1st Amended Complaint

1
Michael Walden Smith, In Pro Se

Fedlawsuit@aol.com
2 73-535 Santa Rosa Way #5
3 Palm Desert CA 92260
Tel.: (760) 808-1387,
4
Fax: (760) 773-9248
5
6
IN THE UNITED STATES DISTRICT COURT
7
CENTRAL DISTRICT OF CALIFORNIA
8
9 MICHAEL SMITH, an Individual Case No: EDCV14-01413-VBF (DTB)

10 Judge: David T. Bristow
Plaintiff
11
vs. Individual Complaint: July 10, 2014
12 1st Amended Complaint: Dec. 8, 2014
CALIFORNIA CHIEF JUSTICE
13
CANTIL-SAKAUYE, Chair of Judicial
14 Counsel, and MR. STEVEN JAHR, the Not Class Action
Administrative Director of the
15
Administrative Office of the Courts, 1. COMPLAINT FOR INJUNCTIVE
16 SUPERIOR COURT OF RIVERSIDE AND DECLARATORY RELIEF
17
COUNTY, in its function as a municipal UNDER 42 U.S.C. §1983;
entity, JUDGE STEVEN COUNELIS,
18 individually and in his official capacity 2. RACKETEERING AND
19 as employee of Riverside Superior Court, CORRUPT ORGANIZATIONS ACT
COMMISSIONER GREGORY OLSON, OF 1970 (18 U.S.C. § 1962)
20
individually and in his official capacity
21 as employee of Riverside Superior Court, 3. CIVIL RIGHTS ACT OF 1871 (42
22
PRESIDING JUDGE MARK COPE, U.S.C. §§1983, 1985, 1986)
individually and as employee of
23 Riverside Superior Court, PRESIDING
4. CALIFORNIA CIVIL AND
24 JUSTICE MANUEL RAMIREZ,
CONSTITUTIONAL RIGHTS
individually and in his capacity as an
25
Appellate Court Judge, 4th District of
California, 5. DECLARATORY JUDGMENT (28
26
U.S.C.S. 2201)
27 [continued next page] [continued]
28
Page 1 of 115 Pages Smith. vs. CALIFORNIA CHIEF JUSTICE CANTIL-SAKAUYE, Et. Al.
Complaint for Injunctive and Declaratory Relief Case No: EDCV14-01413-VBF (DTB)
1
ATTORNEY MARIANNA A. HEVIA-
2 COCKRELL, individually and in her PRELIMINARY INJUNCTION
3
capacity as an Officer-of -The -Court, REQUESTED BY MOTION
Juvelyn Kate-Green, an individual, and
4 DOES 1 through 15. JURY TRIAL REQUESTED
5
Defendants
6
7
TABLE OF CONTENTS
8
9
I. INTRODUCTION...................................................................Page 05
10 II. JURISDICTION......................................................................Page 10
11
III. VENUE....................................................................................Page 11
12
13 IV. INTRADISTRICT ASSIGNMENT.........................................Page 11

14
V. PARTIES..................................................................................Page 11
15
16 VI. STATUTORY AND REGULATORY FRAMEWORK...........Page 15

17
VII. FACTUAL ALLEGATIONS...................................................Page 31
18
VIII. LEGAL CLAIMS....................................................................Page 51
19
20
FIRST CLAIM FOR RELIEF.................................................Page 50
Claim under 42 U.S.C. §1983, Deprivation of Federal Constitutional
21
Rights-The Vexatious Litigant Statutes as Applied Violates the Equal
22 Protection Clause of the 14th Amendment
23 SECOND CLAIM FOR RELIEF............................................Page 60
24 Claim under 42 U.S.C. §1983, Deprivation of Federal Constitutional
Rights-Violation of 14th Amendment' s Due Process Clause and 1st
25 Amendment Right to Petition
26
Continued next page
27
28
1
THIRD CLAIM FOR RELIEF................................................Page 64
2
Rights-Violation of 14th Amendment' s Due Process Clause (Imposition of
3 VLS To Custody Cases on Its Face and as Applied Is Unconstitutionally
Vague and Overbroad ).
4
5
FOURTH CLAIM FOR RELIEF............................................Page 77
Claim under 42 U.S.C. §1983, Deprivation Federal Constitutional Rights-
6
The Vexatious Litigant Statutes as Here Applied, Creates a Prior Restraint
7 in Violation of the 1st Amendment Right to Petition
8 FIFTH CLAIM FOR RELIEF.................................................Page 81
9 Unwritten Rules and Procedures Implementing Prefiling Orders Violates
Due Process Clause of 14th Amendment
10
11
SIXTH CLAIM FOR RELIEF................................................Page 87
12
Rights-The VLS Functions as an Improper Bill of Attainder
13
SEVENTH CLAIM FOR RELIEF..........................................Page 92
14
15 Rights-The VLS Functions as an Improper Ex Post Law
16 EIGHTH CLAIM FOR RELIEF.............................................Page 96
17 [Plaintiff Against Judge Counelis, Commissioner Olson, Marianna A.
Hevia-Cockrell, Juvelyn Aguilar Smith] Claim under 42 U.S.C. §1983,
18
Violation of Civil Rights (42 U.S.C. 1983-Denial of Due Process), Right of
19 Michael Smith to be Free of Unlawful Administrative Vexatious Litigant
Orders For Which Judge Counelis Had No Jurisdiction to Make and
20
Commissioner Olson Had No Jurisdiction to Enforce, Said Orders Initiated
21 and Perpetrated by Juvelyn Auguilar Smith Through Her Attorney
Marianna Hevia Cockrell.
22
23
NINTH CLAIM FOR RELIEF................................................Page 100
[Plaintiff Against Judge Counelis, Commissioner Olson, Marianna A.
24
Hevia-Cockrell, Juvelyn Aguilar Smith]] Claim Under 42 U.S.C. §1983,
25 Violation of Civil Rights (42 U.S.C. 1983-Denial Of Due Process), Right
Of Michael Smith to Familial Association With His Daughter, Separation of
26
Minor Child To Virginia From California Undertaken Without Consent,
27 Probable Cause, Without Proper Lawful Hearing or Evaluation or Exigent
Circumstances Justifying Separation of Child, Initiated and Perpetrated by
28 Juvelyn Auguilar Smith Through Her Attorney Marianna Hevia Cockrell
1
TENTH CLAIM FOR RELIEF...............................................Page 102
[Plaintiff Against Judge Counelis, Commissioner Olson, Marianna A.
2
Hevia-Cockrell, Juvelyn Aguilar Smith] Claim Under 42 U.S.C. §1983,
3 Violation Of Civil Rights (42 U.S.C. 1983-Denial Of Due Process), Right
Of Michael Smith To Familial Association With His Daughter, and The
4
Continued, On-Going Separation of Minor Child To Virginia From
5 California Undertaken Without Consent, Probable Cause, Proper Lawful
Hearing or Evaluation or Exigent Circumstances Justifying The Continued,
6 On-Going Separation of Child.
7
ELEVENTH CLAIM FOR RELIEF.......................................Page 102
8 [Plaintiff Against Superior Court, Judge Counelis, Judge Cope,
9 Commissioner Olson, Marianna A. Hevia-Cockrell, Juvelyn Aguilar Smith]
Claim Under 42 U.S.C. §1985, Violation Of Civil Rights (42 U.S.C. 1985-
10 Conspiracy), Conspiracy to Violate Constitution Rights, Deny Due Process
11 and Unlawfully Separate Child From Father and Continueto Unlawfully
Separate Child From Father
12
13
TWELFTH CLAIM FOR RELIEF.........................................Page 103
Claim Under California Constitution, Declaration of Rights, Deprivation of
14 State Constitutional Rights Under Color of Law, Substantive Due Process,
15 and Procedural Due Process.
16 THIRTEENTH CLAIM FOR RELIEF...................................Page 105

17 Claim Against Defendants For All of The Above That Constitute a Cause of
Action and Set Forth All Necessary Elements To Justify a Claim of
18 Negligent Infliction Of Emotional Distress.
19
20 IX.. REQUEST FOR RELIEF........................................................Page 110

21
22 X. JURY TRIAL REQUESTED...................................................Page 116

23
24 Continued next page

25
26
27
28
1
I. INTRODUCTION
2 1. Michael Walden Smith, a parent in an on-going custody dispute, brings
3
this action individually and not as a class action or as a participant in any class
4
5 action, against the named Defendants for two forms of relief.

6
First Form of Relief
7
8 2. The first form is relief from the violation of Plaintiffs rights by the
9
Defendants using the alleged unconstitutional “vexatious litigant law” (*see
10
Exhibit 01) against Plaintiff in the family law court (See Code of Civil Procedure
11
12 391-391.8). Plaintiff hopes to overturn this law as it applies to family law

13
litigants, particularly parents caught in protracted custody battles. Plaintiff
14
15 challenges the constitutionality of the VLS as it is applied in the context of family

16
law custody proceedings and specifically in the family law proceeding of
17
18
Plaintiff. Plaintiff asserts that the VLS on its face and as applied infringes on
19 Plaintiff’s fundamental custody rights.1

20
Second Form of Relief
21
22 3. The second form is relief from the violation of Plaintiffs rights in the
23
unlawful removal of Plaintiff’s child from his home under color of the vexatious
24
25 litigant law and denial of a lawful hearing leading to that removal including
26
denial of due process to file a responsive pleading in opposition to the hearing.
27 1
Santosky v. Kramer (1982) 455 U.S. 745; Stanley v. Illinois (1972) 405 U.S.645, 651; "A parent's interest in the
28 companionship, care, custody and management of his or her children rises to a constitutionally secured right, given
the centrality of family life as the focus of personal meaning and responsibility."
1
Plaintiff in a separate motion for preliminary injunction requests this court enjoin
2 the family law court from enforcing an unconstitutional temporary order and
3
provide for the return of Plaintiff’s child to his residence.
4
5 4. Plaintiff understands the state's need to manage its docket, preserve

6
scare judicial resources, and to curb “meritless” cases. Plaintiff does not doubt
7
8 that the state has rational and very urgent reasons to curtail a civil litigant's access
9
to the judicial process when such a litigant is filing frivolous or vexatious claims.2
10
Plaintiff recognizes that state courts have found that the general right of civil
11
12 litigants to petition grievances under the First Amendment does not entitle them
13
to "clog the court system and impair everyone else's right to seek justice."3
14
15 However, at the same time, Plaintiff knows from his own unfortunate experiences
16
as a family law litigant, and as a "parent," that the state's "unclogging its court
17
18
docket" rationale for curtailing, restricting, or denying Plaintiff access to family
19 law courts is not rational and certainly not compelling.4

20
5. Unlike civil litigants, Plaintiff here is a parent in a custody dispute and
21
22 had no choice in being dragged into family law court once again on this latest
round of custody wrangling. Plaintiff has not had any choice in where to resolve
23
24
2
"The constant “suer for himself” becomes a serious problem to others than the defendant he dogs. By clogging
25 court calendars, he causes real detriment to those who have legitimate controversies to be determined and to the
taxpayers who must provide the courts." (Taliaferro v. Hoogs (1965) 237 Cal. App. 2d 73, 74.)
26 3
Wolfgram v. Wells Fargo Bank (1993) 53 Cal. App. 4th 43, 56.
4
Lammers v. Superior Court (2000) 83 Cal.App.4th 1309, 1325: "[W]hen an enactment broadly and directly
27
impinges upon the fundamental constitutional rights of a substantial portion of those individuals to whom it
28 applies, it can be upheld only if, considering its general and normal application, its compelling justifications
outweigh its impingement upon constitutional rights and cannot be accomplished by less intrusive means."
1
his custody disputes. The family law court is the "only forum" that the state of
2 California has provided for Plaintiff (and other parents) to resolve custody
3
disputes.5 Yet the state Legislature treats civil litigants the same as Plaintiff and
4
5 all other family law litigants for purposes of the VLS. While the imposition of the
6
VLS affects civil litigants right to petition under the First Amendment, this
7
8 Plaintiff and all family law litigants suffer a double blow. Plaintiff’s and all other
9
family law litigants’ procedural due process right to petition are negatively
10
affected. Additionally, Plaintiff’s and all other family law litigants substantive due
11
12 process rights related to custody are undermined. In the same way, the state's
13
justification for imposing the VLS on this Plaintiff and all other parents in
14
15 custody disputes is doubly unjustified.6

16
6. In Plaintiff’s family law case, going back many years, Plaintiff’s child
17
18
was removed from his home unlawfully (no warrant, no facts supporting an
19 emergency removal) by Children’s Protective Service, only to have the child

20
returned to Plaintiff after a protracted over-two-year bitter struggle, that damaged
21
22 the child (*see Exhibit 02). That CPS action “set the stage” for fourteen years of
23 5
*See, Boddie v. Connecticut (1971) 401 U.S. 371, 376-377: "Thus, although they assert here due process rights a
would-be Plaintiffs, we think appellants' plight, because resort to the state courts is the only avenue to dissolution
24
of their marriages, is akin to that of Defendants faced with exclusion from the only forum effectively empowered
to settle their disputes. Resort to the judicial process by these Plaintiffs is no more voluntary in a realistic sense tha
25
that of the defendant called upon to defend his interests in court."
6
Elkins v. Sup. Ct (2007) 41 Cal. 4th 1337, 1353: In other words, court congestion and 'the press of business' will
26
not justify depriving parties of fundamental rights and a full and fair opportunity to present all competent and
27
material evidence relevant to the matter to be adjudicated."; Boddie v. Connecticut (1971) 401 U.S. 371: "We are
thus left to evaluate (contd. next page) the State's asserted interest in its fee and cost requirements as a mechanism
28 of resource allocation or cost recoupment. Such a justification was offered and rejected in Griffin v. Illinois, 351
U. S. 12 (1956)."
1
never-ending family law court custody litigation, that SHOULD have ended in
2 April of 2011 but for Defendant JUDGE COUNELIS and COMMISSIONER
3
OLSON, it has unfortunately continued in excess of two more years resulting in
4
5 even more harm to the minor child. Due to the debacle in the juvenile court,
6
wherein three judges were publicly censured and removed from the bench (*see
7
8 Exhibit 03), the juvenile court case was “continued” in the family law court and
9
then “dropped” by Commissioner Gretchen Taylor, which lead to a series of
10
continuous court battles for custody. At one point in time the 4th Appellate
11
12 District Court issued a ruling and remittitur stating that what the Juvenile Court
13
did under Judge Arthur Block was a “miscarriage of justice”. (*see Exhibit 04).
14
15 All of this contention and corruption in the juvenile and family law courts
16
exacerbated Plaintiff’s right and role to be a parent to his child and led to repeated
17
18
efforts to adjust the custody to what is WAS before the courts got involved in the
19 case. As a result, the other party filed a motion asking that the Plaintiff be labeled
20
a “vexatious litigant” in 2004. However, the commissioner at the time,
21
22 Commissioner Michael McCoy, did not authorize placing Plaintiff’s name on the
23
“statewide vexatious list” and only required that anytime Plaintiff wished to file
24
25 papers in the family law court, that the court judge review them first for approval
26
to be filed. The trouble in this case began when JUDGE COUNELIS on March
27
9th, 2012 at a hearing by the Plaintiff requesting a “statement of decision”, on his
28
1
own motion that Plaintiff alleges JUDGE COUNELIS had no jurisdiction or
2 authority so to do, imposed a $25,000 bond before Plaintiff could file “any paper”
3
with the court. (*see Exhibit 05). JUDGE COUNELIS ordered Plaintiff’s name
4
5 placed on the vexatious litigant list with the Judicial Council thereafter. Since that
6
time, Plaintiff has had a difficult time filing paper in the family law court and
7
8 most recently JUDGE COPE has denied for filing almost every item submitted to
9
the clerk as well as refusing twice to remove the vexatious label upon motion.7
10
JUSTICE RAMIREZ has denied Plaintiff the right to appeal that refusal. Finally
11
12 JUDGE COPE has refused for filing Contempt Claims and Motions for Sanction
13
and For Counseling as “pre-trial” motions for Plaintiff’s trial that was set by
14
15 COMMISSIONER OLSON in June of 2014. Refusing the filing of these motions

16
makes it almost impossible for Plaintiff to argue his case for trial.
17
18
7. In short, the imposition of the VLS (*see Exhibit 01) on Plaintiff and
19 on other parents in custody disputes has caused and continues to cause irreparable
20
harm. Early on in Plaintiff’s cases, he did not see his child for months and then
21
22 for years and most recently has only seen his child 7 weeks in the last two years.
23
Plaintiff is aware that other parents have not seen their children for periods of up
24
25 to three years and others only for token visits. There is no amount of money that
26
can compensate this Plaintiff for the years lost as a parent or for the emotional
27 7
391.8. (a) A vexatious litigant subject to a prefiling order under Section 391.7 may file an application to vacate
28 the prefiling order and remove his or her name from the Judicial Council's list of vexatious litigants subject to
prefiling orders.
1
harm caused the minor daughter in this civil law court debacle (*see Exhibit 02).
2 King Solomon demonstrated the wisdom of threatening to sever a child in two. In
3
Plaintiff’s case and surely in other parent cases, which severed the parent-child
4
5 relationship it can only be attributed to the absence of wisdom, an abundance of

6
vitriol, and a failure of the family law courts in the state of California, and as
7
8 Plaintiff claims, by the failure of the Defendants in this action to assure Plaintiff
9
may enjoy his rights to his daughter and just simply love her.
10
11 II. JURISDICTION
12
8. This is an action for declaratory and injunctive relief for violation of the
13
14
Due Process Clause and Equal Protection Clause of the Fourteenth Amendment as
15 well as violation of the right to petition grievances under First Amendment. These
16
civil rights violations are brought under the 42 U.S.C. §1983.
17
18 9. Jurisdiction is based on 28 U.S.C §1331, §1332, and §1343 for a

19
violation of 42 U.S.C. §1983. At all times relevant to this action, Defendants have
20
21 acted under color of state law. The Court has Supplemental Jurisdiction over
22
Plaintiffs' state claim pursuant to 28 U.S.C. §1367 and California Government
23
Code Section §11135.
24
25 III. VENUE
26
10. Venue is proper in the Central District of California pursuant to 28
27
28 U.S.C. §1391(b) because certain Defendants operate and perform their officials
1
duties therein and thus reside therein for purposes of venue, and because some of
2 the events and omissions giving rise to the claims herein occur in counties that are
3
part of the Central District of California.
4
5
IV. INTRADISTRICT ASSIGNMENT
6
7
11. Pursuant to Civil Local Rule this action should be assigned to the
8 Eastern Division of the Central District of California, because a substantial part of

9
the events and omissions giving rise to the claims herein occur in counties in the
10
11 Central District of California

12
V. PARTIES
13
14
Plaintiff
15 12. Plaintiff Michael Walden Smith (M.SMITH), is the father of the 14
16
year old minor child of this case. M.SMITH resides and works in the County of
17
18 Riverside in this district.

19
Defendants
20
21 13. Defendant California Judicial Council is a state agency that is

22
responsible for the improvement of the administration of justice, including
23
surveying judicial activities, making recommendations to the Governor and
24
25 Legislature, and adopting rules for court administration, practice and procedure
26
that are consistent with both statutes and constitutional mandates.8 The Judicial
27
28 8
*See, Cal. Const. Art 6, section 6(d).
1
Council is also responsible for creating the various forms used in the state courts,
2 including the MC-700-704 forms used by ''vexatious litigants" (and Plaintiff in
3
this case) to try to lift the "vexatious" branding.9
4
5 14. Defendant Chief Justice Cantil-Sakauye (JUSTICE CANTIL-

6
SAKAUYE) is the Director of the Judicial Council, the state agency responsible
7
8 for assuring that the law, statutes, and court rules and procedures are consistent
9
with constitutional guarantees. Defendant JUSTICE CANTIL-SAKAUYE is a
10
public agency director responsible for a public entity, pursuant to 42 U.S.C.
11
12 §12131(1)(A) & (B). Defendant JUSTICE CANTIL-SAKAUYE is sued in her

13
official and administrative capacity.
14
15 15. Defendant Judge Steven Jahr (JUDGE JAHR), the Administrative

16
Director of the Courts, "is Administrative Director of the Courts is accountable to
17
18
the council and the Chief Justice for the performance of the Administrative Office
19 of the Courts. The Administrative Director's charge is "to accomplish the council's
20
goals and priorities."10 His various duties, including carrying out the goals of the
21
22 Judicial Council, are to interpret policies, allocate financial resources to achieve

23
goals, to accomplish the goals, and provide reports regarding "progress toward
24
25
26
27
9
*See, Gov. Code 68511
28 10
http://www.courts.ca.gov/policyadmin-aoc.htm
1
achieving these goals." (*See Rule 10.80. Administrative Director of the
2 Courts.)11 He is sued in his official and administrative capacity.
3
16. Defendant Superior Court of Riverside, County of Riverside
4
5 (RIVERSIDE SUPERIOR COURT), in its function as a municipal entity, is a

6
“beneath State level” municipal entity chartered under and doing business in the
7
8 County of Riverside and this District.

9
17. Defendant Hon. Judge Steven Counelis (JUDGE COUNELIS) is a
10
judge of the RIVERSIDE SUPERIOR COURT, and at all times relevant herein
11
12 exercised jurisdiction within the Family Law Division at the time of the incidents
13
described in this complaint. Judges are appointed by the Governor or are elected
14
15 officials by the citizens of Riverside County depending on the circumstances.

16
JUDGE COUNELIS receives all compensation from Riverside County, and
17
18
oversees jurisdiction for his assignment in Riverside County, that was in the
19 Family Law Division downtown Riverside at the time of the events as stated in
20
this complaint. Defendant JUDGE COUNELIS is sued in his official and
21
22 administrative capacity.
23
18. Defendant Hon. Commissioner Gregory Olson (COMMISSIONER
24
25 OLSON) is a Commissioner of the RIVERSIDE SUPERIOR COURT, and at all

26
times relevant herein exercised jurisdiction as the Family Law Commissioner of
27
28 11
http://www.courts .ca.gov/cms/rules/index.cfm?title=ten&linkid=rule10_80
1
the Indio Family Law Division. He is an appointed official, receives all
2 compensation from Riverside County, and oversees jurisdiction only in Riverside
3
County.
4
5 19. Defendant Hon. Judge Mark Cope (JUDGE COPE) is the Presiding
6
Judge of the RIVERSIDE SUPERIOR COURT, and at all times relevant herein-
7
8 exercised jurisdiction as the Presiding Judge over Riverside County. Judges are
9
appointed by the Governor or are elected officials by the citizens of Riverside
10
County depending on the circumstances. JUDGE COPE receives all
11
12 compensation from Riverside County, and oversees jurisdiction for his Presiding
13
Judge assignment in Riverside County. Defendant JUDGE COPE is sued in his
14
15 official and administrative capacity.

16
20. Defendant Hon. Presiding Justice Manuel Ramirez (JUSTICE
17
18
RAMIREZ) is the Presiding Justice of the Fourth Appellate District Court of
19 California, Division Two and at all times relevant herein exercised jurisdiction as
20
the Presiding Justice for the Fourth Appellate District, Division Two. JUSTICE
21
22 RAMIREZ receives all compensation from the State of California, and oversees
23
jurisdiction for his Presiding Justice assignment for Division Two. Defendant
24
25 JUSTICE RAMIREZ is sued in his official and administrative capacity.

