Case3:13-cv-01295-JSW Document1 Filed03/22/13 Page1 of 55

••� ,c•,

1 Arch Cunningham
State Bar 210625
2 1489 McAllister St.
San Francisco, CA 94 1 1 5
3 [email protected]
(4 1 5) 563- 1828
4
Attorney for Plaintiffs
5

8
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9
UNITED STATES DISTRICT COURT
California Judicial Branch News Service cjbns.org

10 FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO/OAKLAND DIVISION
11

� cGc No. 13 l 295

ONALD PIERCE, KERRY HICKS, )
13 ANDREW KARRES, MICHELE FOTINOS, ) COMPLAINT FOR INJUNCTIVE AND
AMIL HIRAMENK, LISA HUNT-NOCERA,) DECLARATORY RELIEF UNDER 42
14 NICOLE ANN RAY, ARCHIBALD ) U.S.C. §1983; ATTORNEY FEES UNDER
CUNNINGHAM, RICHARD RIFKIN, et. al. ) 42 U.S.C. §1988
15 )
)
16 Plaintiffs, ) CLASS ACTION
)
17 v. )
) DEMAND FOR JURY TRIAL
18 )
CALIFORNIA CHIEF JUSTICE CANTIL- ) .
19 SAKAUYE, Chair o f Judicial Council, and )
MR. STEVEN JAHR, the Administrative )
20 Director of the Administrative Office of the )
Courts. )
21 )
)
22 )
Defendants, and DOES 1 through )
23 1 0.
)
24 )
)
25 )
)
26 )

27

28

Class Action Complaint for Injunctive and Declaratory Relief- PAGE I

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TABLE OF CONTENTS

I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 2
II. JURISDICTION . . . . . . . . .. . . . . . . . .. . . . . .. . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . .. . . . . . . . . 3
III. VENUE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 4
IV. INTRADISTRICT ASSIGNMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... 4
V. PARTIES . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . .. . . 4
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Plaintiffs 4
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...
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Kerry Hicks 4
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...

Ron Pierce ................................................................... 5

.

Andrew Karres . . . . . .. . . . . . . . .. . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Michele Fotinos . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .... 6
Adil Hiramenk . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . .. . . . . . . . . . . .. . . . . .. 7
Lisa Hunt-Nocera . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Nicole Ann Ray . . . . . . . . . . . . . . . . . . . . .. . .. . . . . . . . . . . . . . . . . .. . . . . . . � ..... ........ 8
Archibald Cunningham . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... 8
Richard Rifkin ................................................................. 9

VI. STATUTORY AND REGULATORY FRAMEWORK.......................... 10

VII. FACTUAL ALLEGATIONS ......................................................... 19
Facts Related to Kerry Hicks, Parent H......................................... 19
Facts Related to Ron Pierce, Parent P............................................21
Facts related to Andrew Karres, Parent K...................................... 22
Facts related to Michele Fotinos/Parent F................................................... 22
Facts Related to Adil Hiramanek/Parent AH.................................. 23
Facts Related to Lisa Hunt-Nocero/Parent N.................................. 24
Facts Related to Nicole Ann Ray/Parent R..................................... 25
Facts Related to Archibald Cunningham/Parent C........................... 25
Facts Related to Richard Rifkin, Parent RR....................................25
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VIII. CLASS DEFINITION AND ALLEGATIONS ......... . . . . . . . . . . . .. . . . . . . . . . . . 26

IX. LEGAL CLAIMS . . .... . ......... . ..... . ...
. . . . . . .. . . . . . . . .. . ... . . . . . . . ... . . . . . . . . . . . . 27
. .

FIRST CLAIM FOR RELIEF . . . . . ... . . . . . . . . . . . . . . . . 27

...... .... .. ............. ..

Claim under 42 U.S.C. §1983, Deprivation of Federal Constitution Rights­

The Vexatious Litigant Statutes As Applied Violates the Equal Protection
Clause of the 14th Amendment

SECOND CLAIM FOR RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . 32 . .. ..... ........ . . . ..

Claim under 42 U.S.C. §1983, Deprivation of Federal Constitution Rights

Violation of 14th Amendment's Due Process Clause and 1st Amendment Right
to Petition
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. . .. . . . . . . . . . . . . . .. . . . . . . . . . .
California Judicial Branch News Service cjbns.org

THIRD CLAIM FOR RELIEF ..... . . . 35 . .. . . ..... ..

Claim under 42 U.S.C. §1983, Deprivation of Federal Constitution Rights­

Violation of 14th Amendment's Due Process Clause (Imposition of VLS To
Custody Cases On Its Face and As Applied Is Unconstitutionally
Vague and Overbroad ).

FOURTH CLAIM FOR RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Claim under 42 U.S.C. §1983, Deprivatiol\of Federal Constitution Rights­
The Vexatious Litigant Statutes As Appli'f, Here Creates a Prior Restraint
in Violation of the 1st Amendment Right to Petition

FIFTH CLAIM FOR RELIEF ...................... . .. .

. . . . . . . . .. .. .... . . . . . .. 44
Unwritten Rules and Procedures Implementing Preftling Orders
Violates Due Process Clause of 14th Amendment

SIXTH CLAIM FOR RELIEF.................................................48

Claim under 42 U.S.C. §1983, Deprivation of Federal Constitution Rights­
The VLS Functions as an Improper Bill of Attainder

SEVENTH CLAIM FOR RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..

. 50 . . . . ...

Claim under 42 U.S.C. §1983, Deprivation of Federal Constitution Rights­

The VLS Functions as an Improper Ex Post Law

X. REQUEST FOR RELIEF ...................................... . . . .. . . . . . . ... . . . . . . 53

..

DEMAND FOR JURY TRIAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

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I. INTRODUCTION
1
1. Plaintiffs, who are parents in on-going custody disputes, bring this class action against
2
Chief Justice Cantil-Sak:auye and the Judicial Council in the hope of overturning California's
3
Vexatious Litigant Statute (VLS) as it applies to family law litigants, particularly parents caught
4 in protracted custody battles. The Plaintiffs challenge the constitutionality of the VLS as it is
5 applied in the context of family law custody proceedings. The Plaintiffs assert that the VLS on

6 its face and as applied infringes on their fundamental custody rights.1

2. The Plaintiffs understand the state's need to manage its docket, preserve scare judicial
7
resources, and to curb meritless cases. The Plaintiffs do not doubt that the state has rational and
8
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very urgent reasons to curtail a civil litigant's access to the judicial process when such a litigant
9
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is filing frivolous or vexatious claims.2 They recognize that state courts have found that civil
10 litigants' general right to petition grievances under the First Amendment does not entitle them to
11 "clog the court system and impair everyone else's right to seek justice."3 However, at the same

12 time, the Plaintiffs know from their own unfortunate experiences as family law litigants, and as
"parents," that the state's "unclogging its court docket" rationale for curtailing, restricting, or
13
denying them access to family law courts is not rationale and certainly not compelling.4
14
3. Unlike civil litigants, the Plaintiffs here are parents in custody disputes, at least half of
15
whom had no choice in being dragged into family law court once "dissolution" pleadings were
16 filed against them. These parents have absolutely no choice in where to resolve their custody
17 disputes. The family law courts are the "only forum" that the state of California has provided for

18 these parents to resolve their custody dispute.5 Yet the state Legislature treats civil litigants the

19 same as family law litigants for purposes of the VLS. While the imposition of the VLS affects
civil litigants right to petition under the First Amendment, family law litigants suffer a double
20
1 Santosky v. Kramer (1982) 455 U.S. 745; Stanley v. Hlinois (1972) 405 U.S.645, 65 1 ; "A parent's interest in the
21 companionship, care, custody and management of his or her children rises to a constitutionally secured right, given
the centrality of family life as the focus of personal meaning and responsibility.")
22 2 "The constant suer for himself becomes a serious problem to others than the defendant he dogs. By clogging court
calendars, he causes real detriment to those who have legitimate controversies to be determined and to the taxpayers
23 who must provide the courts." (Taliaferro v. Hoogs ( 1965) 237 Cal. App. 2d 73, 74.)
3 Wolfgram v. Wells Fargo Bank (1 993) 53 Cal. App. 4th 43, 56.
24 4 Lammers v. Superior Court (2000) 83 Cal.App.4th 1 309, 1 325: "[W]hen an enactment broadly and directly

impinges upon the fundamental constitutional rights of a substantial portion of those individuals to whom it applies,
25 it can be upheld only if, considering its general and normal application, its compelling justifications outweigh its
impingement upon constitutional rights and cannot be accomplished by less intrusive means."
26 5 *See, Boddie v. Connecticut (1971) 40 1 U.S. 371, 376-377: "Thus, although they assert here due process rights a
would-be plaintiffs, we think appellants' plight, because resort to the state courts is the only avenue to dissolution o
27 their marriages, is akin to that of defendants faced with exclusion from the only forum effectively empowered t
settle their disputes. Resort to the judicial process by these plaintiffs is no more voluntary in a realistic sense tha
that of the defendant called upon to defend his interests in court."

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blow. Not only is their procedural due process right to petition affected, but their substantive due
1
process rights related to custody are undermined. In the same way, the state's justification for
2
imposing the VLS on parents in custody disputes is doubly unjustified. 6
3
4. In extreme but not uncommon situations, some Plaintiffs here have been denied access
4 to family law courts after their parental rights have been severely curtailed by family law judges.
5 (*See, Factual Allegations). In one case, a family law judge imposed a 50 year restraining order

6 on a father. (*See, Factual Allegations, Parent AH). In the restraining order, the father is denied
all contact not only with his ex-spouse, but his three minor children until "midnight" in the year
7
2062. In another case, a father has been denied access to the family law courts to challenge an
8
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order terminating his parental right, though the father asserts the termination order was obtained
9
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by fraud. (*See, Factual Allegations, Parent C). In short, the imposition of the VLS on these
10 parents in custody disputes ha� caused and continues to cause irreparable harm. Some of these
11 parents have not seen their children of period of up to three years and others only for token visits.

12 (*See Factual Allegations, Parent H). There is no amount of money that can compensated them
for the years lost as parents. The wisdom of threatening to sever a child in two was demonstrated
13
by King Solomon. These cases, on the other hand, which severed the parent-child relationship
14
can be characterized by the absence of wisdom, an abundance of vitriol, and a failure of the
15
family law courts in the state of California.
16 II. JURISDICTION
17 5. This is an action for declaratory and injunctive relief for violation of the Due Process

18 Clause and Equal Protection Clause of the Fourteenth Amendment as well as violation of the
right to petition grievances under First Amendment. These civil rights violations are brought
19
under the 42 U.S.C. §1983.
20
6. Jurisdiction is based on 28 U.S.C §1331, §1332, and §1343 for a violation of 42 U.S.C.
21
§1983. At all times relevant to this action, Defendants have acted under color of state law. The
22 Court has Supplemental Jurisdiction over Plaintiffs' state claim pursuant to 28 U.S.C. §1367 and
23 California Government Code Section §11135 .

24 III. VENUE

25 7. Venue is proper in Northern District of California pursuant to 28 U.S.C. §1391(b)

6 Elkins v. Sup. Ct (2007) 41 Cal. 4th 1337, 1353: In other words, court congestion and 'the press of business' will
26 not justify depriving parties of fundamental rights and a full and fair opportunity to present all competent and
material evidence relevant to the matter to be adjudicated."; Boddie v. Connecticut (1971) 401 U.S. 371:
27 "We are thus left to evaluate the State's asserted interest in its fee and cost requirements as a mechanism of resource
allocation or cost recoupment. Such a justification was offered and rejected in Griffin v. Illinois, 351 U. S. 12
(1956)."

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because Defendants operate and perform their officials duties therein and thus reside therein for
1
purposes of venue, and because some of the events and omissions giving rise to the claims herein
2
occur in counties that are part of the Northern District of California.
3
IV. INTRADISTRICT ASSIGNMENT
4 8. Pursuant to Civil Local Rule 3-2(c) this action should be assigned to the San Francisco
5 or Oakland Division of the Northern District of California, because a substantial part of the

6 events and omissions giving rise to the claims herein occur in counties in the Northern District o
California.
7
V. PARTIES
8
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Plaintiffs
9
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Kerry Hicks.
10 9. Kerry Hicks is a 42 year old mother who has two minor children, 7 and 1 0 years old.
11 She lives in Ventura, California. She filed for the dissolution of her marriage to Jerry Hicks on

12 October 2, 2007. (D3236 1 6). Initially, she was granted legal and physical custody. However, on
April 30, 2008, at a hearing on a DVPA action, a visitation action and a vexatious litigant action,
13
the custody orders were reversed. Ms. Hicks was ordered to take supervised visitation at the Tri­ )
14
1
County Family Services.
15
1 0. At a July 1 0, 2008 hearing, the family law judge7 terminated Ms. Hick's parental
16 rights, ruling that she posed a danger to her children. Although Ms. Hicks had never been
17 screened for substance abuse or psychologically evaluated, the family law judge relied on the

18 live testimony of the "Executive Director" (Ms. Gloria Gonzales) of the Tri-County Executive

19 who noted that Ms. Hicks acted "inappropriately'' at the four supervised visits by bringing too
many gifts and candy and appearing anxious, nervous, and distracted. (Request for Judicial
20
Notice, RJN, Exhibit A, pg. 4-26). Ms. Gonzales testified that she believed that Ms. Hick's
21
conduct was a "red flag" for substance abuse or mental illness. 8 (pg. 1 0). In her report, she
22 recommended both the "termination of supervised visits" and that "mom be evaluated and have
23 random drug testing. (pg. 26). The judge agreed and ordered Ms. Hicks into the "Quick Start"9

24 program for evaluation as a condition precedent to regaining her custody rights.

25 1 1 . At the July 1 0, 2008 hearing, the judge also concluded that Ms. Hicks was a
"vexatious litigant," apparently on the basis of her filing several ex parte motions and the
26
7 Commissioner Gay Conroy.
27 8 Ms. Gonzales testified she had a "degree in criminal justice" from "California Poly San Luis Obispo." (pg. 5).
9 Quick Start was a program for "criminal" defendants as opposed to parents "suspected" of having substance abuse
issues.

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testimony of the opposing counsel who stated that Ms. Hicks was "like a post child for vexatious
1
litigants." (pg. 1 62). At the hearing, Ms. Hicks was self-represented.
2
1 2. On July 1 7, 2008, a week after she was ordered by the judge to be evaluated by the
3
Quick Start program at the Ventura County Superior Court, Ms. Hick was screened. The results
4 showed no evidence of drug use in the last 1 2 months. The results noted that Ms. Hicks was
5 taking a prescription drug for "anxiety" and conj ectured" that her "anxiety" was "possibly

6 reactive to custody/divorce issues." (RJN, Exhibit B).

1 3 . Ms. Hicks has not seen her children in over four years and has been denied access to
7
the family law courts by the "prefiling order" of the VLS.
8
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Ron Pierce
9
California Judicial Branch News Service cjbns.org

14. Ron Pierce is a father of three children, ages 1 6, 1 3, and 8. Before his dissolution
10 proceeding upended his life, he worked as an engineering assistance for the local government.
11 While at work he sustained injuries and he filed a workers compensation claim. His claim is

12 pending and he's seeking disability. He is homeless but is regularly provided shelter.by family
and friend.
13

14 1 5. On January 30, 2008, Ron Pierce filed for dissolution of his marriage with Nadira

15 Arreola. On March 3, 2008, the family court granted physical custody to Nadira Arreola. At that

16 time, Mr. Pierce had visitation of two and a half hours on Thursday nights and ten hours on

17 Saturday. In October of 2008, the court ordered that his visitation was to take place with the

18 court's contracted local, private non-profit, Family Services Tulare County. On April 23, 2009,

19 he was stripped of all visitation on the basis of reports made by the office manager for Family

20 Services. A year later, in April 201 0, after a domestic violence charge against Mr. Pierce was

21 dismissed, the family law court provided him visitation on every 1 si, 3 rd , and 5th Saturday night.
16. On December 2 1 , 201 1 , the Court of Appeals for the Fifth Circuit sent Mr. Pierce a
22
''Notice of Hearing to Determine Vexatious Litigant and Enter a Prefiling Order" and ordered
23
him to appear in less than four weeks to a hearing on January 2 1 , 2012. (RJN, Exhibit q. The
24 Court of Appeals initiated the §39 1 . 1 motion "on its own" even though Mr. Pierce had no
25 appeals pending. After argument on January 1 7, 201 2, the Court of Appeals "declared" Mr.

26 Pierce "vexation" in an ''unpublished opinion" ofJanuary 1 9, 2012.

27 Andrew Karres
1 7. On October 1 , 2001 , Katina Rapton filed to dissolve her marriage with Andrew

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Karres in the Superior Court of Sacramento. (01 FL068 1 3). In the ensuing twelve years, Mr.
1
Karres has been in a protracted custody dispute with Ms. Rapton over their 14 year old daughter.
2
1 8. In his November 1 2, 2012 statement of decision, the family law judge noted that this
3
custody dispute has "consumed volumes of motions related to custody, child tra vel, and child
4 custody. " (RJN, Exhibit G, pg. 7, paragraph 6). He notes that there have been "successive"
5 attorneys for both side, "successive evaluators submitting numerous reports," and "various

6 judicial officers." In his 20 page decision, the family law judge's disdain toward Mr. Karres is
palpable, characterizing him as a "martyr of injustice" who "vocalized his antipathy forjudicial
7
orders."10 (Exhibit G, pg. 1 6, fn 57). Mr. Karres is not only "repeatedly" denied a "50/50 shared
8
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custody'' but sanctioned $2500. He has since appealed. (C072936).

9
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1 9. On November 14, 201 2, the family law judge "vacated" the vexatious litigant hearing
10 called for under Code of Civil Procedure §391 .2. (RJN, Exhibit H). In the transcript, it is noted
11 that the hearing is vacated. (RJN, Exhibit I). In his November 1 2, 201 2 statement of decision, he

12 summarily finds that Mr. Karres is "vexatious" under §39 1 (a)(1 &3) for his actions in the last " 1 7
months."
13
Michele Fotinos
14
20. Michele Fotinos is a mother age 5 1 years old. She ias married to John Fotinos on
15
January 24, 1 996. He filed for dissolution on May 20, 2003 at the San Mateo Superior Court,
16 case number F07 5 1 39. They have two children, a daughter, R. F. now 1 6, born July 1 1 , 1 996,
17 and a son, A.F. , now 1 4, born September 8, 1 998.

18 21 . At the time of the dissolution, John Fotinos was granted sole physical and joint legal

19 custody of the children, which has resulted in an ongoing custody dispute since that time and
charges that Mr. Fotinos filed misleading affidavits. (The district attorney has brought perjury
20
charges against Mr. Fotinos; *See People v. Fotinos, Case No. SC74375).
21
22. On November 1 1 , 2012, in a probate proceeding involving her mother, Ms. Fotinos as
22 well as her attorney were declared vexatious litigant. (RJN, Exhibit J). The probate judge ruled
23
10
The judge faults Mr. Karres for expressing his view of Judge Peter McBrien's order but the judge fails to note that
24
Judge McBrien was censured twice by the CJP. (*See, http:// www.metnews.com/articles/20 1 0/mcbr0 10610.htrn.)
He was "severally censured" for walking out of a family law trial, an act the Court of Appeal described as "unusual"
25
and "perhaps unprecedented." (In Re Carlsson (2008) 1 63 Cal. App. 4t11 28 1). Also, the judge fails to mention that
the lawyer in that case, Sharon Huddle, is now Mr. Karres' attorney. Finally, the judge fails to mention that, after
26 being censured, Judge McBrien was elevated to "presiding judge" of the Sacrament Family Law Division. In view
of this, it seems his eagerness to dump everything on Mr. Karres is not only suspect but self-serving. By elevating
27 Judge McBrien to presiding judge, one is reminded of that old adage about the "lunatics running the asylum."

