Gutsy Erin Baldwin Moves UDR Case to District Court to Get Some Well-Deserved Justice
May 10, 2011 § Leave a comment
UPDATE: The Notice of Removal was filed in Department C-14 yesterday afternoon and personally served on all adverse parties in accordance with Federal Rules of Civil Procedure 28 U.S.C. §1446(5)(d):
“Promptly after the filing of such notice of removal of a civil action the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the notice with the clerk of such State court, which shall effect the removal and the State court shall proceed no further unless and until the case is remanded.”
As of this morning it was reported that Judge Miller is “inclined to stay the case but will hear argument from parties” at 1:30 pm today, May 17, 2011. Now wait a minute, I don’t think there is anything above that says a judge can continue to hear arguments from parties to DECIDE whether the case shall be stayed or not. It’s not up to Judge Miller or Burkhalter or the Orange County Public Defender. It’s up to the District Court and the case has already been removed to District Court,” with a pending motion scheduled for July. A case cannot be heard in two jurisdictions at the same time! Anything that is decided today, good or bad, has no effect.
Boy howdy, this lady has guts. This should be something to watch, ladies and gentlemen:
SUPERIOR COURT OF THE STATE OF CALIFORNIA
for the COUNTY OF ORANGE, CENTRAL JUSTICE CENTER
|UDR, INC., a Maryland Corporation, Plaintiff, v.ERIN K. BALDWIN, an individual known as BAD BIZ FINDER and BEVERLY SULLIVAN; and DOES I through 10, inclusive, Defendants.||CASE NO. 30-2009-00125305Assigned for all purposes to:The Honorable Judge Franz E. MillerDepartment C-14NOTICE OF REMOVAL PURSUANT TO 28 U.S.C. § 1441, et seq.
DEMAND FOR JURY TRIAL
TO THE ORANGE COUNTY SUPERIOR COURT, CENTRAL JUSTICE CENTER (“OCSC”); THE HONORABLE JUDGE FRANZ E. MILLER (“Judge Miller”); PLAINTIFF, UDR, INC. (“Plaintiff”); PLAINTIFF’S ATTORNEYS OF RECORD, Burkhalter, Kessler, Goodman & George, LLP (“BKGG”); THE ORANGE COUNTY PUBLIC DEFENDER (“OCPD”), and the CLERK OF THE COURT:
NOTICE IS HEREBY GIVEN that Defendant, Erin K. Baldwin (“Defendant”) has removed the within action to the United States District Court, Central Division, located at 411 West Fourth Street, #1-053, Santa Ana, California, 92701-4516, pursuant to 28 U.S.C. §1441, et seq. Defendant has also made a demand for a jury trial.
1. As required by 28 U.S.C. §1446(5)(d), Defendant hereby gives notice as follows: “Promptly after the filing of such notice of removal of a civil action the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the notice with the clerk of such State court, which shall effect the removal and the State court shall proceed no further unless and until the case is remanded.”
2. This present case, UDR, Inc. v. Erin K. Baldwin, et al., OCSC Case No. 30-2009-00125305 (“UDR Case”) was brought by Plaintiff with one purpose: To censor, intimidate and silence Defendant from further bringing to light the truth about Plaintiff’s illegal California Residential Lease Agreement (“RLA”).
3. In the form of a strategic lawsuit against public participation, Plaintiff initiated this action on June 29, 2009 after suing Defendant twice for unfounded, retaliatory unlawful detainer actions:
a. UDR Villa Venetia Apartment, LLP v. Erin K. Baldwin, OCSC Case No. 00244203 filed on February 11, 2009 and dismissed on February 27, 2009 because it could not sustain a cause of action for unlawful detainer.
b. UDR Villa Venetia Apartment, LLP v. Erin K. Baldwin, OCSC Case No. 00248999 filed on March 3, 2009. On May 29, 2009, parties were instructed by Judge Craig Robison to be prepared to commence the jury trial that following Monday to litigate pending triable issues of fact. The following Monday morning, Defendant was sent to a vacant courtroom wherein Judge Derek Johnson granted Plaintiff’s Motion for Summary Judgment stating that there were no pending triable issues of fact to litigate.