26
21. Defendant Attorney Marianna A. Hevia-Cockrell (ATTORNEY
27
COCKRELL) is a private attorney (#140139) currently associated with the Law
28
1
Office of Michael Young. ATTORNEY COCKRELL practices as a family law
2 attorney and is sued in her individual capacity and as an officer-of-the-court.
3
22. Juvelyn Aguilar Smith AKA Kate-Green (SMITH/KATE-GREEN) is
4
5 the respondent parent of the minor child, the subject of this case and is sued in her
6
individual capacity.
7
8 VI. STATUTORY AND REGULATORY FRAMEWORK

9
23. The Vexatious Litigant Statute (VLS), since its enactment in 1963
10
(Stats. 1963, ch. · 1471, § 1, p. 3038), has expanded its reach both by
11
12 amendments from the California Legislature and by "broad readings" of the VLS
13
by various appellate courts. As applied in its current form, a "moving defendant"
14
15 in a civil case can move the court for an order requiring the "Plaintiff ' to furnish
16
security. (§391.1).12 The statute contemplates a hearing with the right to call
17
18
witness and provide evidence. (§391.2). In 1990, the Legislature broadened the
19 scope of the VLS by adding section 391.7 (Stats. 1990, ch. 621, §§ 1-3), which
20
provided that once a litigant had been found "vexatious," the court, "on it own
21
22 motion or the motion of any party," is authorized to impose ''prefiling orders" on

23
self-represented vexatious litigants trying to file "new litigation." (Stats. 1990, ch.
24
25 621, § 3, pp. 3072-3073). Before being allowed to file "new litigation," the
26
vexatious litigant, acting "In propria persona," first has to get the "permission" of
27 12
CCP §391.1: ".... The motion must be based upon the ground, and supported by a showing, that the Plaintiff is a
28 vexatious litigant and that there is not a reasonable probability that he will prevail in the litigation against the
moving defendant."
1
the court. (§391.7(a)). The 1990 amendment also expanded the definition of
2 "Plaintiffs" under the VLS to include "an attorney at law acting in propria
3
persona ."
4
5 24. In 1998, the first significant judicial expansion of the VLS occurred in
6
the case of McColm v. Westwood Park Assn . (1998) 62 Cal. App. 4th 1211. In
7
8 McColm, the Court of Appeals for the First District expanded the type of
9
litigation that could be counted as "vexatious" under section 391.l(a-d) to include
10
writs, appeals, and petitions, supra 1219-1220:
11
12 "Litigation" for purposes of vexatious litigant requirements

13 encompasses civil trials and special proceedings, but it is broader than
that. It includes proceedings initiated in the Courts of Appeal by
14
notice of appeal or by writ petitions other than habeas corpus or other
15 criminal matters.
16
As a result, self-represented vexatious litigants at the trial level as well as in
17
18
appellate courts must obtain the "presiding judge's" permission before being
19 allowed to file.13 Another significant expansion of the reach of the VLS occurred
20
in the case of Camerado Insurance Agency, Inc. v. Superior Court (1993) Cal.
21
22 App. 4th 838. In its broad reading of the VLS, the Court of Appeals for the Fourth
23
District in Camerado viewed the 1990 amendments to the VLS as proof of
24
25 legislative intent to expand the reach of the VLS.14 In abrogating the distinction in
26 13
The Judicial Council has created MC-701, a form that allows "vexatious litigants" to request permission to file
new litigation. (*See, http://www.courts.ca.gov /documents/mc70 l.pdf). The court of appeals have their own
27
forms.
14
Camerado, supra at 8 43-844 : A review of the 1990 amendments demonstrates the Legislature's intent to
28
broaden the reach of the vexatious litigant statute....Nothing in these amendments suggests a legislative intent to
1
the VLS between represented and self-represented litigants, the appellate court in
2 Camerado ruled that “representation” did not shield a previously declared litigant
3
from the security requirement of §391.3. (supra at 845)
4
5 25. The trial courts' reliance on the VLS to resolve custody disputes was
6
most clearly encouraged and promoted in a decision by Judge Cardoza. In In re
7
8 R.H., almost two years after Chief Justice George's decision in Elkins v. Sup. Ct.,
9
Judge Jane Cardoza cites the legislative history of the Vexatious Litigant Statute
10
as a basis for using that statute as a "tool" for gagging parents who try to regain
11
12 custody of their children, (In re R. H., l 70 Cal. App. 678, 700 (2009)):
13
(Bill History of Assem. Bill 1938, (2000-2001 Reg. Sess.), (enacted as
14
Stats. 2002. ch. 1118.) "Under existing law, parties to family law and
15 probate law proceedings, as well as the court, may already use the
vexatious litigant statutes if they so desire. [VJ The intent of this bill,
16
according to the author and the proponents, is to point the way to the
17 vexatious litigant statutes to the parties engaged in these proceedings
18
and to the court, as a tool to discourage repeated motions by parents to
regain custody of their children when there are no changed
19 circumstances to justify a different result." (Sen. Com. on Judiciary
20 Analysis of Assem. Bill No. 1938 (2001-2002 Reg. Sess.)
21
Implicit in her characterization of parent's attempt to "regain custody" is the belief
22
23
that such attempts are frivolous, that the trial judge made the right decision the
24 first time, that custody cases are static and immutable, and that custody matters
25
don't involve fundamental rights. (*See, Santosky v. Kramer (1982) 455 U.S.
26
27 745). The use of the VLS in this way is predicated on a circular argument, that is,
28 overturn the decision in Muller v. Tanner, supra, 2 Cal.App.3d 438, or otherwise limit the reach of the vexatious
litigant statute. The expansive nature of the amendments suggests just the opposite.
1
that any "change of circumstance" argument is wrong and that access to the courts
2 to make that argument would be pointless. Therefore, denial of access to a parent
3
trying to show "changed circumstances" is necessary. In this case, Plaintiff has
4
5 attempted to file motions in preparation for a trial set for Nov. 24th, 2014 in the
6
Indio Family Law court only to have them denied for filing by JUDGE COPE.
7
8 Plaintiff filed a notice of appeal on these and similar denial issues and was
9
“denied” by the appellate court as having no merit. In short, the VLS is not used
10
as "a tool to discourage repeated motions by parents to regain custody," but as a
11
12 way to lock out the parent who the trial court perceives as the culpable or "guilty''
13
party in the custody dispute.
14
15 26. More than two years before Judge Cardoza edict, Chief Justice George
16
ruled that "trials by declarations" in family law proceedings violated the
17
18
"hearsay rules." (Elkins v. Sup.Ct (2007) 41 Cal. 4th 1337, 1356). In Elkins,
19 Jeffrey Elkins was denied the right to testify, cross-examine witness, or present
20
evidence because he has failed to comply with a local rule requiring declarations
21
22 as to
23
the nature of the oral testimony. Although Jeffrey Elkins argued that the local rule
24
25 as applied was inconsistent with the guarantee of due process, Chief Justice
26
George relied on the doctrine of ''judicial restraint" to avoid answering the
27
28
1
"constitutional questions."15 Instead, he based his decision on the hearsay
2 violation. In reversing the trial court, Chief Justice George noted that family law
3
litigants deprived of their "day in court," as was Jeffrey Elkins, would
4
5 express their "shock, outrage, and anger." (Id., 1367). Chief Justice George also
6
pointed out, supra, 1345:
7
8 Although we are sympathetic to the need of trial courts to process the

heavy case load of dissolution matters in a timely manner, a fair and
9
full adjudication on the merits is at least as important in family law
10 trials as in other civil matters, in light of the importance of the issues
presented such as the custody and well-being of children and the
11
disposition of a family's entire net worth. Although respondent court
12 evidently sought to improve the administration of justice by adopting
13 and enforcing its rule and order, in doing so it improperly deviated
from state law. (emphasis added)
14
15
In riffing on due process of law, Chief Justice George pointed out the "common
16
17 theme" of cases that have invalidated fast-track rules, supra 1353

18
A common theme in the appellate decisions invalidating local rules,
19 and one that also appears in the present case, is that a local court has
20 advanced the goals of efficiency and conservation of judicial
resources by adopting procedures that deviated from those established
21
by statute, thereby impairing the countervailing interests of litigants as
22 well a the interest of the public in being afforded access to justice,
23
resolution of a controversy on the merits, and a fair proceeding.
24 Although Chief Justice George points out the need for “access to justice” and
25
Elkins, supra 1357: The conclusion we reach also permits us to avoid the difficult question whether the local
15
26
rule and order violate petitioner's right to due process of law, "[m]indful [as we are] of the prudential rule of
27
judicial restraint that counsels against rendering a decision on constitutional grounds if a statutory basis for
resolution exists." ( NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1190.) [8] This
28 rule directs that "if reasonably possible, statutory provisions should be interpreted in a manner that avoids serious
constitutional questions." (Id. at p. 1197.)
1
mentions that his decision provides “guidance to trial courts, 16 Judge Jane
2 Cardoza, more than two years later, would recommend that family law judges use
3
of the VLS as a "tool" to "discourage" access to those parents trying to "regain
4
5 custody." Unfortunately, the parents found that family law judges are predisposed
6
to follow the recommendations of Judge Cardoza rather than those of Chief
7
Justice George. or the Elkins Task Force. In Plaintiff’s experience in this case,
8
9 this is exactly what JUDGE COPE is doing, denying all of the motions Plaintiff
10
has submitted for filing by Plaintiff for his trial on 11/24/2014 in the Indio Family
11
12 Law court with Commissioner Gregory.

13
27. In Elkins, Chief Justice George referred to statewide surveys showing
14
15
a loss of "faith and confidence" in the family law courts. (supra, 1368). Plaintiff
16 shares this same sentiment and is confident other parents feel the same way. Chief
17
Justice George also pointed out that these surveys revealed that "80% of the cases
18
19 (family law) have at least one un-represented party by the time of disposition."
20
(supra, 1368). In view of the failure of the family Jaw courts to "earn the public
21
22 trust," Chief Justice George directed that a task force be set up by the Judicial
23
Council. (supra, 1369, fu 20):
24
We recommend to the Judicial Council that it establish a task force,
25
16
Elkins, supra 1346: In addition to providing guidance to the trial courts, our discussion highlights the unusual
26
burdens and restrictions that have been imposed upon family law litigants at the local level in response to
27
increasing caseloads and limited judicial resources. We observe that this problem may merit consideration as a
statewide policy matter, and suggest to the Judicial Council that it establish a task force for that purpose.
28
1
including representatives of the family law bench and bar and the
Judicial Council Advisory Committee on Families and the Courts, to
2 study and propose measures to assist trial courts in achieving
3 efficiency and fairness in marital dissolution proceedings and to
ensure access to justice for litigants, many of whom are self-
4
represented. Such a task force might wish to consider proposals for
5 adoption of new rules of court establishing statewide rules of practice
6
and procedure for fair and expeditious proceedings in family
law, from the initiation of an action to postjudgment motions. Special
7 care might be taken to accommodate self-represented litigants.
8 Proposed rules could be written in a manner easy for laypersons to
follow, be economical to comply with, and ensure that a litigant be
9
afforded a satisfactory opportunity to present his or her case to the
10 court. (Emphasis added)
11
As noted above, for Judge Jane Cardoza and family law judges of her ilk, the
12
13 "special care taken to accommodate self-represented family law litigants " is to

14
declare them "vexatious litigants" and curtail or deny them access. Although
15
Judge Cardoza's ruling was issued two years after the state Supreme Court's
16
17 decision in Elkins, she neither explained how her ruling squared with the
18
rationale of Elkins or how the use of the VLS in custody disputes "ensured access
19
20 for litigants, many of whom are self-represented."

21
28. The Elkins Task Force has done nothing to quash the pitched battle
22
23
between Chief Justice George's cry for more access and Judge Cardoza's yell for
24 less access. Judge Laurie D. Zelon, the Chairperson of the Elkins Task Force,
25
after a lengthy and "comprehensive review" of family law courts, issued her final
26
27
28
1
recommendations, which are cited here:17
2 Our task force's recommendations fall under five broad categories:
3 L Efficient and Effective Procedures to Help Ensure Justice,
4 Fairness, Due Process, and Safety
5 IL More Effective Child Custody Procedures for a Better Court
Experience for Families and Children
6
IIL Ensuring Meaningful Access to Justice for All Litigants
7
IV. Enhancing the Status of, and Respect for, Family Law Litigants
8 and the Family Law Process Through Judicial Leadership
9 V. Laying the Foundation for Future Innovation
10
11 On April 23, 2010, the Judicial Council adopted the recommendations.18

12
While Judge Zelon's final recommendations repeated the lofty goals and gilded
13
promises of Chief Justice George, she fails to recognize the battle being waged by
14
15 Judge Cardoza for use of the VLS by "family law judges" and by Chief Justice
16
George for greater access for "family law litigants." She does not address the
17
18 subject of the Vexatious Litigant Statute and the Task Force offered no opinion as
19
to whether the VLS has a role in family courts. By the time the final
20
21
recommendations were being submitted on April 23, 2010, family law judges
22 throughout California were following the lead of Judge Cardoza and using the
23
VLS to unclog their crowded family court dockets, to curtail access, and to end
24
25 custody disputes by labeling one of the parents "vexatious. " In the final
26
27 17
http://www.courts.ca.gov/documents/20100423itemj.pdf [see next page, for footnote “18” from
above]
28 18
http://www.califomiaprobono.org/news/article.310603-Judicial_Council_Accepts_Elkins_Task_Force_Report
1
recommendations, Judge Zelon seemed oblivious to the fact that parents acting
2 "in propria persona" in custody disputes could becomes targets for "vexatious
3
litigant" actions under §391.1. While she did allude to ''potential difficulties" for
4
5 self-represented parents, she seems to have been totally outflanked by the interest
6
Judge Cardoza was promoting. (*See fu 7, pg. 79, Final Recom):,
7
8 Cases in which one side has counsel and the other does not can pose a
variety of potential difficulties for the un-represented litigant, the
9
attorney, and the judicial officer. Representation may be available in
10 more of these cases if courts were to make early needs-based attorney
fee awards.
11
12 Judge Zelon states that the "Legislature has recognized the difficulties with self-
13
representation in some cases" and drafted the Sargent Shriver Civil Counsel Act
14
15 (AB 590 [Feuer]; Stats. 2009, ch. 457), which became law and "was funded,
16
commencing October 1, 2011,for several pilot projects that will provide
17
18
representation to low-income parties on critical legal issues affecting basic
19 human needs" 19 Judge Zelon conceded in her final recommendations that most
20
family law litigants would remain un-represented even if the Act were passed.20 In
21
22 short, the "potential problems" consist of the very real problem that
23
''unrepresented" parents have been and remain targets of "vexatious litigant"
24
25
26
27 19
*See pg. 1: http://www.courts.ca.gov/documents/ AB-590.pdf
28 20
*See pg. 79: http://www.courts.ca.gov/documents/20100423itemj.pdf
1
(for "acting in propria persona") actions by the opposing party (parent) or by the
2 "presiding judges" "on their own motions" under §391.7 This is exactly what has
3
happened in Plaintiff’s case in the Riverside Family Law Court.
4
5 29. The constitutionality of the VLS has been upheld. Civil litigants, not
6
family law litigants/parents who assert that the VLS, on its face or as applied,
7
8 violated their fundamental custody rights, however, have always brought the
9
constitutional challenges to the VLS. (Stanley v.lllinois (1972) 405 U.S. 645). In
10
Shalant v. Girardi, (2010), 183 Cal. App. 545, the Court of Appeals cautioned
11
12 against "broad interpretations" of the VLS, supra, 557:

13
Given the important constitutional concerns that section 391.7
14
implicates, we conclude that the statute should not be broadly
15 interpreted. Rather, it should be applied strictly according to its terms.
(emphasis added).
16
17 The Court of Appeals noted that it is "incorrect" to "broadly interpret" the VLS
18
because the VLS has been upheld on the grounds that they have been "narrowly
19
20 drawn and thus do not impermissively invade the right the right of access to the
21
courts."21 (Shalant, supra, 556-557). The Supreme Court adopted the "plain
22 reading" (strict construction) approach to the VLS, cautioned courts to "observe
23
21
Shalant, supra at 556: "Taken as a purely descriptive claim, the statement is probably true--section 391.7 does
24
appear to have been interpreted broadly. (See Forrest, supra, 150 Cal.App.4th at pp. 195-196 & fn. 4 [collecting
cases].) But taken as a normative claim--that section 391.7 should be interpreted broadly--the statement is
25
incorrect, because the Court of Appeal has repeatedly upheld the vexatious litigant statutes (including section
391.7) against constitutional challenges on the ground that the statutes are narrowly drawn and thus do not
26
impermissibly invade the right of access to the courts. (See Wolfgram v. Wells Fargo Bank (1997) 53 Cal.App.4th
27
43, 55-57, 60; Luckett v. Panos (2008) 161 Cal.App.4th 77, 81; In re R.H (2009) 170 Cal.App.4th 678, 702;
Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 541.) Given the important constitutional concerns that
28 [183 Cal.App.4th 557] section 391.7 implicates, we conclude that the statute should not be broadly interpreted.
Rather, it should be applied strictly according to its terms."
1
the limits set by statutory scheme" of the VLS, and noted that the distinction by
2 the Legislature between "represented" and "in propria persona" litigants "was not
3
absurd." (Shalant v. Girardi (2011) 51 Cal. 4th 1164, 1176). Further, the
4
5 Supreme Court lifted a passage from the appellate decision that scolded courts for
6
acts of judicial legislation, supra at 17 1177:
7
8 As the appellate court below remarked: "We sympathize with the

plight of already overburdened trial courts that are forced to contend
9
with the abusive conduct of vexatious litigants. But in their efforts to
10 deal with the problem of vexatious litigants, courts must observe the
limits set by the applicable statutory scheme. If those limits are too
11
confining, then it is the function of the Legislature, not the courts, to
12 expand them."
13
Judicial officers are presumed to follow the law, but that is not always evident to
14
15 this Plaintiff (Evid. Code §§ 601, 604). The case here is rift with family law judge
16
and appellate judges who construe the VLS both broadly and inconsistently
17
18
with the holding in Shalant v. Girardi.
19 30. While the Elkins Task Force, under Category IV, seeks to "ensure the
20
status and respect of family law litigants through judicial leadership," it's unclear
21
22 how a judge’s order that "declares" a family law litigant "vexatious" in a custody
23
dispute would achieve that goal. In fact, it's clear that litigants who've been
24
25 declared "vexatious" are judicially profiled and vilified and have less access to
26
courts than criminal Defendants (murders, rapists, child molesters) and less
27
28
1
visitation rights if they had, in fact, committed "murder." For instance, in
2 Kobayashi v. Superior Court (2009) 176 Cal. App. 4th, 535, a decision rendered
3
after Elkins and during the "public comment" phase of the Elkins Task Force,
4
5 Judge Sills opined that "much vexatious litigation is the product of the vexatious
6
litigant's propensity for dishonesty ..." (supra, 541). In Luckett v. Panos, (2008)
7
8 161 Cal. App. 4th 77, Judge Sills suggested that vexatious litigants have a "habit
9
of suing people as a way of life" and they "watch too much day time television full
10
of judge shows." (supra, at 94). He characterized "vexatious litigants" as
11
12 unemployed deadbeats who sue "in forma pauperis status" and ''use their
13
"typewriters as weapons, filing lawsuits at virtually no costs to themselves ..."
14
15 (supra, at 94). He conjectured that "vexatious litigants" very likely had "mental
16
dis-orders," (supra, 91):
17
18
To be sure, of course, many vexatious litigants probably do suffer
from some sort of mental disorder, a fact that trial court staff around
19 the state would appear to have first hand knowledge.
20
Then, apparently not wishing to define the group too narrowly, Judge Sills stated
21
that it was ''perfectly imaginable" that "vexatious litigants" could also be like
22
23
Professor Moriarty, the criminal mastermind of Conan Doyle's fiction, and the
24 arch-enemy of Sherlock Holmes.22 (supra 91-92). While Judge Sills did not
25
decide if Mr. Luckett suffered from a "mental disorder" or was a "criminal
26
27 22
Luckett, supra 92: "And it is perfectly imaginable that a very sane, if wrongfully-minded person -- Conan
28 Doyle's fictional Moriarty comes to mind -- who would be perfectly willing to pursue a course of vexatious
litigation in the course of some ulterior purpose."
1
mastermind," he did rule that he should not be allowed to file any more actions
2 for “no less than four years” and only after he’s shown “remorse” for being a
3
“vexatious litigant” (supra 92, 96)
4
5 31. This Plaintiff can take little consolation in the fact that Mr. Luckett
6
was a "civil litigant" as opposed to a "family law litigant." The ruling of Judge
7
8 Sills in Luckett v. Panos remains binding precedent, applicable to both civil and
9
family law litigants. In view of the Luckett holding, this Plaintiff recognizes that
10
his branding as a "vexatious litigant" works on various levels. First, Plaintiff’s
11
12 right to access can be curtailed or even denied for "no less than four years."23
13
Second, the "branding" is an implicit psychological evaluation, either a Plaintiff
14
15 suffers "mental disorders" or is a "criminal masterminds." Third, it is not the

16
family law judge that must "earn the publics' trust as Chief Justice George stated
17
18
in Elkins, but this family law ''vexatious" parent who must show "remorse." The
19 Elkins Task Force recommendation that family law litigants should be shown
20
"respect" is replaced with a requirement that they must show "remorse." How
21
22 does this Plaintiff show remorse when his child was stolen from him, first by the
23
family law court for four months on no evidence and then again by “CPS” on no
24
25 evidence for over two years? How does this Plaintiff show remorse when the
26
judge in his juvenile court case was removed from the bench for trying to have
27
23
Plaintiff has been “branded” a “vexatious litigant” for now ten years, even while during that time the court
28
granted him “sole custody’ for six months.
1
sex with the County Counsel, instead of being a neutral trier-of-fact re: Plaintiff’s
2 daughter. In this sense, the "branding" is not merely a judicial judgment or
3
decision but a psychological evaluation that this Plaintiff and other parents have
4
5 some untreatable illness. In Luckett, Judge Sills points out that Mr. Luckett's
6
supporting declarations show that he has not "mended his ways," (supra, 92):
7
8 All Luckett's declaration shows is that, instead of devoting his life to

something productive, he has spent the last 16 years suing people.
9
That fact only confirms the very trait of character on which the
10 determination of vexatious litigant was first based.
11
However, this Plaintiff is not prepared to concede that his fight to "regain
12
13 custody" and more time with his child is "something unproductive" or the product
14
of some defective "trait of character." Chief Justice George, in Elkins, realized
15
that the problems with the family law courts are systemic. Instead of trying to
16
17 "earn the public’s respect," family law judges find it a better use of their scare
18
judicial resources to brand parents as "vexatious" as a way of ending custody
19
20 disputes and a quick fix to managing their dockets.

