifica Police Dept, 901 F.2d 696, 699 (9th Cir. 1990). That is clearly not the case here. 143. Under 28 U.S.C. 1915(e)(2)(B), a court shall dismiss any claims in a
complaint filed in forma pauperis if they are frivolous, malicious or fail to state a claim upon which relief can be granted. "Dismissal of a pro se complaint for failure to state a claim is proper only where it is obvious that the plaintiff cannot prevail on the facts he has alleged and it would be futile to give him an opportunity to amend." Perkins v. Kan. Dep't of Corr., 165 F.3d 803, 806 (10th Cir. 1999). For screening purposes, the Court "presumes all of plaintiff's factual allegations are true and construes them in the light most favorable to the plaintiff." Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991).
23 24 25 26 27 28
144.
Because Plaintiff is proceeding pro se the Court must construe her pleadings
liberally and hold them to a less stringent standard than formal pleadings drafted by lawyers. While Plaintiff need not describe every fact in specific detail, "conclusory allegations without supporting factual averments are insufficient to state a claim on which relief can be based." 145. To state a viable claim "the complaint must plead sufficient facts, taken as true, - 39 Plaintiff's Opposition to Defendant Franz E. Miller's Motion to Dismiss
1 2 3 4 5 6 7 8 9 10
to provide `plausible grounds' that discovery will reveal evidence to support the plaintiff's allegations."
78
"Factual allegations in a complaint must be enough to raise a right to relief
above the speculative level." 79 And, "the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for [his] claims." 80 146. The "requirement of plausibility serves not only to weed out claims that do not
(in the absence of additional allegations) have a reasonable prospect of success, but also to inform the defendants of the actual grounds of the claim against them." 147.
81
To successfully state a 1983 cause of action, Plaintiff must demonstrate that a
"person" acting under color of state law deprived her of a constitutionally protected right. At all times relevant to Plaintiff's Complaint, Defendant Miller was a "person" acting under color of state law, sued in his personal capacity as a professor of law at Whittier Law School, and in
11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
that capacity deprived Plaintiff of her constitutionally protected rights. 148. Defendant Miller's MTD, Page 9, lns 22-26, states: Plaintiff has not set forth actual facts to constitute any claim for relief against Judge Miller. Plaintiff simply does not like the judicial decisions and rulings of Judge Miller. There is no claim for relief which plaintiff could state against him based upon these facts. Therefore, plaintiffs complaint must be dismissed for failure to state a claim for which relief could be granted. 149. The statement, supra, is not only false, but ill-informed, and further
demonstrates Defendant Overton's lack of knowledge of the contents of Plaintiff's Section 1983 Complaint. 150. Plaintiff's Declaration set forth, infra, includes direct facts from Plaintiff's
Complaint to controvert Defendant Overton's statements, " Plaintiff has not set forth actual facts to constitute any claim for relief against Judge Miller" and "There is no claim for relief which plaintiff could state against him based upon these facts." 151.
78
Defendant Overton's statement, "Plaintiff simply does not like the judicial
Shero v. City of Grove, 510 F.3d 1196, 1200 (10th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974 (2007)). 79 Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008). 80 Ridge at Red Hawk, L.L. C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). 81 Robbins, 519 F.3d at 1248.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
decisions and rulings of Judge Miller," is sophomoric and trite and demonstrates a lack of legal training and sophistication necessary to formulate a cogent argument and a shortage of substantive facts at her disposal. 152. And finally, Defendant Overton, on behalf of Defendant Miller, has failed
utterly to make an argument to corroborate her statement: "Therefore, plaintiffs complaint must be dismissed for failure to state a claim for which relief could be granted." Dated: January 17, 2012 Respectfully submitted,
__________________________ Erin K. Baldwin Plaintiff, Pro Se
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4.
DECLARATION OF ERIN K. BALDWIN I, Erin K. Baldwin, declare as follows: 1. I am the Plaintiff in this action and a pro se litigant. It is not my choice to be a
pro se litigant, however, when one of your primary defendants is The State Bar of California, no attorney will represent you as they fear similar retaliation as I have experienced. I have requested effective assistance of counsel from this Court but all requests have been denied. 2. I have personal knowledge of the facts set forth herein and if called as a witness
to testify I could and would do so competently. 3. This Declaration, in large part, is to controvert a block of statements made in
Defendant Miller's Motion to Dismiss, to wit: "Plaintiff has not set forth actual facts to constitute any claim for relief against Judge Miller. Plaintiff simply does not like the judicial decisions and rulings of Judge Miller. There is no claim for relief which plaintiff could state against him based upon these facts. Therefore, plaintiffs complaint must be dismissed for failure to state a claim for which relief could be granted." In connection with the fact that Defendant Miller never had personal
jurisdiction over me and as a result, did not have subject-matter jurisdiction over me, I have no doubt that the above statements relied on the fact that I would never connect the dots between the facts and jurisdictional issues. 5. The balance of this Declaration will be a list of facts constituting my claims for