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that the "vexatious litigant" order would extend to the family law proceedings and any pleadings
1
she would file that. The judge also ruled that the "vexatious litigant" statute would apply to Ms.
2
Fotinos attorney and her attorney would be required to obtain "permission" before filing any new
3
pleadings in family court.
4 Adil Hiramenk.
5 23. Adil Hiramenk is a 52 year old father of three children, a 1 2 year-old and twins who

6 are 1 0 years old. He resides in San Jose, California. On April 5, 2009, , Kamal Hiramenk, the
mother and spouse, filed for the dissolution of the marriage in the Superior Court of Santa Clara
7
County. ( 1 -09-FL- 1 49682). The parents have been in a custody dispute since then. On October
8
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1 8, 201 0, Adil lost all his custody/visitation rights for a "one year period" when the family law
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judge issued a "no contact" and "stay away'' order against him and the children, effective until
10 2062. (RJN, Exhibit L). He did not see his children for a 1 8 month period and then only has
11 supervised visitation.

12 24. On March 22, 201 0, the family law judge sent Mr. Hiramenk a pleading entitled
''Notice of Court's Own Motion and Motion to Subject Adil Hiramenk to a Prefiling Order as a
13
Vexatious Litigant." (RJN, Exhibit x). The judge set a hearing for a month later on April 22,
14
201 0. After the hearing, on June 2, 201 0, the judge filed an order imposing a "prefiling order" on
15
Mr. Hiramenk. (RJN, Exhibit x).
16 Lisa Hunt-Nocera.
17 25. Lisa Hunt-Nocera and the father of their child, John Marsh, have been in a protracted

18 custody dispute that started several years after their daughter was born on April 1 8, 2000. The

19 parents were never married, they never lived together, and they never accumulated community
property. The paternity case is filed in the Superior Court of Riverside County. (TED 006074).
20
After years of legal wrangling, Ms. Hunt's parental rights were terminated on March 1 3 , 2007.
21
She has not had contact with her daughter since then and has been denied access under the
22 Vexatious Litigant Statute.
23 26. At a hearing on March 4, 201 0 in the Superior Court of Riverside County, the trial
24 judge, who had just only been assigned to the case for several weeks, ordered the parents into

25 "mediation" on the custody/visitation. The trial judge then declared Ms. Hunt a "vexatious
litigant." (RJN, Exhibit 0). Ms. Hunt had no contact with her daughter for over three years. In
26
201 0 Ms. Hunt received once a month visitation with her daughter and no summer vacation time
27
and no holidays and till this day still does not have any legal or physical custody, and is routinely

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denied"permission" to file.(R JN Exhibit P).

1
Nicole Ann Rav
2
27. On January 28, 2008, Darren Hancock filed to dissolve his marriage with Nicole Ann
3
Ray in the Superior Court of Sacramento County. (08FL00640). On April 24, 2008, the family
4 law court stripped Ms. Ray of any visitation rights with her three daughters, age 1 6, 1 4, and 1 0.
5 This order was upheld by Judge Matthew J. Gary on April 24, 201 2. She gets supervised visits at

6 $25 an hour with the non-profit hired by the Superior Court of Sacramento. Although she has
alleged she has complied with court-mandated request for therapy, she has been denied all access
7
to the family law courts under the VLS to challenge the visitation ruling and regain custody.
8
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28. On April 14, 201 1 , the attorney for Mr. Hancock filed an OSC to have the indigent
9
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and self-represented Ms. Ray declared a vexatious litigant. (RJN, Exhibit Q). The family law
10 judge, in his minute order of June 2 1 , 20 1 1 (RJN, Exhibit R), ruled that Ms. Ray was
11 "vexatious" for renouncing a "stipulation" she signed in which she had agreed to "therapy" as a

12 condition to restoring visitation. Her request for "permission" to file any challenge to the
stipulation or to have the "vexatious" label lifted have been denied. (RJN, Exhibit S).
13
Archibald Cuhningham
14
29. Archibald 'tunningham lost his 50/50 shared custody agreement in a May 2, 2007
15
"trial by declaration." At a February 26, 201 0 hearing, he was stripped of all his visitation rights
16 for renouncing the custody order from that trial as ''void." (RJN, Exhibit T). Since February 26,
17 20 1 0 until January 22, 201 2, Mr. Cunningham and his attorneys were denied all access to the

18 family law court to request "emergency visitation." (RJN Exhibit U). On May 25, 201 2, the

19 family law judge denied him a hearing under the new "Case Resolution Program" and stated that
the termination order was "final." (RJN, Exhibit JI).
20
30.At a February 23, 2009 hearing, the "newly appointed" family law judge conducted a
21
"vexatious litigant" action brought by a "nonparty'' against Mr. Cunningham despite the fact that
22 he had plead the 5t11 Amendment in an ongoing contempt case. (RJN, Exhibit W). Mr.
23 Cunningham was not at that hearing and only learned of it later. The newly-appointed judge

24 either ignored or did not know of the priority of scheduling given to the "contempt case" but he

25 pushed this action before the other actions, including another vexatious litigant action brought by
the attorney for the ex-spouse. The second 'vexatious litigant" action against Mr. Cunningham,
26
on the same grounds and by the same parties, was heard February 26, 201 0. He was sanctioned
27
$23,000 at the first hearing and $32,000 at the next. (RJN, Exhibit X).

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Richard Rifkin
1
3 1 . Mr. Rifkin filed for dissolution of his marriage to Kimberly Carty in Marin County
2
but the case was transferred to San Francisco Superior Court. In a September 1 4, 201 2 "Case
3
Resolution Order #8," the family law judge stated that it was ''undisputed" that Mr. Rifkin has
4 "throat cancer," but the judge dismissed Mr. Rifkin's contention that the issuance of the CLETS
5 restraining order prevented him from obtaining a real estate license. The judge questioned his

6 unemployment, found the source of his income "ambiguous," and then "imputed" monthly
income of $4330. The judge granted the Ms. Carty "move-away'' request to Los Angeles and
7
order Mr. Rifkin to pay $563 in child support. (RJN, Exhibit Y).
8
Socionomic Justice Institute socioeconomicinstitute.com

32. On August 23, 201 2, Mr. Rifkin appeared with his attorney to challenge Ms. Carty's
9
California Judicial Branch News Service cjbns.org

"move-away" request and her "vexatious litigant" motion. At that hearing, Mr. Rifkin was
10 represented by an attorney.
11 Defendants

12 33. Defendant California Judicial Council is a state agency that is responsible for the
improvement of the administration ofjustice, including surveying judicial activities, making
13
recommendations to the Governor and Legislature, and adopting rules for court administration,
14
practice and procedure that are consistent with both statutes and constitutional mandates. 11 The
15
Judicial Council is also responsible for creating the various forms used in the state courts,
16 including the MC-700-704 forms used by ''vexatious litigants" (and the parents in this case) to
17 try to lift the "vexatious" branding. 12

18 34. Defendant Chief Justice Cantil-Sakauye is the Director of the Judicial Council, the

19 state agency responsible for assuring that the law, statutes, and court rules and procedures are
consistent with constitutional guarantees. Defendant Chief Justice Cantil-Sakauye is a public
20
agency director responsible for a public entity, pursuant to 42 U.S.C. § 1 2 1 3 1 (1 )(A) & (B).
21
Defendant Chief Justice Cantil-Sakauye is sued in her official and administrative capacity.
22
35. Defendant Judge Steven Jahr, the Administrative Director of the Courts, "is
23 Administrative Director of the Courts is accountable to the council and the Chief Justice for the
24 performance of the Administrative Office of the Courts. The Administrative Director's charge is

25 "to accomplish the council's goals and priorities." 13 His various duties, including carrying out
the goals of the Judicial Council, are to interpret policies, allocate financial resources to achieve
26

27 11
*See, Cal. Const. Art 6, section 6(d).
12
*See, Gov. Code 685 1 1 .
13 http:// www.courts.ca.gov/policyadmin-aoc.htm

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goals, to accomplish the goals, and provide reports regarding "progress toward achieving these
1
goals." (*See Rule 1 0.80. Administrative Director of the Courts.) 14 He is sued in his official and
2
administrative capacity.
3
VI. STATUTORY AND REGULATORY FRAMEWORK
4 36. The Vexatious Litigant Statute (VLS), since its enactment in 1 963 (Stats. 1 963, ch. ·

5 147 1 , § 1 , p. 3038), has expanded its reach both by amendments from the California Legislature

6 and by "broad readings" of the VLS by various appellate courts. As applied in its current form, a
"moving defendant" in a civil case can move the court for an order requiring the "plaintiff' to
7
furnish security. (§39 1 . 1 ) . 15 The statute contemplates a hearing with the right to call witness and
8
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provide evidence. (§391 .2). In 1 990, the Legislature broadened the scope of the VLS by adding
9
California Judicial Branch News Service cjbns.org

section 39 1 .7 (Stats. 1 990, ch. 62 1 , §§ 1 -3), which provided that once a litigant had been found
10 "vexatious," the court, "on it own motion or the motion of any party," is authorized to impose
11 ''prefiling orders" on self-represented vexatious litigants trying to file "new litigation." (Stats.

12 1 990, ch. 62 1 , § 3, pp. 3072-3073). Before being allowed to file "new litigation," the vexatious
litigant, acting "in propria persona," first has to get the "permission" of the court. (§39 1 . 7(a)).
13
� The 1 990 amendment also expanded the definition of "plaintiffs" under the VLS to include "an
.
·#
14
attorney at law acting in propria persona."
15
37. In 1 998, the first significant judicial expansion of the VLS occurred in the case of
16 McColm v. Westwood Park Assn. (1 998) 62 Cal. App. 4th 1 2 1 1 . In McColm, the Court of
17 Appeals for the First District expanded the type oflitigation that could be counted as "vexatious"

18 under section 391 . l (a-d) to include writs, appeals, and petitions, supra 1 2 19-1220:

19 "Litigation" for purposes of vexatious litigant requirements encompasses civil trials and
special proceedings, but it is broader than that. It includes proceedings initiated in the
20 Courts of Appeal by notice of appeal or by writ petitions other than habeas corpus or
other criminal matters.
21

22 As a result, self-represented vexatious litigants at the trial level as well as in appellate courts

23 must obtain the "presiding judge's" permission before being allowed to file. 16 Another significan
expansion of the reach of the VLS occurred in the case of Camerado Insurance Agency, Inc. v.
24

25 14http:// www.courts.ca.gov/cms/rules/index.cfm?title=ten&linkid=rulel 0_80

15 CCP §391.1: " . . . .The motion must be based upon the ground, and supported by a showing, that the plaintiff is a
26
vexatious litigant and that there is not a reasonable probability that he will prevail in the litigation against the
moving defendant."
27
16
r\ O
The Judicial Council has created MC-70 1 , a form that allows "vexatious litigants" to request permission to file
new litigation.(*See, http://www.courts.ca.gov/documents/mc70 1 .pdf). The court of appeals have their own forms.

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Superior Court (1 993) 1 2 Cal. App. 4t11 838. In its broad reading of the VLS, the Court of
1
Appeals for the Fourth District in Camerado viewed the 1 990 amendments to the VLS as proof
2
of legislative intent to expand the reach of the VLS. 17 In abrogating the distinction in the VLS
3
between represented and self-represented litigants, the appellate court in Camerado ruled that
4 "representation" did not shield a previously declared litigant from the security requirement of
5 §39 1 .3. (supra, at 845).

6 38. The trial courts' reliance on the VLS to resolve custody disputes was most clearly
encouraged and promoted in a decision by Judge Cardoza. In In re R.H., almost two years after
7
Chief Justice George's decision in Elkins v. Sup. Ct. , Judge Jane Cardoza cites the legislative
8
Socionomic Justice Institute socioeconomicinstitute.com

history of the Vexatious Litigant Statute as a basis for using that statute as a "tool" for gagging
9
California Judicial Branch News Service cjbns.org

parents who try to regain custody of their children, (In re R. H.,l 70 Cal. App. 678, 700 (2009)):
10 (Bill History of Assem. Bill 1 938, (2000-2001 Reg. Sess.), (enacted as Stats. 2002. ch.
1 1 1 8 .) "Under existing law, parties to family law and probate law proceedings, as well as
11
the court, may already use the vexatious litigant statutes if they so desire. [ii] The intent
12 of this bill, according to the author and the proponents, is to point the way to the
vexatious litigant statutes to the parties engaged in these proceedings and to the court, as
13 a tool to discourage repeated motions by parents to regain custody of their children when
there are no changed circumstances to justify a different result." (Sen. Com. on Judiciary
14 Analysis of Assem. Bill No. 1 938 (2001 -2002 Reg. Sess.)
15
Implicit in her characterization of parent's attempt to "regain custody" is the belief that such
16
attempts are frivolous, that the trial judge made the right decision the first time, that custody
17
cases are static and immutable, and that custody matters don't involve fundamental rights. (*See,
18 Santosky v. Kramer (1 982) 455 U.S. 745). The use of the VLS in this way is predicated on a
19 circular argument, that is, that any "change of circumstance" argument is wrong and that access

20 to the courts to make that argument would be pointless. Therefore, denial of access to a parent

21 trying to show "changed circumstances" is necessary. In this class action, there are members wh
have had their parental rights terminated and then the trial courts have relied on the appellate
22
court's "denial of permission" to appeal (the termination order) as proof that a request for
23
emergency visitation is "final" and that there has been no "change of circumstances." (*See,
24
Factual Allegations, Parent H, C, AH.). In short, the VLS is not used as "a tool to discourage
25
17 Camerado, supra at 8 43-844: A review of the 1990 amendments demonstrates the Legislature's intent to broaden
26 the reach of the vexatious litigant statute... .Nothing in these amendments suggests a legislative intent to overturn th
decision in Muller v. Tanner, supra, 2 Cal.App.3d 438, or otherwise limit the reach of the vexatious litigant statute.
27 The expansive nature of the amendments suggests just the opposite.

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repeated motions by parents to regain custody," but as a way to lock out the parent who the trial
1
court perceives as the culpable or "guilty'' party in the custody dispute.
2
39. More than two years before Judge Cardoza edict, Chief Justice George ruled that
3
"trials by declarations" in family law proceedings violated the "hearsay rules." (Elkins v. Sup.
4 Ct. (2007) 41 Cal. 4th 1 337, 1 3 56). In Elkins, Jeffrey Elkins was denied the right to testify, cross
5 examine witness, or present evidence because he has failed to comply with a local rule requiring

6 declarations as to the nature of the oral testimony. Although Jeffrey Elkins argued that the local
rule as applied was inconsistent with the guarantee of due process, Chief Justice George relied o
7
the doctrine of 'judicial restraint" to avoid answering the "constitutional questions."18 Instead, he
8
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based his decision on the hearsay violation. In reversing the trial court, Chief Justice George
9
California Judicial Branch News Service cjbns.org

noted that family law litigants deprived of their "day in court," as was Jeffrey Elkins, would
10 express their "shock, outrage, and anger. " (Id., 1 367). Chief Justice George also pointed out,
11 supra, 1 345:

12 Although we are sympathetic to the need of trial courts to process the heavy case load of
dissolution matters in a timely manner, a fair and full adjudication on the merits is at least
13 as important in family law trials as in other civil matters, in light of the importance of the
issues presented such as the custody and well-being of children and the disposition of a
14 family's entire net worth. Although respondent court evidently sought to improve the
administration of justice by adopting and enforcing its rule and order, in doing so it
15
improperly deviated from state law. (emphasis added)
16
In riffing on due process of law, Chief Justice George pointed out the "common theme" of cases
17
that have invalidated fast-track rules, supra 1 35 3 :
18 A common theme i n the appellate decisions invalidating local rules, and one that also
19 appears in the present case, is that a local court has advanced the goals of efficiency and
conservation ofjudicial resources by adopting procedures that deviated from those
20 established by statute, thereby impairing the countervailing interests of litigants as well a
the interest of the public in being afforded access to justice, resolution of a controversy
21 on the merits, and a fair proceeding.

22
Although Chief Justice George points out the need for "access to justice" and mentions that his
23 decision provides "guidance to trial courts,"19 Judge Jane Cardoza, more than two years later,
24
18 Elkins, supra 1357: The conclusion we reach also permits us to avoid the difficult question whether the local rule
and order violate petitioner's right to due process of law, " [m]indful [as we are] of the prudential rule of judicial
25
restraint that counsels against rendering a decision on constitutional grounds if a statutory basis for resolution
exists." ( NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1190.) [8] This rule directs
26
that "if reasonably possible, statutory provisions should be interpreted in a manner that avoids serious constitutional
questions." (Id. at p. 1197.)
27 1 9 Elkins, supra 1346: In addition to providing guidance to the trial courts, our discussion highlights the unusual
burdens and restrictions that have been imposed upon family law litigants at the local level in response to increasing
case loads and limited judicial resources. We observe that this problem may merit consideration as a statewide

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would recommend that family law judges use of the VLS as a "tool" to "discourage" access to
1
those parents trying to "regain custody." Unfortunately, the members of this class have found
2
that family law judges are predisposed to follow the recommendations of Judge Cardoza rather
3
than those of Chief Justice George. or the Elkins Task Force.
4 40. In Elkins, Chief Justice George referred to statewide surveys showing a loss of "faith
5 and confidence" in the family law courts. (supra, 1 368). That is on-going sentiment shared by

6 the member of this class. He also pointed out that theses surveys revealed that "80% of the cases
(family law) ha ve at lea st one unrepresented party by the time of disposition. " (supra, 1 368). In
7
view of the failure of the family law courts to "earn the public trust," Chief Justice George
8
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directed that a task force be set up by the Judicial Council. (supra, 1 3 69, fu 20):
9
California Judicial Branch News Service cjbns.org

10 We recommend to the Judicial Council that it establish a task force, including

representatives of the family law bench and bar and the Judicial Council Advisory
11 Committee on Families and the Courts, to study and propose measures to assist trial
courts in achieving efficiency and fairness in marital dissolution proceedings and to
12 ensure access to justice for litigants, many of whom are self-represented. Such a task
force might wish to consider proposals for adoption of new rules of court establishing
13
statewide rules of practice and procedure for fair and expeditious proceedings in family
14 law, from the initiation of an action to postjudgrnent motions. Special care might be
taken to accommodate self-represented litigants. Proposed rules could be written in a
15 manner easy for laypersons to follow, be economical to comply with, and ensure that a
litigant be afforded a satisfactory opportunity to present his or her case to the court.
16 (Emphasis added)
17
As noted above, for Judge Jane Cardoza and family law judges of her ilk, the "special care taken
18 to accommodate self-represented family law litigants is to declare them "vexatious litigants"
"

19 and curtail or deny them access. Although Judge Cardoza's ruling was issued two years after the

20 state Supreme Court's decision in Elkins, she neither explained how here ruling squared with the

21 rationale of Elkins or how the use of the VLS in custody disputes "ensured access for litigants,
many of whom are self-represented. "
22
41 . The Elkins Task Force has done nothing to quash the pitched battle between Chief
23
Justice George's cry for more access and Judge Cardoza's yell for less access. Judge Laurie D.
24
Zelon, the Chairperson of the Elkins Task Force, after a lengthy and "comprehensive review" of
25 family law courts, issued her final recommendations, which are cited here:20
26 Our task force's recommendations fall under five broad categories:

27 policy matter, and suggest to the Judicial Council that it establish a task force for that purpose.
20
http://www.courts.ca.gov/documents/20100423itemj.pdf