21
32. Finally, after being labeled vexatious, this Plaintiff has found that
22
23
there is no clear procedure, no written standards, and no practical way to erase the
24 branding.24 While the Judicial Council has recently added §391.8 to the VLS25,
25 24
During the 10 years as a “vexatious litigant”, Plaintiff has tried to “undo” the branding, only to be told the first
time, his name is “not on the JC List” and the next two times, was denied the request twice by JUDGE COPE and
26
his appeal was denied by JUSTICE RAMIREZ. How is any of that in the “best interests of the child” or promotes
“close and continuing contact”?
27 25
Section 391.8 (a). A vexatious litigant subject to a prefiling order under Section 391.7 may file an application to
28 vacate the prefiling order and remove his or her name from the Judicial Council's list of vexatious litigants subject
to prefiling orders. The application shall be filed in the court that entered the prefiling order, either in the action in
1
this seems more a response to the "constitutional concern" first raised by John E.
2 Wolfgram in Wolfgram v. Wells Fargo Bank (1993) 53 Cal. App. 4th 43 that the
3
"vexatious litigant" declaration functioned as a "permanent branding." It also
4
5 raises a question: “Is a party that files a §391.8 request entitled to an evidentiary
6
hearing.26 In this way, the Court of Appeals for the Second Appellate District was
7
8 "troubled" by this "permanent" branding issue. (PBA, LLC v.KPOD, Ltd. (2003)
9
112 Cal. App. 4th 965)). The PBA court stated, supra 976:
10
While there is much to recommend this reasoning, the conclusion
11
section 391.7 is to be a permanent, irrevocable restriction is troubling.
12 Although section 391.7 does not absolutely exclude the "pro per"
13 litigant from the courts, we believe fundamental fairness requires the
"vexatious litigant" brand be erasable in appropriate circumstances.
14
The PBC court ruled that a "prefiling order" under CCP §391.7 is not an
15
"absolute exclusion." This ruling was predicated upon the language in Wolfgram,
16
17 which stated that when a vexatious litigant "knocks on the courtroom door with a
18
colorable claim, he may enter."27 In Luckett, Judge Sills stated that the branding
19
20 was tantamount to an injunction under Code of Civil Procedures §553, which

21
could be lifted with a showing of "changed circumstances." (supra, 93).
22
which the prefiling order was entered or in conjunction with a request to the presiding justice or presiding judge to
23 file new litigation under Section 391.7. The application shall be made before the justice or judge who entered the
order, if that justice or judge is available. If that justice or judge who entered the order is not available, the
24 application shall be made before the presiding justice or presiding judge, or his or her designee.
26
JUDGE COPE did not set an evidentiary hearing in either attempt this Plaintiff made to remove his name from
25 the pre-filing order.
27
Plaintiff notes, having been repeatedly denied the right to file anything, that the issue of what is a “colorable”
26
claim as applied in a custody case is unconstitutionally vague because there is no clear standard (Grayned v. City
27
of Rockford, 408 U.S. 104, 108-109 9172) quoted in Village of Hoffman Estates v. The Flipside, 455 U.S. 489,
498 (1982). Plaintiff also notes that the presiding JUDGE COPE has applied the prefiling order in such a way as to
28 deny Plaintiff access to the family law court in violation of the Due Process Clause of the 14th Amendment and
Plaintiff’s 1st Amendment right to petition (*See, Boddie v. Connecticut, 401 U.S. 371 (1971).
1
In Luckett, as noted above, Judge Sills invented factors, such as a Plaintiff’s
2 “remorse” factor, that courts could consider before erasing the vexatious litigant
3
branding. While the VLS does not spell out the "appropriate circumstances" for
4
5 erasure, this Plaintiff is here faced (as are all vexatious litigants) with the judge-
6
created "factors" of "remorse" and "no less than four year" banishment from
7
8 filing. Judge Sills' factors, while harsh and severe even for civil litigants, are
9
nothing short of tyrannical and inquisitional in the context of custody cases.
10
33. The battle line here is between family law judges who want to unclog
11
12 their dockets of "difficult cases" and parents such as this Plaintiff who expect and
13
deserve a well-informed judiciary who know the law, the Family Code, Title Five
14
15 Rules, and the facts of a particular case. The Plaintiff and other parents are not
16
treated with "respect."28 Instead, the family law judges and lawyers for ex-spouses
17
18
have taken up the club of the VLS and used it to beat down the self-represented
19 and often indigent parent. In essence, any attempt to "resolve" the custody dispute
20
has been scuttled. In this rigged game, the judges make up the rules, have all the
21
22 power, exercise it with impunity and "absolute immunity," with the result the
23
Plaintiff has been (as all other parents in the same situation) driven into the
24
25 ground both financially and psychologically.

26 28
When M. SMITH attempted to submit “pre-trial” motions for the 11/24/2014 trial, the clerk stated they would
27
have to be approved by JUDGE COPE. Knowing this would be a dead-end, M. SMITH at the September 26th,
2014 hearing with Commissioner Olson (in court) asked the Commissioner in Court to have his courtroom clerk
28 file the documents. Commissioner Olson REFUSED to have his clerk accept the pre-trial pleadings telling Plaintiff
“you are a vexatious litigant. So take them downstairs”.
1
34. It is THIS disparity in power and treatment between family law
2 litigants and judges who make "vexatious litigant rulings" that further undermines
3
"confidence and trust" in the judiciary.
4
5
VII. FACTUAL ALLEGATIONS
6
7
VLS 391 Unconstitutionally Applied to Plaintiff
8 35. In September of 2004, the other parent in the M.SMITH family law
9
case, motioned the court to find Plaintiff a vexatious litigant. (*see Exhibit 06.)
10
11 The pre-filing order that was placed by this event only required Plaintiff to submit
12
docs to the clerk and they were forwarded to the family law judge for permission
13
14
to file. M.SMITH’S name was not sent to the Judicial Council list in San
15 Francisco. During the entire time this pre-filing order was in effect, M. SMITH
16
was never denied the filing of any documents for “lack of merit” only for
17
18 administrative issues. Around 2007, M.SMITH filed a motion with the family
19
law court in Riverside and asked that his name be removed from the Judicial
20
21 Council list. The court responded by not filing the motion, stating that
22
M.SMITH’S name was “not on the list.” (*see Exhibit 07.)
23
36. The abuse of the Plaintiff and the minor child through the
24
25 unconstitutional application of the Vexatious Litigant law on Family Law litigants

26
intensified on March 9th, 2012. M.SMITH motioned the court for a hearing for a
27
28 statement of decision. At the end of that hearing, JUDGE COUNSELIS imposed
1
a $25,000 security bond on M.SMITH before he could "file any paper". (*see
2 Exhibit 05) Plaintiff alleges JUDGE COUNELIS had no "judicial" or
3
"administrative" jurisdiction to impose this security bond. Nothing in the
4
5 Vexatious Litigant law permits it. (*see Exhibit 01) and there was no "noticed
6
hearing (due process)" on the issue of imposing additionally, a security bond.
7
8 JUDGE COUNELIS did not give M.SMITH notice that he would have a hearing
9
on the issue of imposing a pre-filing security requirement via an evidentiary
10
hearing. JUDGE COUNELIS did not hold a hearing for the purpose of setting the
11
12 "amount" of the security bond even if he had administrative authority to carry out
13
this "administrative act" (which he did not) . Code of Civil Procedure §391.7
14
15 specifies the rules for a motion by a judge to impose security as follows:

16
(b) The presiding justice or presiding judge shall permit the
17 filing of that litigation only if it appears that the litigation has
18
merit and has not been filed for the purposes of harassment or delay.
The presiding justice or presiding judge may condition the filing
19 of the litigation upon the furnishing of security for the benefit of
20 the Defendants as provided in Section 391.3. [CCP §391.8(b)]
21
(e) The presiding justice or presiding judge of a court may
22 designate a justice or judge of the same court to act on his or her
23
behalf in exercising the authority and responsibilities provided
under subdivisions (a) to (c), inclusive. [CCP §391.8(e)]
24
25 There was already “in place” a pre-filing order for M.SMITH from 2004.
26
However, at no time did the court require M.SMITH to preface his filings via an
27
MC-701/702 form. The clerk merely marked his pleadings “received” and sent
28
1
them to the court judge for approval. At the above hearing on 3/9/2012 without
2 advance notice JUDGE COUNELIS imposed the security requirement “sua
3
sponte” and without authority under VLS 391. Above Section 391.8(b) clearly
4
5 states it is the “Presiding Justice” or “Presiding Judge” who “may condition the
6
filing of the litigation upon furnishing of security…” CCP §391.8(b). Above
7
8 section 391.8(e) states the Presiding Judge “may designate a justice or judge of
9
the same court to act on his or her behalf…” JUDGE COUNELIS had no such
10
designation and did not state so in the minutes. But even if he did, Plaintiff
11
12 clearly argues in this suit that the VLS law is unconstitutional as applied to
13
parents29, furthermore, Muller v. Tanner requires a noticed hearing to “set” the
14
15 amount of security. JUDGE COUNELIS failed to provide that due process.

16
[Muller v. Tanner (1969) 2 Cal. App. 3d 445 [82 Cal. Rptr. 738]]:
17
18
[21] Plaintiff has also attacked the sufficiency of the evidence to
sustain that part of the court's order fixing the amount of security at
19 $5,000. In upholding the constitutionality of the provisions of the
20 statute dealing with this subject it was noted that the judge could fix
the amount of the fees from his knowledge of legal practice. This,
21
however, does not mean that he can, as was done in this case, look at a
22 complaint and determine, without further evidence, the time and labor
23
which will be expended to defeat the claim. Not even the nature of
defendant's defense was disclosed. In Taliaferro v. Hoogs, supra, the
24 movant alleged "that because of the many actions (both past and
25 pending), considerable research respecting the concluded and pending
actions would be necessary" and an estimate of the expenses was
26
suggested. (236 Cal. App. 2d at p. 525.) Similar presentations are
27 found in the cases where the amount of security under section 834 of
28 29
Unconstitutional as applied to Parents in Family Law Court under “Family Law Code Statutes”
1
the Corporations Code has been questioned. (See, Beyerbach v. Juno
Oil Co., supra, 42 Cal. 2d 11, 25-26; Thomas v. Summers Gyroscope
2 Co. (1958) 160 Cal. App. 2d 234, 245-246 [324 P.2d 893]; Kaiser v.
3 Easton, supra, 151 Cal. App. 2d 307, 315; and Olson v. Basin Oil Co.
(1955) 136 Cal. App. 2d 543, 561-562 [288 P.2d 952].) From all that
4
appears in the record of this case the sum of $5,000 was picked
5 out of thin air. This part of the original order cannot be sustained.
6
JUDGE COUNELIS picked the figure of $25,000 “out of thin air”. (see Muller v.
7
8 Tanner above). JUDGE COUNELIS set no hearing for the purpose of imposing
9
the security (unconstitutional VLS law in any case) and set no hearing for the
10
purpose of determining the “amount”. The other party was proceeding in pro se
11
12 without an attorney. In any case, $25,000 could not be “justified” under those
13
circumstances. (*see Exhibit 09).
14
15 Denial of Due Process of Plaintiff at Custody Hearing Due to VLS Law

16
37. Four months after JUDGE COUNELIS imposed the $25,000 bond
17
18 requirement there was a hearing on July 10th, 2012 for “changed circumstances”
19
motioned by SMITH/KATE-GREEN. JUDGE COUNELIS denied M.SMITH the
20
21
right to file an “opposition” paper for that hearing known as an FL-320
22 Responsive Declaration claiming M.SMITH had not posted a $25,000 bond. (*see
23
Exhibit 10). The transcript of the hearing clearly shows ATTORNEY
24
25 COCKRELL stating in open court as follows:

26
“Number 2, if he had just posted his $25,000 bond, he would have
27 been able to file his response to this action. Instead…….” [From
28
transcript of 7/10/12 hearing, page 4, 2nd paragraph.(*see Exhibit 11)]
1
Plaintiff alleges this is evidence of the conspiracy of JUDGE COUNELIS,
2
3 ATTORNEY COCKRELL, and SMITH/KATE-GREEN to violate Plaintiff’s

4
rights to due process and subject M.SMITH to the unconstitutional “VLS” law,
5
6
resulting in a denial of M.SMITH a right to oppose the action filed in the Family
7 Law Court. (*see Exhibit 11)

8
38. A review of the minutes (*see Exhibit 10) and transcript (*see
9
10 Exhibit 11) show that the court denied M.SMITH due process at the hearing
11
massively, resulting in his daughter being separated from him without due process
12
13 of law. The issue herein is NOT that the Federal Court should “review” and
14
“change” a state court judgment but review the allegations of denial of due
15
process and civil right violations as described herein and declare a judgment that
16
17 M.SMITH’S rights to due process were denied under color of law. If THIS court
18
agrees rights to due process were violated under color of law, Plaintiff will ask in
19
20 a separate motion for an injunction of the unlawful order “temp-move-away” by

21
JUDGE COUNELIS that resulted in his being separated unlawfully from his
22
23
daughter (separate motion for injunction). The state case law is very clear, that a
24 “move-away” may NOT occur UNTIL an evaluation (or equivalent) is completed

25
and a hearing with “live-testimony” takes place. This did not take place on July
26
27 10th, 2012 as Plaintiff alleges and Plaintiff had no opportunity to file an

28
1
“opposition” in advance of the hearing to establish the record due to the
2 unconstitutional VLS law as applied to Plaintiff by JUDGE COUNELIS. The
3
premier ruling on this subject is found in: In re Marriage of McGinnis (1992) 7
4
5 Cal. App. 4th 473 [9 Cal. Rptr. 2d 182] which establishes the rule for due process
6
in “move-away” cases:
7
8 "Dad makes what he submits is a strong argument that to allow a

parent to relocate with minor children in the absence of such a 730
9
report (if it is requested) violates the due process rights of the non-
10 moving parent "[In re Marriage of McGinnis (1992) 7 Cal.App.4th
473, 9 Cal.Rptr. 2d 182].
11
12 [1a] A custody decision allowing a parent to remove the children out

13 of the county is bound to interfere with the remaining parent's ability
to have frequent and continuing contact with his or her children. (See
14
Civ. Code, § 4600, subd. (a).) It is one of the most serious decisions a
15 family law court is required to make. It should not be made in haste.
The best interests of the children require that competing claims be
16
considered in a calm, dispassionate manner and only after the
17 parties have had an opportunity to be meaningfully heard. In Re
18
Marriage Of McGinnis (1992) 7 Cal.App. 4th 473, 9 Cal. Rptr. 2d
182
19
20 [2] We recently rearticulated the well-settled rule that the trial court
has discretion to permit or exclude live-witness testimony in
21
deciding postjudgment family law motions and orders to show cause.
22 (In re Marriage of Biderman (1992) 5 Cal. App. 4th 409, 412 [6
23
Cal.Rptr.2d 791].) While the rule is a good one, any doubt should be
resolved in favor of live-witness [7 Cal. App. 4th 478] testimony
24 where the issue is a potential "move away." [1b] Here, however,
25 father had no live-witness testimony to offer because he was not
ready in light of the limited time frame he had to respond30. This
26
27 30
This same “concept” applies in Plaintiff’s case with JUDGE COUNELIS. Not only was there not sufficient time
28 to respond but JUDGE COUNELIS blocked Plaintiff’s effort to oppose the move-away motion by refusing to
allow him to file an FL-320 Responsive Declaration by imposing an unlawful $25,000 filing security bond.
1
exigency was attributable to mother. In Re Marriage Of McGinnis
(1992) 7 Cal.App. 4th 473, 9 Cal. Rptr. 2d 182
2
3 Mediation is mandatory in a "move away" case. (Civ. Code, § 4607.)

While we are not now called upon to decide what is in the children's
4
long-term best interests, it seems obvious that an appropriate interim
5 solution would have been for the children to remain in Santa Barbara
6
pending a meaningful hearing where father could have had a
professional evaluator offer his or her declaration or perhaps give live-
7 witness testimony. The haste in which this custody decision was
8 made does not inspire confidence31. In Re Marriage Of McGinnis
(1992) 7 Cal.App. 4th 473, 9 Cal. Rptr. 2d 182
9
10 39. On July 10th, 2012 JUDGE COUNELIS ordered a 730 evaluation and
11
ordered that the minor child shall remain in VA [“temp” order “defacto-move-
12
13 away”] pending the evaluation. THAT order violates due process AS

14
EXPLAINED in the above McGinnis case cites. In response to that, Plaintiff
15
motioned the INDIO Family Law Court for a minor’s counsel (since the Mediator
16
17 said “730/3111 Evaluation OR appointment of Minor’s Counsel). In about March

18
of 2013 the INDIO Family Law Court appointed a minor’s counsel. The Minor’s
19
20 Counsel proceeded to interview the father (Plaintiff), the mother (defendant

21
herein) and the minor child and also reviewed numerous court documents. As a
22
23
result of that investigation, he wrote a report and concluded the report with:
24 "Petitioner and Respondent appear to be suitable parents for Angela

25 and that the daughter is more bonded with the mother".
26
27
31
All of the sentences in the above “case cites” from Mcginnis that are underlined and/or in bold letters have
28
happened in the SAME MANNER in Plaintiff’s case with JUDGE COUNELIS. It is ALL THE SAME.
1
This above conclusion to the Minor’s Counsel report vindicates the judgment of
2 the above California Appellate Court instating that to move a child away
3
BEFORE the report is completed is a denial of due process. Plaintiff’s child was
4
5 moved away to Virginia by JUDGE COUNELIS without ANY due process, no

6
completed report and live-witness hearing, not even a proper due-process hearing
7
8 on July 10th, 2012 since Plaintiff was blocked from filing a responsive declaration
9
and the opposing attorney admitted that on the transcript (see Exhibit 11, page 4,
10
2nd paragraph)
11
12 40. At the July 10, 2012 hearing JUDGE COUNELIS denied Plaintiff
13
his fundamental right to parent his child and severed the child from his care by
14
15 ordering the child to “remain in VA pending the evaluation. JUDGE COUNELIS

16
and ALL the Defendants know or should know that parental custody rights are
17
18
fundament rights which the state cannot interfere with without providing due
19 process of law and a compelling reasons for doing so. See, Santosky v. Kramer
20
(1982) 455, 753-754:
21
22 "The fundamental liberty interest of natural parents in the care,

23
custody, and management of their child does not evaporate simply
because they have not been model parents or have lost temporary
24 custody of their child to the State. Even when blood relationships are
25 strained, parents retain a vital interest in preventing the irretrievable
destruction of their family life. If anything, persons faced with forced
26
dissolution of their parental rights have a more critical need for
27 procedural protections than do those resisting state intervention into
on going family affairs. When the State moves to destroy weakened
28
1
familial bonds, it must provide the parents with fundamentally fair
procedures. " Santosky v. Kramer (1982) 455, 753-754
2
3 After separating Plaintiff from his daughter at the July 10, 2012 hearing, Plaintiff
4
had no more “close and continuing contact” with this child and has NOT had for
5
6 over two years and as of this date still does not have “close and continuing
7
contact.” California “public policy” and the California Legislature command
8
“close and continuing contact”:
9
10 3020. (a) The Legislature finds and declares that it is the public
11 policy of this state to assure that the health, safety, and welfare of
children shall be the court's primary concern in determining the best
12
interest of children when making any orders regarding the physical or
13 legal custody or visitation of children. The Legislature further finds
and declares that the perpetration of child abuse or domestic violence
14
in a household where a child resides is detrimental to the child.
15
16
(b) The Legislature finds and declares that it is the public policy of
this state to assure that children have frequent and continuing
17 contact with both parents after the parents have separated or
18 dissolved their marriage, or ended their relationship, and to encourage
parents to share the rights and responsibilities of child rearing in
19
order to effect this policy, except where the contact would not be in
20 the best interest of the child, as provided in Section 3011. [From
21
California Family Law Code, Section 3020(a)(b)]
22 41. Throughout the period of time from March 9th, 2012 up to and
23
including the present Defendants JUDGE COUNELIS, COMMISSIONER
24
25 OLSON, JUDGE COPE AND JUSTICE MANUEL RAMIREZ have conspired to

26
impose and continue to impose the unconstitutional VLS statute on Plaintiff.
27
28
Throughout the period of time from March 9th, 2012 up to and including the
1
present Defendants JUDGE COUNELIS, COMMISSIONER OLSON, JUDGE
2 COPE AND JUSTICE MANUEL RAMIREZ have conspired to block Plaintiff
3
from having a proper relationship with his daughter and have done so with no due
4
5 process. Defendants know or should know that the U.S. Supreme Court declared
6
that Due Process guarantees apply to family law proceedings in Boddie v.
7
8 Connecticut (1970) 401 U.S. 371, 377-378):

9
"[D}ue process requires, at a minimum, that absent a countervailing
10 state interest of overriding significance, persons forced to settle their
claims of right and duty through the judicial process must be given a
11
meaningful opportunity to be heard... Although '(m)any controversies
12 have raged about the cryptic and abstract words of the Due Process
13 Clause,' ... 'there can be no doubt that at a minimum they require that
deprivation of life, liberty or property by adjudication be preceded by
14
notice and opportunity for hearing appropriate to the nature of the
15 case.' (Boddie v. Connecticut (1970) 401 U.S., supra, at 377-378).
16
The continued effort of Defendants JUDGE COUNELIS, COMMISSIONER
17
18
OLSON, JUDGE COPE AND JUSTICE MANUEL RAMIREZ to deny
19 Plaintiff a relationship with his daughter violates the most basic of Supreme Court
20
decisions, see Santosky v. Kramer (1982) 455, 753-75432
21
22
"The fundamental liberty interest of natural parents in the care,
custody, and management of their child does not evaporate simply
23 because they have not been model parents or have lost temporary
24 custody of their child to the State. Even when blood relationships are
strained, parents retain a vital interest in preventing the irretrievable
25
26 dissolution of their parental rights have a more critical need for
27 32
Santosky v. Kramer (1982) 455 U.S. 745; Stanley v. Illinois (1972) 405 U.S.645, 651; "A parent's interest in the
28 companionship, care, custody and management of his or her children rises to a constitutionally secured right, given
the centrality of family life as the focus of personal meaning and responsibility."
1
procedural protections than do those resisting state intervention into
on going family affairs. When the State moves to destroy weakened
2 familial bonds, it must provide the parents with fundamentally fair
3 procedures. " [Santosky v. Kramer (1982) 455, 753-754:]
4
42. Defendants have used the VLS statute as a weapon to make it almost
5
6
impossible for Plaintiff to fight the continued removal of the minor child from his
7 life. JUDGE COPE has repeatedly denied Plaintiff’s efforts to file motions with
8
the Family Law Court. As one can clearly see from the signature of JUDGE
9
10 COPE, he signed an MC-701 in the fall of 2012 for the Riverside Family Law
11
Court (*see Exhibit 12) and granted the filing of documents pursuant to a hearing
12
13 set for November 16, 2012. Since that time and most recently JUDGE COPE has
14
denied the filing of at least eight or more documents Plaintiff has submitted to be
15
heard PRE TRIAL on or before the day of trial set for November 24th and 25th,
16
17 2014. JUDGE COPE is blocking Plaintiff from litigating the issues at trial for
18
which the trial has been set. JUDGE COPE has blocked the following documents:
19
20 (1) Five separate motions for contempt

(2) One motion asking for an order for the daughter to attend counseling
21
(3) One motion asking the court to sanction the respondent for making false
22 allegations in her moving papers for the 2011 and 2012 hearing
23
(4) Motion to remove incorrect information from the docket sheet header.
24 Virtually all of these motions have merit and were to be filed “pre-trial” to be
25
heard at or soon before the trial of 11/234/2014-11/25/2014. By refusing to file
26
27
these motions (that Plaintiff alleges have “merit”), JUDGE COPE makes it almost
28
1
impossible for Plaintiff to prove his case at THAT trial. Vexatious Litigant Code,
2 Code of Civil Procedure Section 391.7 clearly states:
3
(b) The presiding justice or presiding judge shall permit the filing of
4
that litigation only if it appears that the litigation has merit and has
5 not been filed for the purposes of harassment or delay. The
6
presiding justice or presiding judge may condition the filing of the
litigation upon the furnishing of security for the benefit of the
7 Defendants as provided in Section 391.3.
8
9 Please see Exhibit 12, where it shows JUDGE COPE “approving” for filing,
10
Plaintiff’s “change of venue” and “473b set-aside” motion for the hearing on
11
11/16/2012. Now see Exhibit 13, that shows the docket sheet for RID IND 064
12
13 209 (Riverside Family Law Court Case, Smith v. Smith) most recently where
14
Plaintiff marked recent dates on the docket showing items submitted for filing
15
16 that are ALL denied by JUDGE COPE. Virtually all of them are denied and thus
17
can not be heard at the trial. Here below follows are the above items fully
18
19
explained, that were submitted via “MC-701/702” forms for the trial that has
20 been set for 11/24 and 11/25/2014. JUDGE COPE has blocked them so Plaintiff‘s
21
pre-trial arguments are frustrated for the trial. From the above §391.7 we see:
22
23 “shall permit the filing of that litigation only if it appears that the
24
litigation has merit and has not been filed for the purposes of
harassment or delay.
25
26 Is it not obvious JUDGE COPE is not even reviewing the items for merit, but
27
simply denying them out of hand, blocking Plaintiff’s effort to present a case at
28
1
trial. Here’s the specific content of the motions: Five separate motions for
2 contempt:
3
Contempt 1: Phone call recording: respondent “listening” to private calls
4
and conversations, violation of joint legal custody court
5 orders.
6
Contempt 2: Home school: respondent removed daughter from school and
put her in another school, home school “online” without
7 consulting with Plaintiff, violation of joint legal custody
8 court orders
Contempt 3: 45-day notice: respondent “moved” from VA to FL without
9
providing 45-day notice by certified letter, violation of joint
10 legal custody court orders
Contempt 4: Visitation interrupt: respondent interfered with Plaintiff’s
11
summer vacation with daughter and created stressful
12 conditions that resulted in the daughter going home early,
13 violation of joint custody visitation orders.
Contempt 5: Invasion of privacy: respondent brought child to Plaintiff’s
14
apartment when Plaintiff was not there, came into the
15 apartment, took photos and snooped around, violating joint
physical custody-visitation orders that order parent to “drop
16
child off at curb and remain in the car”
17
18
JUDGE COPE has denied for filing ALL of these contempt motions that violate
19 court orders using the unconstitutional VLS law “as applied to parents”, thus
20
frustrating Plaintiff’s case at trial. One motion asks for an order for Plaintiff’s
21
22 daughter to attend counseling: Plaintiff’s daughter has been through ongoing

23
emotional oppression as a result of actions/decision by the Riverside Superior
24
25 court for fourteen years.33 In Oct of 2007 Judge Irma Asberry issued a change of
26
custody order placing the child with Plaintiff, and wrote in on the standard forms
27
28 33
See Exhibit ??, Psychological Report, by Dr. Rhwan Joseph on the harm caused Plaintiff’s daughter by Court.
1
that Plaintiff’s daughter should have counseling (as she recognized the stress the
2 child has experienced). As a result of JUDGE COUNELIS getting involved in
3
the case and disturbing a stable custody order, Plaintiff’s daughter has stopped
4
5 going to counseling. Adding to her emotional burden is the damage caused her in
6
the last two years as a result of the decisions of the Defendants moving the child
7
8 3,000 miles away to VA thus divorcing her from Plaintiff in a manner Plaintiff
9
alleges herein through denial of due process. So, as a result of all that, Plaintiff
10
prepared a “motion for counseling” (to continue) and JUDGE COPE blocked the
11
12 filing of that motion as “have no merit.”