relief against Defendant Miller. Defendant Overton was correct when she stated: "Plaintiff simply does not like the judicial decisions and rulings of Judge Miller." I did not like them because they violated my constitutional rights; they robbed me of my property and liberty and many other things that people take for granted until they are taken away. And nobody has immunity for that. 6. Defendant Overton is wrong when she states: "There is no claim for relief
which plaintiff could state against him based upon these facts." There are and I will. Please see below.
1 2 3 4 5 6 7 8 9 10
7.
Defendant Miller is an individual "disguised as an honorable state official" that
worked in joint participation with many other individuals and public officials acting under color of state law to silence me from telling the truth and helping others avoid fraud and scams and tragedy and devastation. In so doing, he violated my constitutional rights. He misused his position of authority and power to such an extreme that he cannot enjoy immunity of any kind. 8. The non-judicial acts of Defendant Miller touched every element of my
Complaint beginning in January of 2009 through and including the present. When Defendant Miller took a bribe from The State Bar of California to enter a permanent injunction against me in the Parsa Case, he launched a chain of events that will quite possibly haunt me for the rest of my life. Facts Comprising Claims for Relief Against
11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9.
Defendant Miller for Which He Has No Immunity3. I have a First Amendment constitutional right to freedom of expression without
prior restraint. But for Defendant Miller's acts described in my Section 1983 Complaint, my constitutional right to same would not have been violated. 10. I have a First Amendment constitutional right to speak critically of the
government without prior restraint. But for Defendant Miller's acts described in my Section 1983 Complaint, my constitutional right to same would not have been violated. 11. I have a First Amendment constitutional right to publish anonymously. But for
Defendant Miller's acts described in my Section 1983 Complaint, my constitutional right to same would not have been violated. 12. I have a First Amendment constitutional right to protection from strategic
lawsuits against public participation. But for Defendant Miller's acts described in my Section 1983 Complaint, my constitutional right to same would not have been violated. 13. I have a First Amendment constitutional right to freedom of the press as a
journalistic publishing truthful articles and reports in a public forum about matters of public concern for the benefit of others. But for Defendant Miller's acts described in my Section 1983 Complaint, my constitutional right to same would not have been violated.
1 2 3 4 5 6 7 8 9 10
14.
I have a First Amendment constitutional right to be free from retaliation for
publishing truthful articles and reports in a public forum about matters of public concern for the benefit of others. But for Defendant Miller's acts described in my Section 1983 Complaint, my constitutional right to same would not have been violated. 15. I have a First Amendment constitutional right to petition the government for a But for Defendant Miller's acts described in my Section 1983
redress of grievances.
Complaint, my constitutional right to same would not have been violated. 16. I have a First Amendment constitutional right to peaceably assemble for the
purpose of petitioning the government for a redress of grievances. But for Defendant Miller's acts described in my Section 1983 Complaint, my constitutional right to same would not have been violated.
11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
17. situated.
I have a First Amendment constitutional right to associate with others similarly But for Defendant Miller's acts described in my Section 1983 Complaint, my
constitutional right to same would not have been violated. 18. I have a Fourth Amendment constitutional right to be secure in my person and
not subject to false arrest and imprisonment. But for Defendant Miller's acts described in my Section 1983 Complaint, my constitutional right to same would not have been violated. 19. I have a Fourth Amendment constitutional right to be secure in my house
person and not subject to false eviction and loss of the basic need for shelter. But for Defendant Miller's acts described in my Section 1983 Complaint, my constitutional right to same would not have been violated. 20. I have a Fourth Amendment constitutional right to be secure in my papers and
effects and not subject to the unlawful taking of evidence to incriminate me and prevent me from defending myself. But for Defendant Miller's acts described in my Section 1983
Complaint, my constitutional right to same would not have been violated. 21. I have a Fourth Amendment constitutional right to protection from
unreasonable searches and seizures. But for Defendant Miller's acts described in my Section 1983 Complaint, my constitutional right to same would not have been violated. 22. I have a Fourth Amendment constitutional right to only be subject to warrants - 44 Plaintiff's Opposition to Defendant Franz E. Miller's Motion to Dismiss
1 2 3 4 5 6 7 8 9 10
upon probable cause. But for Defendant Miller's acts described in my Section 1983 Complaint, my constitutional right to same would not have been violated. 23. I have a Fourth Amendment constitutional right to only be subject to warrants
supported by oath or affirmation. But for Defendant Miller's acts described in my Section 1983 Complaint, my constitutional right to same would not have been violated. 24. I have a Fourth Amendment constitutional right to only be subject to warrants But for
that describe the place to be searched and the persons or things to be seized.
Defendant Miller's acts described in my Section 1983 Complaint, my constitutional right to same would not have been violated. 25. I have a Fifth Amendment constitutional right to be protected against