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L Efficient and Effective Procedures to Help Ensure Justice, Fairness, Due Process, and
1 Safety
2 IL More Effective Child Custody Proceduresfor a Better Court Experience for Families
and Children
3 IIL Ensuring Meaningful A ccess to Justice for All Litigants

IV. Enhancing the Status of, and Respectfor, Family Law Litigants and the Family Law
4
Process Through Judicial Leadership
5 V. Laying the Foundation for Future Innovation
6
On April 23, 20 1 0, the Judicial Council adopted the recommendations.21 While Judge Zelon's
7
final recommendations repeated the lofty goals and gilded promises of Chief Justice George, she
8
Socionomic Justice Institute socioeconomicinstitute.com

fails to recognize the battle being waged by Judge Cardoza for use of the VLS by "family law
9
California Judicial Branch News Service cjbns.org

judges" and by Chief Justice George for greater access for "family law litigants." She does not
10 address the subject of the Vexatious Litigant Statute and the Task Force offered no opinion as to
11 whether the VLS has a role in family courts. By the time the final recommendations were being

12 submitted on April 23, 201 0, family law judges throughout California were following the lead of

13 Judge Cardoza and using the VLS to unclog their crowded family court dockets, to curtail
access, and to end custody disputes by labeling one of the parents "vexatious." In the final
14
recommendations, Judge Zelon seemed oblivious to the fact that parents acting "in propria
15
persona" in custody disputes could becomes targets for "vexatious litigant" actions under §39 1 .1 .
16 While she did allude to ''potential difficulties" for self-represented parents, she seems to have
17 been totally outflanked by the interest Judge Cardoza was promoting. (*See fu 7, pg. 79, Final
18 Recom):,

19 Cases in which one side has counsel and the other does not can pose a variety of potential
difficulties for the unrepresented litigant, the attorney, and the judicial officer.
20 Representation may be available in more of these cases if courts were to make early
needs-based attorney fee awards.
21

22 Judge Zelon states that the "Legislature has recognized the difficulties with self-representation in
some cases" and drafted the Sargent Shriver Civil Counsel Act (AB 590 [Feuer]; Stats. 2009, ch.
23
457), which became law and "was funded, commencing October 1, 2011,for several pilot projects
24
that will provide representation to low-income parties on critical legal issues affecting basic human
25
needs." 22 Judge Zelon conceded in her final recommendations that most family law litigants would
26 remain unrepresented even if the Act were passed.23 In short, the "potential problems" consist of the

27 21
http://www.califomiaprobono.org/news/article.310603-Judicial_Council_Accepts_Elkins_Task_Force_Report
22
*See pg. 1: http://www.courts.ca.gov/documents/AB-590.pdf
2
3 *See pg. 79: http://www.courts.ca.gov/documents/20100423itemj.pdf

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very real problem that ''unrepresented" parents have been and remain targets of "vexatious litigant"
1
(for "acting in propria persona") actions by the opposing party (parent) or by the "presiding judges"
2
"on their own motions" under §39 1 .7
3 42. The constitutionality of the VLS has been upheld. The constitutional challenges to the
4 VLS, however, have always been brought by civil litigants, not family law litigants/parents who

5 assert that the VLS, on its face or as applied, violated their fundamental custody rights. (Stanley

6 v. lllinois (1 972) 405 U.S. 645). In Shalant v. Girardi, (201 0), 1 83 Cal. App. 545, the Court of
Appeals cautioned against "broad interpretations" of the VLS, supra, 557:
7
Given the important constitutional concerns that section 391 .7 implicates, we
8 conclude that the statute should not be broadly interpreted. Rather, it should be
Socionomic Justice Institute socioeconomicinstitute.com

applied strictly according to its terms. (emphasis added).

9
California Judicial Branch News Service cjbns.org

10 The Court of Appeals noted that it is "incorrect" to "broadly interpret" the VLS because the
11 VLS has been upheld on the grounds that they have been "narrowly drawn and thus do not

12 impermissively invade the right the right of access to the courts."24 (Shalant, supra, 5 56-5 57).
The Supreme Court adopted the "plain reading" (strict construction) approach to the VLS,
13
cautioned courts to "observe the limits set by statutory scheme" of the VLS, and noted that the
14
distinction by the Legislature between "represented" and "in propria persona" litigants "was not
15
absurd." (Shalant v. Girardi (201 1 ) 5 1 Cal. 4th 1 1 64, 1 1 76). Further, the Supreme Court lifted a
16 passage from the appellate decision that scolded courts for acts ofjudicial legislation, supra at
17 1 1 77:

18 As the appellate court below remarked: "We sympathize with the plight of already
overburdened trial courts that are forced to contend with the abusive conduct of vexatious
19 litigants. But in their efforts to deal with the problem of vexatious litigants, courts must
observe the limits set by the applicable statutory scheme. If those limits are too confining,
20 then it is the function of the Legislature, not the courts, to expand them."
21
Judicial officers are presumed to follow the law, but that is not always evident to the members of
22
this class. (Evid. Code §§ 601 , 604). The case here is rift with family law judge and appellate
23

24 24 Shalant, supra at 556: "Taken as a purely descriptive claim, the statement is probably true--section 391.7 does
appear to have been interpreted broadly. (See Forrest, supra, 150 Cal.App.4th at pp. 195-196 & fn. 4 [collecting
cases].) But taken as a normative claim--that section 391.7 should be interpreted broadly--the statement is incorrect,
25
because the Court of Appeal has repeatedly upheld the vexatious litigant statutes (including section 391.7) against
constitutional challenges on the ground that the statutes are narrowly drawn and thus do not impermissibly invade
26 the right of access to the courts. (See Wolfgram v. Wells Fargo Bank (1997) 53 Cal.App.4th 43, 55-57, 60; Luckett
v. Panos (2008) 161 Cal.App.4th 77, 81; In re R.H (2009) 170 Cal.App.4th 678, 702; Kobayashi v. Superior Court
27 (2009) 175 Cal.App.4th 536, 541.) Given the important constitutional concerns that [183 Cal.App.4th 557] section
391.7 implicates, we conclude that the statute should not be broadly interpreted. Rather, it should be applied strictly
according to its terms."

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judges construe the VLS both broadly and inconsistently with the holding in Shalant v. Girardi.
1
43. While the Elkins Task Force, under Category IV, seeks to "ensure the status and
2
respect offamily law litigants through judicial leadership, " it's unclear how a judge's order that
3
"declares" a family law litigant "vexatious" in a custody dispute would achieve that goal. In fact,
4 it's clear that litigants who've been declared "vexatious" are judicially profiled and vilified and
5 have less access to courts than criminal defendants (murders, rapists, child molesters) and less

6 visitation rights if they had, in fact, committed "murder." For instance, in Kobayashi v. Superior
Court (2009) 1 76 Cal. App. 41\ 535, a decision rendered after Elkins and during the "public
7
comment" phase of the Elkins Task Force, Judge Sills opined that "much vexatious litigation is
8
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the product of the vexatious litigant 's propensity for dishonesty . . . " (supra, 541 ). In Luckett v.
9
California Judicial Branch News Service cjbns.org

Panos, (2008) 1 6 1 Cal. App. 4th 77, Judge Sills suggested that vexatious litigants have a "habit
10 of suing people as a way of life" and they "watch too much day time televisionfull ofjudge
11 shows. " (supra, at 94). He characterized "vexatious litigants" as unemployed deadbeats who sue

12 "informa pauperis status" and ''use their "typewriters as weapons, filing lawsuits at virtually no
costs to themselves ... " (supra, at 94). He conjectured that "vexatious litigants" very likely had
13
"mental orders," (supra, 91):
14
To be sure, of course, many vexatious litigants probably do suffer from some sort of
15 mental disorder, a fact that trial court staff around the state would appear to have first
hand knowledge.
16

17 Then, apparently not wishing to define the group too narrowly, Judge Sills stated that it was

18 ''perfectly imaginable" that "vexatious litigants" could also be like Professor Moriarty, the
criminal mastermind of Conan Doyle' s fiction, and the arch-enemy of Sherlock Holmes.25 (supra
19
91 -92). While Judge Sills did not decide if Mr. Luckett suffered from a "mental disorder" or was
20
a "criminal mastermind," he did rule that he should not be allowed to file any more actions for
21
"no less thanfour years" and only after he's shown "remorse" for being a "vexatious litigant."
22
(supra, 92, 96).
23 44. The family law litigants in this class action can take little consolation in the fact that

24 Mr. Luckett was a "civil litigant" as opposed to a "family law litigant." The ruling of Judge Sills

25 in Luckett v. Panos remains binding precedent, applicable to both civil and family law litigants.
In view of the Luckett holding, the class members recognize that their branding as a "vexatious
26

27 25 Luckett, supra 92: "And it is perfectly imaginable that a very sane, if wrongfully-minded person -- Conan Doyle's
fictional Moriarty comes to mind -- who would be perfectly willing to pursue a course of vexatious litigation in the
course of some ulterior purpose."

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litigant" works on various levels. First, their right to access can be curtailed or even denied for
1
"no less thanfour years." Second, the "branding" is an implicit psychological evaluation, either
2
they suffer "mental disorders" or are "criminal masterminds." Third, it is not the family law
3
judge that must "earn the publics ' trusf' as Chief Justice George stated in Elkins, but the family
4 law ''vexatious" parents who must show "remorse. " The Elkins Task Force recommendation that
5 family law litigants should be shown "respect" is replaced with a requirement that they must

6 show "remorse." In this sense, the "branding" is not merely a judicial judgment or decision but a
psychological evaluation that the members have some untreatable illness. In Luckett, Judge Sills
7
points out that Mr. Luckett's supporting declarations show that he has not "mended his ways,"
8
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(supra, 92):
9
California Judicial Branch News Service cjbns.org

All Luckett's declaration shows is that, instead of devoting his life to something
10 productive, he has spent the last 1 6 years suing people. That fact only co-nfirms the very
trait of character on which the determination of vexatious litigant was first based.
11
None of the class members here are prepared to concede that their fight to "regain custody" and
12
more time with their children is "something unproductive" or the product of some defective
13
"trait of character." Chief Justice George, in Elkins, realized �hat the problems with the family
14 law courts are systemic. Instead of trying to "earn the public 'S) respect," family law judges find it
15 a better use of their scare judicial resources to brand parents as "vexatious" as a way of ending

16 custody disputes and a quick fix to managing their dockets.

45. Finally, after being labeled vexatious, the class members here have found that there
17
are no clear procedures, no written standards, and no practical way to erase the branding. While
18
the Judicial Council has recently added §39 1 .8 to the VLS26, this seems more a response to the
19
"constitutional concern" first raised by John E. Wolfgram in Wolfgram v. Wells Fargo Bank
20 (1 993) 53 Cal. App. 4th 43 that the "vexatious litigant" declaration functioned as a "permanent
21 branding." It also raise a question if a party that files a §39 1 .8 request is entitled to an evidentia
22 hearing. In this way, the Court of Appeals for the Second Appellate District was "troubled" by

23 this "permanent" branding issue. (PBA, LLC v. KPOD, Ltd. (2003) 1 1 2 Cal. App. 4th 965)). The
PBA court stated, supra 976:
24
26 Section 391.8 (a). A vexatious litigant subject to a prefiling order under Section 391.7 may file an application to
25
vacate the prefiling order and remove his or her name from the Judicial Council's list of vexatious litigants subject to
prefiling orders. The application shall be filed in the court that entered the prefiling order, either in the action in
26
which the prefiling order was entered or in conjunction with a request to the presiding justice or presiding judge to
file new litigation under Section 391.7. The application shall be made before the justice or judge who entered the
27 order, if that justice or judge is available. If that justice or judge who entered the order is not available, the
application shall be made before the presiding justice or presiding judge, or his or her designee.

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 Case3:13-cv-01295-JSW Document1 Filed03/22/13 Page20 of 55

While there is much to recommend this reasoning, the conclusion section 39 1 .7 is to be a

1
permanent, irrevocable restriction is troubling. Although section 391 .7 does not
2 absolutely exclude the "pro per" litigant from the courts, we believe fundamental fairness
requires the "vexatious litigant" brand be erasable in appropriate circumstances.
3
The PBC court ruled that a "prefiling order" under CCP §39 1 .7 is not an "absolute exclusion."
4
This ruling was predicated upon the language in Wolfgram, which stated that when a vexatious
5
litigant "knocks o n the courtroom door with a colorable claim, he may enter."27 In Luckett,
6 Judge Sills stated that the branding was tantamount to an injunction under Code of Civil
7 Procedures §553, which could be lifted with a showing of "changed circumstances." (supra, 93).

8 In Luckett, as noted above, Judge Sills invented factors, such as his "remorse" factor, which
Socionomic Justice Institute socioeconomicinstitute.com

courts could consider before erasing the vexatious litigant branding. While the VLS does not
9
California Judicial Branch News Service cjbns.org

spell out the "appropriate circumstances" for erasure, the class members here are faced with the
10
judge-created "factors" of "remorse" and "no less than four year" banishment from filing. Judge
11
Sills' factors, while harsh and severe even for civil litigants, are nothing short of tyrannical and
12 inquisitional in the context of custody cases.
13 46. The battle line here is between family law judges who want to unclog their dockets of

14 "difficult cases" and parents who expect and deserve a well-informed ju,diciary who know the
law, the Family Code, Title Five Rules, and the facts of a particular case. The class members are
15
not treated with "respect." Instead, the family law judges and lawyers for ex-spouses have taken
16
up the club of the VLS and used it to beat down the self-represented and often indigent parent. In
17
essence, any attempt to "resolve" the custody dispute has been scuttled. In this rigged game, the
18 judges make up the rules, have all the power, exercise it with impunity and "absolute immunity,"
19 and the class members are driven into the ground both financially and psychologically.

20 47. It's this disparity in power and treatment between family law litigants and judges who

21 make "vexatious litigant rulings" that further undermines "confidence and trust" in the judiciary.
For instance, Judge McBride, then the Presiding Judge of the San Francisco Superior Court, tried
22
to deny one class member the right to appeal a "vexatious litigant" order issued by a family law
23
judge. (*See, RJN, Exhibit Z). Although the Administrative Presiding Judge of the Court of
24
27 Plaintiffs notes, having been repeatedly denied the right to file anything, that the issue of what is a "colorable"
claim as applied in custody case is unconstitutionally vague because there is no clear standard ( Grayned v. City of
25
Rockford, 408 U.S. 104, 108-109 (1972) quoted in Village ofHoffman Estates v. The Flipside, 455 U.S. 489, 498
(1982). Plaintiffs also notes that the presiding judges have applied the prefiling order in such a way as to deny them
26 and their attorneys access to the family law courts in violation of the Due Process Clause of the 14t1t Amendment an
his P' Amendment right to petition (*See, Boddie v. Connecticut 401 U.S. 371 (1971).
27

impinges on fundamental custody rights (Stanley v. Illinois)

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 Case3:13-cv-01295-JSW Document1 Filed03/22/13 Page21 of 55

Appeals for the First District would overrule Judge McBride (*See, RJN , Exhibit ZZ), the entire
1
twist of events undermined the class member's "trust" in the judicial system. It was not just the
2
judges' confusion over the right of litigants to "appeal" a vexatious litigant order. It was about
3
the appearance of disparate and special treatment and an imbalance in the equation of power. In
4 that sense, Presiding Judge McBride was not publicly censored by the Commission on Judicial
5 Performance with respect to three misdemeanor domestic violence and battery charges (against

6 his spouse) and one witness intimidation charge (against his ex-spouse) that were brought agains
him.28 While the CJP would eventually censor him for disrespecting public defenders and
7
altering dates to circumvent a criminal defendant's right to a "speedy trial,"29 he would remain
8
Socionomic Justice Institute socioeconomicinstitute.com

seated on the bench, trying to deny a father the right to appeal a "vexatious litigant" order. In the
9
California Judicial Branch News Service cjbns.org

patois of the proletariat, Judge McBride would be referred to as a "wife-beater" and a "crooked
10 judge." (One can only guess at how Judge Sills might describe one of his "fellow" judges.).
11 Oddly, the judges of the San Francisco Superior Court elected Judge McBride, the ''wife-beater,"

12 to the rank of Presiding Judge, to run the whole show at the San Francisco Superior Court. 30 The
irony is that these judges will overlook or excuse Judge McBride's indiscretions (felony charges
13
related to domestic b�ttery and abuse) but they do not hesitate to brand parents as "vexatious" fo
14
trying to regain custody (and then deny them access after stripping them of custody rights). The
15
tragedy is that the family law litigants have to bear the entire burden of this disparate treatment.
16 VII. FACTUAL ALLEGATIONS
17 Facts Related to Kerry Hicks, Parent H.

18 48. At the July 1 ot11, 2008 hearing on visitation and a vexatious litigant motion, the family

19 law judge adopted not only the recommendation of Ms. Gonzales (the manager of the non-profit
in charge of overseeing supervised visits) that Ms. Hicks not have any further supervised visits
20
but Ms. Gonzales opinion that Ms. Hick's alleged "inappropriate behavior" was a "red flag" for
21
substance abuse or mental illness, (RJN, Exhibit A , pg. 1 72):
22
THE COURT: The last seven minutes you talked and you looked down the whole time.
23 You never looked up and made eye contact except one moment at the end.
THE WITNESS: I'm trying to concentrate so fiercely.
24 THE COURT: The problem is there's something going on, and it may be something
going on that can be treated with medication, it can be something else. I want to see you
25

26 28
http://www.sfweekly.com/1999-05-12/calendar/cothran/full/
29
http://www.cjp.ca.gov/res/docs/Public_ Admon/McBride _DO_11-18-08.pdf;
27 http://www.abajoumal.com/news/article/san_franciscojudge_reprimanded_for__putdowns__pd_dismissals

30 http://www.sanfranciscosentinel.com/?p=14185

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 Case3:13-cv-01295-JSW Document1 Filed03/22/13 Page22 of 55

with your children. This is the most painful case I've ever had in here, but I don't know
1
what's happening here.
2 THE WITNESS: I can tell you if you give me time.
THE COURT: No. Somebody else is going to tell me.
3 THE WITNESS : I've got evidence.
THE COURT: This is called the Quick Start program, and I'm ordering you to go to the
4 Quick Start program for an assessment.
5
THE COURT: They're going to be assessing whether or not there is a problem with
6 alcohol, with drugs, with some sort of mental health problem. I want to find out what's
going on because I don't want to see you in such pain, but right now I can't let you have
7 this visitation with your kids because I'm concerned.

8
Socionomic Justice Institute socioeconomicinstitute.com

Ms. Hicks has not seen her children since then even though a week later her "results" from the
9
California Judicial Branch News Service cjbns.org

Quick Start showed no signs of substance abuse and no mental illness. (RJN, Exhibit B). She's
10
been locked out of the court by virtue of the VLS.
11
49. Although the family law judge presumed that Ms. Hicks was so "impaired" and such
12 a potential threat that she couldn't see her children, he let her proceed "in propria persona" with
13 respect to the "vexatious litigant" motion brought against her. In that regard, the attorney for her

14 ex-spouse noted, in a fit of condescension, that Ms. Hicks did not jump through her hoops and
respond to her demands for a response to the charge of being "vexatious, (Exhibit A , pg. 1 64):
15
MS. KARCZAG: She was supposed to file a response by July 8th .
16 This is what happened. The vexatious litigant that I bought stated to Miss Hicks
I'm-my intention to grant this unless you can give me a reason why I shouldn't and I
17
want a response filed by July 8 th. There's no response and instead of written response she
18 noticed more ex-partes. I think she's like almost a poster child for vexatious litigants.
There's so many ex-partes and motions, meritless frankly your Honor. I'm exhausted ·

19 from all this.