13
43. Another motion from the above list, asks the court to sanction the
14
15 respondent for making false allegations in her moving papers for the 2012 hearing
16
[confirmed in minor’s counsel report] Family Law Code Section 3027.1 plainly
17
18
states if a party makes false allegations of abuse and neglect then sanctions are to
19 be considered as follows:
20
3027.1. (a) If a court determines, based on the investigation
21
described in Section 3027 or other evidence presented to it, that an
22 accusation of child abuse or neglect made during a child custody
23
proceeding is false and the person making the accusation knew it to
be false at the time the accusation was made, the court may impose
24 reasonable money sanctions, not to exceed all costs incurred by the
25 party accused as a direct result of defending the accusation, and
reasonable attorney's fees incurred in recovering the sanctions,
26
against the person making the accusation. For the purposes of this
27 section, "person" includes a witness, a party, or a party's attorney.
(b) On motion by any person requesting sanctions under this
28
1
section, the court shall issue its order to show cause why the
requested sanctions should not be imposed. The order to show cause
2 shall be served on the person against whom the sanctions are sought
3 and a hearing thereon shall be scheduled by the court to be conducted
at least 15 days after the order is served.
4
(c) The remedy provided by this section is in addition to any
5 other remedy provided by law.
6
The respondent filed a “change of circumstances” motion in March of 2011 and it
7
8 was denied by the mediator in April of 2011. The mediator stated at that session
9
to both parties “do not file any more custody modifications” (*see Exhibit 14)
10
depositions-in-writing for the mediators discussing this issue). The respondent
11
12 followed-up a year later and filed the SAME MODIFICATION MOTION and
13
made THE SAME false allegations. JUDGE COPE has denied THIS motion as
14
15 well for having no merit and again, frustrating Plaintiff’s efforts to present this
16
information at the trial, using the VLS 391-391.8 law, unconstitutionally applied
17
18
to parents.
19 44. Finally almost a year after JUDGE COUNELIS unlawfully moved

20
the minor child to Virginia, the appointed Minor’s Counsel issued a report stating
21
22 that: “both parents are suitable parents”. On inquiry by Plaintiff, the minor’s
23
counsel stated that he did not find the allegations of the respondent credible. In
24
25 other words, he found them false. Consequently, Plaintiff attempted to file a

26
motion clearly identifying all these issues and asked for sanctions. Again,
27
JUDGE COPE, using the VLS 391 law, has denied the motion and refused
28
1
Plaintiff the opportunity to bring THAT motion before COMMISSIONER
2 OLSON at the trial set for 11/24 and 11/25/2014.
3
45. JUDGE COPE blocked Plaintiff’s efforts to have the unlawful
4
5 “Vexatious Litigant Law” removed from slandering Plaintiff’s name, once in

6
2013 and again in 2014. JUDGE COPE refused to ‘undo” the “branding” and
7
8 continued the application of the unconstitutional law upon Plaintiff. Plaintiff

9
submitted an appeal to the 4th District Appellate Court (Riverside) on the denial
10
by JUDGE COPE to undo the pre-filing order and remove Plaintiff’s name from
11
12 the Judicial Council “Vexatious List”. The appeal was refused (see below).
13
46. In response to the denial of due process in the JUDGE COUNELIS
14
15 court, resulting in Plaintiff’s daughter moving 3,000 miles away to Virginia,

16
Plaintiff filed two separate writs in the 4th District Appellate Court (Riverside)
17
18
asking that those decisions be reversed. Presiding JUSTICE RAMIREZ denied
19 both of Plaintiff’s “due process” writs first on 8/8/2012 and then on 4/17/2013.
20
From the docket sheet, Family Law Case RID IND 064 209:
21
22 ORDER FROM DISTRICT COURT OF APPEAL PETITION FOR WRIT

N 08/08/2012 Not Applicable
OF MANDATE/STAY ARE DENIED.
23
24 ORDER FROM DISTRICT COURT OF APPEAL PET FOR WRIT OF

N 04/17/2013 Not Applicable
MANDATE IS DENIED.
25
26 Presiding Justice Manuel Ramirez denied Plaintiff’s motion for reconsideration of

27
the 4/17/2013 denial, on 4/23/2013.
28
1
2 ORDER FROM DISTRICT COURT OF APPEAL MTN FOR Not

N 04/29/2013
RECONSIDERATION/EXH ARE RTRND UNFILED. Applicable
3
4
These above denied writs presented the violations of law committed by JUDGE
5
COUNELIS to the Appellate Court for correction. Plaintiff alleges that by
6
7 denying them, JUSTICE RAMIREZ shows he is conspiring with JUDGE

8
COUNELIS to violate Plaintiff’s due process rights not to be denied familial
9
10 association with his daughter and not be subject to the VLS unconstitutionally
11
applied to parents under Family Law.
12
13
47. Thereafter, JUSTICE RAMIREZ denied Plaintiff’s appeal on October
14 16th, 2014 of JUDGE COPE’S denial of Plaintiff’s second motion to remove Plaintiff’s name from the San Francisco List as
15
follows (from Family Law Docket):
16
N 08/21/2014 DISTRICT COURT OF APPEAL NUMBER ISSUED E061730 Not Applicable
17
18
ORDER FROM DISTRICT COURT OF APPEAL THE COURT DENIES
19 N 10/06/2014 Not Applicable
APPLICATION TO FILE AN APPEAL.
20
Upon receiving JUSTICE RAMIREZ’S denial of Plaintiff’s appeal, Plaintiff
21
22 motioned JUSTICE RAMIREZ’S to answer this question:

23
“As to the decision by Judge Steven Counelis to impose a $25k
24
security bond pre-filing order on petitioner Michael Smith in the
25 Riverside Family Law Court on March 09, 2012, which section of the
Vexatious Litigant Law gave Judge Counelis the jurisdiction to make
26
such an order?”
27
28
1
JUSTICE RAMIREZ refused to answer this question, returning the request to
2 Plaintiff, which answer would resolve ALL of the extended family law case for
3
the last two+ years and bring it to a close. This would stop the harm to Plaintiff’s
4
5 daughter by the court system.

6
7
8 ORDER FROM DISTRICT COURT OF APPEAL CLRK Not

N 10/15/2014
DIRECTED TO RETURN RQST TO APPLNT W/O FILING. Applicable
9
10
11 48. On September 26, 2014, Plaintiff asked COMMISSIONER

12
GREGORY in “open court” to file the motions with his court clerk that are listed
13
14
above that JUDGE COPED DENIED for filing as follows: :
15
(1) Five separate motions for contempt
16
(2) One motion asking for an order for the daughter to attend counseling
17
(3) One motion asking the court to sanction the respondent for making false
18
allegations in her moving papers for the 2011 and 2012 hearing
19
(4) Motion to remove incorrect information from the docket sheet header.
20
21 COMMISSIONER GREGORY refused the filing request and referred Plaintiff to

22
the clerk “downstairs”. However, Plaintiff had ALREADY attempted to file the
23
24 motions with the clerk at the Family Law Window and JUDGE COPE previously
25
denied them for filing. COMMISSIONER OLSON then remarked “You are a
26
27
vexatious litigant” as the basis for refusing to permit the filing of the above listed
28
“pre-trial” motions. Thereafter at the trial hearing, Plaintiff again brought to the
1
attention of COMMISSIONER OLSON that he had the above list of motions to
2 present to the COMMISSIONER and the COMMISSIONER stated he would not
3
review them. At the conclusion of the trial, COMMISSIONER OLSON refused to
4
5 return Plaintiff’s daughter from the other side of the United States, 3,000 miles
6
away, to his residence in California and reinstate the “close and continuing
7
8 contact” required by California Code. (see page 39 above, re: Family Law Code
9
3020(b).
10
Factual Allegation Questions of Law and Fact
11
12 49. Plaintiff has not brought this complaint as part of a class action.
13
However, Plaintiff asks the court to consider
14
15 (1) One common question of the Plaintiff (and which could apply to
16
ALL parents) is whether the Vexatious Litigant Statute as applied to Plaintiff (and
17
18
thus all parents) acting “in propria persona” in custody cases creates a “suspect
19 class” under the Equal Protection Clause of the 14th Amendment. Thus, is Plaintiff
20
in THAT “suspect class”?
21
22 (2) A second common question of law is whether the restrictions on

23
Plaintiff (and thus all parents) to access to family law courts, the only forum
24
25 provided by the state for “the adjustment of a fundamental relationship34, is a

26
27
28 34
Boddie, supra at 383
1
violation of the Plaintiff’s (and thus all parents) 1st Amendment right to petition as
2 well as Plaintiff’s right to due process of law?
3
(3) A third common question of law is whether the imposition of the
4
5 VLS against the Plaintiff (and thus all parents) is an improper and “permanent”
6
branding?
7
8 (4) A fourth common question of law is whether the procedures of

9
the VLS are constitutionally vague and/or overbroad?
10
11 VIII. LEGAL CLAIMS

FIRST CLAIM FOR RELIEF
12
Claim under 42 U.S.C. §1983, Deprivation of Federal Constitution Rights-
13 The Vexatious Litigant Statutes as Applied Violates
14
the Equal Protection Clause of the 14th Amendment
15 50. Plaintiff re-alleges and incorporates herein by reference each and
16
every allegation and paragraph set forth previously.
17
18 51. Plaintiff, a parent in a custody dispute in the Family Law Court of the
19
State of California (Riverside County Superior Court, Indio, CA), is subject as a
20
21 self-represented litigant (and even when represented by attorneys) to prefiling

22
orders and "security" under §391.7 of the Vexatious Litigant Statue as "an
23
exclusive precondition to the adjustment of a fundamental human relationship35,"
24
25 that is, Plaintiff’s custody and visitation rights.

26
27
28 35
Boddie v. Connecticut, supra at 383.
1
52. Defendants know or should know that parental custody rights are
2 fundament rights which the state cannot interfere with without providing due
3
process of law and a compelling reasons for doing so. (*See, Santosky v.
4
5 Kramer (1982) 455, 753-754: "The fundamental liberty interest of natural

6
parents in the care, custody, and management of their child does not evaporate
7
8 simply because they have not been model parents or have lost temporary custody
9
of their child to the State. Even when blood relationships are strained, parents
10
retain a vital interest in preventing the irretrievable destruction of their family
11
12 life. If anything, persons faced with forced dissolution of their parental rights
13
have a more critical need for procedural protections than do those resisting state
14
15 intervention into on going family affairs. When the State moves to destroy
16
weakened familial bonds, it must provide the parents with fundamentally fair
17
18
procedures. ").
19 53. Defendants know or should know that family law courts are "entirely
20
stated-created'' matters and are the "only forum "" the state has provided family
21
22 law litigants, and THIS Plaintiff here, who are "effectively empowered to settle"
23
his custody dispute. (Boddie, supra, at 393, 376).
24
25 54. Defendants know or should know as Chief Justice George noted in

26
Elkins v. Sup. Ct, that 80% of parents in family law proceedings are self-
27
represented. (Elkins, supra, at 1368). They know or should know that the Elkins
28
1
Task Force stated in its Final Recommendations that "[F]ar too many
2 Californians are unable to afford counsel." and that the state "needs to take steps
3
to provide litigants with the appropriate levels of assistance they need to proceed
4
5 with their cases." (*See Final Recommendations, pg. 59). Further, Defendants
6
know or should know that the Elkins Task Force, in its initial recommendations,
7
8 found that family law litigants act "in propria persona" because "they have no
9
choice"36 in view of their lack of resources. Finally, Defendants know or should
10
know that the Elkins Task Force recommended that the Judicial Council provide
11
12 statewide rules regarding award of attorney fees for family law litigants. (*See,
13
·http://www. courts.ca.gov/documents/20100423itemj. pdf, pg 60-69.)
14
15 The Elkins Family Law Task Force Recommends:

1. Attorney fees ,
16
a. Statewide rules and forms. The Judicial Council should
17 adopt statewide rules regarding the information that needs to be
18
submitted to the court to obtain an award of attorney fees. A form
setting out these requirements should be considered. Consistency
19 in these requirements would allow attorneys and self-represented
20 litigants seeking attorneys to provide the information needed by
the court for an award of attorney fees.
21
22
23
36
http://www.courtinfo.ca.gov/jc/tflists/documents/draftfinalrec.pdf. "Given the complexity of family law, why do people
24 represent themselves? All too often the answer is that they have no choice. There is no right to appointed counsel in family law
matters. Given tremendous funding limitations, legal services agencies in California are ableto serve relatively few persons
25 who have family law issues. Generally, because of funding restrictions, only victims of domestic violence can be provided
representationand far too few of those victims can be served. Legal services agencies serve lowincome people. But those with
26 low income are not the only people who are finding themselves in court without lawyers. The average family law attorney in
California charges more than $300 per hour and requires a retainer of approximately $5,000. Families increasingly are finding
27
themselves with no paycheck, a diminished amount of equity in their homes, and reduced savings, leaving them unable to
afford attorneys. Even people who start out with attorneys at the beginning of their cases often run out of money and become
28
selfrepresented before their cases are over."
1
55. Defendants know that they have created new forms as of January 1,
2 2013 that are designed to help "erase" a "vexatious litigant" ruling (MC-703, 704)
3
but they have provided no forms or published any rules for this Plaintiff or any
4
5 parent, to seek need-based fees as they are required to do under Gov. Code
6
§68511.37
7
8 56. The Defendants know or should know that the courts may, on their
9
"own motion" (under §391.7) as well as the opposing attorney for the other parent
10
may "move" the family law court to have self-represented family law litigant
11
12 parents declared ''vexatious" under §391.1 of the VLS. (These parents may have
13
prefiling orders imposed against them as well as security before they may be
14
15 allowed to file any "new litigation" under §391.7). This is exactly what has
16
happened to this Plaintiff in this case as described in the factual allegation
17
18
section. The Defendants know or should know that all the "declared vexatious"
19 litigants and especially this Plaintiff here have had their access to family law
20
courts restricted, curtailed, and, in some situations, have been denied all access to
21
22 the family law court for years.

23
Indigent/Impoverished Parents v. Affluent Parents.
24
25
26 37
Gov. Code section 68511: The Judicial Council may prescribe by rule the form and content of forms used inthe
27
courts of this state. When any such form has been so prescribed by the Judicial Council, no court may use a
different form which has as its aim the same function as that for which the Judicial Council's prescribed form is
28 designed. Th Judicial Council shall report periodically to the Legislature any statutory changes needed to achieve
uniformity in the forms used inthe courts of this state.
1
57. The Defendants know or should know that the VLS, on its face and
2 as applied to this Plaintiff and all family law litigants, creates several suspect
3
classes. The suspect class consists of those parents who don't have the money to
4
5 hire an attorney to fight their custody battle in the "state-created "family law
6
courts, which is the case of this Plaintiff here. This class of un-represented or
7
8 indigent un-represented parents become targets for the VLS because they are
9
forced to file "in propria persona." Once branded vexatious, this suspect class of
10
indigent parents is denied immediate and full access. [See Factual Allegations,
11
12 page 31, about this Plaintiff being blocked from filing any motions ]. This
13
Plaintiff (as are all parents) has been denied the right to a full-evidentiary hearing
14
15 under Family Code §217 on the "orders to show cause.". They are subject to the
16
screening process of "prefiling orders" under §391.7, including the requirement of
17
18
obtaining "permission" from a presiding judge or posting "security" as a condition
19 precedent to being granted access to family law courts or appellate courts.

20
58. The Defendants know or should know that appellate cases
21
22 proclaiming that this Plaintiff and all vexatious litigants with a "colorable claim"
23
will be allowed access38 to courts may pass constitutional muster but, in reality,
24
25 both trial courts and appellate courts routinely deny MC-701 motions or
26
"permission" to file appeals. There are parents (not necessarily in the case of this
27
38
In Wolfgram, supra 53 Cal. App, 4th 43, 60: The Court of Appeals stated that when a vexatious litigant "knocks
28
on the courtroom door with a colorable claim, he may enter."
1
Plaintiff) who are denied full and often any access to family law courts solely on
2 the "insidious basis of wealth" while the represented and affluent spouse's access
3
is free and clear. (Boddie, supra 385, "Affluence does not pass muster under the
4
5 Equal Protection Clause for determining who must remain married and who shall
6
be allowed to separate.").
7
8 Parents Denied Need-Based Fees Under Family Code §2030

9
59. Defendants know or should that Family Code §2030 and §2032 was
10
implemented to address the issue of the "un-level playing fields" that exists where
11
12 one wealthier parent is represented but the indigent parent is unable to pay for an
13
attorney.39 The Defendants know or should know that the result or effects of
14
15 imposing the VLS on un-represented and/or indigent parents occasion other

16
unfair, unequal, unconstitutional treatment, and a second suspect class including
17
18
the Plaintiff in this case. That suspect class consists of those "vexatious litigant
19 parents" who have been denied "need based attorney fees" under §2030 and
20
§2032 and thereby are not shielded from the VLS because the family law court
21
22 has refused to relieve them of the burden self-representation. (*See, In re

23
24
25 39
In re Marriage of Tharp (2010) 188 Cal. App. 4t1t 1295, 1315: The public policy purpose behind sections 2030
26
and 2032 is '"leveling the playing field' and permitting the lower-earning spouse to pay counsel and experts to
26 litigate the issues inthe same manner as the spouse with higher earnings." The appellate court remanded the
27 case, ordering that need-based fees be made available to the indigent spouse before the "conclusion of the case."
Id., at 1316. The appellate court also directed the trial court to make a "needs-based analysis."
28
1
Marriage of Hatch (1985) 169 Cal. App. 3d 1213 where the appellate court found
2 it was an abuse of discretion for the trial court to deny fees where it was shown
3
one parent could afford an attorney but the other couldn't.).
4
5 Affluent Parents Not Subject to VLS v. One or

6
Both Self-Represented Indigent Parents.
7 60. The Defendants know or should know that imposing the VLS custody
8
disputes creates a third suspect class. This class consists of the family law cases
9
10 not subject to the VLS (because both parents are affluent and can hire attorneys)
11
and the class of custody battles subject to the VLS (because one or both parents
12
13 cannot afford representation). For instance, wealthy parents such as Sharon Stone
14
and Phil Bronstein can hire top-notch attorneys to represent them in their custody
15
dispute and dissolution proceeding, which can last for years and which they can
16
17 have "sealed" from public view.40 Access to family law courts is not tampered
18
with for the wealthy, but not so for poor or impoverished parents
19
20 61. The state's rationale of managing its dockets and unclogging its courts
21
of frivolous or unmeritorious claims may stand up in civil cases, but in the
22
23
context of family law custody cases, the state's rationale is neither compelling nor
24 narrowly drawn.41 The Defendants know or should know that the state's rationale
25 40
http://www.people.com/people/article/0%2C%2C20228302%2COO.html: The case number for the family law
case of Bronstein v. Stone is not "available to the public." Apparently, wealthy and privileged people and litigate to
26 their hearts contend and "seal their records" from the general public.:
[ http://webaccess.sftc.org/Scripts/Magic94/mgrqispi94.dll? APPNAME=IJS&PRGNAME=
27 CaseSearchProcess22&ARGUMENTS=-A,-A,-NO,-Nl,-A,-ASTONE\%2C %20SHARON%20B,-A ]
41
*See fn 4 above (page 6), Lammers v. Superior Court (2000) 83 Cal.App.4th 1309, 1325: "[W]hen an
28
enactment broadly and directly impinges upon the fundamental constitutional rights...
1
for the VLS, at least with respect to matters touching on fundamental rights," has
2 been rejected by the state42 and federal Supreme Courts. (Boddie, supra,
3
382: "We are thus left to evaluate the State's asserted interest in its fee and cost
4
5 requirements as a mechanism of resource allocation or cost recoupment. Such a

6
justification was offered and rejected in Griffin v.Illinois, 351 U.S. 12 (1956)".
7
8 62. Defendants have violated the Equal Protection clause of the 14th
9
Amendment to the U.S. Constitution, by, among other things, creating suspect
10
classes that deprive this Plaintiff and other Plaintiffs of equal access to the family
11
12 law courts.
13
63. In all of this, Defendants have, under color of state law, deprived this
14
15 Plaintiff and other “class members” of rights, privileges or immunities security to

16
them by the Constitution of the United States, in violation of 42 U.S.C. §1983.
17
18
SECOND CLAIM FOR RELIEF
19 Claim under 42 U.S.C. §1983, Deprivation of Federal Constitution Rights-
20
Violation of 14th Amendment' s Due Process Clause
and 1st Amendment Right to Petition
21

23
24
Due Process Clause of the 14th Amendment
25
26
27 42
Elkins v. Sup.Ct of Contra Costa Co., 41 Cal. 4th 1337 (2007), "In other words, court congestion and 'the press
28 of business' will not justify depriving parties of fundamental rights and a full and fair opportunity to present all
competent and material evidence relevant to the matter to be adjudicated."
1
65. The Plaintiffs have the right under the Due Process Clause of the 14th
2 Amendment to a "meaningful opportunity" to be heard in their custody cases.
3
(Boddie, supra, 377).
4
5 66. The Defendants know that family courts are the only forum provided
6
by the state to parents to resolve their custody dispute and denial of ''full access"
7
8 to that forum raises "grave" concems.43 The Defendants know, as noted in the
9
Elkins Task Force's final recommendations and Chief Justice George's statements
10
in Elkins, that this Plaintiff and other parents don't have the funds to hire lawyers
11
12 in their custody disputes. Defendants know that in "society's hierarchy of values"

13
that a parent's parental fundamental constitutional custody rights are amongst the
14
15 highest. (Stanley v. Illinois (1972) 405 U.S. 645; Santosky v.Kramer (1982) 455
16
U.S. 745). Defendants know or should know that "vexatious parents" under the
17
18
VLS are denied full access and, often, any access, if they are acting "in propria
19 persona."
20
1st Amendment-Right to Appeal/Writ
21
22 67. Plaintiffs have the right under the 1st Amendment and under Article
23
VI, Section 11 of the state constitution to "appellate review," though the
24
25 43
Boddie, supra at 375-376: Thus, this Court has seldom been asked to view access to the courts as an element of
due process. The legitimacy of the State's monopoly over techniques of final dispute settlement, even where some
26
are denied access to its use, stands unimpaired where recognized, effective alternatives for the adjustment of
27
differences remain. But the successful invocation of this governmental power by plaintiffs has often created
serious problems for defendants' rights. For at that point, the judicial proceeding becomes the only effective means
28 of resolving the dispute at hand, and denial of a defendant's full access to that process raises grave problems for
illegitimacy.
1
Legislature may restrict review to a writ petition as opposed to direct appeals.
2 (Powers v. City of Richmond (1995) 10 Cal. 4th 85, 110: "...the Legislature may
3
regulate the mode of appellate review, it may do so only to the extent that it does
4
5 not thereby "substantially impair the constitutional powers of the courts, or

6
practically defeat their exercise.' '').
7
8 68. The Defendants know that the Legislature has replaced a litigant's
9
constitutional right to appellate review under Cal. Const. Art. I, Section 10 with
10
procedures under the VLS, which call for "prefiling orders" as well as an
11
12 appellate judge's "permission" to file. Similarly, the Legislature substitutes a

