OC Corruption Scandal: Judge Franz Miller, REIT UDR, OC Public Defender & Burkhalter Attorneys

May 11, 2011 § 2 Comments

Court of Appeal Denies Baldwin’s Request for an Emergency Stay in UDR Case

Ms. Baldwin likened the UDR Case to a “runaway freight train,” continuing, “UDR and its attorneys believe if they do everything really fast, have a faithful and well-paid judge backing them up (Judge Franz Miller), and the Orange County Public Defender to prevent me from getting too close to my own case … that I won’t be able to keep up.  Nonsense.  It hasn’t happened in 2 years, it’s not going to happen now.”

Baldwin requested an Emergency Stay in the UDR Case from the Court of Appeal, Fourth District, Division Three because she had a pending disqualification challenge against Judge Miller and she felt that, under the circumstances, he might not be too friendly to her in upcoming hearings.

She states:

“a.   Without the stay, Petitioner’s standing at said hearings will be greatly compromised.  Petitioner fears Judge Miller will exhibit the same (or worse) prejudice and bias than before Petitioner’s Challenge and Writ.   By granting the Motion, it is Petitioner’s hope that prior to the reinstatement of the UDR Case, Judge Miller will be disqualified, his orders extinguished, and Petitioner will have the opportunity for a new trial in District Court.”

“b.   Without the stay, Petitioner will be forced to continue to be misrepresented and ineffectively assisted by the Orange County Public Defender’s Office (“OCPD”).  The OCPD filed the pending Motion to Bifurcate the Trial and a Reply/Answer in response to Plaintiff’s charge of contempt and did so allegedly “on behalf of Petitioner.”   In fact, the OCPD did so with the express knowledge that Petitioner was vehemently opposed to said pleadings and the strategies contained therein.  The OCPD has rendered ineffective assistance of counsel and has breached its fiduciary duty to Petitioner.  Petitioner sought a Marsden Motion and it was summarily denied and much like Judge Miller, the OCPD refuses to recuse itself.  By granting this Motion, it is Petitioner’s hope that prior to the reinstatement of the UDR Case, she will be granted the right to self-representation.”                    

“c.   Without the stay, Petitioner will not be able to plead the cause of action of intentional fraud upon the court as stated in her Writ and defend egregious violations of her constitutional and civil rights perpetrated throughout the proceedings of the UDR Case.   By granting this Motion, it is Petitioner’s hope that prior to the reinstatement of the UDR Case, the cause of action of fraud upon the court will be heard, and Petitioner will have the opportunity for a new trial in District Court.”

REQUEST DENIED

How is that possible?  You’ve got to read this Motion below.  Something stinks; this could quite possibly be the case of the century in terms of corruption in Orange County.  Read it; you’ll keep blinking back the disbelief.

So, request denied but that doesn’t deter her – she filed filed the Notice of Removal to District Court based on a federal question and diversity jurisidiction also seen here on this blog, so she sort of got what she wanted anyway, but had to do a lot of extra work. 

The Court of Appeal should be embarassed I think because here is this In Pro Per trying to defend her constitutional rights and she has to take friggin speed reading classes on how to file a writ of mandate with its red covers and tabs and funny little requirements.  It’s bullshit. 

We think she did the right think removing the case because there wasn’t a snowball’s chance in Hell that she was coming out of it alive over in Orange County Superior Court, Department C-14, Judge Franz E. Miller presiding.  Or in the Court of Appeal, Fourth District, Division Three where Judge Miller spent 13 years as a senior research attorney right before becoming a judge.  Or with the OCPD where he spent 7 years before that.  

Cronyism maximus …. 

Fourth Civil Number: G045132

 REQUEST FOR EMERGENCY STAY IN PROCEEDINGS

In The Court Of Appeal Of The State Of California

Fourth Appellate District, Division 3

________________________________________

 Erin K. Baldwin,

 Petitioner,

 vs.

 Superior Court of the State of California,

For the Court of Orange,

 Respondent.

 ________________________________________

 MOTION FOR EMERGENCY STAY OF

PROCEEDINGS IN THE UNDERLYING

ORANGE COUNTYSUPERIOR COURT

ACTION, CASE NO. 30-2009-00125305

________________________________________

 In Connection With Petitioner’s

Writ of Mandate

Requesting Disqualification of

The Honorable Franz E. Miller

________________________________________

 Erin K. Baldwin

Post Office Box 3141

Beaumont,California 92223

Defendant/Petitioner, In Pro Per

 

Motion for an Emergency Stay of Proceedings

I.          Introduction

            1.         In connection with Petitioner’s Writ of Mandate presently before the Court of Appeal in Case No.G045132, Erin Baldwin (“Petitioner”) respectfully submits this Motion for an Emergency Stay of Proceedings (“Motion”) as to all pending actions in the underlying civil case, UDR, Inc. v. Erin Baldwin, et al., Orange County Superior Court Case No. 30-2009-00125305 (“UDR Case”).  As stated in the Local Rules of the Court of Appeal, Fourth Appellate District, Rule 1(a) Writ Proceedings:  “The court may issue a stay or other order necessary to preserve the status quo or the court’s jurisdiction without opposition.” 

            2.         The current proceeding in the UDR Case is Contempt of Court for allegedly disobeying the Permanent Injunction in the UDR Case dated December 11, 2010 attached hereto as this Motion’s only exhibit.

            3.         On April 13, 2011, Petitioner filed a Verified Statement and Challenge for Cause (“Challenge”) against Judge Miller. 

            4.         On April 20, 2011, Judge Miller filed an Order Striking Disqualification Statement (“Order”). 

            5.         On April 22, 2011, the Superior Court reinstated all pending hearings in the UDR Case beginning on May 17, 2011.  These hearings include with a Trial Setting Conference,  Motion to Bifurcate the Trial, and the court trial on a date yet to be determined. 

            6.         On April 25, 2011, Petitioner filed a Writ of Mandate (“Writ”) to disqualify Orange County Superior Court Judge Franz E. Miller (“Judge Miller”).  This Writ is still pending in the Court of Appeal.   At the time Petitioner filed the Writ, she did not request an Emergency Stay of Proceedings because she believed that the action of filing the Writ would stay the underlying action until a decision had been reached.  This Motion seeks to amend the Writ with this a Request to Stay the Proceedings.

            7.         This Motion is based on one primary issue with three sub-parts:

                        PRIMARY ISSUE:  The question of whether Judge Miller should be disqualified for cause and the appearance of impartiality in the UDR Case is still at issue before the Court of Appeal.  Petitioner requests that this Motion be granted prior to commencement of the pending hearings on May 17, 2011 due to the following three considerations:

                        a.         Without the stay, Petitioner’s standing at said hearings will be greatly compromised.  Petitioner fears Judge Miller will exhibit the same (or worse) prejudice and bias than before Petitioner’s Challenge and Writ.   By granting the Motion, it is Petitioner’s hope that prior to the reinstatement of the UDR Case, Judge Miller will be disqualified, his orders extinguished, and Petitioner will have the opportunity for a new trial in District Court.

                        b.         Without the stay, Petitioner will be forced to continue to be misrepresented and ineffectively assisted by the Orange County Public Defender’s Office (“OCPD”).  The OCPD filed the pending Motion to Bifurcate the Trial and a Reply/Answer in response to Plaintiff’s charge of contempt and did so allegedly “on behalf of Petitioner.”   In fact, the OCPD did so with the express knowledge that Petitioner was vehemently opposed to said pleadings and the strategies contained therein.  The OCPD has rendered ineffective assistance of counsel and has breached its fiduciary duty to Petitioner.  Petitioner sought a Marsden Motion and it was summarily denied and much like Judge Miller, the OCPD refuses to recuse itself.  By granting this Motion, it is Petitioner’s hope that prior to the reinstatement of the UDR Case, she will be granted the right to self-representation.                    

                        c.         Without the stay, Petitioner will not be able to plead the cause of action of intentional fraud upon the court as stated in her Writ and defend egregious violations of her constitutional and civil rights perpetrated throughout the proceedings of the UDR Case.   By granting this Motion, it is Petitioner’s hope that prior to the reinstatement of the UDR Case, the cause of action of fraud upon the court will be heard, and Petitioner will have the opportunity for a new trial in District Court.

            8.         Petitioner’s constitutional rights have been desecrated in the UDR Case. Among them are: 

                        (a)       Petitioner’s right to due process of law;

                        (b)       Petitioner’s right to a jury of her peers when facing incarceration;

                        (c)       Petitioner’s right to competent counsel free from adverse political agendas;

                        (d)       Petitioner’s right to confront witnesses testifying against her;

                        (e)       Petitioner’s right to bring her own witnesses to testify on her behalf;

                        (f)        Petitioner’s right to the return of exculpatory evidence vital to her defense that was illegally seized by Plaintiff thirteen (13) days prior to filing the original Complaint in the underlying action;

                        (g)       Petitioner’s right to know the charges against her;

                        (h)       Petitioner’s right to remove the action to District Court due to diversity jurisdiction;  

                        (i)        Petitioner’s right to an impartial judicial officer;

                        (j)        Petitioner’s right to self-representation when court-appointed counsel is ineffective;

                        (k)       Petitioner’s right to free speech without prior restraint; and

                        (l)        Petitioner’s right to peacefully assemble and gather with others similarly situated to organize a unified redress for violations of the law.

            9.         Perhaps the Court of Appeal can make use of the same standard it will use to determine whether Judge Miller should be disqualified from the underlying case, to decide whether an Emergency Stay should be granted that would prohibit Judge Miller from presiding over the UDR Case.  This standard is set forth in California Code of Civil Procedure (“CCP”) §170.1, subdivision (a)(6)(C): 

“If a reasonable person aware of the facts and circumstances would question the impartiality of the judge, disqualification of that judge is mandated.”                  

Motion for an Emergency Stay of Proceedings

II.        Relevant Rules of Law

            10.       The Permanent Injunction on Which the Contempt is Based is Void. 

            Plaintiff failed to submit an undertaking in connection with Judge Miller’s issuance of the Permanent Injunction in the UDR Case on December 11, 2010, thereby rendering the Injunction void. 

