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No. 13-17170
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UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT
_______________________________________________
RON PIERCE, et al.,
Plaintiffs-Appellants,
v.
CALIFORNIA CHIEF JUSTICE CANTIL-SAKAUYE, et al.,
Defendants-Appellees.
_______________________________________________
Appeal from U.S. District Court for the Northern District of California
Civil Case No. C 13-01295 JSW (Honorable Jeffrey S. White)
_______________________________________________
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PLAINTIFFS-APPELLANTS
OPENING BRIEF
_______________________________________________
Archibald Cunningham
State Bar No. 210625
1489 McAllister St.
San Francisco, CA 94115
archcunnghm@yahoo.com
415 563.1828
Attorney for Appellants/Plaintiffs
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TABLE OF CONTENTS
INTRODUCTION... 1
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STATEMENT OF JURISDICTION. 8
STATEMENT OF ISSUES PRESENTED FOR EVIEW8
PERTINENT LEGAL PROVISIONS. 10
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STATEMENT OF THE CASE. 11

STATEMENT OF FACTS. 15
STATUTORY AND REGULATORY FRAMEWORK.. 15
STANDARD OF REVIEW. 31
ARGUMENT 32
I. Strict Scrutiny Review Is Required Here In Family Law Proceedings
Implicating Fundamental Custody Rights. 32
A. District Court Ruling. 32
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B. District Courts Use of Rational Basis Review Predicated on

Erroneous View of Fundamental Rights.. 33
1. District Courts Ruling that Fundamental Rights Are To Be
Protected Only If Fully, Finally and Irrevocably Terminated
Is Error. 33
2. The Distinction Between Loss of Custody and Termination of

Parental Rights Was Not A Factor Announced in M.L.B. v. S.L.J
for Determining the Level of Scrutiny 34
3. The District Courts Reliance on In re R.H. to Deny Strict
Scrutiny Is Misplaced. 38
C. Child Custody Cases Are Inherently Different From Civil Cases40

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D. Heightened Level of Scrutiny Is Required Given The Infringement of

Fundamental Parental Rights.. 43
1. Denial of Fundamental Rights, Boddie And Its Progeny.. 43
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2. Wolfe v. George, Selecting the Appropriate Level of Scrutiny.. 45

3. Wolfe v. George, Applying the Selected Level of Review.. 47
a. Due Process Clause. 48

b. Equal Protection Clause. 48
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E. District Court Deference To Wolfes Rational Basis Review

Without Examining Facts Related to Custody Disputes Was
Reversible Error. 48
1. The VLS Violates Parents Substantive Due Process Rights 48
2. No Compelling Interest Justifying Due Process Violations In

Custody Cases 50
3. The VLS Violates Equal Protection In Custody Cases 50
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CONCLUSION 53
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TABLE OF AUTORITIES
Federal Cases
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Berger v. City of Seattle, 569 F.3d 1029 (9th Cir. 2009).31

Berry v. Department of Social Services, 447 F. 3d. 643.31
Boddie v. Connecticut, 401 U.S. 371, 383 (197. 2, 4, 13, 7, 37, 43-47, 49, 50
Clark v. Jeter, 486 U.S. 456, 461 (1988).45
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Cogswell v. City of Seattle, F.3d 809 (9th Cir.2003)...34

Grayned v. City of Rockford, 408 U.S. 10430
Griffin v. Illinois, 351 U.S. 12 (1956).... 13
Gutierrez v. Municipal Court, 838 F. 2d 1031, 1035 (9th Cir. 1988)..34
Harper v. Virginia Bd of Elections, 383 U.S. 663 (1966).. 44
Mayer v. City of Chicago, 404 U.S. 189 (1971). 44
Meyer v. Nebraska (1923) 262 U.S. 390.. 36
Miller v Johnson, 515 US 900, 904 (1995)..5
Mitchell v. Cuomo, 748 F.2d 804, 806 (2nd Cir. 1984)..34
M.LB v. S.L.J., 519 U.S. 102 (1996).. 33-37, 39, 40, 44, 49
Ortwein v. Schwab, 410 U.S. 656 (1973)... .45, 46, 47, 49
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Pierce v. Society of Sisters, (1925) 268 U.S. 51036

Reno v. Flores, 507 U.S. 292 (1993)35
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Rosenbaum v. City & County of San Francisco, 484 F.3d 1142(9th Cir.2007).32
Santosky v. Kramer (1982) 455 U.S. 745......4, 11, 18, 37, 40, 49, 52
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Troxel v. Granville, 530 U.S. 57 (2000),36, 40, 49