13
vexatious parent's right to appellate review by a "three judge court" as well as the
14
15 requirement for the "concurrence of two judges ...for a judgment" (Cal. Const.
16
Art. I. Sec. 3) with VLS procedures spelled under §391.7. Likewise, the prefiling
17
18
order provisions of §391.7 replaces a litigant's right to a "written decision" with
19 "stated reasons" (Cal. Const. Art. I, Sec. 14)44 and the right to oral argument45
20
(CRC 8.256) with a "presiding judge's" summary determination that provides no
21
22 written and merely provides the "recitation" that the appeal has "has merit." (*See
23
24
25
44
Cal. Const. Art. I, Sec 14: Sec. 14. The Legislature shall provide for the prompt publication of such opinions of
26 the Supreme Court and courts of appeal as the Supreme Court deems appropriate, and those opinions shall be
available for publication by any person. Decisions of the Supreme Court and courts of appeal that determine
27 causes shall be in writing with reasons stated.
45
Cal. Rules of Court, Rule 8.256(a)(l): Each Court of Appeal and division must hold a session at least once each
28
quarter.
1
fn 65; Appellate judges provide no reasons and merely spit back the "boiler plate"
2 language of "no merit.").
3
69. The Defendants know or should know that by making §391.7 of the
4
5 VLS as the "essential mode" of appellate review in cases of ''vexatious parents"

6
that the Legislature has effectively deprived Plaintiffs of any appellate review as
7
8 is their right under the 1st Amendment and the state constitution.46
9
70. As applied here, the Defendants know or should know that this
10
plaintiff and all parents are routinely and regularly denied "permission" under the
11
12 VLS by presiding judges to file motions in their custody disputes. In the case of
13
this Plaintiff, JUDGE COPE has denied ALL of his submitted motions for months
14
15 and months. (*see Exhibit 13, docket sheet of denials) Defendants know or
16
should know that "vexatious parents" are denied either the right to file direct
17
18
appeals or writs of mandate regarding the "orders" declaring them "vexatious
19 litigants" and requiring them to post security. (Horton v. City of Beverly Hills
20
(1968) 261 Cal. App. 2d 306; 307; Orders declaring a party vexatious and
21
22 requiring security are non-appeable interlocutory orders; *Also, see, Golin

23
v.Allenby (2010) 190 Cal. App. 616, 639: "An order determining a party to be a
24
25 vexatious litigant and requiring the posting of security under section 391.3 is not
26
46
Powers, supra at 110: "...If it could be demonstrated in a given case, or class of cases, that, for whatever reason,
27
the Courts of Appeal or this court could not effectively exercise the constitutionally granted power of appellate
28 review by an extraordinary writ proceeding, then such a proceeding could not constitutionally be made the
exclusive mode of appellate review."
1
directly appealable." (*also see Exhibit 05, JUDGE COUNELIS imposing
2 $25,000 security on this Plaintiff; see above pages 47 through 50, JUDGE
3
RAMIREZ denying this Plaintiff appeals of “vexatious branding” and “writs”)
4
5 On the other hand, some courts have relied on the mandate for a "liberal
6
construction" of "notices to appeal" under CRC 8.821(a)(2) to rule that a declared
7
8 "vexatious litigant" is not appealing from the non-appealable interlocutory order,

9
but from the dismissal and, thus, an appeal can be taken. Roston v. Edwards 17
10
(1982) 127 Cal. App. 3d 842, 84647; Likewise, Judge Sills in Luckett, supra at 90,
11
12 relied on the "liberal construction" and ruled that "...we deem Luckett's appeal to
13
be from an order refusing to dissolve the permanent (prefiling) injunction.. "
14
15 which it noted was appealable under the Code of Civil Procedure §904.l(a)(6)).
16
71. Despite these rulings, the Defendants know or should know that the
17
18
trial courts deny plaintiff’s "permission" to file custody motions and then the
19 appellate courts deny attempts to "appeal" the denial of permission from the trial
20
court, creating a procedural loop where all appellate review is denied.48 The
21
22 Defendants know or should know, particularly after amending the VLS on

23
24 47
Roston, supra 846: Notices of appeal should be liberally construed in favor of their sufficiency. (Rule l(a), Cal.
Rules of Court.) It is apparent plaintiffs intended to appeal from the final judgments of dismissal of their
25 respective actions and not from the non-appealable interlocutory orders. No one has been misled and defendants
have not been prejudiced. Consequently, we treat these appeals as being from the appealable judgments of
26 dismissal. (Collins v. City & Co. of S. F. (1952) 112 Cal.App.2d 719, 722-723 [247 P.2d 362].)
48
In the case of one “vexatious litigant, after all his parental rights were terminated, the trial court denied the
27
Parents request for an ex parte hearing on "emergency visitation" and then the Court of Appeals summarily
28 determined that Appellant, who had been denied any contact with his daughter for over 9 months, had "no merit."
http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=1&doc_id=1960835&doc_no=Al30206
1
January 1, 2013 and adding §391.8 (which purports to create a procedure to
2 "erase" the permanent "vexatious litigant" branding), that "vexatious parents" are
3
denied the right to appeal the trial court's refusal to even allow for a hearing on
4
5 the issue of "erasing" or lifting their status as "vexatious." (See, Factual

6
Allegations, above at pages 49 and 50: JUSTICE RAMIREZ denies Plaintiff’s
7
8 appeal and refuses to answer Plaintiff’s question about “VLS” statute.). The
9
Defendants know or should know that the appellate courts then deny "permission"
10
to appeal the request to lift the "vexatious" label, ruling that the appeals of order
11
12 permanently branding this Plaintiff and ALL parents as ''vexatious" has "no
13
merit.”49
14
72. The Defendants know or should know that the Legislature has
15
16 deprived this Plaintiff (and all parents) of access under the VLS and made this
17
Plaintiff’s "status" as "vexatious" an "essential precondition " if not an absolute
18
19
barrier to access and the "adjustment of the fundamental relationships" Plaintiff
20 has with his child (and ALL parents with THEIR children.) Defendants should
21
know that this contradicts the ruling in Boddie v. Connecticut, as regards
22
23 Plaintiff’s (and all parents) 1st Amendment right to petition, and the Plaintiff’s
24
rights under the state constitution.
25
26
27 49
This describes exactly what was done to Plaintiff by JUDGE COPE who denied TWICE Plaintiff’s motions to
28 remove (filed a year apart ) Plaintiff’s name from the Judicial Council list. Plaintiff appealed the 2 nd denial and
JUSTICE RAMIREZ denied the appeal (see above pages 48-50 showing dockets entries of denials)
1
73. By imposing the VLS on parents in custody cases at the trial and
2 appellate level, this Plaintiff’s due process rights are violated when Plaintiff is
3
locked out of the family law courts (and appellate courts) under the VLS solely
4
5 because he cannot afford to hire an attorney to relieve himself of the burden of

6
having to act "in propria persona." Having money to pay for an attorney or
7
8 having the good fortune to find a "pro bono" attorney then becomes, as a
9
consequence or a direct effect of the VLS, another "essential precondition " to the
10
vexatious parents' right to challenge custody orders and to vindicate their parental
11
12 rights. (Boddie, supra at 400-401).50

13
74. In all of this, Defendants have, under color of state law, deprived this
14
15 Plaintiff and all plaintiffs (Class Members) of rights, privileges or immunities

16
secured to them by the Constitution of the United States, in violation of 42 U.S.C.
17
18
§1983.
19 THIRD CLAIM FOR RELIEF

20 Claim under 42 U.S.C. §1983, Deprivation of Federal Constitution Rights-
Violation of 14th Amendment' s Due Process Clause
21
(Imposition of VLS To Custody Cases on Its Face and as
22 Applied Is Unconstitutionly Vague and Overbroad ).
23
50
Boddie, supra, 400: We do not decide that access for all individuals to the courts is a right that is, in al
24
circumstances, guaranteed by the Due Process Clause of the Fourteenth Amendment so that its exercise may not be
placed beyond the reach of any individual ( for, as we have already noted, in the case before us, this right is the
25
exclusive precondition to the adjustment of a fundamental human relationship. The requirement that these
26
appellants resort to the judicial process is entirely a state-created matter. Thus, we hold only that a State may not,
consistent with the obligations imposed on it by the Due Process Clause of the Fourteenth Amendment, preempt
27 the right to dissolve this legal relationship without affording all citizens access to the means it has prescribed for
doing so
28
1
75. Plaintiff re-alleges and incorporates herein by reference each and
2 every allegation and paragraph set forth previously.
3
Undefined Terms
4
5 76. In the context of custody proceedings, the VLS is constitutionally

6
vague on its face and as applied by trial courts and appellate courts. For instance,
7
8 the VLS provides under section 391(b)(l ) that a person can be declared
9
"vexatious" if the person has suffered five ''final adverse determinations " in a
10
seven year period. The VLS, however, does not provide a definition of the term
11
12 "finally determined adversely to the person." In Wolfgram, the Court of Appeals

13
ventures reasonable guesses at what this language might mean, supra 58:
14
15 “As a matter of common experience even many meritorious suits fail,

due to the vagaries of the trial process if nothing else. Many more
16
colorable suits fail; either due to pretrial does not lessen any person's
17 disposition or failure to persuade the trier of fact. Yet, loss of five is
18
remarkable. Most people never sue anybody. While that right to sue to
correct real or perceived injustices, it does suggest that the inference
19 to be Wolfgram's contrary view, relatively narrow: Only drawn from
20 the statute is, despite those citizens who decline to hire lawyers, lose
five suits in seven years, then undertake a sixth suit which lacks merit,
21
will be labeled vexatious.”
22
23
77. As noted by Wolfgram, suits can be dismissed or "adversely
24 determined'' on procedural grounds even though they are "meritorious." The

25
Wolfgram court also reads into the VLS a distinction between "colorable claims"
26
27 and "meritorious" claims. Yet, nowhere in the express language of the VLS can
28
1
these distinctions be found. Instead, the VLS leaves trial courts to their own
2 devises to construe this "adversely determined" phrase. In Wolfgram, the court's
3
view of this phrase was predicated on the assumption that the "suits" are civil
4
5 rather than family law custody motions. The Wolfgram's view that "most people
6
never sue anybody" may apply in civil suits, but in family law matters, where up
7
8 to 50% of marriages endin divorce, it is simply wrong. Likewise, the Wolfgram's

9
assumption that people "decline to hire lawyers" flies in the face of the realities
10
explained in the Elkins Task Force. Further, it may be "remarkable" to the
11
12 Wolfgram court that a party could lose "five suits" in seven years, but this
13
Plaintiff knows (and most likely all other parents – “Class Members” know )
14
15 that he can due to his experience, in his custody dispute, lose "five litigations"
16
within seven weeks.51
17
18
78. The Defendants know or should know, particularly after the final
19 recommendations of the Elkins Task Force, that family law courts are rift with un-
20
represented parents who have "no choice" in this matter and who are subject to
21
22 the VLS for being self-represented. Defendants know or should know that
23
applying the VLS to un-represented parents in custody disputes creates immediate
24
25 ambiguities on the face of the statute. For instance, §391.1 provides that a court
26
51
Section 391.7(d) defines "litigations" as motions. Hence, a parent could lose a pretrial motion for a §730
27
evaluator, a pretrial motion for minor's counsel, a motion for need-based fees under Family Code §2030, a motion
28 to modify visitation, a motion to recuse for cause, and with one more lost motion to increase child support the
parent would be sunk.
1
may require the declared "vexatious litigant" to post security and §391.4 provides
2 that a suit "shall" be dismissed if the security is not provided. In this case,
3
Plaintiff was ordered by JUDGE COUNELIS, to post a security of $25,000
4
5 before “filing any paper” (*see Exhibit 05). Four months later, because Plaintiff
6
did not post the bond ($25k), he was denied the filing of an “FL-320 Responsive
7
8 Declaration” in opposition to the other party’s motion in the Family Law Court to
9
“move-away” the child from California to Virginia. (*see Exhibit 10) The other
10
party’s attorney, ATTORNEY COCKRELL in open court even said to JUDGE
11
12 COUNELIS that this plaintiff should have filed the bond and could then
13
participate (*see Exhibit 11) After this plaintiff failed to post the $25,000 security
14
15 bond, under §391.4, the family law court was required to "dismiss" the case.52
16
Although the family law court did not comply with the requirement to dismiss the
17
18
custody dispute under §391.4 for failure to post security, Plaintiff as stated above
19 was not allowed to file the FL-320 Responsive Declaration. Defendants cannot
20
reasonably argue that if there was a dismissal of the custody case under the VLS
21
22 that it would have been consistent with a parent's custody rights or that the denial
23
to file an “opposition” to the other parties “move-away” motion is consistent with
24
25 Plaintiff’s custody rights. Nor could the Defendants reasonably argue that the
26
27
52
CCP §391.4: When security that has been ordered furnished is not furnished as ordered, the litigation shall be
28
dismissed as to the defendant for whose benefit it was ordered furnished.
1
VLS preempts plaintiff’s (or any parent’s) due process rights in the custody case
2 if they fail to or cannot post security.
3
4 Plain Language Readings of VLS As Mandated By Shalant

5
79. Shalant v. Girardi, (2011) 51 Cal. 4th 1164, a civil case, the state
6
7
Supreme Court rejected "broad readings"53 of the VLS in favor of "plain language
8 reading." (1173, fn 4). It also directed courts to "observe the limits set by the
9
applicable statutory scheme" and pointed out that "it's the function of the
10
11 Legislature, not the courts to expand them." (supra, 1176). It also stated that the
12
distinction in the statute between "represented" litigants and those "in propria
13
14
persona" was not absurd." (supra, at 1176).
15
Raising Section 391.1 Motions in Custody Disputes
16
17 80. In custody disputes, after Shalant v. Girardi, must the "moving

18
defendant" (parent) petition the court under §391.1 to have the ''plaintiff ' (parent)
19
20
show both that the "moving defendant" is vexatious and has no reasonable
21 likelihood of prevailing in the custody dispute? Or does a simple showing of

22
"vexatiousness," without a showing of a reasonable likelihood of prevailing,
23
24 suffice in such a §391.1 motion in family court? Should §391.1 be read together
25
with §391.3 to resolve any ambiguity or should the legislative record be
26
53
In Shalant v. Girardi, (2010), 183 Cal. App. 545, the Court of Appeals cautioned against "broad interpretations"
27
of the VLS, supra, 557:"Given the important constitutional concerns that section 391.7 implicates, we conclude
28 that the statute should not be broadly interpreted. Rather, it should be applied strictly according to its terms."
(emphasis added).
1
considered? And how does any parent ''prevail" in a custody dispute that may
2 endure for years?54 Does the plain language of the VLS suggest that only the
3
"defendant" parent, not the "plaintiff ' parent, can bring a §391.1 motion in a
4
5 custody dispute? In the context of custody cases, would that mean that a
6
"defendant" father would have the right to make a §391.1 motion but a "plaintiff '
7
8 mother never would? Once found "vexatious," does the custody dispute then
9
mysteriously become "new litigation" under §391.7 for purposes of imposing "a
10
prefiling order" on the vexatious parent? And can a "nonparty'' jump into an on
11
12 going custody dispute and conduct his own §391.1 motion against a father that
13
has sued the nonparty in a civil suit? Can the trial court suspend the right to a
14
15 hearing promised by §391.2? Do these questions frame proper violations of due

16
process of law?
17
18
Old Custody v. New Custody Case
19 81. If, as the Supreme Court pointed out in Shalant55, that there are two
20
remedies under the VLS, one for "pending litigation" (under §391.1) and one for
21
22 54
This Plaintiff’s custody dispute has lasted 14 years, virtually all of the minor child’s life. Plaintiff alleges it is
the fault of the court and how it conducts Family Law that is the reason. Had the court granted Plaintiff sole
23 custody of the child in 2000, this entire worthless, waste of time and money would never have occurred and the
child not harmed. See Exhibit 02, Psychological Report and Assessment of minor child by Dr. Rhwan Joseph
24 55
Shalant v. Girardi (2011) 51 Cal. 4'h 1164, 1171: To summarize, our vexatious litigant statutes provide courts
and nonvexatious litigants with two distinct and complementary sets of remedies. In pending litigation, a
25
defendant may have the plaintiff declared a vexatious litigant and, if the plaintiff has no reasonable probability of
26
prevailing, ordered to furnish security. If the plaintiff fails to furnish the security, the action will be dismissed. (§§
391.1-391.6. In addition, a potential defendant may prevent the vexatious litigant plaintiff from filing any new
27 litigation in propria persona by obtaining a prefiling order and, if any new litigation is inadvertently permitted to
be filed in propria persona without the presiding judge's permission, may then obtain its dismissal. (§ 391.7.)
28
1
"new litigation" (§391.7) then how does an ongoing custody dispute morph into
2 or transform into "new litigation" for which the defendant/vexatious/ parent" is
3
required to obtain "permission" to file? Does being declared "vexatious" change
4
5 the "old" custody dispute into a "new" custody dispute? Or is this, in the context
6
of a custody dispute, a legal fiction allowing a court to step in and essentially
7
8 muzzle one parent, not in the hopes of resolving the custody dispute, but in
9
simply ending the litigation in favor of the parent who is represented? Is there any
10
reason to believe that a "represented" parent is a better parent than a self-
11
12 represented one? (See Factual Allegations above starting page 31). The
13
Defendants know or should recognize these facially ambiguous provisions as
14
15 applied by family law courts in custody disputes.

16
Represented Parents
17
82. After Shalant v. Girardi, the application of the VLS to parents in
18
19 protracted custody disputes begs questions of its constitutionality. For instance, is

20
it proper for family law judges to impose provisions of the VLS against parents
21
22 who are represented?. If a parent is represented in a family law proceeding, but

23
declared "vexatious" in a probate proceeding, can the trial court impose a
24
prefiling order against the parent in the family law courts? Can the court impose
25
26 the prefiling order against the represented parent and the attorney in the custody
27
case? These actions ARE taking place in California. Faced with a §391.1 motion,
28
1
may a parent hire or obtain a "pro-bono attorney" and "moot" the §391.1 motion
2 because the party is no longer acting "in propria persona"?56
3
83. Would a pro-bono attorney representing the parent and defending
4
5 against a §391.1 motion be allowed to have a continuance to review that charges

6
against the client? Or could the trial judge rule that the pro-bono attorney was a
7
8 "mere puppet" under In re Shieh and impose the VLS against the attorney? (Such
9
a tactic/occurrence has actually taken place in a California Family Law Court)
10
In imposing the VLS against the attorney, would the trial court be acting in excess
11
12 of or in the clear absence of all authority because the VLS, by definition and in
13
view of the Shalant ruling, does not apply to attorneys? Would the judge be
14
15 depriving the attorney of the right to practice law? Would the judge be denying
16
the client the right to have an attorney?57
17
18 Permanent Branding of Parents As Vexatiou

19
56
There is the case of a parent who had obtained an attorney prior to the §391.1 hearing and the family law judge
20 "vacated" the hearing, denying the parent the right to present any evidence, "written or oral" or "by witness or
affidavit" and ruled the parent was a "vexatious litigant" in his statement of decision.
21 57
See, Weissman v. Quail Lodge, Inc. (1999, 9th Cir Cal) 179 F3d 1194. The court explained that the reason that
an attorney could not be declared a "vexatious litigant" was "because the vexatious litigant doctrine was never
22
intended to control attorney conduct and because an attorney appearing on behalf of a client could not by
definition be sanctioned as a "vexatious litigant," as he was .acting as an attorney not a litigant." (supra, at 1999;
23
emphasis added). The court went on to explain: "Insofar as our research has uncovered, no court in this circuit has
ever imposed a vexatious litigant order on an attorney. We do not believe that the vexatious litigant doctrine was
24
ever intended to control attorney conduct and we do not propose to approve its application in this case as a means
of controlling attorney conduct. For example, the California vexatious litigant statute limits the definition of a
25
"vexatious litigant" to one who acts "in propria persona." Cal. Civ. Proc. Code § 391.7. Similarly, the only district
26
court in this circuit to have adopted a vexatious litigant rule provides that the court may "proceed by reference to
the Vexatious Litigants statute of the State of California, Cal. Code Civ. Proc. §§ 391 -391.7." Cent. Dist. of Calif.
27 Local R. 27A.4. We therefore conclude that an attorney appearing on behalf of a client cannot be sanctioned as a
vexatious litigant; by definition, he or she is acting as an attorney and not as a litigant.
28
1
84. As noted by Judge Sills in Luckett v.Panos, the VLS raises an issue of
2 the duration of the "vexatious litigant" label. This issue was raised 20 years ago
3
by John E. Wolfgram in Wolfgram v. Wells Fargo Bank and then addressed by
4
5 the Court of Appeals for the Second Appellate District that was "troubled" by this
6
"permanent" branding issue. (PBA, LLC v. KPOD, Ltd. (2003) 112 Cal. App. 4th
7
8 965)). The PBA court stated, supra.