On granting a permanent injunction, the court must require an undertaking for the future payment of the damages of a wrongfully enjoined party, up to a specified amount. An injunction which is made without an undertaking is void.” (CCP §529(a), CRC 359

            11.       A Void Permanent Injunction Cannot Support a Contempt Charge

            Petitioner cannot be held in contempt of the Permanent Injunction in the UDR Case because it is void: 

“A party cannot be found guilty of contempt of court for disobeying a court order which the court had no authority to make.”  (Critelli v. Tidrick, (1952) 56 N.W.2d 159, 163.) 

“Violation of a void decree does not constitute contempt.”  (Clark v. District Court in and for Pottawattamie County, (1963) 125 N.W.2d 264, 265).   

“An order denying a person equal protection of the law cannot support contempt.” (Johnson v. Virginia, 373 US 61, 83 S Ct 1053, 10 L Ed 2d 195).  

          In Petitioner’s case, the Permanent Injunction in the UDR Case violated Petitioner’s due process protections guaranteed to all citizens by the laws and Constitution of the United States.  To hold a person guilty of contempt for violating an Injunction, the acts constituting the contempt must be clearly and specifically prohibited by the terms of the injunction.  The Permanent Injunction in the UDR Case is void for vagueness and overbroad. 

            12.       Petitioner Cannot Be Punished for Disobeyance of a Void Order

             Petitioner cannot be held in contempt or punished in any way for disobeying the  Permanent Injunction in the UDR Case because it is void.  Petitioner has and will continue to collaterally attack the Permanent Injunction in question. 

            The present proceedings for contempt are meritless and malicious.  In fact, the sole purpose of this entire case has been to prevent Petitioner from telling the truth in a public forum about Plaintiff’s illegal California Residential Lease Agreements (RLAs) with the express intent to educate, inform and empower future tenants. 

            With this cause of action for contempt, Plaintiff merely seeks to (1) mitigate its liability for its past criminal activities; (2) deflect the power of Petitioner’s message by enforcing the fraudulently-obtained Permanent Injunction and Default Judgment; and (3) incarcerate Petitioner to further (albeit, fraudulently) demonstrate the falsity of Petitioner’s statements made strictly for the benefit of those harmed by Plaintiff.

            “No one can be punished for disobedience of a void order.”  (Mitchell v. Superior Court (1972) 28 Cal. App. 3d 759, 764, citing Fortenbury v. Superior Court (1940) 16 Cal. 2d 405, 408-09; Also, In re Berry (1968) 68 Cal. 2d 137, 147.

            13.       The Elements Required to Establish Contempt Were Not Met.

            As stated in “1,” supra, the Permanent Injunction in the UDR Case is void; therefore it is not a valid court order.  Petitioner does not have the ability to render compliance with the court order because it fails to state the specific defamatory content for which she is enjoined.  Finally, Petitioner cannot willfully disobey a court order that is not valid nor that fails to state what constitutes a violation.  

            “The elements required to establish indirect contempt are (1) the making of a valid court order, (2) knowledge of the order by respondent, (3) ability of the respondent to render compliance, and (4) willful disobedience of the order.”  (Warner v. Superior Court (1954) 126 Cal. App. 2d 821, 824).       

            In addition, in Brunton v. Superior Court (1942) 20 Cal. 2d 202, 205, the Court held:

“The party bound by an injunction must be able to determine from its terms what he may and may not do; he cannot be held guilty of contempt for violating an injunction that is uncertain or ambiguous, just as he may not be held guilty of violating a criminal statute that fails to give him adequate notice of the prohibited act.”

            In Little v. Superior Court (1968) 260 Cal. App. 2d 311, 318, the Court held:

“Ambiguity in the order will be resolved in favor of the accused.” 

            Finally, in Board of Supervisors v. Superior Court (1995) 33 Cal. App. 4th 1724, 1737, the Court held:

“The precise court orders as written are what may be enforced, not any amplification of those orders by the history of the litigation or documents incorporated by reference.”

            14.       The Elements Required Prior to Issuing An Injunction Were Not Met.

            Judge Miller failed to meet the statutory requirements prior to issuing a Permanent Injunction in the UDR Case.  In addition, Judge Miller failed to issue a written finding of fact showing that these elements had been met. 

            The UDR Case concerns a federal question, namely, Petitioner’s First Amendment right to free speech without prior restraint in an action for defamation brought by Plaintiff, a publicly-traded company.  Therefore, federal law no only applies but must be considered.   

            Conditions that must exist before an injunction can be issued against a person:                            

 (a)            The Injunction must halt great and irreparable harm.

            In Petitioner’s case, the Permanent Injunction did not halt the harm; it protected the perpetrator of the harm, Plaintiff, allowing it to continue to defraud California tenants with its illegal California Residential Lease Agreements.  In protecting Plaintiff, Judge Miller, deprived Petitioner from defenses and protections in the laws and the Constitution of the United States.

(b)       The Injunction must halt unlawful acts.

            In Petitioner’s case, the Permanent Injunction did not halt unlawful acts; it provided judicial protection for the continuation and escalation of Plaintiff’s unlawful acts against its California tenants via its illegal California Residential Lease Agreements.

(c)       The Injunction must be in the public’s interest.

            In Petitioner’s case, the Permanent Injunction did not protect public interests.  Instead, the Permanent Injunction left the public more vulnerable to Plaintiff’s unlawful Residential Lease Agreement (“RLAs”) because it cut off the source of truthful and accurate reporting about Plaintiff’s unlawful RLAs.

            Plaintiff and Plaintiff’s counsel have used the fraudulently-obtained Permanent Injunction as a symbol that Petitioner’s claims are false.  Subverting the laws and Constitution of the United States and depriving a citizen of the right to be warned of fraud is not in the public’s interest.

            In fact, the very intent of the Permanent Injunction was to block Petitioner’s reporting of Plaintiff’s criminal activities amounting to obstruction of justice, felonies under Title 18 U.S.C. §§ 2, 3, 4.  No law permits issuing a permanent injunction when it voids for anyone the rights and protections guaranteed by the laws and Constitution of the United States.

(d)       The Judge rendering the Injunction must issue a finding of facts showing that these requirements had been met.

            In Petitioner’s case, Judge Miller did not write, issue or file a findings of fact showing that the above-stated requirements were met because they were not.

            15.       The Permanent Injunction Violates Federal Law.

            The Permanent Injunction in the UDR Case violates four federal laws:                                            

(a)            The Permanent Injunction obstructs justice by attempting to cover up known criminal activity by Plaintiff.  (Title 18 U.S.C. §§ 2, 3, 4).

(b)       The Permanent Injunction retaliates against Petitioner for reporting criminal activities.  (Title 18 U.S.C. §§ 1505, 1510, 1512, 1513).

(c)       The Permanent Injunction retaliates against Petitioner for attempting to exercise her due process rights.  (Title 18 U.S.C. § 241).

(d)       The 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 right to free speech without prior restraint, and to retaliate against Petitioner for reporting criminal activity and exercising her due process rights. (Title 18 U.S.C. § 4).

            16.       Plaintiff Does Not Have Standing to Sue Petitioner in Superior Court

            The UDR Case should have been filed in District Court in accordance to the rules of diversity jurisdiction.  Plaintiff’s action clearly presents a federal question, namely Petitioner’s First Amendment right to free speech without prior restraint.  In addition, Plaintiff is incorporated in the state of Maryland with its principal place of business in the state of Colorado and Petitioner resides in the state of California. 

            In addition, Plaintiff, UDR, Inc., does not have standing to sue in the state of California as that entity is not registered with the California Secretary of State.  The proper Plaintiff is UDR Western Residential, Inc., a foreign corporation and wholly owned subsidiary of Plaintiff, UDR, Inc.

            In In Re Burrus (136 US 586, 10 S Ct 850, 34 L Ed 500), the Supreme Court held:

“If the command is in whole or in part beyond the power of the court, the writ, or so much as is in excess of jurisdiction, that it is void; and the court cannot punish for any contempt of its unauthorized requirements.” 

             In In Re Rowland (104 US 604, 26 L Ed 861), the Court ruled: 

“The Court has no power to punish for contempt the violation of an injunction which it had no jurisdiction to grant.”

             17.       The Permanent Injunction Will Fail at Appellate Review

            Contempt convictions are expressly made non-appealable. (CCP §§ 904.1(a)(1), 1222)  However, appellate review may be granted via a discretionary writ, typically a writ of review or certiorari as set forth in CCP §§ 1067-1077.  The standard for the appellate review of contempt convictions is set forth in Mitchell v. Superior Court (1989) 49 Cal. 3d 1230, 1256:

“In the review of a contempt proceeding ‘the evidence, the findings, and the judgment are all to be strictly construed in favor of the accused, and no intendments or presumptions can be indulged in aid of their sufficiency. If the record of the proceedings, reviewed in the light of the foregoing rules, fails to show affirmatively on its face the existence of all the necessary facts upon which jurisdiction depended, the order must be annulled.”

 Motion for an Emergency Stay of Proceedings

III.       Intentional Fraud Upon the Court

            18.       Intentional Fraud Upon the Court is committed when an officer of the court [which includes Judge Miller, Plaintiff’s counsel, and the OCPD] commits fraud during a proceeding in the court.  In Bulloch v. United States, 763 F.2d 1115, 1121 (10th Cir. 1985), the court stated:

“Fraud upon the court is fraud which is directed to the judicial machinery itself and is not fraud between the parties or fraudulent documents, false statements or perjury. … It is where the court or a member is corrupted or influenced or influence is attempted or where the judge has not performed his judicial function — thus where the impartial functions of the court have been directly corrupted.”

             19.       Under federal law, “fraud upon the court,” voids the orders and judgments of the judge and is a justifiable reason to challenge a judge requesting his disqualification.

            20.       In Liteky v. U.S., 114 S.Ct. 1147, 1162 (1994), the United States Supreme Court ruled:

“Disqualification is required if an objective observer would entertain reasonable questions about the judge’s impartiality. If a judge’s attitude or state of mind leads a detached observer to conclude that a fair and impartial hearing is unlikely, the judge must be disqualified.”