Stanley v. Illinois 405 U.S. 645 (1972).4, 11, 24, 36, 40, 49
United States v. Harding, 971 F. 2d 410 (9th Cir.1992)31
United States v. Kras, 409 U.S. 434, (1973)..45, 46, 47

United States v. Sahhar, 56 F.3d 1026 (9th Cir. 1995).31
Washington v. Glucksberg, 521 U.S. 702 (19xx)..35
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Weber v. Aetna Casualty & Surety Co., 406 U.S. 164 (1972). 37
West v. Atkins, 487 U.S. 42. 6, 33, 34
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Wolfe v. George, 486 F.3d 1120 (9th Cir. 2007)..3, 6, 7, 32, 40, 42, 45, 47, 48,
51, 52
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Wolfe v. Strankham 391 F.3d 358 (9th Cir. 2004).2
State Cases
Yoder v. Wisconsin 406 U.S. 205 (1972)..38
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Camerado Ins. Agency, Inc. v. Sup. Ct. (1993) 12 Cal. App. 4th 838. 16, 17
City of Long Beach v. Bozek (1982) 31 Cal. 3rd 528. 10
Elkins v. Sup. Ct. (2007) 41 Cal. 4th 133713, 17, 19, 20, 21, 22, 26, 27, 28, 50
Forrest v. Department of Corporations (2007) 150 Cal.App.4th 183...38
In re Bittaker (1996) 55 Cal. App. 4th 104..4
In re R. H.,170 Cal. App. 678...17, 25, 33, 38, 39, 40
Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536...25, 26
Lammers v. Superior Court (2000) 83 Cal.App.4th 1309.. 12, 50
Luckett v. Panos (2008) 161 Cal.App.4th 77. 25, 26, 27, 28, 30
McColm v. Westwood Park Assn. (1998) 62 Cal. App. 4th 1211..16
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PBA, LLC v. KPOD, Ltd. (2003) 112 Cal. App. 4th 965...29, 30
Shalant v. Girardi (2011) 51 Cal. 4th 1164.. .2, 3, 25, 38, 47
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Shalant v. Girardi (2010) 183 Cal. App. 4th 5453, 24, 25, 26, 50
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Wolfgram v. Wells Fargo Bank (1993) 53 Cal. App. 4th 43..12, 25, 29, 30
STATE STATUTES
CCP 391.1, 4, 5, 7-16, 10-16, 20-22, 36, 39-43, 40, 47, 48, 50, 51
CCP 391.1. 15, 16, 23, 41, 42, 51
CCP 391.2.15, 51
CCP 391.3..17
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CCP 391.7.1, 15, 22

CCP 391.7(a)..1, 16
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CCP 391.7(b)1
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CCP 391.8.. 29
Evid. Code 60126
Evid. Code 604 26
Family Code 3040.. 52
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FEDERAL RULES OF CIVIL PROCEDURE
FRAP 4(A)(iv)...9
FRCP 59(e)...7, 33
FEDERAL STATUTES
28 U.S.C. 1331.8
28 U.S.C. 1291.8
U.S. CONSTITUTION
1st Amendment9, 12, 13
CALIFORNIA CONSTITUTION
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14th Amendment.2, 3, 5, 6, 9-11, 13, 19, 20, 22, 31, 35, 36, 39, 42, 43
46-48, 50
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Cal. Const. Art. I, 3(a) 10
Cal. Const. Art. I, 10.9
Cal. Const. Art. I, 11..4
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Cal. Const. Art. I, sec 7(b)..10
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INTRODUCTION
The class members here are parents, both mothers and fathers, who
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have been declared vexatious under the California Vexatious Litigant
Statute. These parents were declared vexatious during litigation in their
on-going and protracted custody disputes. After being declared vexatious
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on motions by the attorney for the other parent/ex-spouse, the vexatious