20
Although an attorney's statements are not "evidence" because they are not made under oath,31 th
21
family law judge apparently considered this evidence of "vexatious litigation." Further, the trial
22
court did not even address the second prong of a §39 1 . 1 motion, that is, the "reasonable
23 likelihood of prevailing in the litigation." Apparently, the family law judge, having terminated
24 Ms. Hicks' rights as a parent, unilaterally mooted any issue of "prevailing" in a custody dispute.

25 Facts Related to Ron Pierce, Parent P

31 Evidence is "testimony, writings, material objects, or other things presented to the senses that are offered to prove
26
the existence or nonexistence of a fact." (Evid. Code, § 140.) "Testimony" refers to statements made under oath.
(People v. Belton (1979) 23 Cal. 3d 516, 524 [153 Cal.Rptr. 195, 591 P.2d 485].) Thus, attorneys' statements do not
27 constitute evidence. (Van de Kamp v. Bank of America (1988) 204 Cal. App. 3d 819, 843 [251 Cal.Rptr. 530].).
Again, he was not explained or offered any proof that the TICA is valid other than his bold allegations.

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 Case3:13-cv-01295-JSW Document1 Filed03/22/13 Page23 of 55

50. On December 2 1 , 201 1 , the California Court of Appeals for the Fifth District send
1
Mr. Pierce a pleading entitled "Notice of Hearing To Determine Vexatious Litigant and Enter
2
Prefiling Order." (RJN, Exhibit C). At that time, there was no "pending" appeal. The appellate
3
noted that Mr. Pierce had, in the "preceding seven-year period," prosecuted "in propria persona"
4 six appeals or writs (five of which were related to his family law case) which had been "finally
5 determined adversely" to him under §39 1 (b)( l )).

6 5 1 . In their "opinion" (though there was no notice of appeal, no appeal record, no brief,
no oral argument, not even an opposing party), the appellate court, in explaining why it had
7
morphed into a trial court, stated, (Exhibit D., pg 3):
8
Socionomic Justice Institute socioeconomicinstitute.com

"There need not be pending litigation for a court to move to declare an individual a
9 vexatious litigant and subject him to a prefiling order."
California Judicial Branch News Service cjbns.org

10
The first obvious problem with this "view" of the VLS is that it contradicts that "plain language"
11
of section 39 1 . 1 32, which states ".[I]n any litigation pending in any court . . . ". It also contradicts
12 the plain language reading" doctrine announced by the Supreme Court in Shalant v. Girardi,
13 (201 1 ) 5 1 Cal. 4th 1 1 64. The second problem with the appellate court's position is that it renders

14 the second prong of the §39 1 . 1 motion meaningless. Section 391 . 1 requires a showing that the
"plaintiff' is a vexatious litigant and that there is no "reasonable probability he will prevail in
15
the litigation against the moving defendant. " Clearly, if there is no "pending litigation," then
16
neither Mr. Pierce nor anyone else can prevail. Third, Mr. Pierce is not the "plaintiff' nor is the
17
appellate court the "moving defendant." Finally, section 391 .7 allows a presiding judge "on its
18 own motion" to enter a "prefiling order" against a "vexatious litigant." Clearly, the "condition
19 precedent" to entering a prefiling order is a finding, presumably by the trial court, that a litigant

20 has been found to be a "vexatious litigant." In Mr. Pierce's case, the appellate court presumes to

21 enter a "prefiling order" before Mr. Pierce was found to be "vexatious" by a trial court.
52. On February 2 1 , 201 3, Mr. Pierce filed a MC-703 form asking that the "vexatious"
22
litigation "opinion" be lifted on the grounds that there was no legal basis for an "impromptu
23
§391 . 1 motion. (Exhibit E). On February 25, 2013, Judge Kane "denied" the motion without
24
providing Mr. Pierce a hearing or without stating a reason for the denial. (Exhibit F). This raises
25
32 391.1. In any litigation pending in any court of this state, at any time until final judgment is entered, a defendant
may move the court, upon notice and hearing, for an order requiring the plaintiff to furnish security or for an order
26
dismissing the litigation pursuant to subdivision (b) of Section 391.3. The motion for an order requiring the plaintiff
to furnish security shall be based upon the ground, and supported by a showing, that the plaintiffis a vexatious
27 litigant and that there is not a reasonable probability that he or she will prevail in the litigation against the moving
defendant.

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 Case3:13-cv-01295-JSW Document1 Filed03/22/13 Page24 of 55

the "perpetual branding" concern raised by Jeffrey Wolfe over 20 years ago.
1
Facts related to Andrew Karres, Parent K.
2
53. In its November 1 2, 20 1 2 statement of decision, the family law judge in the Superior
3
Court of Sacramento County denied Mr. Karres a 50/50 shared custody, ordered his attorney not
4 to mention the sexual orientation of the mother33, and designated him a "vexatious litigant."
5 54. On November 1 4, 201 2, Sharon Huddle, the attorney for Mr. Karres, was present

6 when the family law judge "vacated" the scheduled hearing on the "vexatious litigant" motion.
Although section 39 1 .2 provides that a litigant is entitled to a "hearing" with the right to provide
7
"any" evidence, both "oral and by affidavit," the family law judge denied any hearing. The
8
Socionomic Justice Institute socioeconomicinstitute.com

attorney for Mr. Karres has appealed the "vexatious litigant" ruling and has challenged the
9
California Judicial Branch News Service cjbns.org

family law judge's "gag-order" on referring to the mother's "sexual orientation." Mr. Karres'
10 attorney, Ms. Huddle explains, in pleadings on appeal, why the sexual orientation is relevant and
11 how the "gag-order" infringes due process. (RJN," Exhibit Il).34

12 Facts related to Michele Fotinos/Parent F.

55. At a probate hearing on November 9, 201 2 involving her mother's estate35, Michele
13
Fotinos' attorney in her family law case substituted into the probate case after a "vexatious
14
litigant" motion was filed. The court-appointed probate attorney sought to have a "prefling
15
order" imposed against Ms. Fotinos as well as her attorney, (RJN, Exhibit J, pg. 3, lines 7- 1 2).
16 At the hearing, the judge found that Ms. Fotinos was "vexatious" but did not consider the issue
17 of whether there was a "reasonable likelihood of prevailing" in the litigation because the case

18 was essentially over at that point. It seems the trial judge count Ms. Fotinos "five more"

19 unsuccessful motions" in the probate case as evidence of "vexatiousness" as well as proof that
she was not likely to "prevail." At the hearing, the judge stated that the §39 1 .7 prefiling order
20
would also apply to Ms. Fotinos' attorney and would extend to any motions the attorney filed on
21
behalf of Ms. Fotinos's family law case.
22
56. In the November 1 5, 201 2 notice of order, the judge did not sanction Ms. Fotinos'
23 attorney under Code of Civil Procedure § 1 28. 7 but imposed the ''vexatious litigant" order agains
24 the attorney, ruling that (RJN, Exhibit K, pg. 6, line 1 1 - 1 9):

25
3 3 *See Exhibit x in which Mr. Karres' attorney explains why this matter is relevant t o the arguments that she is
making in the custody case and how it related to statutory rights.
26
34 Implicit in the "gag-order" is the judge's own bias that if the husband refers to his ex-wife's sexuality, he is
"misogynistic" or discriminating on the basis of "sexual orientation." However, Ms. Huddle, the attorney and a
27 woman, is raising this issue. The judge just issues the "gag-order" without explaining the difficult if not absurd task
of how a female attorney might be "misogynistic" or "sexually discriminating" by raising the orientation issue.
35 The Conversatorship of Ester Boyles, San Mateo County Case No. 121437.

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 Case3:13-cv-01295-JSW Document1 Filed03/22/13 Page25 of 55

Attorney Patricia Barry offered evidence at the hearing to the effect that she had been
1
guiding and facilitating the in propria persona flings by Ms. Michele Fontinos. This court
2 finds that Attorney Patricia Barry has acted as a mere conduit for unmeritorious filings
and therefore that the above order prohibiting Ms. Michele Fontinos from filing any
3 petition, application, or motion other than a discovery option, for any order in propria
persona without first obtaining leave of the presiding judge shall also prohibit Patricia
4 Barry from filing any petition, application, or motion other than a discovery motion, for
any order on behalf of Ms. Michele Fontinos without first obtaining leave of the
5
presiding judge. (See In re Shieh (1 937) 1 7 Cal. App. 4th 1 1 54, 1 1 67).
6
Apparently, Ms. Barry's representation of Ms. Fontinos in her family law case will require Ms.
7
Barry to file out MC-701 "vexatious litigant" forms and get "permission" from the presiding
8
Socionomic Justice Institute socioeconomicinstitute.com

judge before being allowed to file. This is inconsistent with the Supreme Court's ruling in
9
California Judicial Branch News Service cjbns.org

Shalant v. Girardi and contradicts Weissman v. Quail Lodge, Inc. (1999 9th Cir. Cal.) 1 79 F3d
10 1 1 94, which stated that the VLS "by its own terms" does not apply to attorneys. 36
11 Facts Related to Adil Hiramanek/Parent AH.

12 57. In an "Order RE Petitioner's Request to Renew Restraining Order, the family law
judge in the Santa Clara Superior Court extended a one year restraining order to a "permanent"
13
restraining order of 50 years because the judge found that Mr. Hiramanek violated the restraining
14
order when he came with 1 00 feet of his wife at the court house (at a mandatory settlement
15
conference) and, at a deposition, allegedly sat near his ex-spouse and "stared at her with 'a
16 hateful stare. "' (RJN, Exhibit M, pg. pg. line 1 3). The family law judge stated "[F}or law
17 enforcement purposes, the restraining order shall befor 50 years, and shall expire at midnight

18 on A ugust 24, 2062. The children shall be listed as protected persons." (pg. 7, line 7-8). Hence,

19 Mr. Hiramanek's parental rights are not just simply terminated, but any attempt to speak with his
progeny in the next 50 years becomes a criminal act. His request for need-based fees under
20
Family Code §2032, which would have provided him "representation" and shielded him from th
21
36 *See, Weissman v. Quail Lodge, Inc. (1999, 9th Cir Cal) 179 F3d 1194. The court explained that the reason that

22 an attorney could not be declared a "vexatious litigant" was "because the vexatious litigant doctrine was never
intended to control attorney conduct and because an attorney appearing on behalfofa client could not by definition
23 be sanctioned as a "vexatious litigant, " as he was acting as an attorney not a litigant." (supra, at 1999; emphasis
added). The court went on to explain: "Insofar as our research has uncovered, no court in this circuit has ever
imposed a vexatious litigant order on an attorney. We do not believe that the vexatious litigant doctrine was ever
24
intended to control attorney conduct and we do not propose to approve its application in this case as a means of
controlling attorney conduct. For example, the California vexatious litigant statute limits the definition of a
25 "vexatious litigant" to one who acts "in propria persona." Cal. Civ. Proc. Code § 391.7. Similarly, the only district
court in this circuit to have adopted a vexatious litigant rule provides that the court may "proceed by reference to the
26 Vexatious Litigants statute of the State of California, Cal. Code Civ. Proc. § § 391 -391.7." Cent. Dist. of Calif.
Local R. 27A.4. We therefore conclude that an attorney appearing on behalf of a client cannot be sanctioned as a
27 vexatious litigant; by definition, he or she is acting as an attorney and not as a litigant.

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VLS, were denied. (RJN, Exhibit NN).

1
58. On March 22, 201 0, the family law judge filed a motion entitled "Notice of Court's
2
Own Motion and Motion to Subject Respondent A dhil Hiramanek to a Prefiling Order as a
3
Vexatious Litigant." (RJN, Exhibit N). In this motion, the family law judge lists Mr.
4 Hiramanek's various ''unmeritorious" motions and notes that the two motions to disqualify him
5 for cause were denied.37 This motion was filed about 1 5 months before the state Supreme Court's

6 ruling in Shalant v . Girardi that trial courts must "observe the statutory limits" of the VLS and
avoid "broad readings" of the statute. (supra, at 1 1 79). Nevertheless, the express language in
7
§391.7 provides that ''prefiling orders" are conditioned upon both a previous finding of being
8
Socionomic Justice Institute socioeconomicinstitute.com

"vexatious" and the filing of "new litigation" (in propria persona). Here, the family law judge
9
California Judicial Branch News Service cjbns.org

ignores these express "condition precedents" and purports to "move on its own motion," not for
10 ''prefiling order" but for a §391 . 1 motion (and then a prefiling order). Of course, at the April 22,
11 201 0 hearing, the family law judge finds that Mr. Hiramanek has filed ''unmeritorious motions"

12 under §39 1 (b)(3). The judge, not surprisingly, does not consider whether there is a "reasonable
likelihood" of his prevailing in his custody dispute as required by §391 . 1 .
13
Facts Related to Lisa Hunt-Nocero/Parent N.
14
59. While all her parental rights were terminated by the Superior Court of Riverside
15
County, Ms. Hunt-Nocera filed MC-701 forms (Request and Order to File New Litigation By
16 Vexatious Litigation) requesting a hearing on the issue of whether it is "unconstitutionalfor a
17 family court to deny any parent-child relationship. " (RNJ, Exhibit P). Her September 1 4, 201 0

18 request for a hearing on the issue of the constitutionality of the termination of all her parental
rights was "denied" without explanation. The presiding judge simply exercised his discretion,
19

20 picked up a pen, and placed his X in the "Denied" box. This present case raises the companion

21 question of whether the VLS can be applied to deny all access to a family law court to challenge
a de facto termination order.
22
Facts Related to Nicole Ann Ray/Parent R.
23
60. Ms. Ray has been declared "vexatious" by the family law judge of the Sacramento
24
Superior Court but she has not been added to the official list maintained by Administrative
25 Office of the Courts. She has sought to get the "vexatious label" lifted as an "injunction" under
26 CCP §553 and to serve the "ends ofjustice." As an impoverished mother, she can only afford to

27 37 *Note: The fact that the family law judge initiated this "vexatious litigant" motion "on its own motion" shortly
after Mr. Miramanek's motion to disqualify for cause were denied certainly speaks to retaliation. In view of the 50
year restraining order, it would seem there is a compelling inference not just for bias but for retaliation.

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 Case3:13-cv-01295-JSW Document1 Filed03/22/13 Page27 of 55

visit her three daughter once a month and pay the "non-profit" firm the $25 that demand for
1
providing the "supervised visits" for the County of Sacramento. She splits the hour into three
2
segments because the "nonprofit" firm that oversees supervised visitation only allows a parent to
3
visit with one child at a time.
4 Facts Related to Archibald Cunningham/Parent C.
5 6 1 . Since his parental rights were terminated on February 26, 201 0 by the opposing

6 counsel's fraud, the presiding judges of the San.Francisco Superior Court has denied every
request (MC-701 ) he filed for "emergency visitation." (RJN, Exhibit U). His attorney was forced
7
to file MC-701 forms, which were denied by the presiding judges. (Exhibit U). His request to
8
Socionomic Justice Institute socioeconomicinstitute.com

file a motion to lift the vexatious label under CCP §553 was denied by use of the MC-701 form.
9
California Judicial Branch News Service cjbns.org

(*See, Exhibit U). His requests to be relieved of the burden of self-representation have been
10 denied no fewer than "eight times." (RJN, Exhibit VJ!). Further, the judge's first "vexatious
11 litigant order" of March 5, 2009 was used as the basis to deny him "permission" by the appellate

12 court to deny his appeal of the second vexatious litigant order from the February 26, 20 1 0
hearing (as well as the termination order and a DVPA order). Finally, even though the Court of
13
Appeals overturned the $22,167 fee sanction from the first vexatious litigant order, the Court of
14
Appeals refused to hear his appeal and whether principles of res judicata precluded the $32,1 93
15
fee sanction in the second appeal.
16 Facts Related to Richard Rifkin, Parent R.
17 62. On September 1 4, 2012, the family law judge for the San Francisco Superior Court

18 ruled that Mr. Rifkin was "vexatious" under section 391(b)(3) for filing ''unmeritorious" motions

19 or pleadings. (RJN, Exhibit Y, pg. 3, line 7). The family law judge lists the many motions, some
for change in custody/visitation and many for contempt,38 which Mr. Rifkin filed but which were
20
"denied." (pg. pg 4-5). In declaring Mr. Rifkin "vexatious," the family law judge relied on Golin
21
v. Allenby (201 0) 1 90 Cal. App. 4th 6 1 6 for the proposition that a "litigation tactic" designed to
22
"grind down" an opponent shows an "improper motive" that amounts to "vexatious litigation."39
23
38 Under McColm v. Westwood Park Assn (1998) 62 Cal. App. 4th 1211, the Court of Appeals noted that the VLS
24
was not to apply to "criminal matters" such as the criminal contempt case here where Mr. Rifkin 's ex-spouse was
appointed an attorney in the criminal contempt case.
25
39 Go/in, supra at 639: But the court's comments at the hearing suggest that it reached the conclusion that the Golins
were vexatious not because of individual unmeritorious filings but because of their litigation tactics--their regular
26
practice of revisiting issues and the volume of their supplemental and amended filings that cumulatively evidenced a
"level of vexatiousness." According to the trial court, together these spoke to an improper motive to "grind down the
27 other side" or to keep them from 'being able to move forward' in the litigation. This goes to the third, disjunctive
prong of section 391, subdivision (b)(3)--engaging in tactics that are frivolous or solely intended to cause
unnecessary delay.

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(supra, 639). The judge, however, does not explain how this rationale for this civil case applied
1
to a protracted custody disputes involving a "move-away'' request.
2
VIII. CLASS DEFINITION AND ALLEGATIONS
3
63. Pursuant to Rule 23(a) and Rule (b)(l )(A)(B) of the Federal Rules of Civil Procedure,
4 the Plaintiffs Pierce, Rifkin, , Fotinos, Hicks, Hunt-Nocero, Hiramanek, Cunningham and Karres
5 bring this action on behalf of themselves and all other persons similarly situated. Plaintiffs bring

6 this action on behalf of a class consisting of ''parents engaged in custody disputes in thefamily
law courts (and on appeal with appellate courts) who have been declared 'vexatious ' under the
7
California Vexatious Litigant Statute and whose access to state courts, both trial courts and
8
Socionomic Justice Institute socioeconomicinstitute.com

appellate courts, has been curtailed, restricted, or denied. "

9
California Judicial Branch News Service cjbns.org

64. Numerosity: The Plaintiff class is so numerous and so uncertain that joinder of all its
10 members would be impracticable. The Administrative Office of the Court maintains a list of
11 parties that have been declared "vexatious:"40

12 Duties
The Judicial Council maintains a record of vexatious litigants subject to such prefiling
13 orders and annually disseminates a list of such persons to the court clerks. (Code
Civ. Proc., § 3 9 1 .7(f).)
14

15 However, the Administrative Office of the Court lumps all vexatious litigants together, whether
they're civil or family law litigants.41 Upon information and belief there could be hundreds of
16
parents in the class. Joinder of the class is impracticable because the list is not a complete list as
17
evinced by the fact that Plaintiff (Ms. Ray) who was declared "vexatious" but whose name does
18
not appear on the list. (*See, fu. 40). Joinder of all parents in the class is impracticable because
19 there are tens of thousands of spouses in family law dissolution proceedings, but not all of these
20 cases involve custody disputes. While all of these parents are "potential" class member, not all o

21 the parents have yet been "declared "vexatious." Further, joinder of the class is impracticable not

22 only because of the size and uncertainty of the class, but because class members lack the
financial means to maintain individual actions and are geographically disbursed throughout the
23
sate.
24
65. Commonality. There are common questions of law and fact predominate over specific
25
issues that could be raised by individual vexatious litigant parents. One common question among
26
40 http://www.courts.ca.gov/documentsNexatious_Litigants.pdf
27 41 http://www.courts.ca.gov/documents/vexlit.pdf

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 Case3:13-cv-01295-JSW Document1 Filed03/22/13 Page29 of 55

all class members is whether the Vexatious Litigant Statute as applied to parents acting "in
1
propria persona" in custody cases creates a "suspect class" under the Equal Protection Clause of
2
the 14th Amendment. Another common question of law is whether the restrictions on parents to
3
access to family law courts, the only forum provided by the state for ''the adjustment of a
4 fundamental relationship,"42 is a violation of their 1 st Amendment right to petition as well as their
5 right to due process of law. There is also the question of law whether the imposition of the VLS

6 against parents is an improper and "permanent" branding. Further, there is the issue of whether
the procedures of the VLS are constitutionally vague or overbroad.
7
IX. LEGAL CLAIMS
8 FIRST CLAIM FOR RELIEF
Socionomic Justice Institute socioeconomicinstitute.com

Claim under 42 U.S.C. §1983, Deprivation of Federal Constitution Rights­

9
California Judicial Branch News Service cjbns.org

The Vexatious Litigant Statutes As Applied Violates

10 the Equal Protection Clause of the 14•h Amendment

11 66. Plaintiffs reallege and incorporate herein by reference each and every allegation and

12 paragraph set forth previously.