             21.       Courts have repeatedly held that positive proof of the partiality of a judge is not a requirement, only the appearance of partiality.   (Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 108 S.Ct. 2194 (1988)). 

            22.       Judges do not have discretion not to disqualify themselves.  By law, they are bound to follow the law.  Should a judge not disqualify himself as required by law, then the judge has given another example of his “appearance of partiality” which, possibly, further disqualifies the judge.

            23.       Should a judge not disqualify himself, then the judge is in violation of the Due Process Clause of the U.S. Constitution. The Court in United States v. Sciuto, 521 F.2d 842, 845 (7th Cir. 1996) held: “The right to a tribunal free from bias or prejudice is based, not on section 144, but on the Due Process Clause.”

            24.       Judge Miller has refused and continues to refuse to recuse himself.  Perhaps the exigent question is “why?” in the face of overwhelming evidence to support a disqualification.  Why would a judge choose to place himself under the microscope of the disqualification process when by quietly stepping aside he could avoid a public examination of “the appearance of impartiality”?  

            25.       Because CCP §1211 states:

       “When the contempt is not committed in the immediate view and presence of the court, or of the judge at chambers, an affidavit shall be presented to the court or judge of the facts constituting the contempt, or a statement of the facts by the referees or arbitrators, or other judicial officers.”

26.       Because CCP §1211.5 states:

“At all stages of all proceedings, the affidavit or statement of facts, as the case may be, required by Section 1211 shall be construed, amended, and reviewed according to the followings rules:

        (a)       If no objection is made to the sufficiency of such affidavit or statement during the hearing on the charges contained therein, jurisdiction of the subject matter shall not depend on the averments of such affidavit or statement, but may be established by the facts found by the trial court to have been proved at such hearing, and the court shall cause the affidavit or statement to be amended to conform to proof.

        (b)       The court may order or permit amendments of such affidavit or statement for any defect or insufficiency at any stage of the proceedings, and the trial of the person accused of contempt shall continue as if the affidavit or statement had been originally filed as amended, unless substantial rights of such person accused would be prejudiced thereby, in which event a reasonable postponement, not longer than the ends of justice require, may be granted.

       (c)       No such affidavit or statement is insufficient, nor can the trial, order, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form which does not prejudice a substantial right of the person accused on the merits. No order or judgment of conviction of contempt shall be set aside, nor new trial granted, for any error as to any matter of pleading in such affidavit or statement, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.”

            27.       Because CCP §1212 states:

       “When the contempt is not committed in the immediate view and presence of the court or judge, a warrant of attachment may be issued to bring the person charged to answer, or, without a previous arrest, a warrant of commitment may, upon notice, or upon an order to show cause, be granted; and no warrant of commitment can be issued without such previous attachment to answer, or such notice or order to show cause.”

             28.       Because CCP §1214 states:

       “Upon executing the warrant of attachment, the officer executing the warrant must keep the person in custody, bring him before the court or judge, and detain him until an order be made in the premises, unless the person arrested entitle himself to be discharged, as provided in the next section.”

             29.       Because CCP §1215 states:

“The person arrested must be discharged from the arrest upon executing and delivering to the officer, at any time before the return day of the warrant, an undertaking to the effect that the person arrested will appear on the return of the warrant and abide the order of the court or judge thereupon.”

            30.       Because CCP §1218 states:

       “(a)     Upon the answer and evidence taken, the court or judge shall determine whether the person proceeded against is guilty of the contempt charged, and if it be adjudged that he or she is guilty of the contempt, a fine may be imposed on him or her not exceeding one thousand dollars ($1,000), payable to the court, or he or she may be imprisoned not exceeding five days, or both.”

          31.       Because CCP §1222 states:

       “The judgment and orders of the court or judge, made in cases of contempt, are final and conclusive.”          

            32.       The genesis of a special proceeding began in “suits of chancery” that could grant three possible remedies – specific performance, injunctions and damages.  However, the remedy of specific performance is an order by the court requiring a party to do something.  That is why CCP §1211 is primarily concerned with court orders dealing with family law matters (i.e., punishment for the failure to pay court-ordered child support, etc.). 

            33.       Injunctions, on the other hand, are remedies which prevent a party from doing something and until the Common Law Procedure Act was written into law in 1854, suits in chancery confused the two remedies.  Therefore a special proceeding is not relevant to this present action because it involves a permanent injunction preventing Petitioner (not requiring) her from doing something.

            34.       In addition, the law draws a distinction between two grades of contempt.  A court imposes “civil contempt” penalties to enforce compliance with its order, and the defendant “carries the keys to his prison in his own pocket,” i.e., he can free himself by complying.   But in the present case, Plaintiff wishes to punish Petitioner by asserting that she faces five days incarceration for every violation of contempt of the permanent injunction; and, that Petitioner is not entitled to a jury trial unless the incarceration exceeds six (6) months.  Here, Petitioner no longer carries the keys. 

            35.       In 1994, the United States Supreme Court heard United Mine Workers v. Bagwell and held:

“A contempt sanction is civil if it is remedial and for the benefit of the complainant—if it either coerces the defendant into compliance with the court’s order or compensates the complainant for losses sustained. But where a fine is not compensatory, it is civil only if the contemnor is afforded an opportunity to “purge” (avoid or reduce fine through compliance); otherwise, it is criminal contempt.  Therefore, there could be no compensation to the plaintiff as there was no opportunity for the defendant to purge the contempt. Therefore, these were criminal fines, which required appropriate due process—a trial by jury—which had not been afforded.”

            36.       On December 9, 2010, UDR, Inc. (“Plaintiff”) filed an Ex Parte Application for an Order to Show Cause (“OSC”) Re Contempt.         

            37.       On December 10, 2010, Judge Miller granted the application and scheduled Petitioner’s arraignment for February 2, 2011. 

            38.       Judge Miller did not remove himself from adjudicating the contempt proceeding as required by law.  A judge who initiates indirect contempt should not also preside over adjudication of contempt.  In Gates v. Municipal Court (1992) 9 Cal.App.4th 45, 52-53, the Court ruled:

       “Absent an emergency, a judge who initiates indirect contempt proceedings should not also preside over the contempt proceedings.”  The Court found that “the judge who signed documents charging indirect contempt should have disqualified himself from the proceedings” as at that point he became a party to the action and “a party to the action should not act as judge in his or her own case.”

            39.       The criminal contempt portion of the UDR Case should have been reassigned to a criminal judge and given a new case number, thereby separating the civil issues from the criminal, and protecting Petitioner’s constitutional rights. 

            40.       Also, The parties to the criminal contempt portion of the UDR Case should have been the newly-assigned criminal judge, Petitioner and perhaps a Public Defender.  Plaintiff’s interests should have been fully represented by the Affidavits it submitted in support of Plaintiff’s OSC Re Contempt and Plaintiff’s counsel (and perhaps Judge Miller) should have been subpoenaed as material witnesses to the criminal contempt case.

            41.       Instead, to date, the criminal contempt portion of the UDR Case has been between Judge Miller, Plaintiff, Plaintiff’s counsel, Petitioner and the Public Defender assigned by Judge Miller to allegedly protect Petitioner’s constitutional rights.  Plaintiff’s Affidavits submitted in support of its OSC Re Contempt are grossly defective.  They fail to state the number of criminal counts of contempt Plaintiff is alleging nor do they specify how each of one of the counts alleged are in violation of the Permanent Injunction in the UDR Case. Perhaps Section IV, infra, will answer

Motion for an Emergency Stay of Proceedings

IV.       Contempt of Court:  Criminal v. Civil

            43.       Judge Miller, Plaintiff and Plaintiff’s counsel deliberately manipulated the legal concept of contempt of court and co-mingled the procedural differences between civil and criminal contempt, in order to punish Petitioner criminally using civil contempt procedures.  This was a blatant and intentional fraud upon the court on the part of Judge Miller, Plaintiffs, and Plaintiff’s counsel, to prevent Petitioner from obtaining a trial by jury and other constitutional rights.

            44.       Contempt of Court is defined as: “An act of deliberate disobedience or disregard for the laws, regulations, or decorum of a public authority, such as a court or legislative body.”  Plaintiff brought civil charges for contempt of court in accordance with CCP §1211, et seq., instead of criminal contempt charges (as a separate matter) in accordance with CPC § 166 so Petitioner could not present her .  The primary reason was to prevent Petitioner from obtaining a jury trial.   

            45.       Petitioner’s Right to a Jury Trial:

                        a.         There is a federal constitutional right to a jury trial in criminal contempt cases involving serious punishment. (Bloom v. Illinois (1968) 391 U.S. 194, 198.)

                        b.         In Safer v. Superior Court (1975) 15 Cal.3d 230, 241, at pp. 239, 241 the Court held:  “The defendant facing a Penal Code (section 166) prosecution has the right to trial by jury.”

                        c.         In Codispoti v. Pennsylvania (1974) 418 U.S. 506, the trial court (without a jury) found defendants guilty of multiple acts of contempt and imposed consecutive sentences exceeding six months.

                        d.         On appeal, defendants argued they were entitled to a jury trial. The United States Supreme court reversed, stating that the actual penalty imposed is determinative of whether a criminal contempt is a petty or serious offense. (Id. at p. 516.) “[C]rimes carrying a sentence of more than six months are serious crimes and those carrying a sentence of six months or less are petty.” (Id. at p. 512.)

                        e.         The federal jury trial guaranty draws a distinction between “serious” and “petty” criminal offenses and requires a jury trial only for those offenses which fall into the “serious” category.

                        f.          In contrast, the right to trial by jury embodied in the California Constitution extends to the so-called “petty” as well as to “serious” criminal offenses to all misdemeanors as well as to all felonies.        

                        g.         Under the California Constitution, only infractions not punishable by imprisonment (section 19c) are not within the jury trial guaranty. (Mills v. Municipal Court, 10 Cal.3d 288, at p. 298, & fn. 8.) The drafters believed that the length of imprisonment to which an ordinary misdemeanant was subject was sufficiently severe so that any person charged with such an offense should be guaranteed the same right to a jury trial as those who faced more serious charges.