c. Defendant requested court administration review the case for error and said request was granted and stayed the execution of eviction until a decision had been made. Nonetheless, without notice, Plaintiff evicted Defendant on June 16, 2009, seized all the contents of her apartment on June 19, 2009, and filed the herein action on June 29, 2009 knowing that Defendant was homeless without property and could not participate in the lawsuit much less mount a defense.
d. On December 11, 2009, Judge Miller executed a Default Judgment against Defendant in the amount of $104,000 together with a Permanent Injunction that represented an unconstitutional prior restraint of speech, was void for vagueness and overbroad. Five days later, on December 16, 2009, the Permanent Injunction became void because Plaintiff’s attorneys failed to file an undertaking for the future payment of damages to a wrongfully enjoined party. An injunction which is made without an undertaking is void. (California Code of Civil Procedure §529(a), California Rules of Court 359.)
e. Almost one year later, on November 10, 2010, Plaintiff brought contempt actions against Defendant for allegedly violating the terms of the Permanent Injunction. Defendant posits that one cannot violate or be held in contempt for an injunction that is void, unconstitutional, lacks jurisdiction, and based on a Complaint that failed to state a cause of action for its claims of trade libel, tortious interference with business relations and prospective business relations, and civil harassment.
f. The present status of this case is the ongoing contempt proceedings, and facts leading up to Defendant’s decision to remove this action to District Court follow.
4. This present contempt proceeding is punishable under California Penal Code §166. As it is a criminal proceeding the parties to the action are the State of California and Defendant, requiring the removal of this proceeding to criminal court before a criminal judge, and the assignment of a separate case number and record.
5. However, Plaintiff charged Defendant with contempt under California Code of Civil Procedure §1209, et seq. so that Judge Miller could retain control of the case and the outcome. He could also deny Defendant all the privileges afforded her as a criminal defendant, including a jury trial. Finally, he could still have the option to punish Defendant with over a year of incarceration due to the fact that Plaintiff cited 74 counts of contempt as a benchmark each carrying a five-day sentence.
6. In accordance with 28 U.S.C. §1446(c)(1), a notice of removal of a criminal prosecution shall be filed not later than thirty days after the arraignment in the State court, or at any time before trial, whichever is earlier, except that for good cause shown the United States district court may enter an order granting the defendant or defendants leave to file the notice at a later time.
7. In accordance with 28 U.S.C.§1441(a), the within case can be removed to District Court because “the district courts of the United States have original jurisdiction“ over this action.
a. Plaintiff is a public company traded on the New York Stock Exchange under the ticker NYSE:UDR. As such, Plaintiff must conduct its business affairs (including commencing and disclosing litigation) under the regulations and oversight of a federal agency, the United States Securities and Exchange Commission (“SEC”). Plaintiff has failed to disclose this present action in its SEC-required quarterly reports and instead fraudulently and consistently makes the following claim in its official shareholder documents:
“The Company is a party to various claims and routine litigation arising in the ordinary course of business. We do not believe that the results of any such claims and litigation, individually or in the aggregate, will have a material adverse effect on our business, financial position or results of operations.”
Nonetheless, the Complaint in this action tells a different story:
“Great difficulty has befallen Plaintiff as a result of the aforementioned loss of trust and confidence in Plaintiff and its residential leasing services [as a result of Defendants actions]. Ultimately, the aforementioned has detrimentally affected Plaintiff’s business and its business reputation in the community.”
b. Plaintiff is also a Real Estate Investment Trust (REIT). As such, Plaintiff must conduct its business affairs (including commencing and disclosing litigation) under the regulations and oversight of another federal agency, the Internal Revenue Service (“IRS”). Plaintiff has failed to report to the IRS that this present action represents an external risk factor to Plaintiff.
c. Plaintiff is incorporated in the State of Maryland and maintains its principal place of business in the State of Colorado. Defendant resides in the State of California. Therefore, Plaintiff and Defendant are residents of different states.
d. Plaintiff lacks standing to sue in the state of California as the specific entity “UDR, Inc.” is not registered with the California Secretary of State nor does it maintain an agent for service of process in the State of California.
e. In violation of federal law, the commencement of this present action of defamation, the litigation of same, and the resulting permanent injunction in this case obstructs justice by attempting to cover up known criminal activity by Plaintiff. (Title 18 U.S.C. §§2, 3, 4).