9
While there is much to recommend this reasoning, the conclusion
10 section 391.7 is to be a permanent, irrevocable restriction is troubling.
Although section 391.7 does not absolutely exclude the "pro per"
11
litigant from the courts, we believe fundamental fairness requires the
12 "vexatious litigant" brand be erasable in appropriate circumstances.
13
While the Judicial Council on January 1, 2013 added section 391.8 to the VLS
14
15 along with forms MC-702 and MC 703, this does not resolve the issue but just
16
begs more questions:
17
18
Question 1: Why did it take them 20 years to respond to the ''perpetual
branding" question?
19
Question 2: Does a "vexatious parent" have the right to a full evidentiary
20 hearing with the right to call witness under Family Code §217 when seeking to
21
"lift" the "injunction"?
Question 3: Is the minimum duration of the branding "at least four years"
22
as Judge Sills recommended in Luckett v. Panos?
23 Question 4: Is the "branding" an injunction under Code of Civil Procedure
24 §533 as Judge Sills concluded, which would be appealable as an order to refuse to
dissolve an injunction under §904.l(a)(b)?
25
Question 5: On the other hand, would the refusal to allow a §391.8 motion
26 to erase the branding be an interlocutory non-appealable "order" as Judge Sills
27
pondered in Luckett? (supra, 89-90).
28
1
Question 6: Is Judge Sills statement, "we also provide a roadmap as to
how Luckett, or any other a person already adjudicated to be a vexatious litigant,
2 can succeed in having that determination lifted," and his listing of' “factors "
3 impermissibly judicial legislating?
4
Question 7: Is that implicitly suspect after the strict constructionist view
taken in Shalant?
5
Question 8: Does the uncertain duration of the branding of "vexatious
6 parents," the inability to present evidence or have an evidentiary hearing, and the
7
[Question 8 Continued:] scores of unanswered questions it raises, renders the
VLS unconstitutionally vague or overbroad? (9 Witkin, Cal. Procedure (4thed.
8 1997) Appeal, §446, at 493; However, where the error results in denial of a fair
9 hearing, the error is reversible per se. Denying a party the right to testify or to
offer evidence is revrsible per se. (Fewel v. Fewel (1943) 23 Cal. 2d 431,433.).
10
11
Impromptu Section 391.1 Motions By the Appellate Courts
12 "On Their Own Motions.
13
85. For that matter, can a Court of Appeals, on its own motion under
14
15
§391.7 and while there is no pending litigation on appeal, conduct a §391.1
16 motion on the basis of 'unsuccessful" appeals of family law decisions? Would the
17
party called to defend himself before the appellate court be the "plaintiff '? Would
18
19 the Court of Appeals be or become the "moving defendant" as those terms are
20
defined by the statute? Would the appellate court's impromptu §391.1 motion,
21
22 when there is no "pending litigation," work to preempt the need for a "summons
23
and complaint," the requirements for a "response," and service of process under
24
the Code of Civil Procedure? Would the Court of Appeals then be an impromptu
25
26 trial court issuing a "vexatious litigant order" or would it remain an appellate

27
court issuing an "appellate opinion"? Would the vexatious litigant parent-plaintiff-
28
1
appellee then be allowed to appeal this "order/opinion"? And to whom? The
2 Supreme Court? How would this impact the Rooker- Feldman doctrine if the
3
"vexatious parent" was denied access to the state courts but sought to challenge
4
5 the "constitutionality'' of the VLS? These are not rhetorical questions but actual
6
considerations as this has happened to a parent in California who must consider
7
8 these questions and issues, after being confronted by an impromptu §391.1

9
motion by an appellate court.
10
11 Right to Appellate Review, Denial of Permission to Appeal

12
86. In Powers v. City of Richmond (1995) 10 Cal. 4th 85, the Supreme
13
14
Court held that the "appellate jurisdiction" provision of article VI, section 11 of
15 the Constitution did not grant a litigant the right to a "direct appeal" as opposed to
16
a "writ of mandate." While the Supreme Court noted that the litigant did not have
17
18 a right to appeal with a decision on the merits, oral argument, and that the
19
Legislature could "regulate the mode of appellate review," the Supreme Court
20
21 noted that the Legislature could not "impair" or ''practically defeat” an appellate
22
courts' exercise of appellate review.58
23
58
Powers, supra 110: This does not mean, however, that the "appellate jurisdiction” provision imposes no
24
restrictions on the Legislature's authority to allocate appellate review as between direct appeals and extraordinary
writ petitions. As we have seen, the plain language of the provision reveals that it is a grant of judicial authority
25
and this form of grant has been interpreted to mean that, although the Legislature may regulate the mode of
appellate review, it may do so only to the extent that it does not thereby " 'substantially impair the constitutional
26
powers of the courts, or practically defeat their exercise.' " (In re Jessup, supra, 81 Cal. 408, 470, italics omitted;
27
see also Haight, supra, 8 Cal. 297, 300.) If it could be demonstrated in a given case, or class of cases, that, for
whatever reason, the Courts of Appeal or this court could not effectively exercise the constitutionally granted
28 power of appellate review by an extraordinary writ proceeding, then such a proceeding could not constitutionally
be made the exclusive mode of appellate review. (emphasis added).
1
87. In view of Powers, the imposition of the VLS on Plaintiff and all other
2 so-called “vexatious parents” begs constitutional questions. Unlike civil
3
litigants, “vexatious parents” seek to appeal judgments involving their
4
5 fundamental custody rights. Likewise, they seek to appeal orders involving child
6
support and visitation59, which often tie in with restraining orders. Do the forms
7
8 used by the appellate courts to determine if a request to appeal or file a writ "has
9
merit" (*See, MC-700, 701) comply with a parent's right to "appellate review"
10
that is guaranteed by the state and federal constitution? Can it reasonably be
11
12 argued by Defendants that these "requests for permission" forms demanded by

13
appellate courts provide any, let alone effective or sufficient appellate
14
15 review? If a "represented" parent is denied the right to file an "order to show

16
cause" after the termination of all parental rights for failing to post a bond (as
17
18
19
20
21
22
23
24 59
See Case A130206: http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?
dist=l&docid=l960835&doc no=Al30206:
25
11/24/2010 Other involuntary dismissal BY THE COURT: Archibald Cunningham has previously been found to
26 be a vexatious litigant and is subject to a prefiling order. On November 8, 2010, Mr. Cunningham filed an
application for permission to appeal the trial court's October 18, 2010 orders denying his requests for permission to
27 file a document entitled "Ex Parte Hearing for Emergency Visitation and Appointment of Minor's Council [sic]."
The application for permission to appeal is denied. Mr. Cunningham has failed to show a reasonable possibility
28
that his appeal has merit. (See Code Civ. Proc., ? 391.7.)
1
occurred in the California Appellate Court recently),60 can the appellate court
2 refuse to review the 30 page writ filed by a represented parent/appellant on the
3
grounds that the writ does not contain "sufficient documentation"? Does that
4
5 offend the parent's right to petition?

6
88. In the same way, if a parent (the suspect class) is declared "vexatious"
7
8 by an appellate court and wishes to appeal, does that parent first have to file a
9
motion for reconsideration with the appellate court or must that parent file a
10
petition with the state Supreme Court? Does the procedural ambiguity and
11
12 uncertainty resulting from the appellate court's §391.1 action impinge on the right
13
to petition? Can it reasonably be argued by Defendants that the right to appellate
14
15 review is not infringed upon because the "vexatious parents" have the right to hire
16
a lawyer? Can Defendants reasonably argue that the VLS does not offend the
17
18
right to petition at the trial court or on the appellate level when these courts,
19 almost categorically, deny all requests? While Plaintiff here has not experienced
20
this ambiguity, other parents have and this points out the unconstitutionality of the
21
22 VLS law as applied to parents in Family Law.

23
60
*See, Al30282: http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=l&docid=l961615&doc
24
no=Al30282: 1123/2010 Order denying petition filed. Petitioner, a vexatious litigant who is now represented by
25 counsel, has filed a petition for writ of mandate challenging the trial court's requirement that petitioner post a bond
to have an order to show cause placed on calendar. Without commenting on the merits of the petition or whether
26 petitioner is allowed to file such a petition without posting a bond we deny the petition without prejudice because
it does not contain sufficient documentation for the court to consider the merits of the claim. (See Serna v.
27
Superior Court (1985) 40 Cal.3d 239, 246.)
28
1
89. The Legislature has created a facially vague statute and has
2 improperly delegated to the trial and appellate judges the job of ferreting out the
3
meaning of each and every sentence in almost every provision. The rulings
4
5 amongst the court are themselves inconsistent and often contradictory. The
6
branding as "vexatious" is of an indefinite duration and the procedures to
7
8 "lift" the label are uncertain. The Legislature has delegated to the trial courts the
9
right to fill in the gaps and uncertainties in the procedures on an ad hoc and
10
subjective basis. ("A vague law impermissibly delegates basic policy matters to
11
12 policemen, judges, and juries for resolution on an ad hoc and subjective basis,
13
with the attendant dangers or arbitrary and discriminatory application.";
14
15 Grayned v. City of Rockford, 408 U.S. 104, 108-1093, (1972)

16
90. Defendant's actions, orders and rulings deprive Plaintiff of his rights,
17
18
privileges or immunities secured to him by the Constitution of the United States
19 in violation of 42 U.S.C. §1983.

20
FOURTH CLAIM FOR RELIEF
21
Claim under 42 U.S.C. §1983, Deprivation Federal Constitution Rights-
22 The Vexatious Litigant Statutes as Here Applied,
23
Creates a Prior Restraint in Violation of
the 1st Amendment Right to Petition
24

26
27
92. Plaintiff’s right to petition for redress of grievances is a funda-
28
1
mental right protected by the 1st Amendment of the Constitution of the United
2
3 States and the Constitution of the State of California. (Art. I, §§.2, 3.).61
93. As noted above , Judge Cardoza has urged family law judges to use
4
5 the VLS as a "tool to discourage repeated motions by parents to regain custody of

6
their children when there are no changed circumstances to justify a different
7
8 result." (In re R.H., supra 700). The requirement for a "prefiling order" and/or
9
security before being allowed to file motions in a custody dispute is an
10
unconstitutional prior restrain. The VLS, in custody cases, is directed at enjoining
11
12 any "speech" (argument, contentions, etc.) related to the custody dispute. This use
13
of the VLS functions as a prior restrain on the right to petition by limiting,
14
15 restricting, or curtailing the presentation of relevant evidence and testimony that

16
could be used by a parent to prove a "change of circumstances" justifying a need
17
18
to change in visitation or custody. By imposing the VLS on custody cases, the
19 state purports to allow family law courts to enjoin the presentation of any relevant
20
evidence, including evidentiary hearing (Family Code §217), live testimony
21
22
23
61
The right of petition, like the other rights contained in the First Amendment and in the California constitutional
24
Declaration of Rights, is accorded "a paramount and preferred place in our democratic system." (American Civil
Liberties Union v. Board of Education (1961) 55 Cal.2d 167, 178; The Supreme Court has stated that "the rights
25
to assemble peaceably and to petition for a redress of grievances are among the most precious of the liberties
26
safeguarded by the Bill of Rights. These rights, moreover, are intimately connected, both in origin and in purpose,
with the other First Amendment rights of free speech and free press." (Mine Workers v. Illinois Bar Assn. (1967)
27 389 U.S. 217, 222 [19 L.Ed.2d 426, 430, 88 S.Ct. 353]; see also Thomas v. Collins (1945) 323 U.S. 516, 530 [89
L.Ed. 430, 440, 65 S.Ct. 315]; De Jonge v. Oregon (1937) 299 U.S. 353, 364 [81 L.Ed. 278, 283, 57 S.Ct. 255].)
28
1
(Family Rule 5.113, 5.250), and relevant evidence under Evidence Code §353
2 that a parent needs to "regain custody rights."
3
94. The Defendants know or should know that the use of the VLA as a
4
5 tool to muzzle or gag parents in advance of a court hearing on a custody issue

6
constitutes a prior restraint on their right to petition. (Nebraska Press Assn. v.
7
8 Stuart, 427 U.S. 539 (1979); City of Long Beach v. Bozek (1982) 31 Cal. 3rd
9
528; "The right of petition is of parallel importance to the right of free speech
10
and the other overlapping, cognate rights contained in the First Amendment and
11
12 in equivalent provisions of the California Constitution. Although it has seldom

13
been independently analyzed, it does contain an inherent meaning and scope
14
15 distinct from the right of free speech. It is essential to protect the ability of those
16
who perceive themselves to be aggrieved by the activities of governmental
17
18
authorities to seek redress through all the channels of
19 government ....")62
20
95. The Defendants know or should know that the VLS' restraint on access
21
22 to family law courts in turn impinges on fundamental custody rights. Parents

23
62
Bozek: The legislative history of California Constitution article I, section 3, reveals an intent to make the
24
California provision at least as broad as the First Amendment right of petition. Article I, section 10 of the
California Constitution, originally enacted in 1849, stated: "The people shall have the right to freely assemble
25
together to consult for the common good, to instruct their representatives, and to petition the Legislature for
redress of grievances." (Italics added.) On November 5, 1974, the voters of this state adopted the following
26
amended and renumbered provision: "The people have the right to instruct their representatives, petition
27
government for redress o grievances, and assemble freely to consult for the common good." (Italics added.) (Cal.
Const., art. I, § 3.) The amendment was clearly intended to broaden the right of petition to make it extend to
28 petitions to all branches of government, not merely to the Legislature. (See Proposed Revision of the California
Constitution, Articles I, XX, XXII, 5 Cal. Const. Revision Com. Rep. (1971) p. 23.)
1
cannot prove that there has been a "change of circumstance" unless they have
2 access and the right to present evidence, such as live testimony. By using the VLS
3
to deny access, "vexatious litigant" parents are deprived of an opportunity to
4
5 present their custody case. The deprivation of due process of law is the secondary
6
effect of the denial of access. In this sense, the VLS is tantamount to a mandatory
7
8 presumption that any challenge to a final custody order is without merit.63 The
9
imposition of the VLS in custody disputes is hopelessly circular both procedurally
10
and substantively. (Vexatious parents cannot show "changed circumstances"
11
12 because the VLS denies them access to present their case.). Here, Plaintiff has lost
13
his former lawfull custody rights since all his pre-trial motions for the trial on
14
15 November 24th and 25th, 2014 were denied by JUDGE COPE. (*See Factual
16
Allegations above Page 32). Other parents have lost their custody rights
17
18
in "trials by declarations" without ever being given having a ''fully litigated
19 hearing" as noted by Chief Justice George in Elkins, (Elkins v. Sup.Ct (2007) 41

20
Cal. 4th 1337, 1356).
21
22 96. Defendants have violated this Plaintiff’s (and ALL parents’) 1st
23
Amendment right to petition under the U.S. Constitution, by, among other things,
24
25 applying the VLS as a prior restraint.

63
In Elkins, Chief Justice George noted that any presumption that a custody order was final depended on a there
26
having been a "fully-litigated hearing." A post-judgment motion for modification of a final child custody order, for
27
example, requires the moving party to demonstrate a significant change of circumstances warranting departure
from the judgment. (Montenegro v. Diaz, supra, 26 Cal.4th at p. 256.) A presumption exists that the judgment is
28 correct and should not be disturbed -- a presumption that would not be well founded were the judgment to be
based upon hearsay (unless admitted into evidence upon stipulation of the parties).
1
97. In all of this, Defendants have, under color of state law, deprived
Plaintiff and all other parents in the suspect class, of rights, privileges or
2
3 immunities security to them by the Constitution of the United States, in violation

4
of 42 U.S.C. §1983.
5
6
FIFTH CLAIM FOR RELIEF
Unwritten Rules and Procedures Implementing Prefiling Orders
7 Violates Due Process Clause of 14th Amendment
8
9

11
99. Defendants know or should know that the U.S. Supreme Court
12
13 declared that Due Process guarantees apply to family law proceedings in Boddie
14
v. Connecticut (1970) 401 U.S. 371, 377-378). In Boddie, the U.S Supreme court
15
explained: "[D}ue process requires, at a minimum, that absent a countervailing
16
17 state interest of overriding significance, persons forced to settle their claims of

18
right and duty through the judicial process must be given a meaningful
19
20 opportunity to be heard... Although '(m)any controversies have raged about the

21
cryptic and abstract words of the Due Process Clause,' ... 'there can be no doubt
22
23
that at a minimum they require that deprivation of life, liberty or property by
24 adjudication be preceded by notice and opportunity for hearing appropriate to

25
the nature of the case.' (Boddie, supra, at 377-378).
26
27
28
1
100. Defendants know or should know that the California Supreme Court
2 has ruled in Elkins v.Sup. Ct. of Conta Costa Co. (41 Cal. 4th 1337 (2007)) that
3
courts may not adopt local rules or procedures that are inconsistent with statute,
4
5 rules of the Judicial Council, case law or constitutional law.64

6
101. The Defendants know or should know that the 14th Amendment
7
8 provides that no State shall "deprive any person of life, liberty, or property,
9
without due process of law."65
10
102. The Defendants know or should know that under CCP §391.7(b) a
11
12 presiding judge may deny a party the right to file if the judge finds the submitted
13
pleadings lacks "merits" or are being filed to ''harass" or cause "delay." They also
14
15 know that Judicial Council form MC 701 provides an informal procedure which
16
the presiding judge uses to decide if the party's action has "merit" and should be
17
18
allowed to file. The form does not provide for a hearing, the presentation of any
19 evidence, or testimony, but requires the party to "attach a copy'' of the "document
20
to be filed." Further, the VLS does not indicate whether the presiding judge's
21
22 "merit" determination should involve a hearing or the presentation of evidence.

23
24 64
Elkins, supra, at 1351-53. The scope of a court's inherent rulemaking authority has been discussed in various
decisions (see, e.g., Rutheiford, supra, 16 Cal.4th at pp. 967-968), and the outer limits of such authority are clear. A
25 trial court is without authority to adopt local r rules or procedures that conflict with statutes or with rules of court
adopted by the Judicial Council, or that are inconsistent with the Constitution or case law. (Rutheiford, supra, at
26 pp. 967-968; see also Hall v. Superior Court (2005) 133 Cal.App.4th 908, 916-918.) As provided in Government
Code section 68070, subdivision (a): "Every court may make rules for its own government and the government of
27 its officers not inconsistent with law or with the rules adopted and prescribed by the Judicial Council." (Italics
added; see also 2 Witkin, Cal. Procedure (4th ed. 1996) Courts, § 204, p. 272; id. (2006 supp.) § 204, pp. 87-88.).
28 65
See also, Cal. Const. Art. 1, §7.
1
Nor does the VLS set out procedures, name factors to consider, or provide any
2 standards to be used by the presiding judge in rendering the "merit" order. The
3
form MC 701, however, does provide a section for an "ORDER" with three boxes
4
5 (Granted, Denied, or Other) and another box for "Attachment to order; Number of
6
pages___" There are no instructions on the form as to whether the
7
8 presiding judge is required to provide a written response and "attach" its

9
response/decision to the order.
10
103. In making its "merit" determination, neither the VLS nor the Judicial
11
12 Council MC-701 form state what standards should be applied66, what factors
13
should be considered, when the merit ruling should be made or whether the
14
15 Plaintiff has a right to "appeal" the order. However, the courts presume judges
16
obey all laws, particularly the state and federal Constitutions, which they are
17
18
sworn to uphold. (Evid. Code, §664 [presumption that official duty "regularly
19 performed"]; Civ. Code, § 3548 ["law has been obeyed"].) The "merit
20
determination," being completely an opaque process without written reasons or
21
22 explanations is beyond scrutiny and devoid of any proof to support the

23
determination. (This creates an improper mandatory presumption under Hicks v.
24
25 Feiock (1988) 485 U.S. 624).

26
27
In re R.H., 170 Cal. App. 4th 678 (2009). The standard used by a presiding judge after a prefiling order has
66
28
been imposed is, "the simple showing of an arguable issue." (Id, at 705).
1
104. The Due Process Clause requires states to afford civil litigants a
2 "meaningful opportunity to be heard'' by removing obstacles to their full
3
participation in judicial proceedings.(*See, Boddie v. Connecticut, 401 371, 379
4
5 (1971), fees for filing divorce; M L.B. v. S.L. J. 519 U.S. 102, 136 (1996), the
6
costs of transcripts needed to defend termination proceeding). The hearing
7
8 required by the due process clause must be. "'meaningful"' and "'appropriate to
9
the nature of the case."' ( *See, Bell v. Burson, 402 U.S. 535, 541-542: "A
10
procedural rule that may satisfy due process in one context may not necessarily
11
12 satisfy procedural due process in every case. Thus, procedures adequate to

13
determine a welfare claim may not suffice to try a felony charge." Compare
14
15 Goldberg v. Kelly, 397 U.S. at 270-271, with Gideon v. Wainwright, 372 U.S.
16
335 (1963)").67
17
18
105. Defendants know or should know that Plaintiff’s request (and all
19 parents as well) for change to custody or visitation orders will be decided using
20
form MC 701 and by the unwritten procedures and rules implementing the VLS.
21
22 The unwritten rules include the absence of any meaningful time frame for making
23 67
Bell v Burson, supra, at 539: "Once licenses are issued, as in petitioner's case, their continued possession may
become essential in the pursuit of a livelihood. Suspension of issued licenses thus involves state action that
24
adjudicates important interests of the licensees. In such cases, the licenses are not to be taken away without that
procedural due process required by the Fourteenth Amendment. Sniadach v. Family Finance Corp., 395 U. S. 337
25
(1969); Goldberg v. Kelly, 397 U. S. 254 (1970). This is but an application of the general proposition that relevant
constitutional restraints limit state power to terminate an entitlement whether the entitlement is denominated a
26
"right" or a "privilege." Sherbert v. Verner, 374 U. S. 398 (1963) (disqualification for unemployment
27
compensation); Slochower v. Board of Education, 350 U. S. 551 (1956) (discharge from public employment);
Speiser v. Randall, 357 U. S. 513 (1958) (denial of a tax exemption); Goldberg v. Kelly, supra (withdrawal of
28 welfare benefits). See also Londoner v. Denver, 210 U. S. 373, 210 U. S. 385-386 (1908); Goldsmith v. Board of
Tax Appeals, 270 U. S. 117 (1926); Opp Cotton Mills v. Administrator, 312 U. S. 126 (1941)."
1
a "merit" determination, with delays for months and months. The unwritten rules
2 apparently allow presiding judges to refuse a "vexatious parent's" attorney to file
3
on his behalf without any explanation or citation to any authority for doing so,
4
5 this Plaintiff believes. The unwritten procedures involve allowing the presiding
6
judge to make the merit determination without a written decision or opinion68, or
7
8 one word of explanation. The unwritten procedures and rules apparently also
9
involve the denial of any right to appeal or review or reconsideration. (*again,
10
please see pages 49 to 52, denials of Plaintiff’s motion requests, appeal requests
11
12 and Writ requests in “Factual Allegations”). While courts have stated that the
13
VLS is applied with distinct standards, the reality of family law courts is
14
15 different.69
16
106. Defendants know or should know that the appellate courts use their
17
18
own forms, such as the "Application for Permission to Appeal or to File Writ
19 Petition" that is used by the Court of Appeals for the First District. The same due
20
process concerns associated with the MC-701 form apply equally to the appellate
21
22 forms.
23
24
25 68
In almost ALL of the MC-701 forms that Plaintiff has submitted to JUDGE COPE, there has been no
“memorandum” or “statement of decision attached. In ONE instance, a reason was given for the denial. Please see
26 Exhibit ?? and Exhibit ?? showing these events, with explanation on the exhibit cover page.
69
"To the extent [section 391.7] keeps vexatious litigants from clogging courts, it is closer to 'licensing or permit
27
systems which are administered pursuant to narrowly drawn, reasonable and definite standards' which represent
28 government's only practical means of managing competing uses of public facilities[.]' " (Wolfgram v. Wells Fargo
Bank (1997) 53 Cal. App. 4t11 43, 60.
1
107. While the "merit" determination of CCP §391.7(b) coupled with the
2 MC-701 form and appellate forms may be "narrowly drawn" and satisfy due
3
process requirements in the context of civil suits involving licensing requirements
4
5 for baby strollers, it cannot be said that the summary procedure used here by
6
Defendants satisfies due process in the context of "merit" decision involving
7
8 fundamental parental rights.