                        h.         It has long been established in California, that the Code of Civil Procedure contempt statute triggers neither a state constitutional nor statutory right to a jury trial. (See, California Constitution, Articles I & 16; Code of Civil Procedure §§ 1211, 1218 [“the court or judge” tries the contempt]; Safer v. Superior Court (1975) 15 Cal.3d 230, 241.)

                        i.          In contrast to those prosecuted for contempt under the Code of Civil Procedure, persons prosecuted for contempt under Penal Code § 166, which by its express terms is a misdemeanor, have a state constitutional and statutory right to a jury trial. (Mills v. Municipal Court (1973) 10 Cal.3d 288, 298, fn. 8 [“our state Constitution guarantees every defendant faced with misdemeanor or felony charges a right to trial by jury”]; Tracy v. Municipal Court (1978) 22 Cal.3d 760, and cases cited [“A person charged with a misdemeanor is entitled to….a trial by jury (Penal Code § 689).”]; Safer v. Superior Court, supra, at pp. 239, 241 [“the defendant facing a Penal Code (section 166) prosecution has the right to trial by jury”].)

                        k.         In Baroldi (In re Baroldi (1987) 189 Cal.App.3d 101), the court found a contemnor was denied due process at a contempt hearing because the procedures outlined in Code of Civil Procedure §1211 had not been followed. As a result of this infirmity, the court nullified the judgment and stated it could not remand a contempt cause “in which the order has been declared void and annulled to the superior court….” (Id. at p. 111; see also, Bloom v. Superior Court, supra, at p. 413.)

            47.       Civil v. Criminal Contempt:

                        a.         While civil contempt proceedings end when the case is over, criminal contempt continues as a separate matter.  The UDR Case was over on December 11, 2009, however, almost one year later, on November 10, 2010, Plaintiff filed contempt charges against Petitioner as a separate matter.  As such, the contempt in this case is clearly criminal in nature, not civil, and Petitioner is entitled to a jury of her peers.                                          

                         b.         Civil contempt of court punishes a party for the failure to do something and is a violation of the rights of one person.  While criminal contempt punishes a party by preventing them from doing something and is an offense against society.

                        c.         A court uses civil contempt as a coercive power to convince the offending party to comply with the courts’ orders.   A court uses criminal contempt to punish a party for behavior that assaults the dignity of the court or impairs the ability of the court to conduct its work.

            48.       On November 1, 2010, UDR, Inc. (“Plaintiff”) filed a Request for Setting of Order to Show Cause Re: Contempt.  This action, filed almost a year after the UDR Case had been resolved, sought to punish Petitioner for her alleged behavior that “assaulted the dignity of the court,” i.e., disobeying the Permanent Injunction in the UDR Case. 

            49.       However, the opening statement in Plaintiff’s Request for Setting of Order to Show Cause Re: Contempt asked the Court to use civil contempt rules and procedures to punish Petitioner criminally for “willful and ongoing violation of the permanent injunction entered by this Court” when Petitioner argues that Plaintiff did not demonstrate, by clear and convincing evidence, that they she did not have actual or constructive knowledge of the violations, and that Plaintiff should have provided Petitioner with notice prior to filing its Order to Show Cause Re Contempt: 

“Pursuant to California Code of Civil Procedure §1211(a) [“CCP §1211(a)”]. Plaintiff UDR, INC. (“Plaintiff”), respectfully requests that the Court set an Order to Show Cause Re: Contempt as against Defendant ERIN K. BALDWIN, also known as BAD BIZ FINDER and BEVERLY SULLIVAN (“Defendant”) for willful and ongoing violation of the permanent injunction entered by this Court.”

              50.       Plaintiff’s counsel chose CCP §1211, et seq., to bring the contempt action against Petitioner.  However, this section is part of Title 3, Part 5 of the California Code of Civil Procedure describing the civil procedure to be used for “special proceedings,” primarily dealing with the enforcement of family law orders. 

            51.       In In re Joseph, 118 Cal. 660, 663, 50 P 768, the Court ruled: 

“The codes do not in express terms define a ‘special proceeding,’ but merely divide remedies into actions or special proceedings.   In so doing, one must define an ‘action,’ and then provide that every other remedy is a ‘special proceeding.’  The phrase ‘special proceeding’ is therefore a generic term for all civil remedies in courts of justice which are not ordinary actions.” 

             52.       In accordance with CCP §22, an action is defined as:

“…an ordinary proceeding in a court of justice by which one party prosecutes another for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense.” 

             53.       Further on in CCP §22, it lists specific types of cases that qualify as an “action,” including, “Proceeding to punish party for contempt.” 

            54.       CCP §23 states:  “Every other remedy is a special proceeding.”

            55.       If CCP §1211, et seq., clearly provides the appropriate civil procedure for “special proceedings,” and CCP §23 defines “Proceeding to punish a party for contempt” as an “action,” rather than a “special proceeding,” why would Plaintiff charge Petitioner with contempt under CCP §1211, et seq.?

            56.       Because by doing so, Judge Miller could maintain complete control over the UDR Case which had become severely compromised by his misconduct as well as the misconduct of Plaintiff, Plaintiff’s counsel, and others.  By incorporating CCP §1211, et seq., Judge Miller could act unilaterally as prosecutor, judge and jury.  He could quickly, quietly and without interference, force Petitioner to choose between two options:  (1) Admit she was guilty of contempt against Plaintiff; or (2) Be incarcerated for a period of six months without the right to a jury trial or appeal.  

            57.       The proper procedure for commencing judicial review of contempt of court for the alleged violation of an injunction is set forth in California Penal Code section 166 (“CPC §166”).  This procedure involves separating the civil issues from the criminal issues.  Petitioner should have been assigned a criminal court judge, a criminal court case number, and full access to all her constitutional rights, including a right to a jury trial.

            58.       CPC §166 also allows Petitioner to call material witnesses to the contempt charge, including but not limited to Judge Miller; Plaintiff’s counsel; Plaintiff’s custodian of records, Board of Directors, and management; the Orange County Public Defender’s Office (“OCPD”); the Orange County Board of Supervisors (“OCBS”); and hundreds of UDR tenants that would have gladly testified to the truthfulness of Petitioner’s statements; the very statements Judge Miller deemed defamatory, tortious and reckless on December 11, 2010 resulting in a Permanent Injunction and Default Judgment in the amount of $104,000 against Petitioner and the present proceeding for contempt.   

            59.       However, the proper procedure (CPC §166), did not align with the strategy devised by Judge Miller, the OCPD, the OCBS, and Plaintiff and Plaintiff’s counsel (i.e, CCP §1211, et seq.), and therefore, it was disregarded.  Petitioner questioned the proper code selection with the OCPD countless times and the OCPD insisted that CCP §1211, et seq., was proper.          

            60.       On February 1, 2011 Judge Miller presided over the arraignment of Petitioner for contempt of court charges pursuant to CCP §1211, et seq., and OCPD Senior Public Defender Martin F. Schwartz (“Schwartz”) was present. 

                        a.         Schwarz did not raise the issue that the improper procedure (CCP §1211, et seq.) was being used to criminally charge Petitioner for contempt of court.   Schwarz knew, or should have known this fact, as his specialty is criminal (not civil) law. 

                        b.         Schwarz did not raise the issue of the proper procedure (CPC §166) nor did he question why it was not being utilized in Petitioner’s case.  Schwarz knew, or should have known this fact, as he has practiced criminal law defense for fifteen years.

                        c.         In fact, Schwarz should have entered a Demurrer on behalf of Petitioner because the claim and cause of action as set forth, supra, as well as many other reasons known to Schwarz, is legally insufficient.  Plaintiff’s affidavits in support of the contempt fail to state a cause of action for contempt nor do they contain the required elements of contempt. 

                        d.         Schwarz knew, or should have known, that a Demurrer was appropriate under the circumstances.  Rather, he made a conscious decision to breach his fiduciary duty to Petitioner and allowed Petitioner to enter a plea of “not guilty,” thereby nullifying her ability to demur in the future.

                        e.         In addition, Schwarz should have immediately requested a Motion to Dismiss the claim of contempt based on the above factors and others, but he did not. 

             61.      Petitioner’s History with the OCPD

                        a.         On June 8, 2010, the Court assigned OCPD Senior Public Defender, Martin Schwarz (“Schwarz”), to represent the legal interests of Petitioner in defense of the criminal contempt proceedings brought against Defendant in the Parsa Case.  The court trial was scheduled for September 13, 2010. 

                        b.         On August 27, 2010, Petitioner corresponded with Schwarz via email transmission as follows:

       “Don’t I have the right to a trial before a jury of my peers?  Did you request this?  Can the judge decide on his own whether I go back to jail?  In light of past prejudice demonstrated for plaintiffs, wouldn’t a jury be in my best interests?

        If the judge signed the court order and denied my motion to set it aside, don’t you think he would be worried about the consequences to his reputation?  Couldn’t that possibly color his decision?” 

                         c.         On August 28, Schwarz responded to Petitioner ‘s August 27, 2010 inquiry as follows:

       “Great question.  Contempt is punishable under both the Penal Code (§ 166) and the Code of Civil Procedure (§ 1209).  Contempt under the Penal Code is punishable as a misdemeanor with a maximum period of incarceration of 6 months, which gives you a right to a trial by jury. 

       There are different types of contempt under the Code of Civil Procedure, but the type you are being charged with is commonly called punitive contempt, which provides for a maximum period of incarceration of 5 days per act.  Unfortunately, you do not have the right to a trial by jury unless you are looking at a total maximum sentence of six months or more in custody.” 

                          d.         On August 28, 2010, Petitioner corresponded with Schwarz via email transmission as follows:

       “So I could go back to jail for a period of up to 6 months based solely on the decision of a judge who knowingly signed a court order against me not once but twice (see UDR) that was unconstitutional, was prejudiced enough against me to consolidate 3 identical frivolous cases together then deny my preemptory challenge, and then denied  my motion to set aside said unconstitutional judgment after acknowledging prior restraint issues from the outset of the case, and knows my appeal against his bad calls was thrown out because I had no money?