prosecution for the same offense. But for Defendant Miller's acts described in my Section 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 45 Plaintiff's Opposition to Defendant Franz E. Miller's Motion to Dismiss
1983 Complaint, my constitutional right to same would not have been violated. 26. I have a Fifth Amendment constitutional right to be protected against being
compelled in any criminal case to be a witness against myself. But for Defendant Miller's acts described in my Section 1983 Complaint, my constitutional right to same would not have been violated. 27. I have a Fifth Amendment constitutional right to be protected against
deprivation of my liberty interests without due process of law. But for Defendant Miller's acts described in my Section 1983 Complaint, my constitutional right to same would not have been violated. 28. I have a Fifth Amendment constitutional right to be protected against
deprivation of my property interests without due process of law. But for Defendant Miller's acts described in my Section 1983 Complaint, my constitutional right to same would not have been violated. 29. I have a Fifth Amendment constitutional right to be protected against abuse of
government authority in a legal procedure. But for Defendant Miller's acts described in my Section 1983 Complaint, my constitutional right to same would not have been violated. 30. I have a Fifth Amendment constitutional right to be protected against the use of
evidence illegally obtained by law enforcement officers or in collusion with law enforcement
1 2 3 4 5 6 7 8 9 10
officers. But for Defendant Miller's acts described in my Section 1983 Complaint, my constitutional right to same would not have been violated. 31. I have a Fifth Amendment constitutional right to be protected against the use of
evidence illegally obtained by law enforcement officers or in collusion with law enforcement officers. But for Defendant Miller's acts described in my Section 1983 Complaint, my constitutional right to same would not have been violated. 32. I have a Sixth Amendment constitutional right to a speedy and public trial by an
impartial jury. But for Defendant Miller's acts described in my Section 1983 Complaint, my constitutional right to same would not have been violated. 33. I have a Sixth Amendment constitutional right to be informed of the nature and But for Defendant Miller's acts described in my Section 1983
cause of the accusation. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Complaint, my constitutional right to same would not have been violated. 34. I have a Sixth Amendment constitutional right to be confronted with the But for Defendant Miller's acts described in my Section 1983
witnesses against me.
Complaint, my constitutional right to same would not have been violated. 35. I have a Sixth Amendment constitutional right to have compulsory process for
obtaining witnesses in her favor. But for Defendant Miller's acts described in my Section 1983 Complaint, my constitutional right to same would not have been violated. 36. I have a Sixth Amendment constitutional right to effective assistance of counsel
for my defense. But for Defendant Miller's acts described in my Section 1983 Complaint, my constitutional right to same would not have been violated. 37. I have a Sixth Amendment constitutional right to be self-representing effective
assistance of counsel for my defense. But for Defendant Miller's acts described in my Section 1983 Complaint, my constitutional right to same would not have been violated. 38. I have a Eighth Amendment constitutional right to be protected against
excessive bail. But for Defendant Miller's acts described in my Section 1983 Complaint, my constitutional right to same would not have been violated. 39. I have a Eighth Amendment constitutional right to be protected against
excessive fines. But for Defendant Miller's acts described in my Section 1983 Complaint, my - 46 Plaintiff's Opposition to Defendant Franz E. Miller's Motion to Dismiss
1 2 3 4 5 6 7 8 9 10
constitutional right to same would not have been violated. 40. I have a Eighth Amendment constitutional right to be protected against cruel
and unusual punishment. But for Defendant Miller's acts described in my Section 1983 Complaint, my constitutional right to same would not have been violated. 41. I have a Fourteenth Amendment constitutional right to free from unlawful
intrusions of my liberty interests without due process of law. But for Defendant Miller's acts described in my Section 1983 Complaint, my constitutional right to same would not have been violated. 42. I have a Fourteenth Amendment constitutional right to free from unlawful
intrusions of my property interests without due process of law. But for Defendant Miller's acts described in my Section 1983 Complaint, my constitutional right to same would not have been 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 47 Plaintiff's Opposition to Defendant Franz E. Miller's Motion to Dismiss
violated. 43. law. I have a Fourteenth Amendment constitutional right to equal protection of the
But for Defendant Miller's acts described in my Section 1983 Complaint, my
constitutional right to same would not have been violated. 44. I have a Fourteenth Amendment constitutional right to a fair trial. But for
Defendant Miller's acts described in my Section 1983 Complaint, my constitutional right to same would not have been violated. 45. officer. I have a Fourteenth Amendment constitutional right to an impartial judicial
But for Defendant Miller's acts described in my Section 1983 Complaint, my
constitutional right to same would not have been violated. I declare under penalty of perjury under the laws of the state of California that the foregoing is true and correct. Executed on January 17, 2012, at Banning, California.
__________________________ Erin K. Baldwin, Declarant