9
108. In the context of a family law proceeding with an issue of the
10
termination of a parents visitation rights at stake, it cannot be said that the state's
11
12 interest in curbing ''vexatious" litigation and its methods for achieving that
13
legitimate interest is narrowly drawn where Plaintiff and all parents have been
14
15 shut off from the only forum in which the parent can regain his visitation rights.
16
As explained in Boddie and Elkins, an argument for efficacy in managing the
17
18
docket does not justify an infringement of fundamental rights.70This violates his
19 Fourteenth Amendment Due Process rights to a meaningful opportunity to be

20
heard.
21
22 109. Defendants' actions, orders and rulings, taken under color of law
23
individually and in consort, deprive Plaintiff of his rights, privileges or
24
25 70
Boddie, supra, at 401. We are thus left to evaluate the State's asserted interest ht its fee and cost requirements as
26
a mechanism of resource allocation or cost recoupment. Such a justification was offered and rejected in Griffin v.
Illinois, 351 U.S. 12 (1956). *See also, Elkins v. Sup.Ct. of Contra Costa Co., 41 Cal. 4th 1337 (2007), "In other
27 words, court congestion and 'the press of business' will not justify depriving parties of fundamental rights and a
full and fair opportunity to present all competent and material evidence relevant to the matter to be adjudicated ."
28
1
immunities secured to him by the Constitution of the United States in violation of
2 42 U.S.C. §1983.
3
SIXTH CLAIM FOR RELIEF
4
5 The VLS Functions as an Improper Bill of Attainder
6
7
8
9 111. The VLS as applied to custody cases in family law proceedings

10
amounts to an illegal bill of attainder prohibited by the U.S. Constitution Article I,
11
12 Section 9; Clause, which provides "[N]o Bill of Attainder or ex post facto Law
13
shall be passed."71
14
15
112. As applied in custody cases, the VLS changes Plaintiff’s (and all
16 parents) visitation rights in several ways. First, visitation orders that have
17
drastically curtailed or terminated parental rights become "permanent" as the
18
19 result of family law judges’ refusal to grant vexatious parents' "permission" to file
20
challenges to visitation and custody orders. There are cases where the VLS has
21
22 been used to lock parents out of court after terminating all their parental rights.
23
Second, the VLS restricts access and the ability of "vexatious parents" to prove,
24
as noted above, that there has been a "change of circumstance." The effect of
25
26 applying the VLS to custody disputes creates a third series of problems. Those
27
*See Cal. Const. Art. I, section 9: A bill of attainder, ex post facto law, or law impairing the obligation of
71
28
contracts may not be passed.
1
temporary orders depriving parents of custody (which become "defacto
2 termination orders" as a result of being beyond challenge since no access),
3
change parental rights under the Family Code and Title Five Rules. (*As
4
5 explained above in Factual Allegations starting page 31, JUDGE COUNELIS

6
through a “temporary” order made with no due process, “moved-away” Plaintiff’s
7
8 daughter BEFORE an evaluation or minor’s counsel report was completed and

9
since that time, Plaintiff has been denied almost ALL motions for custody and
10
visitation or “changes of circumstances”.) The de facto termination of all parental
11
12 rights for three, four, five years as has occurred to Plaintiff here and to most
13
parents in California and these orders serves to rewrite the "best interest" test of
14
15 Family Code §3011 (how is the termination of all parental rights in the "best
16
interest" of a child?). It negates the requirement for a "detriment" finding before
17
18
parental rights can be terminated under Family Code §3041. The de facto
19 terminations serve to negate a parent's right to ''frequent and continual contact"

20
under Family Code §3040, §3080.72 Plaintiff here and all parents custodial rights
21
22 are thus altered by the VLS that adversely affect them as parents, thus depriving
23
them of custodial rights that other parents in California enjoy.
24
25 113. The Defendants know or should know, as pointed out by Judge

26
Cardoza in In re R.,H., that the VLS is specifically applied to the class of parents
27
•Note: Plaintiff has “seen/visited” with his daughter for all of seven weeks since July 10, 2012. How is THAT
72
28
“close and continuing contact? How is that even a fatherdaughter relationship?
1
in custody disputes. They know or should known that this constitutes a legislative
2 determination that "custody disputes" are unmeritorious motions and that they
3
should be denied before they are even heard despite the fact that custody disputes
4
5 involve fundamental rights and parents have the right to "evidentiary

6
hearings" under Family Code §217 and the right to live testimony under Title
7
8 Five 5.113, 5.250. Their "blameworthy conduct" is nothing more than trying to
9
"regain custody'' as Judge Cardoza stated. The constitutional defects arise from
10
the statutes' text (the prefiling order and security requirements of §391.7) and
11
12 legislatively determining "guilt" without the protections of due process of law as

13
provided by the Family Code and Title Five Rules. Nixon v. Adm'r of Gen.
14
15 Servs., 433 U.S. 425, 468, 97 S.Ct. 2777, 2802, 53 L.Ed.2d 867 (1977).
16
114. Under the prevailing case law, a law is prohibited under the bill of
17
18
attainder clause "if it (1) applies with specificity, and (2) imposes punishment."
19 BellSouth Corp. v. FCC, 162 23 F.3d 678, 683 (D.C. Cir. 1998). The element of
20
specificity may be satisfied if the statute singles out a person or class by name or
21
22 applies to "easily ascertainable members of a group." United States v.Lovett, 328

23
U.S. 303, 315, 66 S.Ct. 1073, 1078-79, 90 L.Ed. 1252 (1946). The Supreme
24
25 Court ruled in that the second element of punishment73 was shown by a

73
The U.S. Supreme Court noted that the question of a statute imposes punishment, a court should pursue a three-
26
prong analysis:( I) whether the challenged statute falls within the historical meaning of legislative punishment; (2)
27
whether the statute, "viewed in terms of the type and severity of burdens imposed, reasonably can be said to
further non punitive legislative purposes"; and (3) whether the legislative record "evinces a congressional intent to
28 punish." Selective Serv. Sys. v. Minn. Pub. Interest Research Group, 468 U.S. 841, 852, I 04 S.Ct. 3348, 3355, 82
L.Ed.2d 632 (1984) (quoting Nixon, 433 U.S. at 473, 475-76, 478, 97 S.Ct. at 2805, 2806-2807, 2808).
1
legislative act that resulted in a father's "deprivation of parental rights" and the
2
3 "opprobrium of being branded a criminal child abuser." Doris R. Foretich, et al.

4
v. United States, 351F.3d 1198 (D.C.App. 2003).74
5
115. In view of Judge Cardoza and Judge Sills statements, it cannot
6
7 reasonably be argued by Defendants that the "vexatious parents" are not being
8
vilified as having "mental disorders" or being "criminal masterminds." This is
9
10
unmistakable evidence of "punitive intent. The public contempt and ignominy for
11
''vexatious litigants," including "vexatious parents," is personified by the "list"
12
maintained for public view, which is the functional equivalent of public pillorying
13
14 in our digital age. The fact that the Judicial Council has created forms, MC-703 &
15
MC-704, which allow vexatious parents to petition to remove themselves from
16
17 the "lists" does not diminish the public shaming.

18
116. Nor can the Defendants reasonably contend that the VLS as applied
19
20
to Plaintiff and all other parents in custody disputes is "nonpunitive" or narrowly
21 drawn. The state may have a legitimate interest in curbing "vexatious" or

22
frivolous litigation in civil cases, but in custody cases the use of the VLS
23
24
25 74
Foretich , supra: In this case, the legislative history is replete with evidence that the statutory purpose of the
26
Elizabeth Morgan Act was to "correct an injustice" and take sides in a notorious custody dispute. Hearing at 8, J.A.
41 (statement of Rep. Molinari). The focus of the Act and the unusual committee hearing in consideration of the
27 bill demonstrate that the legislative process in this case amounted to precisely that which the Bill of Attainder
Clause was designed to prevent: a congressional determination of blameworthiness and infliction of punishment."
28
1
impinges the right to petition and undermines custody rights and has, in some
2 cases, resulted in the termination of all custodial rights of some parents.
3
117. Nor can the Defendants argue that the VLS is narrowly drawn in the
4
5 context of custody disputes where affluent parents can litigate their custody
6
dispute without restrictions and perpetually while impoverished parents who have
7
8 been declared "vexatious" are often denied all access. The state could impose
9
"less burdensome" alternative on ''vexatious parents" simply by limiting the reach
10
of the VLS to "civil cases" as opposed to "family law litigants" (the VLS does
11
12 not reach to "criminal matters" as pointed out in McColm, supra ) or by providing

13
funds for "need-based" fees as recommended by the Elkins Task Force. (*See,
14
15 Nixon, 433 U.S. at 482, 97 S. Ct. at 2810).

16
118. Defendants have violated the state and federal constitution by
17
18
applying the VLS on "vexatious parents," which functions as a bill of attainder.
19 119. In all of this, Defendants have, under color of state law, deprived
20
Plaintiff and all other such parents in similar situations, of rights, privileges or
21
22 immunities security to them by the Constitution of the United States, in violation

23
of 42 U.S.C. §1983.
24
25
SEVENTH CLAIM FOR RELIEF
26
27 The VLS Functions as an Improper Ex Post Law
28
1
3
121. The VLS as applied to custody cases in family law proceedings
4
5 amounts to an illegal ex post fact law prohibited by the state and federal
6
constitutions. (U.S. Const. Article 1, Section 9, Clause 3).
7
8 122. The VLS looks to past litigation to determine "vexatious" conduct,

9
particularly "litigations that have been finally determined adversely" to the person
10
(*See, §391(b)(l) & (2). However, the VLS does not define the term ''finally
11
12 determined adversely"75 and has relied on trial judges and appellate decisions on
13
an ad hoc basis to define the meaning of various terms such as "litigation."
14
15 123. In McColm v. Westwood Park Assn, the Court of Appeals judicially

16
expanded the definition of litigation" under §391(b) to include writs, appeals, and
17
18
petitions. (supra, 1219). But, later appellate courts have retrenched, refusing to
19 define "litigation" under the VLS as including those petitions and writs that are
20
"summarily denied" without ever reaching the "merits". These appellate courts
21
22 have ruled that "summary denials" cannot be counted as "vexatious litigation"

23
because such summary denials do not involve ''final determination," that is, that
24
25 there was no "adverse determination" on the merits of a case. (Fink v. Shemtov

26 75
In Wolfgram, supra at 58, the Court of Appeals riffed that "[Y}et, loss of five suits in but seven years is
27
remarkable. Most people never sue anybody. most people don't sue anyone." The fact that statistic show that 50%
o married couples, many with children, end up in dissolution proceedings seems to be have been lost on the court.
28 In making this observation, Plaintiff illustrate the fact that most courts construe and consider the language of the
VLS in terms of "civil," not "family law" litigations.
1
(2010) 180 Cal. App. 4th 1160).76 (In Leone v. Medical Board (2000) 22 Cal. 4th
2 660, 669, the California Supreme Court explained, "a summary denial of a writ
3
petition on a pretrial issue does not establish the law of the case." ).
4
5 124. The Defendants know or should have known that the state statutes
6
are not to be given a retroactive operation "unless it is clearly made to appear that
7
8 such was the legislative intent." (Kaiser Aluminum & Chemical Corp. v.
9
Bonjorno, 494 U.S. 827, 855 (1990}; Aetna Cas. & Surety Co. v. Ind. Acc. Com.
10
30 Cal. 2nd, 388; ; California Civil Code section 3, declaring "[no] part of [this
11
12 Code] is retroactive, unless expressly so declared."; Calif. Family Code, 4(e)(f) &
13
(g); 5 Witkin, Summary of Cal. Law (8th ed. 1974) Constitutional Law, 288, pp.
14
15 3578-3579.). (Every statute, which takes away or impairs vested rights acquired
16
under existing laws, or creates a new obligation, imposes a new duty, or attaches
17
18
a new disability, in respect to transactions or considerations already past, must
19 be deemed retrospective. Landgraf v. US/ Film Products, 511 U.S. 244, 280
20
(1994)).
21
22 125. The Defendants know or should know that the VLS does not contain
23
any plain or express language that the VLS is to apply (retroactively) to past
24
25 writs, petitions, and appeals. There is no express language in the VLS that
26
Fink, supra at 1172: Although a writ proceeding generally qualifies as a litigation within the meaning of section
76
27
391, subdivision (a) (see McColm v. Westwood Park Assn., supra, 62 Cal.App.4th at p. 1216), for the reasons we
28 next explain, we hold the summary denial of a writ petition does not necessarily constitute a litigation that has
been "finally determined adversely to the person" within the meaning of section 391, subdivision (b)(l).
1
provides that the definition of "litigation" under §391(a) is to include "writs,
2 appeals, and petitions" whether they are "adversely determined" or not adversely
3
determined."77 Nor is a ''vexatious litigant" defined under §39l(a)(l-4) as a person
4
5 acting in propria persona while "filing writs, petitions, or appeals." After the
6
appellate decisions (Fink, Leone, etc.) that "summary denials" of writs or
7
8 petitions cannot count as ''finally adverse determinations" for purposes of the

9
VLS, it's clear that there is no Legislative intention, only judicial legislation, that
10
provides for a retroactive application of the VLS to appeals, writs, and petition
11
12 (whether of civil litigants or family law litigants.).

13
126. The Defendants know or should know that the application of the
14
15 VLS to appeals, writs and petitions will also have a chilling affect on litigants'
16
decision to exercise their right to appeal. As noted by the Wolfgram court, the
17
18
VLS kicks in under §391(a)(l ) after a family law litigant loses their "sixth
19 litigation" in seven years. ( Wolfgram, supra 58; "Only those citizens who decline
20
to hire lawyers, lose five suits in seven years, then undertake a sixth suit which
21
22 lacks merit, will be labeled vexatious. "). Since §391.7(d) defines "motions" that a
23
family law litigant may file as "litigation" for purposes of the VLS, a family law
24
25 litigant involved in a custody dispute could quickly be declared "vexatious" for

26
27
Elsner v. Uveges, 34 Cal. 41ll 915, 928 (2004). CCP §391-§391.7, by changing "the future legal consequences
77
28 of past transactions," so-called secondary retroactivity, a form ofretroactivity, has engaged in improper conduct
unless there is clear intent shown to give the statute retroactive effect.) (emphasis added).
1
"adverse determinations" on requests for visitation, support issues, or even ex
2 parte motions for orders to travel with their minor children.
3
127. The U.S. Supreme Court has held that the Due Process Clause and
4
5 the Taking Clause protect a party's fundamental rights (deprivation of custody

6
rights, right to petition) that may not be compromised by retroactive legislation.
7
8 The Supreme Court has noted that a state may have "sufficient justifications " in
9
giving prospective application to a statute (such as the Vexatious Litigant Statute)
10
but that "may not suffice to warrant its retroactive application" under the Due
11
12 Process Clause. (Landgraf v. USI Film Products, 511 U.S. 244. 265-266, (199).
13
The Landgraf court explained that this is so because a retroactive effect is one
14
15 that "impairs rights a party possessed when he acted." (supra, at 280). Defendants
16
know or should have known this.78
17
18
128. By declaring Plaintiff (and other parents) ''vexatious" on the basis of
19 his writs, appeals, or petition of custody judgments/orders, the Defendants violate

20
the due process clauses (of the 5th and 14th Amendments) by retroactively
21
22 creating liability for Plaintiff’s past conduct in filing writs and motions and other
23
pleadings. At the time Plaintiff (and other parents) filed his writs, appeals, or
24
25 petitions related to custody judgment/orders, he was acting legally and within his
26
27 78
Defendants may argue that the VLS 's prefiling order is not unconstitutional because it only purports to affect
"future filings. However, the determination of "vexatiousness" is based on past conduct, such as the filing of writs,
28
appeals, or petitions. At the time of those filings, the Class Members were acting well within their rights.
1
rights to seek appellate review under the state constitution.79
3
individually and in consort, deprived Plaintiff of his rights, privileges or
4
5 immunities secured to him by the Constitution of the United States in violation of

6
42 U.S.C. §1983
7
EIGHTH CLAIM FOR RELIEF
8
[Plaintiff Against Judge Counelis, Commissioner Olson,
9
Marianna A. Hevia-Cockrell, Juvelyn Aguilar Smith]
10 Claim under 42 U.S.C. §1983, Violation of Civil Rights (42 U.S.C. 1983-
11
Denial of Due Process), Right of Michael Smith to be Free of Unlawful
Administrative Vexatious Litigant Orders For Which Judge Counelis Had
12 No Jurisdiction to Make and Commissioner Olson Had No Jurisdiction to
13 Enforce, Said Orders Initiated and Perpetrated by Juvelyn Auguilar Smith
Through Her Attorney Marianna Hevia Cockrell.
14

16
17
18 131. Plaintiff has argued in this complaint, that the Vexatious Litigant
19
Statute is unconstitutional as applied to parents. JUDGE COUNELIS used this
20
statute to unlawfully impose a $25,000 security bond on Plaintiff on March 9th,
21
22 2012. (•see Factual Allegations starting on page 31 above). Even IF the VLS was
23
lawful as applied to Plaintiff and other parents, there was still not jurisdiction in
24
25 the law to impose a $25,000 bond before filing “any” paper and as explained in
26
the Factual Allegations above.
27
*See, Calif. Const. Section 11 of Article VI, which states that, except when a judgment of death has been
79
28
pronounced, the "courts of appeal have appellate jurisdiction when superior courts have original jurisdiction ...."
1
132. JUDGE COUNELS four months later used this same VLS law and
2 the unlawful imposition of the $25,000 bond to deny Plaintiff due process at a
3
“move-away” hearing, blocking Plaintiff from filing an “FL-320 Responsive
4
5 Declaration” in response to the respondents “move-away motion” and thereafter

6
proceeded to essentially ignore Plaintiff at the hearing. (•again, review Factual
7
8 Allegations starting on page 35 for a full expose of this rights violation).

9
133. JUDGE COUNELIS then violated Plaintiff’s due process rights by
10
making a “temp order” that the minor child shall “remain in VA” pending a 730
11
12 evaluation violating virtually every aspect of due process as explained in the In

13
Re McGinnis appellate ruling. (*see In re Marriage of McGinnis (1992) 7 Cal.
14
15 App. 4th 473 [9 Cal. Rptr. 2d 182] which establishes the rule for due process in
16
“move-away” cases; also refer back to bottom of page 36 and thereafter from
17
18
page 37 as shown above). JUDGE COUNELIS used the unlawful VLS law to
19 block Plaintiff from opposing this hearing and continued to violate case law and
20
Plaintiff’s rights to his child by making an unlawful “temp order” separating
21
22 Plaintiff from his child.80 . (*See, Santosky v. Kramer (1982) 455, 753-754:
23
"The fundamental liberty interest of natural parents in the care,
24 custody, and management of their child does not evaporate simply
25 because they have not been model parents or have lost temporary
custody of their child to the State. Even when blood relationships are
26
27 80
Santosky v. Kramer (1982) 455 U.S. 745; Stanley v. Hlinois (1972) 405 U.S.645, 651; "A parent's interest in the
companionship, care, custody and management of his or her children rises to a constitutionally secured right, given
28
the centrality of family life as the focus of personal meaning and responsibility.")
1
strained, parents retain a vital interest in preventing the irretrievable
2 dissolution of their parental rights have a more critical need for
3 procedural protections than do those resisting state intervention into
ongoing family affairs. When the State moves to destroy weakened
4
familial bonds, it must provide the parents with fundamentally fair
5 procedures."). Santosky v. Kramer (1982) 455, 753-754
6
134. At the Riverside Superior Court Indio, after the case was transferred
7
8 to that Court from Riverside in November of 2012, Plaintiff asked

9
COMMISSIONER OLSON in open court to return Plaintiff’s child to California
10
at the hearing on August 23, 2013. This was the hearing on the return of Minor’s
11
12 Counsel Report, who stated in the last paragraph of the report:

13
"Petitioner and Respondent appear to be suitable parents for Angela
14
and that the daughter is more bonded with the mother".
15
(*see above paragraph thirty-nine on page thirty-eight Factual Allegations for
16
17 explanation of this issue.) Upon Plaintiff’s open-court request on August 23,

18
2013 to “return the minor child to California”, COMMISSIONER OLSON denied
19
20 the request and continued to enforce the unlawful “temp order” of JUDGE
21
COUNELIS in violation of the due process rights of Plaintiff as explained in the
22
23
above case In Re McGinnis.. (*again, see Page 38 Factual Allegations re:
24 McGinnis case cites). On more than one occasion at the numerous hearings in the
25
COMMISSIONER OLSON court, Plaintiff protested that the court was
26
27 unlawfully conspiring with JUDGE COUNELIS to impose the unlawful “temp

28
1
order”. COMMISSIONER OLSON responded by stating that the “Writs” filed
2 by Plaintiff were denied and that the issue is settled. However, the Writ denial is
3
not the “law of the case” and has no bearing in blocking Plaintiff from attacking
4
5 the unconstitutional rulings of the previous court: JUDGE COUNELIS’ Court in

6
Riverside. (In Leone v. Medical Board (2000) 22 Cal. 4th 660, 669, the
7
8 California Supreme Court explained, "a summary denial of a writ petition on a

9
pretrial issue does not establish the law of the case."). Plaintiff AGAIN argued
10
this same issue and motioned COMMISSIONER OLSON to set-aside the “temp
11
12 order” of JUDGE COUNELIS at the trial held on November 24th and 25th, 2014.
13
COMMISSIONER OLSON denied the motion (in the trial brief papers) and
14
15 stated in open court the issue is moot based on the writ decisions. See above In
16
Leone v. Medical Board.
17
18
135. Defendants' actions, orders and rulings, taken under color of law
19 individually and in consort, deprived Plaintiff of his rights, privileges or

20
21
22 42 U.S.C. §1983
23
NINTH CLAIM FOR RELIEF
24 [Plaintiff Against Judge Counelis, Commissioner Olson,
25 Marianna A. Hevia-Cockrell, Juvelyn Aguilar Smith]]
Claim Under 42 U.S.C. §1983, Violation of Civil Rights (42 U.S.C. 1983-
26
Denial Of Due Process), Right Of Michael Smith to Familial Association
27 With His Daughter, Separation of Minor Child To Virginia From
28
California Undertaken Without Consent, Probable Cause,
1
Without Proper Lawful Hearing or Evaluation or Exigent Circumstances
Justifying Separation of Child, Initiated and Perpetrated by
2 Juvelyn Auguilar Smith Through Her
3 Attorney Marianna Hevia Cockrell
4
5
6
7 137. Claim Nine for Relief is an expansion and confirmation of Claim

8
Eight perpetrated on Plaintiff by named defendants using unconstitutional
9
10 vexatious litigant law to promote the removal of child from Plaintiff and block
11
Plaintiff from opposing the unconstitutional “move-away” of child under no due
12
13 process.
14
138. Defendant SMITH/KATE-GREEN originally motioned the Indio
15
Court to impose the unconstitutional (as applied to Plaintiff and all parents in
16
17 family law court) vexatious litigant law at a hearing in 2004. (*see Factual
18
Allegations above, page 31, paragraph 35 and Exhibit 06). For ten years
19
20 Defendant SMITH/KATE-GREEN promoted the “vexatious label” on Plaintiff

21
many times in court and in her moving papers despite M. SMITH obtaining a
22
23
$50,000 (“BK Court voided) judgment against Defendant SMITH/KATE-GREEN
24 for false child abuse allegation. (•see Exhibit 15) . In June of 2012, Defendant
25
SMITH/KATE-GREEN hired defendant ATTORNEY COCKRELL to promote an
26
27 unlawful and unfounded “changed circumstances, move-away” motion to the

28
1
family law court. SMITH/KATE-GREEN filed this motion through her attorney
2 despite being warned a year previously by the Mediation Dept. Mediator Ron
3
Woods “not to file any more modification motions”. (* see Exhibit 14 and
4
5 Exhibit 08) Participating with JUDGE COUNELIS to deny M.SMITH due

6
process, ATTORNEY COCKRELL stated in open court that M.SMITH could
7
8 essentially “participate in the hearing process” if he just filed the $25,000 security
9
bond. (•see above Factual Allegations page 35 at paragraph 37, and see Exhibit
10
11). ATTORNEY COCKRELL proceeded at the July 10, 2012 hearing to make
11
12 numerous false statements and allegations as well as introduce sham/false

13
evidence against Plaintiff, making it impossible for Plaintiff to obtain any due
14
15 process whatsoever at the hearing (•see Exhibit 11)

16
17
18
19 immunities secured to him by the Constitution of the United States in violation of

20
42 U.S.C. §1983
21
22 TENTH CLAIM FOR RELIEF

23
[Plaintiff Against Judge Counelis, Commissioner Olson,
Marianna A. Hevia-Cockrell, Juvelyn Aguilar Smith]
24
25 Denial Of Due Process), Right Of Michael Smith To Familial Association
With His Daughter, and The Continued, On-Going Separation of Minor
26
Child To Virginia From California Undertaken Without Consent, Probable
27 Cause, Proper Lawful Hearing or Evaluation or Exigent Circumstances
28
Justifying The Continued, On-Going Separation of Child.
1
2

4
141. Defendants continued to impose the unlawful “temp order” made on
5
6
July 10th, 2012 under color of law and upon imposition of the unconstitutional
7 vexatious litigant statute, denying Plaintiff familial association through close and
8
continuing contact with his daughter for over two years, ongoing and continuing
9
10 without letup through and including the trial hearing in Indio Court under
11
COMMISSIONER OLSON November 24th and 25th.
12
14
15
16
17 42 U.S.C. §1983
18
ELEVENTH CLAIM FOR RELIEF
19 [Plaintiff Against Superior Court, Judge Counelis,
20 Judge Cope, Commissioner Olson, Marianna A.
Hevia-Cockrell, Juvelyn Aguilar Smith]
21
22 Conspiracy), Conspiracy to Violate Constitution Rights, Deny Due Process
23 and Unlawfully Separate Child From Father and Continue
to Unlawfully Separate Child From Father
24

26
27
28
1
144. Defendants above-named under this claim, each of them and all of
2 them together conspired and continue to conspire to unlawfully separate Plaintiff
3
from his minor child and deny Plaintiff close and continuing contact with his
4
5 daughter under color of law.