parent then is subject to a prefiling order pursuant to 391.7 of the
Vexatious Litigant Statute. 1 (VLS). Before the vexatious parent is allowed
to file any new pleadings while acting in propria persona, the parent must
first obtain permission from the presiding judge. 2 If there is merit to the
custody motion or the appeal of a custody order, the presiding judge will
then grant the self-represented parent permission to file motions or appeal.
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On the other hand, those vexatious parents who can either hire an attorney
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1 VLS 391.7(a): In addition to any other relief provided in this title, the
court may, on its own motion or the motion of any party, enter a prefiling
order which prohibits a vexatious litigant from filing any new litigation in
the courts of this state in propria persona without first obtaining leave of the
presiding justice or presiding judge of the court where the litigation is
proposed to be filed. Disobedience of the order by a vexatious litigant may
be punished as a contempt of court.
2 VLS 391.7(b): The presiding justice or presiding judge shall permit the
filing of that litigation only if it appears that the litigation has merit and has
not been filed for the purposes of harassment or delay. The presiding justice
or presiding judge may condition the filing of the litigation upon the
furnishing of security for the benefit of the defendants as provided in Section
391.3.
Appellants Opening Brief-1
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or are fortunate enough to find a pro-bono attorney, are shielded from the
reach of the VLS. (Shalant v. Girardi (2011) 51 Cal. 4th 1164). 3
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In any event, before a vexatious parent is granted the right to file or
finds an attorney, the parent is denied full and immediate access to the
only forum the state of California provides for the resolution of its custody
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dispute. 4 Unlike vexatious parents, a represented parent has immediate

and full access to family law courts, the state-monopolized forum for
resolving their fundamental relationships 5 (their custody disputes). In the
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The California Supreme Court in Shalant ruled, supra, at 1167: We agree

with the Court of Appeal. By its unambiguous terms, section 391.7,
subdivision (a) authorizes only a prefiling order prohibiting a vexatious
litigant from filing new litigation without prior permission, and only
when the litigant is unrepresented by counsel. Subdivision (c) of the section
provides that the court clerk shall not file any such litigation without an
order from the presiding judge permitting the filing, and if the court clerk
mistakenly files the litigation without such an order, the litigation is to be
dismissed.
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Boddie v. Connecticut (1971) 401 U.S. 371, 376-37: 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 are denied access to its use, stands unimpaired
where recognized, effective alternatives for the adjustment of 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 of
resolving the dispute at hand, and denial of a defendant's full access to that
process raises grave problems for its legitimacy. (emphasis added).
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Boddie, supra, at 382-383: We do not decide that access for all individuals
to the courts is a right that is, in all circumstances, guaranteed by the Due
Process Clause of the Fourteenth Amendment so that its exercise may not be
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instant case, one self-represented parent, Adil Hiramenk, was denied

permission by the presiding judge to appeal a family law judges order
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that enjoined him from having any contact with his minor children, until
midnight on August 24, 2062, that is, for 50 years. (Complaint, 57, ER-
15, pg 7/7-8). While the Court of Appeals in Shalant v. Girardi found that
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the VLS has been narrowly drawn by courts to survive constitutional

challenges and to avoid impinging on the right to access to courts, 6
neither the Supreme Court nor the Court of Appeals in Shalant considered a
constitutional challenge brought by a vexatious parent in a custody case.
In essence, the California courts and Ninth Circuit in Wolfe v. George,
486 F.3d 1120 (9th Cir. 2007) have upheld constitutional challenges to the
VLS that were brought by civil litigants. But these courts have never ruled
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placed beyond the reach of any individual, for, as we have already noted, in
the case before us, this right is the exclusive precondition to the adjustment
of a fundamental human relationship. The requirement that these
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 the right to dissolve this legal relationship without affording all
citizens access to the means it has prescribed for doing so. (emphasis
added)
6
Shalant v. Girardi (2010) 183 Cal. App. 4th 545, 566: But taken as a
normative claim--that section 391.7 should be interpreted broadly--the
statement is 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 impermissibly invade the right of access to the courts. (emphasis added).
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on a constitutional challenge brought by vexatious parents embroiled in

custody disputes in family law proceedings. There are two significant and
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material distinctions between civil litigants and parents in custody disputes.
First, these Class Members/parents, unlike your garden-variety vexatious
civil litigant, are enmeshed in litigation touching on their fundamental
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parental rights. (Santosky v. Kramer (1982) 455 U.S. 745; Stanley v. Illinois
(1972) 405 U.S. 645). Second, these Class Members, like the married couple
seeking a divorce in Boddie v. Connecticut, can only resolve their custody
cases (their fundamental relationship) in the state-created forum that is a
family law court. 7
In their complaint, the Class Members were quite emphatic in calling