8. Plaintiff’s California apartment portfolio represents forty percent (40%) of Plaintiff’s $500 million annual revenue. This large percentage is due to Plaintiff’s unlawful collection of excessive fees from tenants and Plaintiff’s deferral of liability to its tenants in violation of California state law.
9. Defendant reported these unlawful activities to other tenants of Plaintiff in a public forum to warn them and assist them in seeking restitution for same. These unlawful activities include, but are not limited, to:
i. Plaintiff’s California Residential Lease Agreement (“RLA”) contains an early lease termination clause that supports an unlawful liquidated damages penalty when it is not impossible for Plaintiff to determine actual damages.
ii. Plaintiff’s California RLA contains an excessive late fee clause that supports an unlawful liquidated damages penalty when it is not impossible for Plaintiff to determine actual damages.
iii. Plaintiff identifies itself in its California RLAs with false legal names and fails to state the agent for service of process on the face of the RLA as required by California state law in an intentional and malicious effort to reduce tenant-based litigation.
iv. Plaintiff’s California RLA contains an unlawful pro-rated formula for its ratio utility billing system (“RUBS”) resulting in excessive utility charges to tenants, the overage of which filters to Plaintiff, unjustly enriching Plaintiff in violation of the law.
v. Plaintiff is not a registered public utility and as such, violates California Public Utilities Commission (“PUC”) regulations against non-public utilities earning a profit from water supplied to its apartment communities. In addition to “iv.,” supra, Plaintiff defers to its tenants the cost of water to maintain community common areas and water supplied to laundry facilities and then charges them to use the laundry facilities.
vi. Plaintiff’s California RLA contains unlawful “hold harmless clauses,” illegally deferring liability to its tenants for on property injuries and damage.
vii. Plaintiff illegally withholds security deposits by way of hidden fees and penalties not apparent nor defined at the time the RLA is executed by the tenant nor within the standard of acceptable normal wear and tear as prescribed by law.
viii. Plaintiff illegally and intentionally misrepresents, conceals and omits material facts required in California RLAs with the express purpose of creating a cause of action for unlawful detainer to perpetuate the collection of early lease termination liquidated damage fees.
f. In violation of federal law, the commencement of this present action, the litigation of same, and the resulting permanent injunction, retaliates against Petitioner for reporting criminal activities. (Title 18 U.S.C. §§ 1505, 1510, 1512, 1513).
g. In violation of federal law, the commencement of this present action, the litigation of same, and the resulting permanent injunction, retaliates against Petitioner for attempting to exercise her due process rights. (Title 18 U.S.C. §241).
h. In violation of federal law, the commencement of this present action, the litigation of same, and the resulting permanent injunction, is a part of a conspiracy, aiding and abetting Plaintiff and Plaintiff’s counsel to misuse the courts to mitigate Plaintiff’s criminal activities, violate Petitioner’s federally-protected rights, and to retaliate against Petitioner for reporting criminal activity and exercising her due process rights. (Title 18 U.S.C. § 4).
i. Plaintiff’s Complaint in this action omits the required section entitled, “Jurisdiction and Venue.” This is due to Plaintiff’s knowledge that State Court was not the proper jurisdiction. It also omits the “General Allegations” section, choosing instead to recite Plaintiff’s biographical information. This is due to Plaintiff’s inability to sustain the causes of action pleaded.