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA, EASTERN DIVISION

-2Plaintiff's Opposition to Defendant Franz E. Miller's Motion to Dismiss

-4Plaintiff's Opposition to Defendant Franz E. Miller's Motion to Dismiss

In support of this Opposition, Plaintiff includes herein a Memorandum of

________________________________ Erin K. Baldwin Plaintiff, Pro Se

-5Plaintiff's Opposition to Defendant Franz E. Miller's Motion to Dismiss

Since Defendant Miller failed to establish personal and subject matter

Defendant Miller is not entitled to immunity for "non-judicial acts," and

will be held liable for damages, including punitive damages. f.

Defendant Miller brought this Motion to Dismiss with unclean hands.

-6Plaintiff's Opposition to Defendant Franz E. Miller's Motion to Dismiss

Defendant Miller issued over $700,000.00 in default judgments against

Plaintiff without jurisdiction to do so. h.

Defendant Miller violated Plaintiff's First Amendment rights to freedom

Since he had no jurisdiction, ab initio, Defendant Miller's acts were non-

-7Plaintiff's Opposition to Defendant Franz E. Miller's Motion to Dismiss

-8Plaintiff's Opposition to Defendant Franz E. Miller's Motion to Dismiss

-9Plaintiff's Opposition to Defendant Franz E. Miller's Motion to Dismiss

- 10 Plaintiff's Opposition to Defendant Franz E. Miller's Motion to Dismiss

- 11 Plaintiff's Opposition to Defendant Franz E. Miller's Motion to Dismiss

when he knowingly, recklessly and maliciously ordered a permanent

against Defendant Miller two weeks later on September 17,

- 12 Plaintiff's Opposition to Defendant Franz E. Miller's Motion to Dismiss

the express intent: a. To silence Plaintiff's truthful, fact-based and legally-substantiated

- 13 Plaintiff's Opposition to Defendant Franz E. Miller's Motion to Dismiss

The Ninth Circuit in Balistreri v. Pacifica Police Dept.,27 in ruling on a Motion

the Commission held:

- 14 Plaintiff's Opposition to Defendant Franz E. Miller's Motion to Dismiss

Throughout the 40 civil and criminal retaliatory actions against Plaintiff

reading than one drafted by a lawyer. " 39. 19 20 21 22 23 24 25 26

- 15 Plaintiff's Opposition to Defendant Franz E. Miller's Motion to Dismiss

- 16 Plaintiff's Opposition to Defendant Franz E. Miller's Motion to Dismiss

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 /// /// /// /// 49.

- 17 Plaintiff's Opposition to Defendant Franz E. Miller's Motion to Dismiss

and the First Amendment,

all persons use of the judicial process to redress alleged grievances.

For some reason, the

- 18 Plaintiff's Opposition to Defendant Franz E. Miller's Motion to Dismiss

directly affected the record on appeal. 11 12 13 14 15 16 17 18

She did so because she believed Plaintiff wouldn't

nor that in so doing, she violated Plaintiff's

and advisory opinions,

misrepresented attached documentary evidence,

ignored an entire statutory element,

- 19 Plaintiff's Opposition to Defendant Franz E. Miller's Motion to Dismiss

- 20 Plaintiff's Opposition to Defendant Franz E. Miller's Motion to Dismiss

- 21 Plaintiff's Opposition to Defendant Franz E. Miller's Motion to Dismiss

Defendant Miller's Motion to Dismiss, thereby avoiding altogether the unconstitutional

and Scheur v. Rhodes,

the U.S. Supreme Court

- 23 Plaintiff's Opposition to Defendant Franz E. Miller's Motion to Dismiss

so appointed by Governor Gray Davis in 2002. 75.

- 25 Plaintiff's Opposition to Defendant Franz E. Miller's Motion to Dismiss

Title 42 U.S.C. 1983 states:

435, US 247, 253 (1978). 313 U.S. 299, 326 (1941).

- 27 Plaintiff's Opposition to Defendant Franz E. Miller's Motion to Dismiss

- 28 Plaintiff's Opposition to Defendant Franz E. Miller's Motion to Dismiss

aside judgments on grounds of fraud, mistake, or lack of jurisdiction; 61 and

- 29 Plaintiff's Opposition to Defendant Franz E. Miller's Motion to Dismiss

a more recent Sixth

- 30 Plaintiff's Opposition to Defendant Franz E. Miller's Motion to Dismiss

Judge Carter completely ignored the relevant section of Plaintiff's pleadings,