        Is that what you’re saying?  I think we need a Plan B.  We need a strategy in case he rules to cover his rear end, don’t you agree?  I want to know that no matter what, on September 13, I am not going to be sitting in a jail cell because a judge made a long line of errors he can’t face. 

       Would you please respond specifically to this and speak to a Plan B to the worst case scenario (jail), i.e., community service, work release, credit for time served, house arrest.  What would you do if, on September 13, Miller threw me back in jail?” 

                        e.         On August 28, 2010, Schwarz responded to Petitioner’s August 28, 2010 inquiry as follows:

       “Please re-read my last email.  I am not saying you could go to jail for up to six months!  What I am saying is that that the type of civil contempt you are facing carries a penalty of up to five days per contemptuous act.  Because the OSC does not specify the number of acts alleged, it is unclear what the maximum period of incarceration would be. 

       The only reason I even mentioned six months in my email is because it answered your question about a jury trial.  I believe we will win.  Certainly, we should win.  While I only know Judge Miller by reputation, I do not believe he is evil and I am hopeful he will see things our way.  Frankly, if he does not, I will be shocked. 

       In the unlikely event that Judge Miller rules against us, I would argue that jail time is not warranted in your case.  If Miller were to disagree, I would ask for a stay of any jail time so that I could take a writ to the Court of Appeal seeking review of Miller’s decision.” 

                        f.          On August 28, 2010, Petitioner corresponded with Schwarz via email transmission as follows:

       “When I met you in court I was impressed by your confidence to my question, “Will I be going back to jail?” to which you responded, “Not on my watch.”  I don’t know what (if anything) has changed but I want much more specificity as to the possibility of incarceration.  I am rebuilding my life; I have a job, my own apartment and am doing very well.  I am not in the slightest bit interested in any strategy that includes the possibility of further incarceration.  What do you mean in the below email by “settle the case”?

       I would like to reiterate my request that you file a Request for Continuance in conjunction with the brief you are preparing to file this week.  I’m not asking Judge Miller to get my property back; I just want it on the record that I have a serious impediment to my defense.  The best way to do that (out of county, as you acknowledge), is to file a Request for Continuance and cite the fact that I have no records to aid in my own defense as the reason for the continuance.

       Why do you believe that “the odds of us prevailing could decrease significantly” if we continue the case?  Please be specific.  One would gather that if it came to light that Parsa’s attorneys had potentially participated in the hiding or destruction of evidence that would not bode well for their position. May I please review your brief and the request for continuance prior to your filing them.  Thank you, as always, for your assistance in this matter. 

                         g.         On August 28, 2010, Schwarz responded to Petitioner’s August 28, 2010 inquiry as follows:

       “Possibility of Incarceration: Understand that you are in the middle of contempt proceedings.  If you are in fact found in contempt, then the court may punish you with incarceration.  I will do everything in my power to prevent that from happening.  More to the point, I believe that we have a strong case against the validity of the injunction.  We should prevail.  If we do, the injunction will be found invalid and you will walk out the door with some degree of vindication.  That is why I recommend we go to trial on the case.  However, there are never any guarantees that the judge will see it my way.  That being the case, I am obligated to advise you of the potential consequences should we lose—so that you can make a fully informed decision about whether you want to fight the allegations. 

       When you say “I’m not the slightest bit interested in any strategy that includes the possibility of incarceration,” does that mean you do not want to fight the contempt proceedings?  Based on our conversation, that doesn’t sound like you.  Again, I believe we have a strong case and that we should win.  However, the decision on whether to fight the allegations rests with you and I need to make sure you are fully advised before you make the decision.  Just to be clear—my recommendation is to fight the contempt allegation.

       Settlement: Settling the case is always an option.  I sent you an email a couple months ago with opposing counsel’s demands for settlement. 

       Continuance:  In this proceeding, the plaintiff has the burden of proof.  That means we don’t have to prove your innocence—Parsa must prove your guilt.  Again, I believe we have a good case that the injunction itself is illegal.  However, even if the judge disagrees with me on that issue, then Parsa will still have to prove that you violated the injunction.  I believe they will not be able to do that, but the last thing I want to do is give them time to put a case together, especially when I believe they will not be prepared to prove their case when we go back to court. 

                         h.         On February 1, 2010, once again the Court assigned Schwarz to represent Petitioner ‘s legal interests in defense of the criminal contempt proceedings brought against Petitioner in the UDR Case.  However, on February 22, 2011, Schwarz informed Defendant via email transmission that he would not be able to stay on as her Public Defender and that he was referring the matter to another OCPD Deputy Public Defender, Jennifer Nicolalde (“Nicolalde”). 

            Schwarz communicated this with Petitioner as follows:

       “I know that your most pressing question is whether or not I am representing you on the UDR case.  The short answer is no.  The longer answer is a little more complicated.  My boss believes (and rightly so, in my opinion) that due to my upcoming commitments, I cannot put in the time your case needs and deserves. 

       Consequently, you will be represented by an attorney in my office named Jennifer Nicolalde.  Her direct line is 714-834-43204.  Her email address is Jennifer.nicolalde@pubdef.ocgov.com.  Her office is right down the hall from me and I have spoken to her at length about your case.  I have known her for a long time and am confident that she will do a wonderful job. 

       Although she is assigned the case, I can promise you that I will work with her on the issues.” 

                         i.          Beginning on March 27, 2011, the OCPD continued the same deception with regard to Petitioner’s right to a jury trial in the UDR Case as was perpetrated in the Parsa Case.

                        j.          On March 27, 2011, Defendant corresponded via email transmission with Deborah Kwast, Orange County Public Defender (“Kwast”), as Nicolalde had demonstrated her lack of knowledge about providing a defense in a criminal contempt matter. 

       “I would like you or your designate at the Orange County Public Defender’s Office (“OCPD”) to complete the following items in my defense on the case assigned to your office on February 1, 2011, UDR, Inc. v. Bad Biz Finder, Erin Baldwin, et al., OCSC Case No. 30-2009-0125305-CU-DF-CJ.  To date, nothing has been completed, at least not that which has been shared with me as the Defendant in this action. 

       On March 23, 2011 I asked Jennifer Nicolalde to provide me a copy of her Reply/Answer in progress and she stated that she would provide same on March 24, 2011.  To date, I have not received anything.  Ms. Nicolalde specifically stated that she intended to file the Reply/Answer on April 1, 2011; so I would imagine the Reply/Answer would be in a form sufficient to show to me for my review. The hearing in this matter is scheduled for April 19, 2011 and I am concerned that vital work is still pending.  Would you kindly bring me up to speed?  

       If you or your office is unable or unwilling to perform the duties required to properly defend me in the criminal contempt case in a timely manner, please inform me in writing via email transmission by the end of business, Tuesday, March 29, 2011, so I can prepare a Marsden Motion and seek Harris Counsel.  Your failure to inform me by this date will result in the deprivation of my constitutional right to effective assistance of counsel in a serious criminal contempt action.  

       The following are actions for which I am constitutionally entitled as a defendant in a criminal contempt case.  As far as I know, these activities have not been completed by the OCPD on my behalf.  I want to ensure that the OCPD concurs with and intends to implement these actions prior to trial on the UDR criminal contempt case.  If not, please let me know so I can prepare a Marsden Motion and seek Harris Counsel.  If you agree to keep this case, please provide me a schedule of when each activity will be implemented.

       1.    Re-assignment of the UDR case to an Orange County Public Defender with the requisite expertise in criminal contempt defense, that has access to and familiarity with the Criminal Contempt Defense Manual, and is willing to uphold my constitutional rights as set forth below.  If you do not have an attorney at the OCPD that meets this criteria, you are required to inform me of this fact in writing on or before Tuesday, March 29, 2011 so I can prepare a Marsden Motion and seek Harris Counsel.

       2.    As your office also represented me in the contempt action brought in another defamation lawsuit, Parsa Law Group v. Bad Biz Finder, Erin Baldwin, et al, OCSC Case No. 30-2009-00117752-CU-DF-CJ, and this action was won by a dismissal of the criminal contempt charges, I want the OCPD to prepare a Motion for a Certificate of Factual Innocence sufficient to recover damages for civil rights violations and to be utilized in the UDR case in support of a Motion to Dismiss on the grounds of Collateral Estoppel and Issue Preclusion.  I have interviewed many prominent attorneys who validate my right to file this Motion and that a Certificate of Factual Innocence should have been obtained at the time the contempt charges were dismissed.

       3.        In accordance with Penal Code section 1050, I want the OCPD to file a Request for Continuance of the April 19, 2011 trial date in the UDR case on the following grounds:

        Issue A:    On two separate occasions within seven months (June 19, 2009 and February 25, 2010), my property and computers were illegally seized by UDR and James Parsa and never returned.  Said property and computers comprise material documents that constitute exculpatory evidence necessary to assert my affirmative defenses in the criminal contempt cases Parsa and UDR. 

        For example, all my notes, references, cites, etc. upon which I relied to write the blog articles in question are in the possession of UDR and Parsa.  Without these documents, I cannot provide documentary evidence that the contents of the blog articles are true, therefore not defamatory.  UDR and Parsa intentionally and unlawfully seized my property and computers, and, as such, their actions also constitute spoliation of evidence. 

        I want the OCPD to prepare and present to Judge Miller (or his successor) criminal subpoenas duces tecum to (1) James Parsa; (2) Parsa’s partner, Alex Dastmalchi; (3) the custodian of records at UDR, Inc.; (4) the law firm, Burkhalter, Kessler, Goodman & George LLP (“BKGG”) (counsel for both Parsa and UDR); (5) Eric J. Goodman, Esq. and David A. Berstein, Esq. (attorneys at BKGG who admitted knowledge of the taking of and the whereabouts of my property); as well as the law firm and lawyers that represented UDR at the time my property was confiscated, Todd A. Brisco, Esq. and Cynthia S. Poer, Esq., of Todd A. Brisco & Associates. 