11. In accordance with 28 U.S.C.§1441(b), the within case can be removed to District Court because “the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States and shall be removable without regard to the citizenship or residence of the parties.”
12. Plaintiff, BKGG, Judge Miller, and Judge Miller’s court-appointed counsel for Defendant, the Orange County Public Defender (“OCPD”) have acted in concert to mitigate the unlawful, unconscionable, oppressive and fraudulent actions against Defendant by Plaintiff, BKGG, Judge Miller and the OCPD beginning in January of 2009 and continuing through to the present day.
13. Defendant has a constitutional right to free speech without prior restraint, however, the adverse parties to this action have violated said right. The primary objective of the this present action is to censor Defendant’s speech, in advance and in perpetuity, to prevent her from communicating truthful and helpful information in a public forum regarding a matter of public concern, i.e., the illegal California Residential Lease Agreements of Plaintiff.
a. Plaintiff’s motivation in bringing this action was to ensure that it could (1) continue to defraud tenants thereby unjustly enriching itself by unlawful means; and (2) mitigate its enormous liability for intentional fraud against tenants for the six years past.
b. The Permanent Injunction in this action attempted to halt ongoing publication of articles written exclusively to aid current tenants in seeking restitution from Plaintiff, to warn future tenants about the risks inherent in renting an apartment from Plaintiff, and to prevent the resumption of the publication of same. This is undoubtedly an unconstitutional prior restraint of speech because it restrains the speech before it happens rather than providing a remedy after the fact if the speech is defamatory.
c. Truth is an absolute defense against defamation and Plaintiff has never even attempted to dispute the truthfulness of Defendant’s articles, because it could not. As such, Plaintiff could not prove libel and without that it could not prove interference of business relations and prospective business relations, and/or grounds for civil harassment.
14. Defendant has a right to freedom of assembly (aka freedom of association), however, the adverse parties to this action have violated said right. Plaintiff’s actions prevented Defendant from exercising her constitutional right to freedom of assembly (also known as freedom of association) to come together and collectively express, promote, pursue and defend common interests with other tenants. The constitutional right to freedom of association is also recognized as a human right, a political freedom and a civil liberty.
a. Defendant began forming a class action lawsuit against Plaintiff on behalf of Plaintiff’s California tenants in January of 2009. Less than a month later Plaintiff unlawfully towed then sold Defendant’s car, then proceeded to bring two identical unlawful detainer actions against her two weeks apart neither of which could sustain a cause of action for unlawful detainer.
b. Nonetheless, Defendant was forcibly evicted on June 16, 2009 without notice and three days later, Plaintiff illegally seized the entire contents of Defendant’s apartment including files containing the personal information and evidence of nearly 400 tenants wanting to join the class action lawsuit. Ten (10) days later, Plaintiff filed the herein action knowing Defendant would not be able to mount a defense.
c. Within the Complaint of the herein action Plaintiff further violates Defendant’s freedom of assembly/freedom of association by stating on page 36-37, “On the Fourth Cause of Action,”:
Defendant Baldwin, and all other persons acting in concert or participating with Defendant Baldwin, be enjoined and restrained from committing, directly or indirectly, by any means, the following acts:
a. Contacting Plaintiff’s agents, employees and Board of Directors, either by telephone, mail, e-mail, facsimile or in person;
b. Coming within 100 yards of the following apartment home properties .. [Plaintiff lists forty-seven (47) UDR apartment communities by name and includes “UDR California Apartments” within the list but fails to identify what that comprises.]
15. Defendant has a right to petition the government for redress of grievances, however, the adverse parties to this action have violated said right. Plaintiff prevented Defendant from exercising this constitutional right to make a complaint to, or seek the assistance of, one’s government, without fear of punishment or reprisals.
a. As stated in “a,” and “b,” supra, Plaintiff violated Defendant’s right to petition the government for redress by (a) censoring her communication with other tenants; (b) prohibiting her contact with other tenants; (c) performing a retaliatory eviction; (d) seizing her property containing documents necessary to facilitate the petition for redress; and (e) bringing a retaliatory, malicious and meritless lawsuit against Defendant knowing that Defendant could not mount a defense on her own behalf.