attention to these fundamental distinctions between civil litigants and parents
in custody disputes. However, no sooner had they filed their civil rights suit
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In In re Bittaker (1996) 55 Cal. App. 4th 1004, the Court of Appeals did
not address an inmates constitutional challenge to the VLS. Instead, the
court ruled that [A] petition for writ of habeas corpus is not a civil action
or proceeding within the meaning of the vexatious litigant statute. (supra,
at 1012). The inmate argued that applying the VLS to a habeas corpus
proceeding violated Cal. Const. Art. I, 11, which provides that habeas
corpus could not be suspended unless required by public safety or in cases
of rebellion or invasion. Petitioner argues that application of the vexatious
litigant statute to habeas corpus proceedings is prohibited by the California
Constitution, which provides, "Habeas corpus may not be suspended unless
required by public safety in cases of rebellion or invasion." (Cal. Const., art.
I, 11.) Because we hold that on its face section 391 does not apply to
habeas corpus proceedings, it is unnecessary and would be inappropriate for
us to address the constitutional challenge.
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with its Due Process and Equal Protections challenges to the VLS, than the
Attorney General filed a motion to dismiss on April 15, 2013. (ER-15). The
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Attorney General, in the Defendants Motion to Dismiss Plaintiffs
Complaint for Injunctive and Declaratory Relief, argued that the Ninth
Circuit in Wolfe v. George rejected the same constitutional challenges that
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the Class Members made here. (ER 14, pg. 8/19; ER-172). The Attorney
General did not address the issue of whether custody disputes implicate
fundamental parental rights. 8 Nor did the Attorney General dispute that
state-created family law courts are the only forum the parents have to
resolve their custody disputes. Instead, the Attorney General merely asserted
that the [P]laintiffs equal protection claims are foreclosed by Wolfe. (ER
14 pg. 9/2-3, ER pg. 173). By ignoring any violation of fundamental custody
rights, the Attorney General then paved the way to assert that rational basis
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review, which the Ninth Circuit applied in Wolfe, was the standard that is
likewise appropriate in this case. (*ER 15 pg. 8/15-18, ER pg. 179).
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The district court judge also concluded that dismissal of the suit was
in order, ruling that Wolfe foreclosed their Equal Protection, Due Process,
and First Amendment rights are foreclosed by George. (*See, August 13,
In the same way, the Attorney General did not address the issue of whether
the VLS created a suspect classes, such as represented parents as opposed to
unrepresented vexatious parents.
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2013 Order Granting in Part, and Denying, in Part, Motion to Dismiss, and
Denying As Moot Motion for Preliminary Injunction, ER 6, pg. 8/24-28; ER
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55). However, the district judge took a different approach in arriving at his
ruling. He did not quibble over the issue of whether rational basis review or
a heightened scrutiny was called for. Instead, he cited West v Atkins 9 for the
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proposition that a claim under section 1983 will not stand unless, 1) a right
secured by the Constitution or laws of the United was violated and (2) that
the alleged violation was committed by a person acting under the color of
state law. (ER 6, pg. 8/15-22; ER 55). In his unique and novel approach,
Judge Jeffrey S. White ruled that the parents section 1983 civil rights suit
failed because none of the Plaintiffs has had their parental rights fully,
finally, and irrevocably terminated. (ER 6, pg. 10/24-25; ER 57). In relying
on Wolfe v. George, the district court implicitly adopted that courts rational
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review analysis.
The first material question in this appeal, then, is whether the district
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court erred in failing to apply heightened scrutiny review in determining

whether the Class Members due process right to access was violated by the
use of VLS in custody disputes. While the Class Members asserted it was
clear error under FRCP 59(e) not to apply a heightened scrutiny approach,
West v. Atkins, 487 U.S. 42, 48.

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the district court judge denied their motion. In his October 4, 2010 Order
Denying Motion to Amend Judgment Under FRCP 59(e), the judge stated
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that he found that rational basis review applied, relying on Wolfe v.
George, 486 F3d 1120, 1226 (9th Cir. 2006). (ER 2, pg. 3/14-18; ER 6).
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litigants. 10 (ER 2, pg. 3/16-17; ER 6).
The district court further found that [T]he VLS applies to all pro se
In his view, apparently, the district court judge believes that there is
no legal distinction between civil litigants and parents caught up in custody
disputes. In Wolfe v. George, the Ninth Circuit, in choosing between either a
rational basis or heightened scrutiny standard of review, first asked whether
or not Burton H. Wolfes suit implicated fundamental rights or involved a
suspect class. Only after finding that Mr. Wolfes suit did not raise to
the same constitutional level as a divorce as in Boddie v. Connecticut, did
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the Ninth Circuit apply a rational basis review. (Wolfe, supra, at 1126). That
brings up the underlying question here. Did the district court judge decide
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the issue of the appropriate level of review? It seems the district court failed
to ask whether a parents right to access the state-monopolized family law
10
In their complaint, Plaintiffs provided pleadings that showed that trial