        I want the subpoena duces tecum to mandate that all my property and computers be deposited with the criminal court within five (5) business days of the date of the subpoena.  The Motion shall also include a statement stating that if the parties subpoenaed willfully and unlawfully disobey the subpoena duces tecum, that they will be sanctioned $5,000 per day until they comply.  If the documents are not turned over to the Court within the timeline stated above, I want the OCPD to bring a Motion to Compel compliance of the subpoena duces tecum including an inventory of all my personal property, documents in subpoenaed parties’ possession and the whereabouts of my computers, data storage devices, original documents and any and all copies of the original documents.

        On June 19, 2009, UDR confiscated all my personal property and computer data storage devices, three days after unlawfully evicting me from my UDR apartment in retaliation for writing about UDR’s illegal California residential lease agreements.  UDR claimed they were justified in confiscating my property stating it was “abandoned,” even though the sheriff that evicted me told me I had ten (10) days to return to collect my property.  UDR packed the contents of my entire apartment and moved it to an offsite storage facility owned by UDR. 

        Shortly thereafter, UDR sold my property to James Parsa.  I know that this sale took place because Parsa’s attorneys disclosed the facts to Public Defender, Martin Schwarz, minutes before the September 13, 2010 trial on contempt charges in the Parsa Case. Parsa’s attorneys attempted to coerce me into not moving forward with the criminal contempt trial in exchange for the return of my property. 

        Eric J. Goodman, Esq. and David A. Berstein, Esq. stated, “UDR confiscated Erin’s property and we know where it is.  We also know that it was sold to James Parsa to use as evidence against Erin.”  They further stated, “If Erin is willing to forego the contempt trial we are willing to return her property.”  I declined the offer and the contempt charges were dismissed.  However, neither an Order of Acquittal nor a Certificate of Innocence was obtained by Martin Schwarz.

        On or about February 25, 2010, UDR and James Parsa (in collusion with the San Bernardino County Sheriff’s Department) confiscated all my property and computers in connection with a false claim, false arrest and false imprisonment on February 25, 2010. The arrest was made in Big Bear, California and the warrant utilized to detain me was the bench warrant issued by Judge Miller in connection with my failure to appear at an OSC Re Contempt in the Parsa case which was never served on me.   I was falsely imprisoned for 35 days.  While imprisoned, all my property and computers were seized by UDR and Parsa and not returned. 

        I informed Martin Schwarz of these facts while he was preparing the Answer/Reply for the Parsa case specifically when he asked me to provide him evidence that the blog articles were true, therefore not defamatory.  I told him I could not do that until all my documents were returned and I asked him to help me do so.  He replied that unless I could convince him that the property and computers confiscated would result in helping him to prove his case, he would not help me. 

        Until such time as all my property and computers that were unlawfully seized by James Parsa and UDR, Inc. in Costa Mesa, California on June 19, 2009 and in Big Bear, California on or about February 25, 2010, proceeding to trial would place me in a distinct disadvantage and would be akin to intentionally depriving me of my constitutional rights to Brady material and other exculpatory evidence in support of my affirmative defenses.

        Issue B:    I am constitutionally entitled to a jury trial in a criminal contempt matter involving serious punishment.

        In Codispoti v. Pennsylvania (1974) 418 U.S. 506, the trial court (without a jury) found defendants guilty of multiple acts of contempt and imposed consecutive sentences exceeding six months. On appeal, defendants argued they were entitled to a jury trial. The United States Supreme Court reversed, stating that the actual penalty imposed is determinative of whether a criminal contempt is a petty or serious offense. (Id. at p. 516.) “Crimes carrying a sentence of more than six months are serious crimes and those carrying a sentence of six months or less are petty.” (Id. at p. 512.)  (See, also, e.g., Bloom v. Illinois (1968) 391 U.S. 194, 198.)

        Due to the fact that UDR claims in excess of 200 counts of contempt of court, all of which carry a potential 5-day jail sentence, this clearly falls in line with a serious crime.  I understand the strategy Plaintiffs are attempting to employ.  If you or the OCPD fail to defend my constitutional right to a jury trial, I will be subjected to a choice between pleading guilty to contempt or a very long jail sentence.  I do believe that falls into your duty as my Public Defender.

       UDR and James Parsa know they collectively and unlawfully seized my property and that said actions would place me at a distinct disadvantage to assert my affirmative defenses in over 200 counts of criminal contempt.  If you or the OCPD fail to demand the return of my property you also fail to perform the duties as my Public Defender to protect my constitutional rights.

        I want the OCPD to demand a jury trial and set it out far enough in advance so that I can (1) recover my property with plenty of time to review and incorporate it into my defense; and (2) obtain transcripts with plenty of time to review and incorporate them into my defense.  Until such time as these actions are implemented, my constitutional rights are being violated and the trial must be continued.

        Issue C:    Judge Franz Miller must be removed as the judicial officer in this trial on the grounds that: (a) he prepared and signed the Order under attack; (b) he is a material witness in the criminal contempt case; and (3) he participated in extrajudicial ex parte communications with counsel and others.

        I want the OCPD to prepare a Verified Statement and Challenge for Cause pursuant to CCP 170.1, 170.3, and 170.4 demanding that Judge Miller recuse himself or be disqualified on the grounds stated in Issue C above.  If Judge Miller files a Verified Answer refusing to recuse himself or be disqualified, I want the OCPD to file a Peremptory Challenge pursuant to CCP 170.6 also on the grounds stated above. 

        Until such time as Judge Franz Milled is disqualified from hearing the criminal contempt case and the issue whether I am entitled to a jury trial is determined, I am at a distinct disadvantage and the trial must be continued.

        Issue D:   Under California Penal Code section 987.2, I am entitled to free transcripts for all hearings wherein a court reporter was present in both the Parsa and UDR cases.  Did you obtain a court order for these transcripts? I was never given the transcripts by Martin Schwarz in the Parsa case, although I don’t know if he obtained them.  I was never given the transcripts by Jennifer Nicolalde in the UDR case, although I don’t know if she obtained them.

        If these transcripts are not currently in the possession of the OCPD, I want the OCPD to request, obtain and make copies of same and mail them to me via express mail to Post Office Box 3141, Beaumont, CA 92223.   If these transcripts are currently in the possession of the OCPD, I want the OCPD to immediately mail them to me express mail to Post Office Box 3141, Beaumont, CA 92223. 

 

        Until such time as the transcripts are ordered, obtained and delivered to me with ample time allowed to review same and incorporate them into my defense, I am at a distinct disadvantage, my constitutional rights are being violated, and the trial must be continued.  

        The UDR Order is also unconstitutional as it is a prior restraint of speech, is void for vagueness, and is overbroad.   In Balboa Island Village Inn, Inc v. Anne Lemen, 57 Cal.Rptr.3d 320 (2007), 40 Cal.4th 1141, 156 P.3d 339) the Court ruled that an “the injunction is overly broad, but that defendant’s right to free speech would not be infringed by a properly limited injunction prohibiting defendant from repeating statements about plaintiff that were determined at trial to be defamatory.”

        In both the Parsa and UDR cases, the Court failed to attach the defamatory content to be prohibited or to ever even identify the defamatory content on which it relied to justify the extraordinary remedy of a Permanent Injunction.  Permanent Injunctions are a prohibition of future expression, the very definition of the doctrine of prior restraint.

        In Alexander v. United States, 509 U.S. 544, 550 (1983), the Supreme Court expressly declared that “permanent injunctions … that actually forbid speech activities are classic examples of prior restraints” because they impose a “true restraint on future speech.”  In Alexander, the Supreme Court discussed three prior decisions of the Court holding that permanent injunctions on speech are inconsistent with the First and Fourteenth Amendments to the United States Constitution.  These cases clearly hold that a permanent injunction on speech is a prior restraint.  In Near v. Minnesota, 283 US at 722-23, The Near Court held that such an injunction on future speech, even if precluded by the publication of defamatory material, was unconstitutional.

        Issue E:    I am entitled to have issued and served subpoenas to appear and subpoenas duces tecum.  As far as I know, the OCPD has not prepared, had issued or served any subpoenas on my behalf.  David A Berstein, Esq., attorney for Plaintiff UDR is a witness in the criminal contempt case because he submitted a Declaration in support of the contempt charges against me.  Judge Miller is also a witness in the criminal contempt case, and therefore should be disqualified from hearing the criminal contempt case.

        Attorneys for UDR have filed Declarations in the criminal contempt case; that is the end of their participation.  They cannot appear and they cannot call witnesses to appear.  I want the OCPD to have blank subpoenas available to serve on these parties if they do appear.

        In my previous email to you, I gave you a list of parties to which I wanted subpoenas prepared, issued and served on my behalf.  (I have restated them below.)  Until such time as these subpoenas are prepared, issued and served; the documents requested are produced; and the transcripts are ordered, obtained and delivered to me with ample time allowed to review and incorporate them into my defense, I am at a distinct disadvantage and my constitutional rights are being violated including my right to effective assistance of counsel.

        I would also like to subpoena: (1) James Parsa; (2) Alex Dastmalchi; (3) the custodian of records for UDR, Inc; (4) the custodian of records for the UDR subsidiary, UDR Western Residential, Inc; (5) the custodian of records for the California State Bar; (6) key UDR management to corroborate UDR, Inc.’s lack of standing to sue in California; (7) BKGG lawyers, Alton G. Burkhalter, Esq., Daniel J. Kessler, Esq., Eric J. Goodman Esq., David A. Berstein, Esq., Nicholas D. Myers, Esq., Gregory Clement, Esq., and Nicholas Kohan, Esq.; (8) California State Bar attorney, Paul O’Brien, and investigators, John Noonen and Tom Layton; (9) Thomas V. Girardi, Esq.; and (10) Judge Miller’s Court Reporter, Evelyn Ruth Barnett.  I would also like to subpoena duces tecum any documents on which UDR relied to bring a defamation action against me wherein they can prove the falsity of said statements. 

        Issue F:  Under California Penal Code section 987.2, I am also entitled to free Xerox copies of all the documents in all my cases contained in the Superior Court record, together with a person available to organize my documents, a court stenographer in the event the court provides the transcripts in a non-written format, a certified law clerk, and a process server.