6
7

9
10
42 U.S.C. §1985, Conspiracy.
11
12 TWELFTH CLAIM FOR RELIEF

13 Claim Under California Constitution, Declaration of Rights, Deprivation of
State Constitution Rights Under Color of Law, Substantive Due Process, and
14
Procedural Due Process.
15
16

18
147. Defendants have violated the rights of the Plaintiff (and his minor
19
20 child) by denying Plaintiff all California Rights of due process as well as the
21
“Public Policy” right of “close and continuing contact”:
22
23
3020.(b) The Legislature finds and declares that it is the public
policy of this state to assure that children have frequent and
24 continuing contact with both parents after the parents have separated
25 or dissolved their marriage, or ended their relationship, and to
encourage parents to share the rights and responsibilities of child
26
rearing in order to effect this policy, except where the contact would
27 not be in the best interest of the child, as provided in Section 3011.
[From California Family Law Code, Section 3020(a)(b)]
28
1
148. In addition to the 14th Amendment right to due process, the
2 Defendants have violated Plaintiff’s California State Constitution right to due
3
process at Cal. Constitution Article 1, §7: SEC. 7. (a) A person may not be
4
5 deprived of life, liberty, or property without due process of law or denied equal
6
protection of the laws.
7
8 149. The Defendants have violated under color of law, Plaintiff’s right of
9
petition. That right, like the other rights contained in the First Amendment and
10
here in the California constitution Declaration of Rights, is accorded "a
11
12 paramount and preferred place in our democratic system." (American Civil

13
Liberties Union v. Board of Education (1961) 55 Cal.2d 167, 178; The Supreme
14
15 Court has stated:

16
"the rights to assemble peaceably and to petition for a redress of
17 grievances are among the most precious of the liberties safeguarded
18
by the Bill of Rights. These rights, moreover, are intimately
connected, both in origin
19 and in purpose, with the other First Amendment rights of free speech
20 and free press." (Mine Workers v. Illinois Bar Assn. (1967).81
150. The VLS as applied to custody cases in family law proceedings
21
22 amounts to an illegal bill of attainder prohibited by the U.S. Constitution Article I,

23
Section 9; Clause, which provides. "[N]o Bill of Attainder or ex post facto Law
24
25 shall be passed."77 This is ALSO restrained by the California Constitution: See

26
27 81
CALIFORNIA CONSTITUTION: ARTICLE 1 DECLARATION OF RIGHTSSEC. 3. (a) The people have the
28 right to instruct their representatives, petition government for redress of grievances, and assemble freely to
consult for the common good
1
Cal. Const. Art. I, section 9: A bill of attainder, ex post facto law, or law impairing
2 the obligation of contracts may not be passed.82
3
4

6
immunities secured to him by the Constitution of the State of California in several
7
8 sections and resulting in an unlawful denial of “Close and Continuing Contact”

9
under color of law.
10
THIRTEENTH CLAIM FOR RELIEF
11
Claim Against Defendants For All of The Above Claims Presented One
12 Through Twelve That Constitute a Cause of Action and Set Forth All
13 Necessary Elements To Justify a Claim of Negligent and
Intentional Infliction of Emotional Distress.
14

16
17
18
153. This is a Claim by plaintiff against all defendants for intentional and
19 negligent infliction of emotional distress.

20
154. The actions detailed above were culpable, extreme and outrageous,
21
22 malicious, fraudulent, oppressive, reasonably and foreseeably causing M.SMITH

23
severe emotional distress.
24
25 155. M.SMITH parent worked diligently for the first twelve years of the
26
minor child’s life loving and caring for the child, attested to by various parents
27
*See Cal. Const. Art. I, section 9: A bill of attainder, ex post facto law, or law impairing the obligation of
82
28
contracts may not be passed.
1
and other individuals (•see Exhibits 16) who observed M.SMITH with
2 his child, only to have the child “stolen” out of his home unlawfully through color
3
of law by defendants as described in Claims One Through Twelve above and
4
5 based on the “factual allegations” presented pages thirty-one through fifty-one

6
above
7
8 156. In committing the acts described in the above paragraphs as re-

9
alleged herein, the named defendants conspired to foreseeably damage, injure and
10
deprive plaintiff M.SMITH or caused him to be deprived of rights, privileges and
11
12 immunities relating to substantive due process, procedural due process, as well as

13
“close and continuing contact” with his beloved child, causing damage, and injury
14
15 sufficient to provide a basis for a declaratory judgment and injunctive relief.

16
157. The defendants and all of them, conspired to promote upon plaintiff
17
18 a “family law” system composed of activities which constitute Enterprise

19
operations under the Racketeer Influenced and Corrupt Organizations Act of 1970
20
21 (RICO), which allegation and claim plaintiff will expand and develop in a
22
subsequent amended complaint. The defendants and the configurations in
23
which they operate, for purposes of plaintiff RICO §1962(e) Claims for relief,
24
25 constitute an enterprise engaged in, or the activities of which affect, interstate or

26
international commerce as that term is defined pursuant to Title 18 United States
27
28 Code §1961(4) of the Racketeer Influenced and Corrupt Organizations Act of
1
1970 (“RICO”), Odom v. Microsoft Corp., 486 F.3d 541 (9th Cir. 2007) and Boyle
2 v. United States, 129 S. CT. 2237 (2009) collectively “RICO ENTERPRISES”).
3
158. In the publication entitled TAKEN INTO CUSTODY83, (•see
4
5 Exhibit ?? ) by Dr. Stephen Baskerville of Patrick Henry College of Purcellville,

6
VA, Dr. Baskerville describes the operation of this family law enterprise
7
8 throughout the publication and is characterized in the following excerpt from

9
pages twenty-two and twenty-three of the book:
10
“But this begs critical questions. As we will see, the state and its
11
agents are not neutral parties. They have a very tangible interest in
12 declaring such an impasse. It creates a major extension of state power.
13 Through divorce, the modern state achieves one of its most coveted
and dangerous ambitions: to control the private lives of its citizens.
14
15 From the outside, it may not appear at first that the state has invaded
and occupied the family. After all, one party has invited it in. But
16
it is an invasion nonetheless. For through "no-fault" divorce, one
17 parent can now declare unilaterally that the marriage has "broken
18
down" and invite the state in to take control and remove the other
parent without that parent having committed any legal transgression.
19 What the government then offers to the parent who invites it in is the
20 promise that her invitation will be rewarded; the state will establish
her as a puppet government, a satrap of the state within the family.
21
This requires that not the faithless but the faithful parent be punished.
22 Never before has it been considered the legitimate role of state
23
officials to conduct inquisitions into private lives and issue opinions
concerning the state of people's marriages. Until now, the role of the
24 state and judicial system has been to determine if someone has
25 violated the law or a legally binding contract and to apportion
penalties accordingly. The issue for public inquiry and debate then is
26
not the marital difficulties of individuals but under what
27
TAKEN INTO CUSTODY, Published by Cumberland House Publishing, Inc., 431 Harding Industrial Drive,
83
28
Hashville TN 37211-3160 ISBN-13: 978-1-58182-594-7 (hardcover)
1
circumstances the state should be permitted to insert the deadly
force it commands into private households.
2
3 What we are describing here is the divorce industry, a massive and

largely hidden governmental and quasi-governmental machine
4
consisting of judges, lawyers, psychologists and psychiatrists, social
5 workers, child protective services, child-support enforcement agents,
6
mediators, counselors, and feminist groups, plus an extensive host of
economic interests, such as divorce planners, forensic accountants,
7 real estate appraisers, and many others84. These officials and
8 professionals invariably profess to be motivated by concern for the
"best interest" of other people's children. Yet their services are
9
activated only with the dissolution of families and the removal of
10 parents. Whatever pieties they may proclaim therefore, the hard
reality is that they have a concrete interest in encouraging family
11
break-up and virtually all their power and earnings derive from the
12 harm that divorce inflicts on children. "Fights over control of
13 The children," reports one former divorce insider, "are where
most of the billable hours in family court are consumed.85
14
15 Harsh as it may sound, it cannot be denied that these officials are

united by one overriding interest: having children separated from
16
their parents. Without the power to remove children from their
17 parents—and most often their fathers—this industry cannot thrive,
18
and these officials will have no business. And so it must declare that
the parents are criminals and that the fathers have "abandoned" their
19 children, even when this is plainly not true. Put simply, the first
20 principle of the divorce industry, the basic premise without which it
has no reason to exist, is the removal of the father from the family.
21
Once this is accomplished, the state is free to assume control over
22 mothers and children as well.
23
The linchpin of the divorce machinery is the family court, a
24 relatively new institution that has arisen over the past four decades.
25 Most people expect courts to serve as a remedy for injustices against
citizens and the exploitation of their children. More often they are
26
27 RICO Enterprise
84
Judy Prejko, Stolen Vows: The Illusion of No-Fault Divorce and the Rise of the American Divorce Industry
85
28
(Collierville, Tennessee: InstantPublisher, 2002), p. 99
1
accomplices in the act. Far from punishing child abduction, the courts
reward it. In effect, they take part in it. This is how divorce attorneys
2 and judges generate business. The rapacity of the legal industry is now
3 the stuff of popular legend. Yet it is usually assumed that while
divorce lawyers profit from family breakdown, they do not actually
4
cause it. It is no longer tenable to accept this.
5
6
Family courts are the lowest in status in the judicial hierarchy and
little more than branches of an extensive bureaucratic apparat. Yet
7 they possess some of the most sweeping powers. Many operate behind
8 closed doors and leave no record of their proceedings, virtually free of
oversight or accountability. Supreme Court Justice Abe Fortas once
9
described them as "kangaroo" courts, and many others have done
10 the same since.86 In the name of family law they can and do freely
violate major articles of the Bill of Rights and other provisions of the
11
Constitution and international human rights conventions. Their first
12 function is to remove children from parents who have done
13 nothing legally wrong.
14
Some see the abuses of family court as part of a larger destruction of
15 the family, individual rights, and the entire sphere of private life by
the modern state in general and the judiciary in particular. What is
16
happening in family courts will be recognized by many as but one
17 example of the larger violation of fundamental constitutional rights by
18
the very tribunals that should be their foremost guardians. "The legal
system .is increasingly run for the enrichment of lawyers and not for
19 the public," writes columnist Robert Samuelson. "Lawyers have
20 fostered a system that works ponderously, intensifies conflict, and
creates uncertainty."87
21
22 159. The defendants, operating through a racketeering enterprise as

23
described in the above excerpt from “Taken Into Custody”, have conspired to
24
cause plaintiff (and his daughter) extreme emotional distress separating them over
25
In Re Gaulit, 387 U.S. 1, 27-28 (1967)
86
26
Robert Samuelson, "Hustling the System," Washington Post, 23 December 1992, p. A17; Wall Street Journal
87
27
editorial, 24 June 1999; Walter Olson, "Lawyers, Gums, and Rummies: Why Do We Hate Attorneys," Reason,
July 1999. The American Bar Association confirms that the public regards lawyers as "greedy, manipulative and
28 corrupt." Mary Gallagher, "ABA Survey Finds
Lawyers Among Lowest-Regarded U.S. Professions," New Jersey Law Journal, 7 May 2002.
1
3,000 miles for no valid reason whatsoever and now ongoing for close to two and
2 one-half years.
3
IX. REQUEST FOR RELIEF
4
5 WHEREFORE, Plaintiffs pray that the Court order the following relief and
6
remedies:
7
8 01). Issue a judicial declaration that California's Vexatious Litigant

9
Statute, on its face, violates a parent's rights under the Due Process Clause of the
10
14th Amendment.
11

13
Statute, as applied to parents in custody disputes in family law courts, violates a
14
15 parent's rights under the Due Process Clause of the 14th Amendment.
16
03). Issue a judicial declaration that California's Vexatious Litigant
17
18
Statute, as applied to parents in custody disputes in California family law courts,
19 violates the Equal Protection Clause of the 14th Amendment.

20
21
22 Statute, on its face and as applied to parents in custody disputes in California

23
family law courts, is void for vagueness under the 14th Amendment.
24

26
Statute as applied to parents in custody disputes is an improper ex post facto law.
27
28
1
2 Statute, on its face and as applied to parents in custody disputes, is an improper
3
bill of attainder.
4
5 07). Issue a judicial declaration that the "vexatious litigant" orders issued
6
by judicial officers under California's Vexatious Litigant Statute were made in
7
8 excess of their jurisdiction.

9
08). Issue a judicial declaration that the $25,000 “security bond” imposed
10
by JUDGE COUNELIS as against Plaintiff on March 9th, 2012 was unlawful.
11
12 09). Issue a judicial declaration that the action of JUDGE COUNELIS

13
based on the unlawful imposition of a $25k security bond in blocking Plaintiff’s
14
15 filing of an FL-320 Responsive Declaration opposition motion was a violation of

16
due process.
17
18
10a). Issue a judicial declaration that the action of JUDGE COUNELIS
19 based on the unlawful imposition of a $25k security bond on March 9th, 2012 in
20
blocking Plaintiff’s filing of an FL-320 Responsive Declaration opposition
21
22 motion in advance of the July 7th, 2012 “move-away” hearing was a violation of
23
due process.
24
25 10b). Issue a judicial declaration that the action of JUDGE COUNELIS

26
based on the unlawful imposition of a $25k security bond on March 9th, 2012 in
27
blocking Plaintiff’s filing of an FL-320 Responsive Declaration opposition
28
1
motion in advance of the July 7th, 2012 “move-away” hearing was a civil rights
2 violation.
3
11a). Issue a judicial declaration that the “temp order” of JUDGE
4
5 COUNELIS “moving” the minor child to Virginia without a hearing was a

6
violation of due process.88
7
8 11b). Issue a judicial declaration that the “temp order” of JUDGE

9
COUNELIS “moving” the minor child to Virginia without a hearing was a civil
10
rights violation.
11
12 12). Issue a judicial declaration that the action of COMMISSIONER

13
OLSON to conspire with JUDGE COUNELIS and continue the separation
14
15 of the minor child from Plaintiff constitutes a civil rights violation.89

16
13). Issue a judicial declaration that the actions of JUDGE COUNELIS,
17
18
COMMISSIONER OLESON, JUDGE COPE AND JUSTICE RAMIREZ
19 imposing the VLS upon Plaintiff constitute violations of the 14th Amendment due
20
process and equal protection provisions (and comparable California Constitution
21
22 sections) as explained in this complaint.

23
88
"Dad makes what he submits is a strong argument that to allow a parent to relocate with minor children in the
24 absence of such a 730 report (if it is requested) violates the due process rights of the non-moving parent "[In re
Marriage of McGinnis (1992) 7 Cal.App.4th 473, 9 Cal.Rptr. 2d 182].
25 89
"The fundamental liberty interest of natural parents in the care, custody, and management of their child does not
evaporate simply because they have not been model parents or have lost temporary custody of their child to the
26
State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable
27
destruction of their family life. If anything, persons faced with forced dissolution of their parental rights have a
more critical need for procedural protections than do those resisting state intervention into on going family affairs.
28 When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair
procedures. " [Santosky v. Kramer (1982) 455, 753-754:]
1
14). Issue a judicial declaration that the actions of JUDGE COUNELIS,
2 COMMISSIONER OLESON, JUDGE COPE AND JUSTICE RAMIREZ
3
imposing the VLS upon Plaintiff and using those impositions to deny Plaintiff
4
5 the filing of “paper” in the Family Law Court and the Appellate Court constitute
6
denial of due process and a civil rights violation.
7
8 15). Issue a judicial declaration that the actions of JUDGE COUNELIS,

9
COMMISSIONER OLESON, JUDGE COPE AND JUSTICE RAMIREZ
10
imposing the VLS upon Plaintiff and using those impositions to separate Plaintiff
11
12 from his minor child for over two years constitute a civil rights violation.
13
16a). Issue a judicial declaration that the action of the parent
14
15 SMITH/KATE-GREEN motioning the Family Law Court to impose the VLS on

16
Plaintiff constitute denial of due process, fraud and a civil rights violation.
17
18
16b). Issue a judicial declaration that the action of the ATTORNEY
19 COCKRELL conspiring with client SMITH/KATE-GREEN to impose the VLS

20
on Plaintiff constitutes denial of due process, fraud and a civil rights violation.
21
22 17). Issue a judicial declaration that the action of the ATTORNEY

23
COCKRELL conspiring with client SMITH/KATE-GREEN and JUDGE
24
25 COUNELIS to impose the VLS on Plaintiff and block Plaintiff from filing an FL-
26
320 Responsive Declaration opposition motion constitutes denial of due process,
27
fraud and a civil rights violation.
28
1
18). Issue a judicial declaration that the action of the ATTORNEY
2 COCKRELL conspiring with client SMITH/KATE-GREEN and JUDGE
3
COUNELIS to “move-away” the minor child to Virginia with no hearing and no
4
5 live-testimony constitutes denial of due process, fraud and a civil rights violation.
6
19). Issue a judicial declaration that the actions of SMITH/KATE-
7
8 GREEN and COMMISSIONER OLESON to “continue” the “move-away” and

9
separation of the Plaintiff from the minor-child for over two years90 constitutes
10
denial of due process, fraud and a civil rights violation.
11
12 20). Issue an injunction that the Riverside County Superior Court, Family
13
Law Division JUDGE COUNELIS AND COMMISSIONER OLSON may not
14
15 enforce the unlawful “temp order” of JUDGE COUNELIS, moving the minor
16
child to Virginia (and now residing in Florida), that the child shall be returned to
17
18
the care and custody of the Plaintiff as existed under the Court order of April 2011
19 and issue this injunction upon the separate motion of Plaintiff to this Court.
20
21
22
23
24 90
(*See, Stanley v. Illinois; Sankosky v. Kramer). In Troxel v. Granville, 530 U.S. 57 (2000), the Supreme Court
reiterated the long-standing policy that "the oldest fundamental liberty interests recognized by this Court," is "the
25
interest of parents in the care, custody and control of their children." The Supreme Court held that the Due Process
26
Clause of Amendment 14 "includes the right of parents to 'control the education of their own'." (supra, 65, quoting,
Meyer v. Nebraska (1923) 262 U.S. 390, 3900). The Granville court further reaffirmed its holding in Pierce v.
27 Society of Sisters, (1925) 268 U.S. 510, which held that a parent's protected liberty interest "includes the right to
'direct the upbringing and education of children under their control'.
28
1
2 Statute does not apply to attorneys of vexatious litigants, by definition, and under
3
any circumstance.
4
5 22). Award Plaintiffs costs and expenses, including reasonable attorney's

6
fees under 42 U.S.C. §1988; if and where appropriate and applicable.
7
8 23) Order each Defendant where lawful, applicable and appropriate to

9
compensate Plaintiff (individually or jointly) for the loss of income as well as the
10
costs of litigation since March 9th, 2012. During this time Plaintiff’s life has been
11
12 “on-hold” over two years, opposing actions of Defendants applying unlawfully

13
the VLS upon Plaintiff in Family Law Court as well as in separating and
14
15 continuing to separate his minor child from him under “color of law.”91 (•see also
16
FN 89)”.
17
18
24). Award such further and additional relief as is just and proper.
19
X. JURY TRIAL REQUESTED
20
21 In accordance with Fed. R. Div. P. 38(b), and District Local Rule, Plaintiff
22
hereby requests a jury trial on all issues triable by a jury.
23
Family law today represents the most massive civil rights abuses and the most intrusive perversion of
91
24
government power in our time. Not since the internment of Japanese-Americans during World War I1 have we
seen mass incarcerations without trial, without charge, and without counsel, and what is happening today is on a
25
much larger scale. Not since segregation have we seen the highest levels of government complying with the
violation of the civil rights of vast numbers of American citizens. Never before have the president and vice
26
president of the United States, along with cabinet figures and members of Congress from both parties, used their
27
office as a platform to publicly demonize millions of private citizens who have no opportunity to reply in their
own defense. And never before has the "health" secretary commanded a gendarmerie of almost 60,000
28 plainclothes agents, some of them armed, whose sole purpose is to oversee the family lives of citizens. [Page 25,
TAKEN INTO CUSTODY, Dr. Stephen Baskerville]
1
Certification
This 117-page 1st Amended Complaint prepared for filing on December 8th, 2014
2 was prepared in Times New Roman, 14-point type, according to Microsoft Word
3 Count for Macintosh (Office 1998) and it contains approximately 27,000+ words
4
Addendum
5 [01] Please see attached Memorandum on Issues of Law as relates to this
6
complaint. [To be filed Friday 12/12/14 or soon thereafter]
[02] Please see attached Declaration on issues of Sovereignty, Sovereign
7 Immunity, Judicial Immunity and 11th Amendment Immunity. [To be filed Friday
8 12/12/14 or soon thereafter]
9
Sunday, December 7, 2014
10
Respectfully Submitted:
11
12 Michael Walden Smith ________________________

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

1st Amended Complaint

Hochgeladen von

Dokumentinformationen

Copyright

Verfügbare Formate

Dieses Dokument teilen

Dokument teilen oder einbetten

Freigabeoptionen

Stufen Sie dieses Dokument als nützlich ein?

Sind diese Inhalte unangemessen?

Copyright:

Verfügbare Formate

1st Amended Complaint

Hochgeladen von

Copyright:

Verfügbare Formate

1

Michael Walden Smith, In Pro Se

9 MICHAEL SMITH, an Individual Case No: EDCV14-01413-VBF (DTB)

13 IV. INTRADISTRICT ASSIGNMENT.........................................Page 11

16 VI. STATUTORY AND REGULATORY FRAMEWORK...........Page 15

16 THIRTEENTH CLAIM FOR RELIEF...................................Page 105

20 IX.. REQUEST FOR RELIEF........................................................Page 110

22 X. JURY TRIAL REQUESTED...................................................Page 116

24 Continued next page

5 action, against the named Defendants for two forms of relief.

12 391-391.8). Plaintiff hopes to overturn this law as it applies to family law

15 challenges the constitutionality of the VLS as it is applied in the context of family

19 Plaintiff’s fundamental custody rights.1

5 4. Plaintiff understands the state's need to manage its docket, preserve

19 law courts is not rational and certainly not compelling.4

15 custody disputes is doubly unjustified.6

19 emergency removal) by Children’s Protective Service, only to have the child

15 COMMISSIONER OLSON in June of 2014. Refusing the filing of these motions

5 relationship it can only be attributed to the absence of wisdom, an abundance of

18 9. Jurisdiction is based on 28 U.S.C §1331, §1332, and §1343 for a

8 Eastern Division of the Central District of California, because a substantial part of

11 Central District of California

18 Riverside in this district.

21 13. Defendant California Judicial Council is a state agency that is

5 14. Defendant Chief Justice Cantil-Sakauye (JUSTICE CANTIL-

12 §12131(1)(A) & (B). Defendant JUSTICE CANTIL-SAKAUYE is sued in her

15 15. Defendant Judge Steven Jahr (JUDGE JAHR), the Administrative

22 Judicial Council, are to interpret policies, allocate financial resources to achieve

5 (RIVERSIDE SUPERIOR COURT), in its function as a municipal entity, is a

8 County of Riverside and this District.

15 officials by the citizens of Riverside County depending on the circumstances.

25 OLSON) is a Commissioner of the RIVERSIDE SUPERIOR COURT, and at all

15 official and administrative capacity.

25 JUSTICE RAMIREZ is sued in his official and administrative capacity.

8 VI. STATUTORY AND REGULATORY FRAMEWORK

22 motion or the motion of any party," is authorized to impose ''prefiling orders" on

12 "Litigation" for purposes of vexatious litigant requirements

8 Although we are sympathetic to the need of trial courts to process the

17 theme" of cases that have invalidated fast-track rules, supra 1353

12 Law court with Commissioner Gregory.

13 "special care taken to accommodate self-represented family law litigants " is to

20 for litigants, many of whom are self-represented."

11 On April 23, 2010, the Judicial Council adopted the recommendations.18

12 against "broad interpretations" of the VLS, supra, 557:

8 As the appellate court below remarked: "We sympathize with the

15 suffers "mental disorders" or is a "criminal masterminds." Third, it is not the

8 All Luckett's declaration shows is that, instead of devoting his life to

20 disputes and a quick fix to managing their dockets.

20 was tantamount to an injunction under Code of Civil Procedures §553, which

25 ground both financially and psychologically.

25 unconstitutional application of the Vexatious Litigant law on Family Law litigants

28 statement of decision. At the end of that hearing, JUDGE COUNSELIS imposed

15 specifies the rules for a motion by a judge to impose security as follows:

15 amount of security. JUDGE COUNELIS failed to provide that due process.

15 Denial of Due Process of Plaintiff at Custody Hearing Due to VLS Law

25 COCKRELL stating in open court as follows:

3 ATTORNEY COCKRELL, and SMITH/KATE-GREEN to violate Plaintiff’s

7 Law Court. (*see Exhibit 11)

20 a separate motion for an injunction of the unlawful order “temp-move-away” by

24 “move-away” may NOT occur UNTIL an evaluation (or equivalent) is completed

27 10th, 2012 as Plaintiff alleges and Plaintiff had no opportunity to file an

8 "Dad makes what he submits is a strong argument that to allow a

12 [1a] A custody decision allowing a parent to remove the children out

3 Mediation is mandatory in a "move away" case. (Civ. Code, § 4607.)