16. Defendant has a right to due process of law, however, the adverse parties to this action have violated said right. Due process of law is the idea that legal proceedings must be fair, that the government cannot take away a person’s basic rights to “life, liberty or property,” nor can it carry out arbitrary actions and judgments. Beginning in late 2008, Plaintiff has intentionally and maliciously denied Plaintiff’s right to due process of law primarily because Plaintiff has the power and the means to manipulate legal proceedings to its favor in order to shield it from prosecution for its unlawful actions. Included within the violations of Plaintiff, BKGG, Judge Miller and the OCPD are:
a. Defendant’s protection against unlawful searches and seizures: On June 19, 2009, Plaintiff seized all of Defendant’s property (including vital exculpatory evidence necessary to assert her affirmative defenses) to prevent Defendant from defending herself against this present action.
b. Defendant’s right to a fair and public trial conducted in a competent manner before an impartial tribunal. The judicial officer in this matter, Judge Miller, is unquestionably prejudiced and biased against Defendant making a fair trial impossible. Despite several attempts by Defendant to disqualify Judge Miller, he remains. Judge Miller should have recused himself from these proceedings when the matter left the civil arena and came into the criminal arena. Judge Miller was the initiator of these contempt charges and as such, he cannot also preside over the matter nor be the sole arbiter of a sentence to punish Defendant for the matter of the alleged contempt of a court order he signed. In accordance with Canon 3 of the Judicial Misconduct Guidelines, “A judge shall consider and decide all matters assigned to the judge, except those in which the judge’s disqualification is required.”
c. Defendant’s right to be present at the trial. All adverse parties to this action knew Defendant would not be present during these proceedings because they had made it impossible for her to participate much less mount a defense.
d. Defendant’s right to an impartial jury. The OCPD in active concert with Plaintiff, BKGG, and Judge Miller, knowingly and fraudulently have litigated contempt proceedings against Defendant in accordance with California Code of Civil Procedure §1209, et seq., instead of California Penal Code §166. This strategy was to prevent Defendant from exercising her right to a jury trial and other privileges afforded a criminal defendant. Judge Miller is not an impartial jury. He cannot initiate the contempt charges, preside over the case he has initiated, then render a unilateral, conclusive and unappealable decision against Defendant.
e. Defendant’s right to defend herself, the right to counsel chosen by Defendant and the right to communicate privately with counsel. On February 1, 2011, Judge Miller appointed Defendant a public defender from the OCPD because she requested same. However, in short form, it was apparent to Defendant that the OCPD did not have her best interests at heart. In fact, the OCPD breached its fiduciary duty to Defendant by (1) failing to place Defendant’s interests before its own; (2) failing to disclose to Defendant real and potential conflicts that may adversely affect its representation of Defendant; (3) taking positions adverse to Defendant; and (4) failing to recognize that the fiduciary duty the OCPD owes to Defendant often lasts longer that the attorney-client relationship.
i. Defendant attempted to dissolve her relationship with the OCPD via a Marsden Motion on April 13, 2011. Said motion was denied by Judge Perk and rejected by the Court Clerk stating that Defendant could not filed any documents on her own behalf in this matter until the Judgment had been set aside.
ii. Defendant attempted to dissolve her relationship with the OCPD via stating in writing her intention to file a Faretta Motion in connection with her constitutional right to self-representation. The OCPD failed to step aside. Instead, the OCPD filed an ex parte application for a substitution of attorney on Defendant’s behalf without her knowledge, review or consent. In addition, the OCPD unilaterally set a hearing date and time for Defendant in front of Judge Miller without checking whether Defendant could even appear on that date and time which she could not.