67. Plaintiffs, parents in custody disputes in the family law courts throughout the state of
13
California, are subject as self-represented litigants (and even when represented by attorneys) to
14
prefiling orders and "security" under §39 1 .7 of the Vexatious Litigant Statue as "an exclusive
15
precondition to the adjustment of a fundamental human relationship,"43 that is, their custody and
16 visitation rights.
17 68. Defendants know or should know that parental custody rights are fundament rights

18 which the state cannot interfere with without providing due process of law and a compelling
reasons for doing so. (*See, Santosky v. Kramer (1 982) 455, 753-754: "Thefundamental liberty
19
interest of natural parents in the care, custody, and management of their child does not
20
evaporate simply because they have not been model parents or have lost temporary custody of
21
their child to the State. Even when blood relationships are strained, parents retain a vital
22 interest in preventing the irretrievable destruction of theirfamily life. If anything, persons faced
23 with forced dissolution of their parental rights have a more critical need for procedural
24 protections than do those resisting state intervention into ongoingfamily affairs. When the State

25 moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair
procedures. ").
26
69. Defendants know or should know that family law courts are "entirely stated-created''
27
42 Boddie, supra, at 383.
43 Boddie v. Connecticut, supra at 383.

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matters and are the "onlyforum"" the state has provided family law litigants, and class members
1
here, which is "effectively empowered to settle" their custody disputes. (Boddie, supra, at 393,
2
3 76).
3
70. Defendants know or should know as Chief Justice George noted in Elkins v. Sup. Ct ,
4 that 80% of parents in family law proceedings are self-represented. (Elkins, supra, at 1 368).
5 They know or should know that the Elkins Task Force stated in its Final Recommendations that

6 "[F] ar too many Californians are unable to afford counsel. " and that the state "needs to take
steps to provide litigants with the appropriate levels of assistance they need to proceed with
7
their cases. " (*See Final Recommendations, pg. 59). Further, Defendants know or should know
8
Socionomic Justice Institute socioeconomicinstitute.com

that the Elkins Task Force, in its initial recommendations, found that family law litigants act "in
9
California Judicial Branch News Service cjbns.org

propria persona" because "they have no choice"44 in view of their lack of resources. Finally,
10 Defendants know or should know that the Elkins Task Force recommended that the Judicial
11 Council provide statewide rules regarding award of attorney fees for family law litigants. (*See, ·

12 http://www.courts.ca.gov/documents/20100423itemj.pdf, pg 60-69.)
The Elkins Family Law Task Forcerecommends:
13
1 . Attorney fees ,
14 a. Statewide rules and forms. The Judicial Cquncil should
adopt statewide rules regarding the information that needs
15 to be submitted to the court to obtain an award of attorney
fees. A form setting out these requirements should be
16 considered. Consistency in these requirements would allow
attorneys and self-represented litigants seeking attorneys to
17
provide the information needed by the court for an award
18 of attorney fees.
Defendants know that they have created new forms as of January 1 , 201 3 that are designed to
19
help "erase" a "vexatious litigant" ruling (MC-703, 704) but they have provided no forms or
20
published any rules for parents to seek need-based fees as they are required to do under Gov.
21

22
44 http:// www.courtinfo.ca.gov/jc/tflists/documents/draft-finalrec.pdf. "Given the complexity of family law, why do
people represent themselves? All too often the answer is that they have no choice. There is no right to appointed
23
counsel in family law matters. Given tremendous funding limitations, legal services agencies in California are able
to serve relatively few persons who have family law issues. Generally, because of funding restrictions, only victims
24
of domestic violence can be provided representation-and far too few of those victims can be served.
Legal services agencies serve low-income people. But those with low income are not the only people who
25 are finding themselves in court without lawyers. The average family law attorney in California charges more than
$300 per hour and requires a retainer of approximately $5,000. Families increasingly are finding themselves with no
26 paycheck, a diminished amount of equity in their homes, and reduced savings, leaving them unable to afford
attorneys. Even people who start out with attorneys at the beginning of their cases often run out of money and
27 become self-represented before their cases are over."

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 Case3:13-cv-01295-JSW Document1 Filed03/22/13 Page31 of 55

Code §685 1 1 . 45
1
7 1 . The Defendants know or should know that the courts may, on their "own motion"
2
(under § 3 9 1 . 7) as well as the opposing attorney for the other parent may "move" the family law
3
court to have self-represented family law litigant parents declared "vexatious" under §391 . 1 of
4 the VLS. (These parents may have prefiling orders imposed against them as well as security
5 before they may be allowed to file any "new litigation" under §391 .7). The Defendants know or

6 should know that all the "declared vexatious" litigant class members here have had their access
to family law courts restricted, curtailed, and, in some situations, have been denied all access to
7
the family law court for years after their custody rights have been terminated. (*See Fact
8
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Allegations for Parent H, Parent N, Parent C, Parent AD).

9
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Indigent/Impoverished Parents v. Affluent Parents.

10 72. The Defendants know or should know that the VLS, on its face and as applied to
11 family law litigants, creates several suspect classes. The suspect class consists of those parents

12 who don't have the money to hire an attorney to fight their custody battle in the "state-created"
family law courts. This class of unrepresented or indigent unrepresented parents become targets
13
for the VLS because they are forced to file "in propria persona." Once branded vexatious, this
14
suspect class of indigent parents is denied immediate and full access. They are denied the right to
15
a full-evidentiary hearing under Family Code §2 1 7 on their "orders to show cause." They are
16 also denied the immediate right to call witnesses under Title Five Rule 5 . 1 1 3 and denied the righ
17 to call their own children under Title Five Rule 5 .250 to voice an opinion about their custody

18 preferences. They are subject to the screening process of ''prefiling orders" under §39 1 .7,
including the requirement of obtaining "permission" from a presiding judge or posting "security"
19
as a condition precedent to being granted access to family law courts or appellate courts.
20
73. The Defendants know or should know that appellate cases proclaiming that vexatious
21
litigants with "colorable claim" will be allowed access46 to courts may pass constitutional muster
22 but, in reality, both trial courts and appellate courts routinely deny MC-701 motions or
23 "permission" to file appeals. (*See, RJN , Exhibits P, S, and U). The Defendants know or should

24 know that some class members here have been denied permission to file for "emergency

25
45 Gov. Code section 68511: The Judicial Council may prescribe by rule the form and content of forms used in the
courts of this state. When any such form has been so prescribed by the Judicial Council, no court may use a different
26 form which has as its aim the same function as that for which the Judicial Council's prescribed form is designed. Th
Judicial Council shall report periodically to the Legislature any statutory changes needed to achieve uniformity in
27 the forms used in the courts of this state.
46 In Wolfgram, supra 53 Cal. App, 4th 43, 60: The Court of Appeals stated that when a vexatious litigant "knocks on
the courtroom door with a colorable claim, he may enter."

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 Case3:13-cv-01295-JSW Document1 Filed03/22/13 Page32 of 55

visitation" after all their parental rights have been termination. (*See, Factual Allegations Parent
1
N, Parent AD , Parent C). Here, the class members are denied full and often any access to family
2
law courts solely on the "insidious basis of wealth" while the represented and affluent spouse's
3
access is free and clear. (Boddie, supra 385, "Affluence does not pass muster under the Equal
4 Protection Clause for determinin g who must remain married and who shall be allowed to
5 separate.").

6 Parents Denied Need-Based Fees Under Family Code §2030

74. Defendants know or should that Family Code §2030 and §2032 was implemented to
7
address the issue of the ''unlevel playing fields" that exists where one wealthier parent is
8
Socionomic Justice Institute socioeconomicinstitute.com

represented but the indigent parent is unable to pay for an attorney.47 The Defendants know or
9
California Judicial Branch News Service cjbns.org

should know that the result or effects of imposing the VLS on unrepresented and/or indigent
10 parents occasion other unfair, unequal, unconstitutional treatment, and a second suspect class.
11 That suspect class consists of those "vexatious litigant parents" who have been denied "need­

12 based attorney fees" under §2030 and §2032 and thereby are not shielded from the VLS because
the family law court has refused to relieve them of the burden self-representation. (*See, In re
13
Marriage ofHatch (1 985) 1 69 Cal. App. 3d 1 2 1 3 where the appellate court found it was an
14
abuse of discretion for the trial court to deny fees where it was shown one parent could afford an
15
attorney but the other couldn't.). For instance, here class members have sought to be relieved of
16 the burden of self-represented by requesting need-based fees under §2030. (Factual Allegations,
17 Parents AD , Parent C,48).

18 Affluent Parents Not Subject to VLS v. One or Both Self-Represented Indigent Parents.

19 75. The Defendants know or should know that imposing the VLS on custody disputes
creates a third suspect class. This class consists of the family law cases not subject to the VLS
20
(because both parents are affluent and can hire attorneys) and the class of custody battles subject
21
to the VLS (because one or both parents cannot afford representation). For instance, wealthy
22 parents such as Sharon Stone and Phil Bronstein can hire top-notch attorneys to represent them
23 in their custody dispute and dissolution proceeding, which can last for years and which they can

24
47 In re Marriage of Tharp (2010) 188 Cal. App. 4th 1295, 1315: The public policy purpose behind sections 2030
25
and 2032 is "'leveling the playing field' and permitting the lower-earning spouse to pay counsel and experts to
litigate the issues in the same manner as the spouse with higher earnings." The appellate court remanded the case,
26 ordering that need-based fees be made available to the indigent spouse before the "conclusion of the case." Id., at
1316. The appellate court also directed the trial court to make a "needs-based analysis."
27 48 *See Exhibit VV, the family law judge berated Parent C for requesting "need-based fees" for the "eighth time"
and then turned around and declared the parent "vexatious" for the second time for having no money to hire an
attorney to be relieved of the burden of self-representation and subject to the VLS�

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 Case3:13-cv-01295-JSW Document1 Filed03/22/13 Page33 of 55

have "sealed" from public view.49 Access to family law courts is not tampered with for the
1
wealthy, but not so for poor or impoverished parents. (*See Factual Allegations, Parent N, Paren
2
H, Parent AD, Parent P, etc.).
3
76. The state's rationale of managing its dockets and unclogging its courts of frivolous or
4 unmeritorious claims may stand up in civil cases, but in the context of family law custody cases,
5 the state's rationale is neither compelling nor narrowly drawn.50 The Defendants know or should

6 know that the state's rationale for the VLS, at least with respect to matters touching on
fundamental rights," has been rejected by the state51 and federal Supreme Courts. (Boddie, supra,
7
382: "We are thus left to evaluate the State's asserted interest in its fee and cost requirements as
8
Socionomic Justice Institute socioeconomicinstitute.com

a mechanism of resource allocation or cost recoupment. Such a justification was offered and
9
California Judicial Branch News Service cjbns.org

rejected in Griffin v. Illinois, 351 U.S. 12 (1956)".

10 77. Defendants have violated the Equal Protection clause of the 1 4th Amendment to the
11 U.S. Constitution, by, among other things, creating suspect classes that deprive Plaintiffs of

12 equal access to the family law courts.

78. In all of this, Defendants have, under color of state law, deprived Plaintiffs and Class
13
Members of rights, privileges or immunities security to them by the Constitution of the United
14
States, in violation of 42 U.S.C. § 1 983.
15
SECOND CLAIM FOR RELIEF
16 Claim under 42 U.S.C. §1983, Deprivation of Federal Constitution Rights­
Violation of 14th Amendment's Due Process Clause
17 and 1st Amendment Right to Petition

18
79. Plaintiffs reallege and incorporate herein by reference each and every allegation and
19
paragraph set forth previously.
20 Due Process Clause of the 14th Amendment
21 80. The Plaintiffs have the right under the Due Process Clause of the 14th Amendment to

22 a "meaningful opportunity" to be heard in their custody cases. (Boddie, supra, 377).

23
49 http://www.people.com/people/article/0%2C%2C20228302%2COO.html: The case number for the family law case
of Bronstein v. Stone is not "available to the public." Apparently, wealthy and privileged people and litigate to their
24 hearts contend and "seal their records" from the general public.:
http://webaccess.sftc.org/Scripts/Magic94/mgrqispi94.dll?
25 APPNAME=IJS&PRGNAME=CaseSearchProcess22&ARGUMENTS=-A,-A,-NO,-Nl ,-A,-ASTONE\%2C
%20SHARON%20B,-A
26 50 *See fn 4 above, Lammers v. Superior Court (2000) 83 Cal.App.4th 1309, 1325: "[W]hen an enactment broadly
and directly impinges upon the fundamental constitutional rights...
27 51 Elkins v. Sup.Ct of Contra Costa Co., 41 Cal. 4th 1337 (2007), "In other words, court congestion and 'the press
of business' will not justify depriving parties of fundamental rights and a full and fair opportunity to present all
competent and material evidence relevant to the matter to be adjudicated."

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8 1 . The Defendants know that family courts are the only forum provided by the state to
1
parents to resolve their custody dispute and denial of ''full access" to that forum raises "grave"
2
concems.52 The Defendants know, as noted in the Elkins Task Force's final recommendations
3
and Chief Justice George's statements in Elkins, that parents don't have the funds to hire lawyer
4 in their custody disputes. Defendants know that in "society's hierarchy of values" that a parent's
5 parental fundamental constitutional custody rights are amongst the highest. (Stanley v. Illinois

6 (1 972) 405 U.S. 645; Santosky v. Kramer (1 982) 455 U.S. 745). Defendants know or should
know that "vexatious parents" under the VLS are denied full access and, often, any access, if
7
they are acting "in propria persona."
8
Socionomic Justice Institute socioeconomicinstitute.com

1st Amendment-Right to Appeal/Writ

9
California Judicial Branch News Service cjbns.org

82. Plaintiffs have the right under the 1 st Amendment and under Article VI, Section 1 1 of
10 the state constitution to "appellate review," though the Legislature may restrict review to a writ
11 petition as opposed to direct appeals. (Powers v. City ofRichmond (1 995) 1 0 Cal. 4th 85, 1 1 0:

12 " ...the Legislature may regulate the mode of appellate review, it may do so only to the extent
that it does not thereby "substantially impair the constitutional powers of the courts, or
13
practically defeat their exercise. ' '�.
14
83. The Defendants know that the Legislature has replaced a litigant's constitutional right
15
to appellate review under Cal. Const. Art. I, Section 1 0 with procedures under the VLS, which
16 call for "prefiling orders" as well as an appellate judge's "permission" to file. (*See, Exhibit C).
17 Similarly, the Legislature substitutes a vexatious parent's right to appellate review by a "three

18 judge court" as well as the requirement for the "concurrence of two judges . . . for a judgment"

19 (Cal. Const. Art. I. Sec. 3) with VLS procedures spelled under §391 .7. Likewise, the prefiling
order provisions of §391 .7 replaces a litigant's right to a "written decision" with "stated reasons"
20
(Cal. Const. Art. I, Sec. 1 4)53 and the right to oral argument54 (CRC 8.256) with a ''presiding
21

22 52 Boddie, supra at 375-376: Thus, this Court has seldom been asked to view access to the courts as an element o
due process. The legitimacy of the State's monopoly over techniques of final dispute settlement, even where som
23 are denied access to its use, stands unimpaired where recognized, effective alternatives for the adjustment o
differences remain. But the successful invocation of this governmental power by plaintiffs has often created serious
24 problems for defendants' rights . For at that point, the judicial proceeding becomes the only effective means o
resolving the dispute at hand, and denial of a defendant's full access to that process raises grave problems for i
25 legitimacy.
53 Cal. Const. Art. I, Sec 14: Sec. 14. The Legislature shall provide for the prompt publication
26
of such opinions of the Supreme Court and courts of appeal as the Supreme Court deems appropriate, and those
opinions shall be available for publication by any person.
27 Decisions of the Supreme Court and courts of appeal that determine causes shall be in writing with reasons stated.
'"' 54 Cal. Rules of Court, Rule 8.256(a)( l ): Each Court of Appeal and division must hold a session at least once each
quarter.

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judge's" summary determination that provides no written and merely provides the "recitation"
1
that the appeal has "has merit." (*See fn 65; Appellate judges provide no reasons and merely spit
2
back the "boiler plate" language of "no merit.").
3
84. The Defendants know or should know that by making §39 1 .7 of the VLS as the
4 "essential mode" of appellate review in cases of ''vexatious parents" that the Legislature has
5 effectively deprived Plaintiffs of any appellate review as is their right under the 1 st Amendment

6 and the state constitution. 55

85. As applied here, the Defendants know or should know that Plaintiffs are routinely and
7
regularly denied "permission" under the VLS by presiding judges to file motions in their custody
8
Socionomic Justice Institute socioeconomicinstitute.com

disputes. (*See Factual Allegation, Parent H, P, N, C). Defendants know or should know that the
9
California Judicial Branch News Service cjbns.org

"vexatious parents" are denied either the right to file direct appeals or writs of mandate regarding
10 the "orders" declaring them "vexatious litigants" and requiring them to post security. (Horton v.
11 City ofBeverly Hills (1 968) 261 Cal. App. 2d 306; 307; Orders declaring a party vexatious and

12 requiring security are nonappeable interlocatory orders; *Also, see, Golin v. Allenby (2010) 1 90
Cal. App. 6 1 6, 639: "A n order determining a party to be a vexatious litigant and requiring the
13
posting of security under section 391.3 is not directly appealable. " On the other hand, some
14
courts have relied on the mandate for a "liberal construction" of "notices to appeal" under CRC
15
8.821 (a)(2) to rule that a declared "vexatious litigant" is not appealing from the nonappealable
16 interlocutory order, but from the dismissal and, thus, an appeal can be taken. Roston v. Edwards
17 ( 1 982) 1 27 Cal. App. 3d 842, 84656; Likewise, Judge Sills in Luckett, supra at 90, relied on the

18 "liberal construction" and ruled that . . . we deem Luckett's appeal to befrom an order refusing
"

19
to dissolve the permanent (prefiling) injunction.. " which it noted was appealable under the Code
of Civil Procedure §904. l (a)(6)).
20
86. Despite these rulings, the Defendants know or should know that the trial courts deny
21
Plaintiffs "permission" to file custody motions and then the appellate courts deny attempts to
22 "appeal" the denial of permission from the trial court, creating a procedural loop where all
23

24 55 Powers, supra at 110: " ... If it could be demonstrated in a given case, or class of cases, that, for whatever reason,
the Courts of Appeal or this court could not effectively exercise the constitutionally granted power of appellate
25 review by an extraordinary writ proceeding, then such a proceeding could not constitutionally be made the exclusive
mode of appellate review."
26 56 Roston, supra 846: Notices of appeal should be liberally construed in favor of their sufficiency. (Rule l (a), Cal.
Rules of Court.) It is apparent plaintiffs intended to appeal from the final judgments of dismissal of their respective
27 actions and not from the nonappealable interlocutory orders. No one has been misled and defendants have not been
prejudiced. Consequently, we treat these appeals as being from the appealable judgments of dismissal. (Collins v.
City & Co. of S. F. (1952) 112 Cal.App.2d 719, 722-723 [247 P.2d 362].)