        None of these items were offered to me in the Parsa or UDR case and all would have aided me substantially, particularly in light of the fact that I reside almost two hours from Orange County Superior Court.  Why was I not informed of these facts?  Until such time as I have copies of all documents contained in the court record for the Parsa and UDR cases and access to the services stated above, I am at a distinct disadvantage, my constitutional rights are being violated, and the trial must be continued.

       Lastly, UDR, Inc. lacks jurisdiction to file suit in the State of California.  This was brought to your attention last week.  In addition, an undertaking was not filed in connection with the issuance of the Permanent Injunction in both the UDR and Parsa cases.  This was also brought to your attention last week.  These two items alone render the Injunctions void.  Why are you not asserting these facts?

       Please contact me via email on or before Tuesday, March 29, 2011 to inform me whether you or the OCPD office is willing to perform the activities listed above which, in fact, are the duty of the Public Defender in criminal contempt cases and which, in fact, I am entitled under the Constitution of the United States.

                       k.         On March 28, 2011, Denise Gragg, Deputy Public Defender and Nicolalde’s Supervisor (“Gragg”) responded on behalf of Kwast as follows:

I have read your e-mail and will try to answer the questions that you have.

1.       We will investigate the viability of a motion for a finding of factual innocence in a case involving civil contempt.

2.       We will discuss with you the need for a continuance of the trial, although a quick reading of the file indicates that a continuance may well be necessary if the motion fails.  If counsel and you agree that a continuance is required, we will move for one.

3.       We need from you a more specific list of the documents and computer files that we need to subpoena.  These should be documents and files that contain evidence that the statements that are the subject of the contempt charges are true and thus do not fall within the limits of the court order.

4.       We are investigating the legal grounds for an argument that you are entitled to a jury trial.

5.       Judge Miller’s signing of the order does not disqualify him from hearing the contempt matter.  I would need more information about your allegations of ex parte communications with counsel before I could assess the impact that that claim might have on the question of his possible bias.

6.       I don’t believe that we have any transcripts from the previous case, but you can contact Ms. Nicolalde and ask her.

7.       Ms. Nicolalde is an excellent lawyer and will remain on your case.  She has the benefit of the pleadings filed by Mr. Schwarz in your prior case, and Mr. Schwarz’s counsel on the issues presented by your current one.

       I hope that I have answered your questions to your satisfaction.  If not, or if you have any further questions, please don’t hesitate to contact me.

                        l.          Petitioner corresponded via email transmission to Gragg in response to her March 29, 2011 email on behalf of Kwast:

“In response to your email sent to me yesterday, March 28, 2011 at 6:35 pm, I would like to ask ten preliminary questions: 

(1) How many counts of criminal contempt is UDR bringing against me? 

(2) What is the maximum jail sentence I could face for each count of criminal contempt?

(3)  Take the number of criminal counts UDR is bringing against me and multiply that by the maximum sentence allowed by law in each separate alleged violation of the Injunction.  What do you get? 

(4)  After you reach that final number, do you still maintain that this is a “civil” contempt case?  Does that number exceed six months?

(5)  If this wasn’t a criminal contempt case, why would the Orange County Public Defender’s Office be involved?

(6)  Could you please name the PDs in your office that specialize in criminal contempt cases and of that group, what percentage of their work is devoted to criminal contempt?

(7)   What is the name of the PD that supervises criminal contempt cases?    

(8)   Why do you refuse to re-assign my case to a PD that has experience in defending criminal contempt cases?  Ms. Nicolalde admits having no experience; she doesn’t even know whether the Criminal Contempt Defense Manual exists; and stated to me that the Parsa case was the first criminal contempt case handled by the OCPD; UDR being the second.  In your response you failed to answer whether that is a true statement.  Is it?

(9)  Why do you refuse to disqualify Judge Miller under CCP 170.1 and then CCP 170.6 when, inter alia, he stated that he believed I was guilty and therefore had a duty to appoint a public defender for me?

Please read my Writ of Mandate filed on March 3, 2011 in the Court of Appeal, District 4, Division 3 if you are interested in more detail about the reasons why I believe Judge Miller is biased.”

                         m.        Gragg responded via email transmission to Petitioner in response to her March 29, 2011 email on behalf of Kwast:

       “In referring to your case as a civil one, I was differentiating it from criminal charges.  Findings of factual innocence in criminal cases are governed by Penal Code section 851.8.  It is not clear that this section is applicable to contempt charges arising from civil litigation. 

       Additionally, I have been informed that your previous contempt was dismissed because Parsa elected not to pursue it.  If this is true, then there was no factual finding made about whether you were in contempt or not.

       “Our office has, when requested by the court, handled criminal contempt matters.  Yours was not the first.  However, we do not have a unit of attorneys dedicated to appearing in such cases.  Ms. Nicolalde is, again, an excellent attorney and will provide you with the highest quality defense.

       “Your claim that Judge Miller opined about your guilt was not stated in your previous e-mail.  I have talked to Ms. Nicolalde and she will order a copy of the transcript from the day that we were appointed so that we can see what the court said.  Rest assured that if we find legal grounds on which to challenge Judge Miller, we will do so.”

                         n.         Petitioner followed up with Gragg regarding issues she had overlooked:

       “These questions remain unanswered; may I please have answers?

(1)        How many counts of criminal contempt is UDR bringing against me? 

(2)        What is the maximum jail sentence I could face for each count of criminal contempt?

(3)        What is the total prospective jail sentence in this case? 

(4)        Could you please name the PDs in your office that specialize in criminal contempt cases and of that group, what percentage of their work is devoted to criminal contempt?

(5)        What is the name of the PD that supervises criminal contempt cases?

       Also, would you please email me a draft of the Answer/Reply written on my behalf by Ms. Nicolalde so I can review it?  Ms Nicolalde stated she would send it to me last week but I never received it.  Thank you.

       With regard to the disqualification of Judge Miller, please review the attached Writ of Mandate.

       I didn’t ask whether Ms. Nicolalde was an excellent attorney, I asked whether she is qualified from past experience and education to handle a complex criminal contempt defense.  Would you kindly answer that question? 

       Given that Ms. Nicolalde represented that my case was the very first criminal contempt case handled by the OCPD, I would venture to guess that she is not qualified from past experience and education to handle a complex criminal contempt defense; rather, that she has never handled a complex criminal contempt defense.  Is that correct?

       Finally, you state: “In referring to your case as a civil one, I was differentiating it from criminal charges.  

       Is that the same as the difference between a bona fide journalist and consumer/tenant advocate being deprived of her First Amendment right to free speech without prior restraint by a publicly-traded Maryland corporation that lacks standing to sue in California VS. a woman by the name of Maryanne Jacques that was criminally charged with 2nd degree robbery, grand theft, battery and fighting? 

       Ms. Wilkinson:  If you spent less time mocking and showing your disdain for me as a court-appointed client of the OCPD and more time working out solutions to my issues, I would be in a much better position than I am right now.  If anyone other than Ms. Gragg and Ms. Wilkinson wants to know what that means, ask them.

       I expect an answer to all my questions and your agreement to comply with all the terms of my initial email by 5:00 p.m. today.  I am the client. I am not asking for your permission or waiting for you to consider anything.  I am telling you what I expect you to do and I am entitled to same as a defendant in a criminal contempt case and a citizen of the United States . 

       If you believe you are unable or unwilling to do these things, you have a fiduciary duty to inform me of such, in writing.  Due to the fact that the OCPD has had my case for almost 2 months and my trial date is April 19, 2011, I expect an answer by 5:00 p.m. today so I have enough time to bring a Marsden Motion and obtain Harris counsel.”

                         o.         On March 31, 2011, Gragg communicated with Defendant regarding the issue of a jury trial:      

       “In referring to your case as a civil one, I was differentiating it from criminal charges.  Findings of factual innocence in criminal cases are governed by Penal Code section 851.8.  It is not clear that this section is applicable to contempt charges arising from civil litigation. 

       Additionally, I have been informed that your previous contempt was dismissed because Parsa elected not to pursue it.  If this is true, then there was no factual finding made about whether you were in contempt or not.

       Our office has, when requested by the court, handled criminal contempt matters.  Yours was not the first.  However, we do not have a unit of attorneys dedicated to appearing in such cases.  Ms. Nicolalde is, again, an excellent attorney and will provide you with the highest quality defense.

       Your claim that Judge Miller opined about your guilt was not stated in your previous e-mail.  I have talked to Ms. Nicolalde and she will order a copy of the transcript from the day that we were appointed so that we can see what the court said.  Rest assured that if we find legal grounds on which to challenge Judge Miller, we will do so.”

                        p.         On March 31, 2011, Gragg communicated with Defendant regarding the issue of a jury trial:      

          q.         On March 31, 2011, Defendant communicated with Nicolalde regarding the issue of a jury trial:      

       As your supervisor, Ms. Gragg has deferred the following questions to you.  See her email below:

        (1)       How many counts of criminal contempt is UDR bringing against me? 

       (2)        What is the maximum jail sentence I could face for each count of criminal contempt?

       (3)       What is the total prospective jail sentence in this case? 

       Would you please answer these questions ASAP. 

       Secondly, Ms. Gragg indicated that you would forward to me your brief when you had completed it.  Do not file anything on my behalf without my approval. 

       You indicated to me before that you would be filing this Answer/Reply on April 1, which is tomorrow.  Since I have not received a copy of the pleading for my review and approval, I assume that date has changed.  What is the new date you plan to file this Answer/Reply?

                         r.          On April 1, 2011, Nicolalde responded on behalf of Gragg regarding the issue of whether the OCPD believed I was entitled to a jury trial:

       “I completely intend to argue that you are entitled to a jury trial if the potential maximum sentence is more than 6months, which will indeed take your case out of the realm of being a “petty offense.” 

       However, the issue of whether you are entitled to a jury trial is intimately connected to the issue of how many separate acts of contempt the court will deem are alleged in the affidavits.   Unfortunately, I cannot tell you how many separate counts of contempt the court will deem are alleged in the affidavits because it is poorly written. 