iii. The OCPD has acted unilaterally throughout this case making vital decisions without consulting Defendant. Defendant has asked that the OCPD allow her to read all documents filed on her behalf prior to filing; however, this has not happened. The OCPD filed a Reply Brief, Motion to Continue the Trial, Motion to Bifurcate the Trial, and two Ex Parte Applications all of which were filed without Defendant’s knowledge, review or consent. In fact, the OCPD filed these documents with knowledge that Defendant was opposed to the arguments and strategies contained therein.
f. Defendant’s right to be notified of the charges against her in a timely manner. Plaintiff’s affidavits constituting contempt fail to state the specific number of counts of contempt Plaintiff is alleging. Instead, Plaintiff simply lists 74 separate Internet links that it claims represents 74 separate violations of the Permanent Injunction in this matter. However, Plaintiff does not state this specifically nor does it set forth how these 74 Internet links violate the injunction causing Defendant to be in contempt. If Defendant can potentially be sentenced up to five (5) days in jail for each of the 74 counts, she could be put in jail for over a year.
i. Likewise, at the arraignment of this matter on February 1, 2011, Judge Miller did not advise Defendant of the number of counts of contempt Plaintiff was alleging, the nature of the charges, nor did he present to her a complaint or information with the required details.
ii. Since February 1, 2011, Defendant has asked the OCPD to confirm the number of counts Plaintiff alleges and the exact nature of the charges in preparation for trial. As of this writing, the OCPD has failed to do so.
iii. However, the OCPD continues to deny Defendant the right to a jury trial stating, “You are only entitled to a jury trial if the sentence exceeds six months.” Since facts necessary to calculate the prospective sentence are unknown, and the trial setting conference is scheduled for May 17, 2011, the OCPD should be planning for a jury trial which it is not.
g. Defendant’s right to adequate time and means for the preparation of a defense. As a result of Defendant’s association with the OCPD, Defendant is wholly unprepared to go to trial on the charge of contempt. The OCPD refuses to:
i. subpoena BKGG for Defendant’s property amounting to vital exculpatory evidence necessary to assert Defendant’s affirmative defenses.
ii. subpoena witnesses testifying against Defendant, including Plaintiff’s attorneys who wrote the affidavit constituting contempt.
iii. confirm vital information about the charges against Defendant including the number of counts of contempt Plaintiff is alleging and the specific nature of the charges.
iv. order transcripts of all the hearings in this matter;
v. file a Motion to Dismiss for lack of jurisdiction; and
vi. otherwise prepare for a jury trial.
h. Defendant’s right to appeal at first instance to a higher court. The OCPD refuses to assert Defendant’s right to a jury trial under California Penal Code §166 even after Defendant pointed out to them that by failing to assert same, Defendant waives her right to a jury trial and that the decision of a court trial under California Code of Civil Procedure §1209, et seq., is conclusive and unappealable, except by discretionary writ.
i. Defendant’s right to the prohibition on double jeopardy. Defendant has been subjected to repeated prosecution for the same offense as a means of harassment and oppression and is fighting to avoid being punished multiple times for the same offense.
First, Defendant was sued for defamation three times in a six-month period by the same law firm, thereby committing the common law crime of barratry. All three actions were related under one judge furthering the harassment and oppression.
Second, within these three actions, Defendant was charged twice for the crime of contempt although Plaintiff intentionally brought the charge as a civil action rather than a criminal action to avoid Defendant’s right to a jury trial and the requirement of creating a separate criminal case under the review of a different judge.
Lastly, the OCPD refuses to subpoena witnesses on Defendant’s behalf because it knows that double jeopardy attaches to a civil case once the first witness is sworn in. It also knows that Defendant has already been charged with contempt in the first and related case, Parsa Law Group v. Erin Baldwin, et al. Finally, the OCPD insists on bifurcating this present action so that the Court can simply rule that the Injunction is invalid and prevent Defendant from trying the issues of fact before a jury trial.
17. For these reasons and others not yet brought forward for the sake of brevity, Defendant chooses to remove this herein action to the District Court.
Date: May 9, 2011 Respectfully submitted,
Erin K. Baldwin, Defendant