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appellate review is denied.57 The Defendants know or should know, particularly after amending
1
the VLS on January 1 , 20 1 3 and adding §39 1 .8 (which purports to create a procedure to "erase"
2
the permanent "vexatious litigant" branding), that "vexatious parents" are denied the right to
3
appeal the trial court's refusal to even allow for a hearing on the issue of "erasing" or lifting their
4 status as "vexatious." (*See, Factual Allegations, Parent P, C.). The Defendants know or should
5 know that the appellate courts then deny "permission" to appeal the request to lift the

6 "vexatious" label, ruling that the appeals of order permanently branding parents as ''vexatious"
has "no merit." (*See, RJN, Exhibit E).
7
87. The Defendants know or should know that the Legislature has deprived the Plaintiffs
8
Socionomic Justice Institute socioeconomicinstitute.com

of access under the VLS and made their "status" as "vexatious" an "essential precondition" if
9
California Judicial Branch News Service cjbns.org

not an absolute barrier to access and the "adjustment of the fundamental relationships" they have
10 with their children. They should know that this contradicts the ruling in Boddie v. Connecticut,
11 their 1 st Amendment right to petition, and the Plaintiffs' rights under the state constitution.

12 88. By imposing the VLS on parents in custody cases at the trial and appellate level,
Plaintiffs due process rights are violated when they are locked out of the family law courts (and
13
appellate courts) under the VLS solely because they cannot afford to hire an attorney to relieve
14
them of the burden of having to act "in propria persona." Having money to pay for an attorney or
15
having the good fortune to find a "pro bono" attorney then becomes, as a consequence or a direct
16 effect of the VLS, another "essential precondition" to the vexatious parents' right to challenge
17 custody orders and to vindicate their parental rights. (Boddie, supra at 400-401 ).58

18 89. In all ofthis, Defendants have, under color of state law, deprived Plaintiffs and Class

19 Members of rights, privileges or immunities security to them by the Constitution of the United

57*See A l 30206: After all his parental rights were terminated, the trial court denied Parent C's request for an ex
20
parte hearing on "emergency visitation" and then the Court of Appeals summarily determined that Appellant, who
had been denied any contact with his daughter for over 9 months, had "no merit."
21 http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=1&doc_id=1960835&doc_no=A l 30206

22
1 1 /24/20 1 0 Other involuntary dismissal BY THE COURT: Archibald Cunningham has previously been found to be a vexatious
23 litigant and is subject to a prefiling order. On November 8, 20 1 0, Mr. Cunningham filed an application for permission to appeal
the trial court's October 1 8, 20 1 0 orders denying his requests for permission to file a document entitled "Ex Parte Hearing for
24 Emergency Visitation and Appointment of Minor's Council [sic] ." The application for permission to appeal is denied. Mr.
Cunningham has failed to show a reasonable possibility that his appeal has merit. (See Code Civ. Proc., ? 391 .7.)

25
58 Boddie, supra, 400: We do not decide that access for all individuals to the courts is a right that is, in al
circumstances, guaranteed by the Due Process Clause of the Fourteenth Amendment so that its exercise may not b
26
placed beyond the reach of any individua( for, as we have already noted, in the case before us, this right is th
exclusive precondition to the adjustment of a fundamental human relationship. The requirement that these appellant
27 resort to the judicial process is entirely a state-created matter. Thus, we hold only that a State may not, consisten
with the obligations imposed on it by the Due Process Clause of the Fourteenth Amendment, preempt the right to
dissolve this legal relationship without affording all citizens access to the means it has prescribed for doing so.

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States, in violation of 42 U.S.C. § 1 983.

1
THIRD CLAIM FOR RELIEF
2 Claim under 42 U.S.C. §1983, Deprivation of Federal Constitution Rights­
Violation of 14th Amendment's Due Process Clause
3
(Imposition of VLS To Custody Cases On Its Face and As
4 Applied Is Unconstitutionally Vague and Overbroad ).

5
90. Plaintiffs realleges and incorporates herein by reference each and every allegation an
6 paragraph previously set forth.
7 Undefmed Terms

8 9 1 . In the context of custody proceedings, the VLS is constitutionally vague on its face
Socionomic Justice Institute socioeconomicinstitute.com

and as applied by trial courts and appellate courts. For instance, the VLS provides under section
9
California Judicial Branch News Service cjbns.org

39 1 (b)(l ) that a person can be declared "vexatious" ifthe person has suffered five ''final adverse
10
determinations" in a seven year period. The VLS, however, does not provide a definition of the
11
term "finally determined adversely to the person." In Wolfgram, the Court of Appeals ventures
12 reasonable guesses at what this language might mean, supra 58:
13 As a matter of common experience even many meritorious suits fail, due to the vagaries
of the trial process if nothing else. Many more colorable suits fail, either due to
14 pretrial disposition or failure to persuade the trier of fact. Yet, loss of five
suits in but seven years is remarkable. Most people never sue anybody. While that
15
does not lessen any person's right to sue to correct real or perceived injustices, it
16 does suggest that the inference to be drawn from the statute is, despite
Wolfgram's contrary view, relatively narrow: Only those citizens who decline to
17 hire lawyers, lose five suits in seven years, then undertake a sixth suit
which lacks merit, will be labeled vexatious.
18

19 As noted by Wolfgram, suits can be dismissed or "adversely determined" on procedural grounds

20 even though they are "meritorious. " The Wolfgram court also reads into the VLS a distinction

21 between "colorable claims" and "meritorious" claims. Yet, nowhere in the express language of
the VLS can these distinctions be found. Instead, the VLS leaves trial courts to their own devises
22
to construe this "adversely determined" phrase. In Wolfgram, the court's view of this phrase was
23
predicated on the assumption that the "suits" are civil rather than family law custody motions.
24 The Wolfgram 's view that "most people never sue anybody" may apply in civil suits, but in
25 family law matters, where up to 50% of marriages end in divorce, it is simply wrong. Likewise,
26 the Wolfgram 's assumption that people "decline to hire lawyers" flies in the face of the realities

27 explained in the Elkins Task Force. Further, it may be "remarkable" to the Wolfgram court that a
party could lose "five suits" in seven years, but Class Members know that they can, in their

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custody disputes, lose "five litigations" within seven weeks.59

1
92. The Defendants know or should know, particularly after the final recommendations o
2
the Elkins Task Force, that family law courts are rift with unrepresented parents who are have
3
"no choice" in this matter and who are subject to the VLS for being self-represented. Defendants
4 know or should know that the applying the VLS to unrepresented parents in custody disputes
5 creates immediate ambiguities on the face of the statute. For instance, §39 1 .1 provides that a

6 court may require the declared "vexatious litigant" to post security and §391 .4 provides that a
suit "shall" be dismissed if the security is not provide. Here, for instance, one Class Member wh
7
was involved exclusively in custody disputed was ordered to post $5000 in security. (*See, RJN,
8
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Exhibit X). After he failed to post security, under §391 .4, the family law court was required to
9
California Judicial Branch News Service cjbns.org

"dismiss" the case.60 Although the family law court did not comply with the requirement to
10 dismiss the custody dispute under §39 1 .4 for failure to post security, Defendants cannot
11 reasonably argue that if there was a dismissal of the custody case under the VLS that it would

12 have been consistent with a parent's custody rights. Nor could the Defendants reasonably argue
that the VLS preempts a parents due process rights in the custody case if they fail to or cannot
13
post security.
14
Plain Language Readings of VLS As Mandated By Shalant
15
93 . In Sha/ant v. Girardi, (201 1) 5 1 Cal. 4th 1 1 64, a civil case, the state Supreme Court
16 rejected "broad readings"61 of the VLS in favor of "plain language reading." (1 1 73 , fu 4). It also
17 directed courts to "observe the limits set by the applicable statutory scheme" and pointed out that

18 "it 's thefun ction ofthe Legislature, not the courts to expand them." (supra, 1 1 76). It also stated

19 that the distinction in the statute between "represented" litigants and those "in propria persona"
was not absurd." (supra, at 1 1 76).
20
Raising Section 391.1 Motions in Custody Disputes
21
94. In custody disputes, after Sha/ant v. Girardi, must the "moving defendant" (parent)
22
petition the court under §391 .1 to have the ''plaintiff" (parent) show both that the "moving
23
59 Section 391.7(d) defines "litigations" as motions. Hence, a parent could lose a pretrial motion for a §730
24 evaluator, a pretrial motion for minor's counsel, a motion for need-based fees under Family Code §2030, a motion t
modify visitation, a motion to recuse for cause, and with one more lost motion to increase child support the parent
25 would be sunk.
6° CCP §391.4: When security that has been ordered furnished is not furnished as ordered, the litigation shall be
26 dismissed as to the defendant for whose benefit it was ordered furnished.
61
In Sha/ant v. Girardi, (2010), 183 Cal. App. 545, the Court of Appeals cautioned against "broad interpretations"
27 of the VLS, supra, 557:"Given the important constitutional concerns that section 391.7 implicates, we conclude that
the statute should not be broadly interpreted. Rather, it should be applied strictly according to its terms." (emphasis
added).

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defendant" is vexatious and has no reasonable likelihood of prevailing in the custody dispute?
1
Or does a simple showing of "vexatiousness," without a showing of a reasonable likelihood of
2
prevailing, suffice in such a §39 1 . 1 motion in family court? Should §391 . 1 be read together with
3
§39 1 .3 to resolve any ambiguity or should the legislative record be considered? Any how does
4 any parent ''prevail" in a custody dispute that may endure for years? Does the plain language of
5 the VLS suggest that only the "defendant" parent, not the "plaintiff' parent, can bring a §39 1 . 1

6 motion in a custody dispute? In the context of custody cases, would that mean that a "defendant"
father would have the right to make a §39 1 . 1 motion but a "plaintiff' mother never would? Once
7
found ''vexatious," does the custody dispute then mysteriously become "new litigation" under
8
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§391 .7 for purposes of imposing "a prefiling order" on the vexatious parent? And can a
9
California Judicial Branch News Service cjbns.org

"nonparty" jump into an on going custody dispute and conduct his own §39 1 . 1 motion against a
10 father that has sued the nonparty in a civil suit (as happened to a Parent C)? Can the trial court
11 suspend the right to a hearing promised by §39 1 .2 as occurred to Parent K here? (*See, Factual

12 Finding, Pare:it C &K). Would this violate due process of law?

Old Custody v. New Custody Case
13
95. If, as the Supreme Court pointed out in Shalanf'2 that there are two remedies under
14
the VLS, one for "pending litigation" (under §39 1 . 1 ) and one for "new litigation" (§391 .7) then
15
how does an ongoing custody dispute morph into or transform into "new litigation" for which th
16 "defendant/vexatious/ parent" is required to obtain "permission" to file? Does being declared
17 "vexatious" change the "old" custody dispute into a "new" custody dispute? Or is this, in the

18 context of a custody dispute, a legal fiction allowing a court to step in and essentially muzzle one

19 parent, not in the hopes of resolving the custody dispute, but in simply ending the litigation in
favor of the parent who is represented? Is there any reason to believe that a "represented" parent
20
is a better parent than a self-represented one? (*See Factual Allegations. *Note that each Class
21
Member who has lost parental rights has been "self-represented."). The Defendants know of
22 should recognize these facially ambiguous provisions as applied by family law courts in custody
23 disputes.
24 Represented Parents

25
62 Shalant v. Girardi (20 1 1) 5 1 Cal. 4th 1 1 64, 1 1 7 1 : To summarize, our vexatious litigant statutes provide courts and
nonvexatious litigants with two distinct and complementary sets of remedies. In pending litigation, a defendant may
26 have the plaintiff declared a vexatious litigant and, if the plaintiff has no reasonable probability of prevailing,
ordered to furnish security. If the plaintiff fails to furnish the security, the action will be dismissed. (§§ 3 9 1 . 1 -391 .6.
27 In addition, a potential defendant may prevent the vexatious litigant plaintiff from filing any new litigation in propri
'"'
persona by obtaining a prefiling order and, if any new litigation is inadvertently permitted to be filed in propria
persona without the presiding judge's permission, may then obtain its dismissal. (§ 391 .7.)

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96. After Shalant v. Girardi, the application of the VLS to parents in protracted custody
1
disputes begs questions of its constitutionality. For instance, is it proper for family law judges to
2
impose provisions of the VLS against parents who are represented? (*See Factual Allegations,
3
Parent F, Parent C). If a parent is represented in a family law proceeding, but declared
4 ''vexatious" in a probate proceeding, can the trial court impose a prefiling order against the
5 parent in the family law courts? Can the court impose the prefiling order against the represented

6 parent and the attorney in the custody case as occurred her with Parent F? (Factual Allegations,
Parent F). Faced with a §39 1 . 1 motion, may a parent hire or obtain a "pro-bono attorney" and
7
"moot" the § 3 9 1 . 1 motion because the party is no longer acting "in propria persona"? 63
8
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97. Would a pro-bono attorney representing the parent and defending against a §39 1 . 1
9
California Judicial Branch News Service cjbns.org

motion be allowed to have a continuance to review that charges against the client? Or could the
10 trial judge rule that the pro-bono attorney was a "mere puppet" under In re Shieh and impose the
11 VLS against the attorney? (*See Factual Allegations. Parent F's pro-bono attorney was found to

12 during the §39 1 . 1 hearing and while trying to defend her client was found to be a puppet and had
a prefiling order imposed against her.). In imposing the VLS against the attorney, would the trial
13
court be acting in excess of or in the clear absence of all authority because the VLS, by definitio
14
and in view of the Shalant ruling, does not apply to attorneys? Would the judge be depriving the
15
attorney of the right to practice law? Would the judge be denying the client the right to have an
16 attorney?64
17 Permanent Branding of Parents As Vexatious.

18 98. As noted by Judge Sills in Luckett v. Panos, the VLS raises an issue of the duration

19 of the "vexatious litigant" label. This issue was raised 20 years ago by John E. Wolfgram in
Wolfgram v. Wells Fargo Bank and then addressed by the Court of Appeals for the Second
20
Appellate District was "troubled" by this "permanent" branding issue. (PBA, LLC v. KPOD, Ltd.
21
(2003) 1 1 2 Cal. App. 4th 965)). The PBA court stated, supra :
22 While there is much to recommend this reasoning, the conclusicm section 3 9 1 . 7 is to be a
23 permanent, irrevocable restriction is troubling. Although section 39 1 . 7 does not
absolutely exclude the "pro per" litigant from the courts, we believe fundamental fairness
24 requires the "vexatious litigant" brand be erasable in appropriate circumstances.

25
While the Judicial Council on January 1 , 201 3 added section 391 .8 to the VLS along with forms
26
63 *See, Factual Allegations: PlaintiffK had obtained an attorney prior to the §39 1 . 1 hearing and the family law
27 judge "vacated" the hearing, denying the parent the right to present any evidence, "written or oral" or ''by w itness or
affidavit" and ruled the parent was a "vexatious litigant" in his statement of decision.
64 *See, fn 23, Weissman v. Quail Lodge, Inc. (1 999 9th Cir. Cal.) 1 79 F3d 1 194.

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MC-702 and MC 703, this does not resolve the issue but just begs more questions. Why did it
1
take them 20 years to respond to the ''perpetual branding" question? Does a "vexatious parent"
2
have the right to a full evidentiary hearing with the right to call witness under Family Code §2 1 7
3
when seeking to "lift" the "injunction"? Is the minimum duration of the branding "at least four
4 years" as Judge Sills recommended in Luckett v. Panos? Is the "branding" an injunction under
5 Code of Civil Procedure §533 as Judge Sills concluded, which would be appealable as an order

6 to refuse to dissolve an injunction under §904. l (a)(b)? On the other hand, would the refusal to
allow a §39 1 .8 motion to erase the branding be an interlocutory nonappealable "order" as Judge
7
Sills pondered in Luckett? (supra, 89-90). Is Judge Sills statement, "we also provide a roadmap
8
Socionomic Justice Institute socioeconomicinstitute.com

as to how Luckett, or any other a person already adjudicated to be a vexatious litigant, can
9
California Judicial Branch News Service cjbns.org

succeed in having that determination lifted," and his listing of ''factors" impermissibly judicial
10 legislating? Is that implicitly suspect after the strict constructionist view taken in Shalant? Does
11 the uncertain duration of the branding of "vexatious parents," the inability to present evidence or

12 have an evidentiary hearing, and the scores of unanswered questions it raises, renders the VLS
unconstitutionally vague or overbroad? (9 Witkin, Cal. Procedure (4thed. 1 997) A ppeal, §446, at
13
493 ; However, where the error results in denial of a fair hearyng, the error is reversible per se.
14
Denying a party the right to testify or to offer evidence is rev�rsible per se. (Fewel v. Fewel
15
(1 943) 23 Cal. 2d 43 1 ,433.).
16 Impromptu Section 391.1 Motions By the Appellate Courts "On Their Own Motions.
17 99. For that matter, can a Court of Appeals, on its own motion under §391 .7 and while

18 there is no pending litigation on appeal, conduct a §39 1 . 1 motion on the basis of 'unsuccessful"
appeals of family law decisions? (*See Factual Allegation, Parent P). Would the party called to
19
defend himself before the appellate court be the "plaintiff'? Would the Court of Appeals be or
20
become the "moving defendant" as those terms are defined by the statute? Would the appellate
21
court's impromptu §39 1 . 1 motion, when there is no "pending litigation," work to preempt the
22 need for a "summons and complaint," the requirements for a "response," and service of process
23 under the Code of Civil Procedure? Would the Court of Appeals then be an impromptu trial cou

24 issuing a "vexatious litigant order" or would it remain an appellate court issuing an "appellate

25 opinion"? Would the vexatious litigant parent-plaintiff-appellee then be allowed to appeal this
"order/opinion"? And to whom? The Supreme Court? How would this impact the Rooker-
26
Feldman doctrine if the "vexatious parent" was denied access to the state courts but sought to
27
challenge the "constitutionality'' of the VLS? These are not rhetorical questions but actual
'"''

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considerations as Parent P must consider after being confronted by an impromptu §391 . 1 motion
1
by an appellate court.
2
Multiple Vexatious Litigant Motions With Multiple Fee Award.
3
1 00. As occurred here to a Parent C (*See, Factual Allegations, Parent C), may a family
4 law judge conduct multiple vexatious litigant hearings against the same father on the same
5 grounds and then sanction him multiple times? Would this application of the VLS be supported

6 by a "plain reading" of the VLS as mandated by the Supreme Court in Shalant? Would multiple
§39 1 . 1 motions with multiple sanctions against the same father on the same grounds by the same
7
family law judge improperly preempt principles ofres judicata and collateral estoppel? Would
8
Socionomic Justice Institute socioeconomicinstitute.com

the parent's appeal of the first vexatious litigant order "automatically stay" (under CCP §9 1 6) th
9
California Judicial Branch News Service cjbns.org

second vexatious litigant hearing? Would the judge's refusal to stay the second hearing pending
10 the outcome of the first vexatious hearing be supported by a "plain reading" of the VLS? Did the
11 judge, in allowing the second hearing, improperly read the VLS as preempting the Code of Civil

12 Procedure? After the first vexatious litigant fee award was overturned (A1 2471 7), did that also
overturn the second vexatious litigant order? Or did the appellate court's refusal to grant
13
permission to appeal the second vexatious litigant order violate the 1 st or 1 4th Amendments? Are
14
other family law judges conducting multiple vexatious litigant hearings?
15
*Right to Appellate Review, Denial of Permission to Appeal,
16 1 0 1. In Powers v. City ofRichmond (1 995) 1 0 Cal. 4th 85, the Supreme Court held that
17 the "appellate jurisdiction" provision of article VI, section 1 1 of the Constitution did not grant a

18 litigant the right to a "direct appeal" as opposed to a "writ of mandate." While the Supreme

19 Court noted that the litigant did not have a right to appeal with a decision on the merits, oral
argument, and that the Legislature could "regulate the mode of appellate review," the Supreme
20
Court noted that the Legislature could not "impair" or ''practically defeat'' an appellate courts'
21
exercise of appellate review.65
22
1 02. In view of Powers, the imposition of the VLS on "vexatious parents" begs
23
65 Powers, supra 1 10: This does not mean, however, that the "appellate jurisdiction" provision imposes no
24
restrictions on the Legislature's authority to allocate appellate review as between direct appeals and extraordinary
writ petitions. As we have seen, the plain language of the provision reveals that it is a grant ofjudicial authority and
25
this form of grant has been interpreted to mean that, although the Legislature may regulate the mode of appellate
review, it may do so only to the extent that it does not thereby " 'substantially impair the constitutional powers of the
26
courts, or practically defeat their exercise.' " (In re Jessup, supra, 8 1 Cal. 408, 470, italics omitted; see also Haight,
supra, 8 Cal. 297, 300.) If it could be demonstrated in a given case, or class of cases, that, for whatever reason, the
27 Courts of Appeal or this court could not effectively exercise the constitutionally granted power of appellate review
by an extraordinary writ proceeding, then such a proceeding could not constitutionally be made the exclusive mode
of appellate review. (emphasis added).