       Based on the Plaintiff’s affidavits, it is unclear how many separate acts are alleged.   In our Response I will clearly argue that the affidavits are defective in that they clearly do not state a prima facia case of contempt AND that they fail to comply with due process and proper notice as required by Code of Civil Procedure section 1211.” 

                     s.         On April 5, 2011, Petitioner followed up once again with the OCPD:

       Although I’ve asked several times, I still haven’t received answers to the following questions.  May I have answers today please? It’s two weeks prior to the scheduled hearing and I must be prepared.

 QUESTION #1

         The Parsa case is stayed pending the outcome of my Writ of Mandate to Disqualify Judge Miller from presiding over the Parsa Case (and any other actions, including UDR) currently pending in the Court of Appeal.  As of yesterday, a decision has not been reached.

         On September 2, 2009, Judge Miller related the UDR case to the Parsa case by order of the Court stating that all current proceedings in the UDR case would be vacated and that Miller would handle all proceedings from September 2, 2009 ongoing. 

         Due to this fact, it appears that the UDR Case is also stayed.  If Judge Miller is disqualified in the Parsa Case, he will also be disqualified in the UDR case.      

         Please confirm these facts in light of the upcoming April 19 hearing.

 QUESTION #2

         Have you filed a request for a jury trial on my behalf in this matter?  If yes, what was the outcome?  If no, why not?  Of course, I am entitled to a jury trial and since you are my Public Defender you would need to make sure that I am afforded this right to a jury trial.

 QUESTION #3

         Have you determined how many criminal counts of contempt UDR has charged me with?  If yes, how many?  If no, why don’t you know and how could you possibly put on a defense on my behalf without this information?

 QUESTION #4

         Have you determined how many days of jail tme I face per criminal count of contempt?  If you don’t know how many counts of contempt there are, how can you advise me as to the maximum sentence I am facing?

 QUESTION #5

         Have you presented to the Court the fact that an undertaking was not posted with the Court in connection with the Permanent Injunction in the UDR Case and as such, the Injunction is void?  If yes, what was the Court’s response?  If no, why not?

 QUESTION #6

         Have you presented to the Court that UDR, Inc. does not have standing to sue in the State of California and as such, the Complaint and the Order upon which the criminal contempt charges are based, are void ab initio?  If yes, what was the outcome?  If no, why not?

 QUESTION #7

         Since the UDR Injunction is overbroad, void for vagueness, and a violation of the prior restraint doctrine, have you been able to pin down exactly what statements the Court found defamatory in its decision to issue a Permanent Injunction? 

        It is grossly unjust and unconstitutional to simply order that I never write anything about UDR again, using a blanket statement.  Plaintiff never even attempted to identify the “defamatory statements” for the Court’s examination, rather, simply stated that I could not write about anything, nor could anyone I associate with, etc. 

         How could I possibly be in criminal contempt when the prohibited statements were never even identified.  It would be akin to telling a child “never be bad again or you will be punished.”  Of course, and in all fairness to the child, you would need to identify what you consider “bad” so that the child knows what behaviors to avoid in the future. In my case, I had no idea then and have no idea now.

         It seems appropriate to put on a defense based on specific statements the Court relied upon to issue such a overbearing order.  We should put on a defense based on the specific statements the Court allege are defamatory.  You may wish to consult The Balboa Village Inn v. Lemen as this is a direct Supreme Court ruling discussing these issues.   

 QUESTION #8

 The Permanent Injunction prohibits me from writing “previously-published or publicly available content that is defamatory or tortious.”  It doesn’t bar me from writing future articles on different subjects, right?  It also does not bar me from writing truthful content, right? Only content that is “defamatory, tortious or reckless.”  Without defining these terms with specificity, the Injunction is absurd and should be thrown out completely.

 QUESTION #9

Have you raised the issue about my inability to assert my affirmative defenses without the return of my property?  Have you requested a stay of the proceedings until all of my property is returned?  If yes, what was the outcome?  If no, why not? 

               If the Judge asked me to prove that the content I wrote is true, I could not competently do this without my research, computers, notes, files and records.  And the fact that the actual entity charging me with contempt is the very entity that separated me from my ability to assert my affirmative defenses is unconscionable. 

  My only answer to the judge could be, “Well, I would tell you why this content is true except for the fact that UDR took away all my evidence to prove my claims and did so knowing that without the documents they stole from me, I would be hard pressed to defend myself in Court against criminal contempt charges, which, Your Honor, is a travesty of justice.” 

 And furthermore, it’s not up to me to prove the content is true — it is up to UDR to prove the statements are false (“defamatory”), tortious and reckless.  They have failed utterly in this regard.”

Nicolalde responded: 

“The verified statement and challenge for cause in the Parsa case pertains solely to the Parsa case.  As I discussed with you previously, your Challenge for Cause was limited to the Parsa case based on the way it was filed.  From my review of your Verified Statement, your bases for cause are ex parte communications that Judge Miller had with parties in the Parsa case and that he would be a witness in a federal suit under RICO that you intended to file.  Have you filed that suit yet?

Although a “Notice of Related Case” was filed on June 29, 2009 assigning the UDR case to Judge Miller, they are still separate actions.  In order to disqualify Judge Miller from the UDR case we would have to file a separate challenge for cause for the UDR case.  I am currently looking into the grounds that you stated regarding Judge Miller’s personal bias and prejudice against you—that he acknowledged your guilt when he appointed us.  I have ordered the transcripts and will review them upon receipt.  If you have any additional grounds or beliefs as to why he is prejudiced to you that relate to the UDR case, please feel free to advise me and I will look into them.

3.&  4.  I completely intend to argue that you are entitled to a jury trial if the potential maximum sentence is more than 6months, which will indeed take your case out of the realm of being a “petty offense.”  However, the issue of whether you are entitled to a jury trial is intimately connected to the issue of how many separate acts of contempt the court will deem are alleged in the affidavits.   Unfortunately, I cannot tell you how many separate counts of contempt the court will deem are alleged in the affidavits because it is poorly written.  Based on the Plaintiff’s affidavits, it is unclear how many separate acts are alleged.   In our Response I will clearly argue that the affidavits are defective in that they clearly do not state a prima facia case of contempt AND that they fail to comply with due process and proper notice as required by Code of Civil Procedure section 1211.

The undertaking issue will be addressed in our Response.

As discussed before, UDR does have standing to sue you in California based on the fact that you reside in California and that the alleged acts of contempt occurred in California .  It does not matter that UDR is a Maryland based company– they can still sue you here because the courts have personal jurisdiction over you.  It is irrelevant whether the plaintiff has any relationship to the jurisdiction because personal jurisdiction rules are defendant-oriented.    (Keeton v. Hustler Magazine (1984) 465 U.S. 770.) 

7 & 8. Are all valid points and will be addressed in our Response.

 In the contempt case you have a presumption of innocence and UDR clearly has the burden of proof.  (In re Burns (1958) 161 Cal. App.2d 137; Ransom v. Superior Court of Los Angeles County (1968) 262 Cal.App.2d 271.)  UDR must present competent evidence that you are in fact guilty of contempt beyond a reasonable doubt.  In the contempt hearing you have the right to present an affirmative defense, but you cannot be forced to testify against yourself.  (Ransom v. Superior Court of Los Angeles County )

 Erin, I hope these responses help address your concerns.  I understand that you are rightfully concerned about the outcome of your case especially because your freedom of speech and your personal freedom are at risk.  I intend to fight zealously on your behalf and all of that begins with the preparation of your Response.  I ask that you be patient and trust that I have your best interests at heart. 

                         t.          On April 7, 2011 Petitioner communicated with Kwast, Gragg and Nicolalde on several issues and the following is related directly to the jury trial issue:

       “1.    You must demand a jury trial in your first pleading.  If you fail to do so you will knowingly be waiving my right to a jury trial.  As I insist on a jury trial, this would be willful ineffective assistance of counsel and grounds for legal malpractice.

        Jennifer, as an appellate attorney, you must certainly know that I am only entitled to a discretionary Writ if I lose the trial for criminal contempt in this case.  You must also know that I am not entitled to an appeal.  I have consulted with numerous criminal defense attorneys and they all agree that I am entitled to a jury trial. 

       After reviewing the “Affidavit of Nicholas Myers of Facts Constituting Contempt,” it is clear that UDR intends to charge me with at least seventy-four (74) separate counts of criminal contempt.  That equates to 370 days in jail. 

       Do not file a first pleading on my behalf in this case without a demand for a jury trial.”  

            62.       As a result of the above facts and references, Petitioner believes that it is in the interests of justice that this Emergency Motion to Stay Proceedings is granted.  

Dated:   May 2, 2011                                       Respectfully submitted,

                                                                                 ___________/s/__________

                                                                                 Erin K. Baldwin

                                                                                 Petitioner, In Pro Per

 EMERGENCY STAY DENIED.

This chick is not an attorney and she can’t afford one.  We think she’s doing pretty good on her own.  A lot better than 90% of the attorneys we’ve met.  If you are an attorney and want a challenge … you can always call her — she gave us permission to print her number:  951-333-1484

 Carry on Ms. Baldwin ….

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§ 2 Responses to OC Corruption Scandal: Judge Franz Miller, REIT UDR, OC Public Defender & Burkhalter Attorneys

  • Linda Goeppinger says:

    I filed an OSC on my X husband: “Why Plaintiff should not be held in contempt for making false statements under oath”. Considerable perjury which affected the outcome of the case, which has been in process for 5 years. He was personally served, in Arkansas, case in Calif. court. He did not show up, his attorney did. My OSC was denied. My x filed bankruptcy in 2008, which I just found out in Dec. 2011. His attorney never did file final disclosures, which I also just learned was required in dissolutions, judge said I was too late. Hearing was 2/8/12. I am waiting for her findings and orders after hearing to file Appeal. I have been self represented for several years. I cannot even afford an attorney just to look at my appeal papers to make sure they are to proceedure. It is hard for the Pro Per person. The courts just eat us alive. My x’s attorney is guilty of subnoration of perjury, I even said that to the judge, my papers have proof, but she keeps on going and will to cause severe harm to other people.

    • Hung Phan says:

      I like to contact cacorruptionwatch. I have new information about judge Franz E. Miller. Also I need help to expose this judge’s prjudice against the in pro per litigants. Thanks

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