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constitutional questions. Unlike civil litigants, "vexatious parents" seek to appeal judgments
1
involving their fundamental custody rights. Likewise, they seek to appeal orders involving child
2
support and visitation66, which often tie in with restraining orders. Do the forms used by the
3
appellate courts to determine if a request to appeal or file a writ "has merit" (*See, MC-700, 701 )
4 comply with a parent's right to "appellate review" that i s guaranteed by the state and federal
5 constitution? Can it reasonably be argued by Defendants that these "requests for permission"

6 forms demanded by appellate courts provide any, let alone effective or sufficient appellate
review? If a "represented" parent is denied the right to file an "order to show cause" after the
7
termination of all parental rights for failing to post a bond (as has occurred here),67 can the
8
Socionomic Justice Institute socioeconomicinstitute.com

appellate court refuse to review the 30 page writ filed by the represented parent/appellant on the
9
California Judicial Branch News Service cjbns.org

grounds that the writ does not contain "sufficient documentation"? Does that offend the parent's
10 right to petition?
11 1 02. In the same way, if a Class Member (such as Parent P) is declared "vexatious" by an

12 appellate court and wishes to appeal, does he first have to file a motion for reconsideration with
the appellate court or must he file a petition with the state Supreme Court? Does the procedural
13
ambiguity and uncet1:ainty resulting from the appellate court's §39 1 . 1 action impinge on the right
14
to petition? Can it reasonably be argued by Defendants that the right to appellate review is not
15
infringed upon because the "vexatious parents" have the right to hire a lawyer? Can it reasonably
16 be argued by Defendants that the VLS does not offend the right to petition at the trial court or on
17 the appellate level when these courts, almost categorically, deny all requests?

18 1 03. The Legislature has created a facially vague statute and has improperly delegated to

19 the trial and appellate judges the job of ferreting out the meaning of each and every sentence in
almost every provision. The rulings amongst the court are themselves inconsistent and often
20
contradictory. The branding as "vexatious" is of an indefinite duration and the procedures to
21
"lift" the label are uncertain. The Legislature has delegated to the trial courts the right to fill in
22
66
*See A l30206: http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?
23 dist= l &doc id=1960835&doc no=A130206:
- -

1 1/24/20 I 0 Other involuntary dismissal BY THE COURT: Archibald Cunningham has previously been found to be a vexatious
litigant and is subject to a prefiling order. On November 8, 201 0, Mr. Cunningham filed an application for permission to appeal
24 the trial court's October 1 8 , 20 1 0 orders denying his requests for permission to file a document entitled "Ex Parte Hearing for
Emergency Visitation and Appointment of Minor's Council [sic] . " The application for permission to appeal is denied. Mr.
25 Cunningham has failed to show a reasonable possibility that his appeal has merit. (See Code Civ. Proc., ? 391 .7.)
67*See, A 130282: http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?
26 dist= l &doc id=1961615&doc no=A130282:
- -

1 1 /23/20 I 0 Order denying petition filed. Petitioner, a vexatious litigant who is now represented by counsel, has filed a petition
27 for writ of mandate challenging the trial court's requirement that petitioner post a bond to have an order to show cause placed on
calendar. Without commenting on the merits of the petition - or whether petitioner is allowed to file such a petition without
posting a bond - we deny the petition without prejudice because it does not contain sufficient documentation for the court to
consider the merits of the claim. (See Serna v. Superior Court ( 1 985) 40 Cal.3d 239, 246.)

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the gaps and uncertainties in the procedures on an ad hoc and subjective basis. ( "A vague law
1
impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on
2
an ad hoc and subjective basis, with the attendant dangers or arbitrary and discriminatory
3
application. "; Grayned v. City ofRockford, 408 U.S. 1 04, 1 08-1093, ( 1 972)
4 1 04. Defendant's actions, orders and rulings deprive Plaintiff of his rights, privileges or
5 immunities secured to him by the Constitution of the United States in violation of 42 U.S.C.

6 § 1 983.
FOURTH CLAIM FOR RELIEF
7
Claim under 42 U.S.C. §1983, Deprivation of Federal Constitution Rights­
8 The Vexatious Litigant Statutes As Applied Here
Socionomic Justice Institute socioeconomicinstitute.com

Creates a Prior Restraint in Violation of

9 the 1st Amendment Right to Petition
California Judicial Branch News Service cjbns.org

10
1 05. Plaintiffs reallege and incorporate herein by reference each and every allegation and
11
paragraph set forth previously.
12 1 06. The Class Member's right to petition for redress of grievances is a fundamental right
13 protected by the 1 st Amendment and of the United States Constitution and the Constitution of the

14 State of California. (Art. I, § § 2, 3.).68

1 07. As noted above , Judge Cardoza has urged family law judges to use the VLS as a
15
"tool to discourage repeated motions by parents to regain custody of their children when there
16
are no changed circumstances to justifY a different result." to "(In re R.H., supra 700). The
17
requirement for a "prefiling order" and/or security before being allowed to file motions in a
18 custody dispute is an unconstitutional prior restrain. The VLS, in custody cases, is directed at
19 enjoining any "speech" (argument, contentions, etc.) related to the custody dispute. This use of

20 the VLS functions as a prior restrain on the right to petition by limiting, restricting, or curtailing

21 the presentation of relevant evidence and testimony that could be used by a parent to prove a
"chan ge of circumstances" justifying a need to change in visitation or custody. By imposing the
22
VLS on custody cases, the state purports to allow family law courts to enjoin the presentation of
23
any relevant evidence, including evidentiary hearing (Family Code §21 7), live testimony (Famil
24 68
The right of petition, like the other rights contained in the First Amendment and in the California constitutional
Declaration of Rights, is accorded "a paramount and preferred place in our democratic system." (American Civil
25
Liberties Union v. Board of Education (1961) 55 Cal.2d 1 67, 178; The Supreme Court has stated that "the rights to
assemble peaceably and to petition for a redress of grievances are among the most precious of the liberties
26
safeguarded by the Bill of Rights. These rights, moreover, are intimately connected, both in origin and in purpose,
with the other First Amendment rights of free speech and free press." (Mine Workers v. Illinois Bar Assn. ( 1967)
27 389 U.S. 2 17, 222 [19 L.Ed.2d 426, 430, 88 S.Ct. 353]; see also Thomas v. Collins ( 1 945) 323 U.S. 5 1 6, 530 [89
L.Ed. 430, 440, 65 S.Ct. 3 1 5] ; De Jonge v. Oregon ( 1 937) 299 U.S. 353, 364 [8 1 L.Ed. 278, 283, 57 S.Ct. 255].)

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Rule 5. 1 1 3, 5 .250), and relevant evidence under Evidence Code §353 that a parent needs to
1
"regain custody rights."
2
1 08. The Defendants know or should know that the use of the VLS as a tool to muzzle or
3
gag parents in advance of a court hearing on a custody issue constitutes a prior restraint on their
4 right to petition. (Nebraska Press Assn. v. Stuart, 427 U.S. 539 (1 979); City ofLong Beach v.

5 Bozek ( 1 982) 3 1 Cal. 3rd 528; "The right of petition is of parallel importance to the right offree

6 speech and the other overlapping, cognate rights contained in the First A mendment and in
equivalent provisions of the California Constitution. A lthough it has seldom been independently
7
analyzed, it does contain an inherent meaning and scope distinctfrom the right offree speech. It
8
Socionomic Justice Institute socioeconomicinstitute.com

is essential to protect the ability of those who perceive themselves to be aggrieved by the
9
California Judicial Branch News Service cjbns.org

activities of governmental authorities to seek redress through all the channels of

10 government. . . . ") . 69
11 1 09. The Defendants know or should know that the VLS' restraint on access to family

12 law courts in turn impinges on fundamental custody rights. Parents cannot prove that there has
been a "change ofcircumstance" unless they have access and the right to present evidence, such
13
'
as live testimony. By using the VLS to deny access, "vexatious litigant" parents are deprived of
1 14
an opportunity to present their custody case. The deprivation of due process of law is the
15
secondary effect of the denial of access. In this sense, the VLS is tantamount to a mandatory
16 presumption that any challenge to a final custody order is without merit. 70 The imposition of the
17 VLS in custody disputes is hopelessly circular both procedurally and substantively. (Vexatious

18 parents cannot show "changed circumstances" because the VLS denies them access to present

19 their case.). Here, Class Members have lost custody rights in "trials by declarations" without

20
69 Bozek, fn 4: The legislative history of California Constitution article I, section 3, reveals an intent to make the
21 California provision at least as broad as the First Amendment right of petition. Article I, section 10 of the California
Constitution, originally enacted in 1 849, stated: "The people shall have the right to freely assemble together to
22 consult for the common good, to instruct their representatives, and to petition the Legislature for redress of
grievances." (Italics added.) On November 5, 1974, the voters of this state adopted the following amended and
23 renumbered provision: "The people have the right to instruct their representatives, petition government for redress o
grievances, and assemble freely to consult for the common good." (Italics added.) (Cal. Const., art. I, § 3.) The
24 amendment was clearly intended to broaden the right of petition to make it extend to petitions to all branches of
government, not merely to the Legislature. (See Proposed Revision of the California Constitution, Articles I, XX,
XXII, 5 Cal. Const. Revision Com. Rep. (197 1 ) p. 23.)
25
70 In Elkins, Chief Justice George noted that any presumption that a custody order was final depended on a there
26
having been a "fully-litigated hearing." A postjudgment motion for modification of a final child custody order, for
example, requires the moving party to demonstrate a significant change of circumstances warranting departure from
27 the judgment. (Montenegro v. Diaz, supra, 26 Cal.4th at p. 256.) A presumption exists that the judgment is correct
"' o
and should not be disturbed -- a presumption that would not be well founded were the judgment to be based upon
hearsay (unless admitted into evidence upon stipulation of the parties).

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every being given having a ''fully litigated hearing" as noted by Chief Justice George in Elkins.
1
1 1 0. Defendants have violated the Class Member' s 1 st Amendment right to petition under
2
the U.S. Constitution, by, among other things, applying the VLS as a prior restraint.
3
1 1 1 . In all of this, Defendants have, under color of state law, deprived Plaintiffs and
4 Class Members of rights, privileges or immunities security to them by the Constitution of the
5 United States, in violation of 42 U.S.C. § 1 983.

6 FIFTH CLAIM FOR RELIEF

Unwritten Rules and Procedures Implementing Prefiling Orders
7 Violates Due Process Clause of 14th Amendment

8
Socionomic Justice Institute socioeconomicinstitute.com

1 1 2. Plaintiff realleges and incorporates herein by reference each and every allegation
9
California Judicial Branch News Service cjbns.org

and paragraph previously set forth.

10
1 1 3 . Defendants know or should know that the U.S. Supreme Court declared that Due
11
Process guarantees apply to family law proceedings in Boddie v. Connecticut (1 970) 401 U.S.
12
371, 377-378). In Boddie, the U.S Supreme court explained: "[D] ue process requires, at a
13
minimum, that absent a countervailing state interest of overriding significance, persons forced to
14
settle their claims of right and duty through thejudicial process must be given a meaningful
15
opportunity to be heard. . . A lthough '(m)any controversies have raged about the cryptic and
16
abstract words of the Due Process Clause, ' . . . 'there can be no doubt that at a minimum they
17
require that deprivation of life, liberty or property by adjudication be preceded by notice and
18
opportunity for hearing appropriate to the nature of the case. ' (Boddie, supra, at 377-378).
19
1 14. Defendants know or should know that the California Supreme Court has ruled in
20
Elkins v. Sup. Ct. of Conta Costa Co. (41 Cal. 4th 1 337 (2007)) that courts may not adopt local
21
rules or procedures that are inconsistent with statute, rules of the Judicial Council, case law or
22
constitutional law.71
23
71 Elkins, supra, at 1 3 5 1 -53 . The scope ofa court's inherent rulemaking authority has been discussed in various
24
decisions (see, e.g., Rutherford, supra, 1 6 Cal.4th at pp. 967-968), and the outer limits of such authority are clear. A
trial court is without authority to adopt local r rules or procedures that conflict with statutes or with rules of court
25
adopted by the Judicial Council, or that are inconsistent with the Constitution or case law. (Rutherford, supra, at pp.
967-968; see also Hall v. Superior Court (2005) 133 Cal.App.4th 908, 9 1 6-9 1 8.) As provided in Government Code
26 section 68070, subdivision (a): "Every court may make rules for its own government and the government of its
officers not inconsistent with law or with the rules adopted and prescribed by the Judicial Council." (Italics added;
27 see also 2 Witkin, Cal. Procedure (4th ed. 1 996) Courts, § 204, p. 272; id. (2006 supp.) § 204, pp. 87-88.).

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1 1 1 5. The Defendants know or should know that the 1 4th Amendment provides that no

2 State shall "deprive any person of life, liberty, or property, without due process of law."72

3 1 1 6. The Defendants know or should know that under CCP §39 1 .7(b) a presiding judge

4 may deny a party the right to file if the judge finds the submitted pleadings lacks "merits" or are

5 being filed to "harass" or cause "delay." They also know that Judicial Council form MC 701

6 provides an informal procedure which the presiding judge uses to decide if the party's action has

7 "merit" and should be allowed to file. The form does not provide for a hearing, the presentation

8 of any evidence, or testimony, but requires the party to "attach a copy'' of the "document to be
Socionomic Justice Institute socioeconomicinstitute.com

9 filed." Further, the VLS does not indicate whether the presiding judge's "merit" determination
California Judicial Branch News Service cjbns.org

10 should involve a hearing or the presentation of evidence. Nor does the VLS set out procedures,

11 name factors to consider, or provide any standards to be used by the presiding judge in rendering

12 the "merit" order. The form MC 701 , however, does provide a section for an "ORDER" with

13 three boxes (Granted, Denied, or Other) and another box for "Attachment to order; Number of

14 pages ." There are no instructions on the form as to whether the presiding judge is required

15 to provide a written response and "attach" its response/decision to the order.

1 1 7. In making its "merit" determination, neither the VLS nor the Judicial Council MC-
16
701 form state what standards should be applied73, what factors should be considered, when the
17
merit ruling should be made or whether the Plaintiff has a right to "appeal" the order. However,
18
the courts presume judges obey all laws, particularly the state and federal Constitutions, which
19 they are sworn to uphold. (Evid. Code, §664 [presumption that official duty "regularly
20 performed"]; Civ. Code, § 3 548 ["law has been obeyed"].) The "merit determination," being

21 completely an opaque process without written reasons or explanations is beyond scrutiny and
devoid of any proof to support the determination. (This creates an improper mandatory
22
presumption under Hicks v. Feiock (1 988) 485 U.S. 624).
23
1 1 8. The Due Process Clause requires states to afford civil litigants a "meaningful
24
opportunity to be heard'' by removing obstacles to their full participation in judicial proceedings.
25 (*See, Boddie v. Connecticut, 40 1 3 7 1 , 379 ( 1 97 1 ), fees for filing divorce; M L.B. v. S. L. J. 5 1 9
26

27 72 See also, Cal. Const. Art. 1 , §7.

73 In re
R.H., 1 70 Cal. App. 4th 678 (2009). The standard used by a presiding judge after a prefiling order has been
imposed is, "the simple showing of an arguable issue." (Id, at 705).

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U.S. 1 02, 1 36 (1 996), the costs of transcripts needed to defend termination proceeding). The
1
hearing required by the due process clause must be. "'meaningful"' and "'appropriate to the nature
2
of the case."' ( *See, Bell v. Burson, 402 U.S. 535, 541 -542: "A procedural rule that may satisfj;
3
due process in one context may not necessarily satisfj; procedural due process in every case.
4 Thus, procedures adequate to determine a welfare claim may not suffice to try afelony charge. "
5 Compare Goldberg v. Kelly, 397 U.S. at 270-27 1 , with Gideon v. Wainwright, 372 U.S. 335

6 (1 963)"). 74
1 1 9. Defendants know or should know that Class Members' requests for change to
7
custody or visitation orders will be decided using form MC 70 1 and by the unwritten procedures
8
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and rules implementing the VLS. The unwritten rules include the absence of any meaningful
9
California Judicial Branch News Service cjbns.org

time frame for making a "merit" determination, with delays for months and months. The
10 unwritten rules apparently allow presiding judges to refuse a "vexatious parent's" attorney to file
11 on his behalf without any explanation or citation to any authority for doing so. (*See Exhibit U).

12 The unwritten procedures involve allowing the presiding judge to make the merit determination
without a written decision or opinion, or one word of explanation. The unwritten procedures and
13
rules apparently also involve the denial of any right to appeal or review or reconsideration. Whil
14
courts have stated that the VLS is applied with distinct standards, the reality of family law courts
15
is different. 75
16 120. Defendants know or should know that the appellate courts use their own forms, such
17 as the "Application for Permission to Appeal or to File Writ Petition" that is used by the Court o

18 Appeals for the First District. (RJN, Exhibit AAA) . The same due process concerns associated

19 with the MC-701 form apply equally to the appellate forms.

121 . While the "merit" determination of CCP §391 .7(b) coupled with the MC-701 form
20

21 74 Bell v Burson, supra, at 539: "Once licenses are issued, as in petitioner's case, their continued possession may
become essential in the pursuit of a livelihood. Suspension of issued licenses thus involves state action that
22 adjudicates important interests of the licensees. In such cases, the licenses are not to be taken away without that
procedural due process required by the Fourteenth Amendment. Sniadach v. Family Finance Corp., 395 U. S. 337
23 (1 969); Goldberg v. Kelly, 397 U. S. 254 (1 970). This is but an application of the general proposition that relevant
constitutional restraints limit state power to terminate an entitlement whether the entitlement is denominated a
24 "right" or a "privilege." Sherbert v. Verner, 374 U. S. 398 (1963) (disqualification for unemployment
compensation); Slochower v. Board ofEducation, 350 U. S. 551 (1 956) (discharge from public employment);
25 Speiser v. Randall, 357 U. S. 5 1 3 (1 958) (denial of a tax exemption); Goldberg v. Kelly, supra (withdrawal of
welfare benefits). See also Londoner v. Denver, 2 1 0 U. S. 373, 2 1 0 U. S. 385-386 (1908); Goldsmith v. Board of
26 Tax Appeals, 270 U. S. 1 1 7 ( 1 926); Opp Cotton Mills v. Administrator, 3 1 2 U. S. 126 ( 1 941 )."

75 "Tothe extent [section 3 9 1 .7] keeps vexatious litigants from clogging courts, it is closer to 'licensing or permit
27 systems which are administered pursuant to narrowly drawn, reasonable and definite standards' which represent
'government's only practical means of managing competing uses of public facilities[.]' " (Wolfgram v. Wells Fargo
Bank ( 1997) 53 Cal. App. 4t11 43, 60.

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and appellate forms may be "narrowly drawn" and satisfy due process requirements in the
1
context of civil suits involving licensing requirements for baby strollers, it cannot be said that the
2
summary procedure used here by Defendants satisfies due process in the context of "merit"
3
decision involving fundamental parental rights.
4 1 22. In the context of a family law proceeding with an issue of the termination of a
5 . parents visitation rights at stake, it cannot be said that the state's interest in curbing "vexatious"

6 litigation and its methods for achieving that legitimate interest is narrowly drawn where parents
have been shut off from the only forum in which he can regain his visitation rights. As explained
7
in Boddie and Elkins, an argument for efficacy in managing the docket does not justify an
8
infringement of fundamental rights.76 • This violates his Fourteenth Amendment Due Process
Socionomic Justice Institute socioeconomicinstitute.com

9
California Judicial Branch News Service cjbns.org

rights to a meaningful opportunity to be heard.

10 1 23 . Defendants' actions, orders and rulings, taken under color of law individually and in
11 consort, deprive Plaintiff of his rights, privileges or immunities secured to him by the

12 Constitution of the United States in violation of 42 U.S.C. § 1 983.

SIXTH CLAIM FOR RELIEF
13
Claim under 42 U.S.C. §1983, Deprivation of Federal Constitution Rights­
14 The VLS Functions as an Improper Bill of Attainder

15 1 24. Plaintiffs reallege and incorporate herein by reference each and every allegation and

16 paragraph set forth previously.

1 25. The VLS as applied to custody cases in family law proceedings amounts to an illega
17
bill of attainder prohibited by the U.S. Constitution Article I, Section 9; Clause, which provides
18
"[N]o Bill of Attainder or ex post facto Law shall be passed."77
19
1 26. As applied in custody cases, the VLS changes Class Members visitation rights in
20 several ways. First, visitation orders that have drastically curtailed or terminated parental rights
21 become "permanent" as the result of family law judges' refusal to grant vexatious parents'
22 "permission" to file challenges to visitation and custody orders. (*See, Factual Allegations where

23 the VLS has been used to lock parents out of court after terminating all their parental rights.).
76 Boddie, supra, at 40 1 . We are thus left to evaluate the State's asserted interest ht its fee and cost requirements as a
24 mechanism of resource allocation or cost recoupment. Such a justification was offered and rejected in Griffin v.
Illinois, 351 U.S. 12 (1956). *See also, Elkins v. Sup. Ct. of Contra Costa Co., 41 Cal. 4th 1337 (2007), "In other
25 words, court congestion and 'the press of business' will not justify depriving parties of fundamental rights and a full
and fair opportunity to present all competent and material evidence relevant to the matter to be adjudicated."
26

27 77*See Cal. Const. Art. I, section 9: A bill of attainder, ex post facto law, or law impairing the obligation of
contracts may not be passed.

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Second, the VLS restricts access and the ability of "vexatious parents" to prove, as noted above,
1
that there has been a "change of circumstance. " The effect of applying the VLS to custody
2
disputes creates a third series of problems. Those temporary orders depriving parents of custody
3
(which become "defacto termination orders" as a result of being beyond challenge since no
4 access), change parental rights under the Family Code and Title Five Rules. The de facto
5 termination of all parental rights for three, four, five years as has occurred to Class Member here

6 (*See Factual Allegations, Parent H, AD, N, C), serves to rewrite the "best interest" test of
Family Code §301 1 (how is the termination of all parental rights in the "best interest" of a
7
child?). It negates the requirement for a "detriment" finding before parental rights can be
8
Socionomic Justice Institute socioeconomicinstitute.com

terminated under Family Code §3041 . The de facto terminations serve to negate a parent's right
9
California Judicial Branch News Service cjbns.org

to ''frequent and continual contact" under Family Code §3040, §3080. The Class Members'
10 custodial rights are thus altered by the VLS that adversely affect them as parents, thus depriving
11 · them of custodial rights that other parents in California enjoy.

12 1 27. The Defendants know or should know, as pointed out by Judge Cardoza in In re
R.,H. , that the VLS is specifically applied to the class of parents in custody disputes. They know
13
or should known that this constitutes a legislative determination that "custody disputes" are
14
unmeritorious motions and that they should be denied before they are even heard despite the fact
15
that custody disputes involve fundamental rights and parents have the right to "evidentiary
16 hearings" under Family Code §2 1 7 and the right to live testimony under Title Five 5 . 1 1 3 , 5.250.
17 Their "blameworthy conduct" is nothing more than trying to "regain custody'' as Judge Cardoza

18 stated. The constitutional defects arise from the statutes' text (the prefiling order and security

19 requirements of §39 1 . 7) and legislatively determining "quilt" without the protections of due
process of law as provided by the Family Code and Title Five Rules. Nixon v. A dm'r of Gen.
20
Servs., 433 U.S. 425, 468, 97 S.Ct. 2777, 2802, 53 L.Ed.2d 867 ( 1 977).
21
1 28. Under the prevailing case law, a law is prohibited under the bill of attainder clause
22 "if it (1) applies with specificity, and (2) imposes punishment." BellSouth Corp. v. FCC, 1 62
23 F.3d 678, 683 (D.C. Cir. 1 998). The element of specificity may be satisfied if the statute singles
24 out a person or class by name or applies to " easily ascertainable members of a group." United

25 States v. Lovett, 328 U.S. 303, 3 1 5, 66 S.Ct. 1073, 1 078-79, 90 L.Ed. 1 252 (1 946). The Supreme
Court ruled in that the second element of punishment78 was shown by a legislative act that
26

27 78 The U.S. Supreme Court noted that the question of a statute imposes punishment, a court should pursue a

three-prong analysis:(!) whether the challenged statute falls within the historical meaning of legislative punishment;
(2) whether the statute, "viewed in terms of the type and severity of burdens imposed, reasonably can be said to

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resulted in a father's "deprivation of parental rights" and the "opprobrium of being braded a
1
criminal child abuser." Doris R. Foretich, et al. v. United States, 351 F.3d 1198 (D.C.App. 2003).79
2
129. In view of Judge Cardoza and Judge Sills statements, it cannot reasonably be argued
3
by Defendants that the "vexatious parents" are not being vilified as having "mental disorders" or
4 being "criminal masterminds." This is unmistakable evidence of "punitive intent. The public
5 contempt and ignominy for "vexatious litigants," including "vexatious parents," is personified by

6 the "list" maintained for public view, which is the functional equivalent of public pillorying in
our digital age. The fact that the Judicial Council has created forms, MC-703 & MC-704, which
7
allow vexatious parents to petition to remove themselves from the "lists" does not diminish the
8
Socionomic Justice Institute socioeconomicinstitute.com

public shaming.
9
California Judicial Branch News Service cjbns.org

1 30. Nor can the Defendants reasonable contend that the VLS as applied to parents in
10 custody disputes is "nonpunitive" or narrowly drawn. The state may have a legitimate interest in
11 curbing "vexatious" or frivolous litigation in civil cases, but in custody cases the use of the VLS

12 impinges the right to petition and undermines custody rights and has, in some cases, resulted in
the termination of all custodial rights. (*See, Factual Allegations).
13
1 3 1 . Nor can the Defendants argue that the VLS is narrowly drawn in the context of
14
custody disputes where affluent parents can litigate their custody dispute without restrictions and
15
perpetually while impoverished parents who have been declared "vexatious" are often denied all
16 access. The state could impose "less burdensome" alternative on ''vexatious parents" simply by
17 limiting the reach of the VLS to "civil cases" as opposed to "family law litigants" (the VLS does

18 not reach to "criminal matters" as pointed out in McColm, supra ) or by providing funds for

19 "need-based" fees as recommended by the Elkins Task Force. (*See, Nixon, 433 U.S. at 482, 97
S. Ct. at 2 8 1 0).
20
1 32. Defendants have violated the state and federal constitution by applying the VLS on
21
"vexatious parents," which functions as a bill of attainder.
22
1 33 . In all of this, Defendants have, under color of state law, deprived Plaintiffs and
23 Class Members of rights, privileges or immunities security to them by the Constitution of the
24
further nonpunitive legislative purposes" ; and (3) whether the legislative record "evinces a congressional intent to
25 punish." Selective Serv. Sys. v. Minn. Pub. Interest Research Group, 468 U.S. 841 , 852, 104 S.Ct. 3348, 3355, 82
L.Ed.2d 632 (1 984) (quoting Nixon, 433 U.S. at 473, 475-76, 478, 97 S.Ct. at 2805, 2806-2807, 2808).
26
79 Foretich,supra: In this case, the legislative history is replete with evidence that the statutory purpose of the
Elizabeth Morgan Act was to "correct an injustice" and take sides in a notorious custody dispute. Hearing at 8, J.A.
27 41 (statement of Rep. Molinari). The focus of the Act and the unusual committee hearing in consideration of the bill
demonstrate that the legislative process in this case amounted to precisely that which the Bill of Attainder Clause
was designed to prevent: a congressional determination ofblameworthiness and infliction of punishment."

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United States, in violation of 42 U.S.C. § 1 983.

1
SEVENTH CLAIM FOR RELIEF
2 Claim under 42 U.S.C. §1983, Deprivation of Federal Constitution Rights­
The VLS Functions as an Improper Ex Post Law
3

4 1 34. Plaintiffs reallege and incorporate herein by reference each and every allegation and
paragraph set forth previously.
5
1 35. The VLS as applied to custody cases in family law proceedings amounts to an illega
6
ex post facto law prohibited by the state and federal constitutions. (U.S. Const. Article 1 , Section
7
9, Clause 3).
8 1 36. The VLS looks to past litigation to determine "vexatious" conduct, particularly
Socionomic Justice Institute socioeconomicinstitute.com

9 "litigations that ha ve beenfinally determined adversely" to the person (*See, §39 1 (b)( l ) & (2).
California Judicial Branch News Service cjbns.org

10 However, the VLS does not define the term ''finally determined adversely"80 and has relied on
trial judges and appellate decisions on an ad hoc basis to define the meaning of various terms
11
such as "litigation. "
12
1 3 7. In McColm v. Westwood Park Assn, the Court of Appeals judicially expanded the
13
definition of litigation" under §39 1 (b) to include writs, appe,ls, and petitions. (supra, 1 2 1 9). But,
14 later appellate courts have retrenched, refusing to define "litigation" under the VLS as including
15 those petitions and writs that are "summarily denied" without ever reaching the "merits". These

16 appellate courts have ruled that "summary denials" cannot be counted as "vexatious litigation"
because such summary denials do not involve ''final determination," that is, that there was no
17
"adverse determination" on the merits of a case. (Fink v. Shemtov (201 0) 1 80 Cal. App. 4th
18
1 1 60).81 (In Leone v. Medical Board (2000) 22 Cal. 4th 660, 669, the California Supreme Court
19
explained, "a summary denial ofa writ petition on a pretrial issue does not establish the law of
20 the case. ").
21 1 3 8. The Defendants know or should have known that the state statutes are not to be

22 given a retroactive operation "unless it is clearly made to appear that such was the legislative

23 intent." (Kaiser A luminum & Chemical Corp. v. Bonjorno, 494 U.S. 827, 855 ( 1 990}; A etna Cas.

24 80
In Wolfgram, supra at 58, the Court of Appeals riffed that "[Y}et, loss offive suits in but seven years is
remarkable. Most people never sue anybody. most people don 't sue anyone." The fact that statistic show that 50% o
25
married couples, many with children, end up in dissolution proceedings seems to be have been lost on the court. In
making this observation, Plaintiff illustrate the fact that most courts construe and consider the language of the VLS
26
in terms of "civil," not "family law" litigations.
81 Fink, supra at 1 1 72: Although a writ proceeding generally qualifies as a litigation within the meaning of section
27 3 9 1 , subdivision (a) (see McColm v. Westwood Park Assn. , supra, 62 Cal.App.4th at p. 1 2 1 6), for the reasons we
next explain, we hold the summary denial of a writ petition does not necessarily constitute a litigation that has been
"finally determined adversely to the person" within the meaning of section 391, subdivision (b)(l).

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& Surety Co. v. Ind. A cc. Com. 30 Cal. 2nct, 388; ; California Civil Code section 3, declaring
1
"[no] part of [this Code] is retroactive, unless expressly so declared."; Calif. Family Code, 4(e)(
2
& (g); 5 Witkin, Summary of Cal. Law (8th ed. 1 974) Constitutional Law, 288, pp. 3578-3579.).
3
(Every statute, which takes away or impairs vested rights acquired under existing laws, or
4 creates a new obligation, imposes a new duty, or attaches a new disability, in respect to
5 transactions or considerations already past, must be deemed retrospective. Landgrafv. US/

6 Film Products, 5 1 1 U.S. 244, 280 (1 994)).

1 39. The Defendants know or should know that the VLS does not contain any plain or
7
express language that the VLS is to apply (retroactively) to past writs, petitions, and appeals.
8
Socionomic Justice Institute socioeconomicinstitute.com

There is no express language in the VLS that provides that the definition of "litigation" under
9
California Judicial Branch News Service cjbns.org

§391 (a) is to include ''writs, appeals, and petitions" whether they are "adversely determined" or
10 not adversely determined."82 Nor is a "vexatious litigant" defined under §391 (a)(l -4) as a person
11 acting in propria persona while "filing writs, petitions, or appeals." After the appellate decisions

12 (Fink, Leone, etc�) that "summary denials" of writs or petitions cannot count as "finally adverse
determinations" for purposes of the VLS, it's clear that there is no Legislative intention, only
13
judicial legislation, that provides for a retroactive application of the VLS to appeals, writs, and
14
petition (whether of civil litigants or family law litigants.).
15
140. The Defendants know or should know that the application of the VLS to appeals,
16 writs and petitions will also have a chilling affect on litigants' decision to exercise their right to
17 appeal. As noted by the Wolfgram court, the VLS kicks in under § 3 91 (a)(1 ) after a family law

18 litigant loses their "sixth litigation" in seven years. ( Wolfgram, supra 58; "Only those citizens

19
who decline to hire lawyers, losefive suits in seven years, then undertake a sixth suit which lacks
merit, will be labeled vexatious. "). Since §391 .7(d) defines "motions" that a family law litigant
20
may file as "litigation" for purposes of the VLS, a family law litigant involved in a custody
21
dispute could quickly be declared "vexatious" for "adverse determinations" on requests for
22 visitation, support issues, or even ex parte motions for orders to travel with their minor children.
23 1 4 1 . The U.S. Supreme Court has held that the Due Process Clause and the Taking

24 Clause protect a party' s fundamental rights (deprivation of custody rights, right to petition) that

25 may not be compromised by retroactive legislation. The Supreme Court has noted that a state
may have "sufficientjustifications" in giving prospective application to a statute (such as the
26

27 82 Elsner v. Uveges, 34 Cal. 4th 9 1 5 , 928 (2004). CCP §39 1-§39 1 .7, by changing "the future legal consequences of

past transactions," so-called secondary retroactivity, a form of retroactivity, has engaged in improper conduct
unless there is clear intent shown to give the statute retroactive effect.) (emphasis added).

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Vexatious Litigant Statute) but that "may not suffice to warrant its retroactive application" unde
1
the Due Process Clause. (Landgrafv. USI Film Products, 5 1 1 U.S. 244. 265-266, ( 1 99). The
2
Landgraf court explained that this is so because a retroactive effect is one that "impairs rights a
3
party possessed when he acted. " (supra, at 280). Defendants know or should have known this.83
4 142. By declaring various Class Member "vexatious" on the basis of their writs, appeals,
5 or petition of custody judgments/orders, the Defendants violate the due process clauses (of the 5th

6 and 14th Amendments) by retroactively creating liability for Plaintiffs' past conduct in filing
writs and motions and other pleadings. At the time the various Class Members filed their writs,
7
appeals, or petitions related to custody judgment/orders, they were acting legally and within his
8
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rights to seek appellate review under the state constitution.84

9
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1 43. Defendants' actions, orders and rulings, taken under color of law individually and in
10 consort, deprive Plaintiffs of their rights, privileges or immunities secured to them by the
11 Constitution of the United States in violation of 42 U.S.C. § 1 983.

12 X. REQUEST FOR RELIEF

WHEREFORE, Plaintiffs pray that the Court order the following relief and remedies:
13
1). Issue a jt,tdicial declaration that California's Vexatious Litigant Statute does not apply
14
to attorneys of vexatious litigants, by definition, and under any circumstance.
15
2). Issue a judicial declaration that California's Vexatious Litigant Statute, on its face,
16 violates a parent's rights under the Due Process Clause of the 14th Amendment.
17 3). Issue a judicial declaration that California's Vexatious Litigant Statute, as applied to

18 parents in custody disputes in family law courts, violates a parent's rights under the Due Process

19 Clause of the 1 4th Amendment.

4). Issue a judicial declaration that California's Vexatious Litigant Statute, as applied to
20
parents in custody disputes in California family law courts, violates the Equal Protection Clause
21
of the 14th Amendment.
22 5). Issue a judicial declaration that California's Vexatious Litigant Statute, on its face and
23 as applied to parents in custody disputes in California family law courts, is void for vagueness

24 under the 14th Amendment.

25 6. Issue a judicial declaration that California's Vexatious Litigant Statute as applied to

83 Defendants may argue that the VLS 's prefiling order is not unconstitutional because it only purports to affect
26
"future filings. However, the determination of "vexatiousness" is based on past conduct, such as the filing of writs,
appeals, or petitions. At the time of those filings, the Class Members were acting well within their rights.
27
84 *See, Calif. Const. Section 1 1 of Article VI, which states that, except when a judgment of death has been
pronounced, the "courts of appeal have appellate jurisdiction when superior courts have original jurisdiction ...."

Class Action Complaint for Injunctive and Declaratory Relief - PAGE 52

 Case3:13-cv-01295-JSW Document1 Filed03/22/13 Page55 of 55

parents in custody disputes i s an improper ex post facto law.

1
7). Issue a judicial declaration that California's Vexatious Litigant Statute, on its face and
2
as applied to parents in custody disputes, is an improper bill of attainder.
3
8). Issue a judicial declaration that the ''vexatious litigant" orders issued by judicial
4 officers under California's Vexatious Litigant Statute were made in excess of their jurisdiction.
5 9). Award Plaintiffs costs and expenses, including reasonable attorney's fees under 42
6 u.s.c. §1988;

7
10). Award such further and additional relief as is just and proper.
8
Socionomic Justice Institute socioeconomicinstitute.com

DEMAND FOR JURY TRIAL

9 In accordance with Fed. R. Div. P. 38(b), and Northern District Local Rule 3-
California Judicial Branch News Service cjbns.org

10 6(a), Plaintiffs hereby demand a jury trial on all issues triable by a jury.
11
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.
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Class Action Complaint for Injunctive and Declaratory Relief - PAGE 53