court judges have applied the VLS not only against represented litigant,
but against their attorneys as occurred when Judge Beth Labson Freeman
imposed a prefiling order against Ms. Michele Fotinons and her attorney,
Patricia Barry. In this dismissal motion, Judge Jeffrey White simply ignores
these inconvenient facts.
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court rises to the same constitutional level as divorce? This is the crux of
STATEMENT OF JURISDICTION
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this appeal.
The district court had subject matter jurisdiction under 28 U.S.C.
1331 because Appellant/Plaintiffs have brought claims arising under federal
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law. The Ninth Circuit Court of Appeals has jurisdiction under 28 U.S.C.
1291. The district courts dismissal of the suit on August 13, 2013 and its
denial of Appellants Motion to Amend Judgment under FRCP 59(e) is an
appealable final decision. The district court issued its ruling and order
denying relief from judgment on October 4, 2013. Appellants timely filed a
Notice of Appeal on Oct 23, 2010. See FED. R. APP. P. 4(A)(iv).
STATEMENT OF ISSUES PRESENTED FOR EVIEW
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1. Whether the application of the VLS to parents embroiled in custody disputes
infringes on their right to access to the only forum the state provides for resolution
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of their custody cases?
the Equal Protection Clause by targeting parents who are litigating their custody
dispute in propria persona while shielding parents who are represented?
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2. Whether the application of the VLS in the context of custody disputes violates
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the Equal Protection Clause by creating a suspect class of parents who are not
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shielded from the reach of the VLS because they cannot afford to hire an attorney
and are thus unrepresented?
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the Privileges and Immunities Clause of the 14th Amendment by bestowing on a

represented parent the right to bring a vexatious litigant motion against the
unrepresented parent?
the Due Process Clause by denying access and hampering a parents opportunity to
resolve, regain, or restore their fundamental custody rights?
6. Whether the application of a prefiling order under VLS violates a parents 1st
Amendment right to petition (appeal a custody/visitation order) by substituting
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their right to appellate review with written opinions by three judges for the merit
determination of a lone presiding judge without any stated reasons other than the
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recitation of boiler-plate language that the appeal has no merit?

7. Whether the application of a prefiling order under VLS violates a parents 1st
Amendment right to petition at the trial level by making the presiding judges
permission to file custody motions an essential precondition to their right to adjust
their fundamental custody relationship?
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8. Whether the denial of permission to file custody motions by use of the

mandatory judicial council form (MC-702), which permits a presiding judge to
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merely check the denied box, violates a parents due process rights by failing to
provide any legal or factual basis (an appeal record) on which to challenge the
order on appeal?
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PERTINENT LEGAL PROVISIONS
Cal. Const. Art. I, 7(b): (b) A citizen or class of citizens may not be
granted privileges or immunities not granted on the same terms to all
citizens. Privileges or immunities granted by the Legislature may be altered
or revoked.
Cal. Const. Art. I, 3(a): The people have the right to instruct their
representatives, petition government for redress of grievances 11, and
City of Long Beach v. Bozek (1982) 31 Cal. 3rd 528, fn 4: The legislative
history of California Constitution article I, section 3, reveals an intent to
make the 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
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 amended
and renumbered provision: "The people have the right to instruct their
representatives, petition government for redress of 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
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assemble freely to consult for the common good.
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U.S. Const. Amend. XIV, 1: [N]o State shall make or enforce any law
which shall abridge the privileges or immunities of citizens of the United
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State; nor shall any State deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its jurisdiction the
equal protection of the laws.
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STATEMENT OF THE CASE
The Appellants, who are parents in on-going custody disputes,

brought this class action against Chief Justice Cantil-Sakauye and Steven
Jahr of the Judicial Council hoping to overturn Californias VLS as it applies
to family law litigants, particularly parents locked into protracted custody
battles. The Appellants challenge the constitutionality of the VLS as it is
applied in the context of family law custody proceedings. The Appellants
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assert that the VLS on its face and as applied infringes on their fundamental
custody rights. 12
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The Appellants understand Californias need to manage its docket,
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preserve scare judicial resources, and to curb meritless cases. The Appellants
make it extend to petitions to all branches of government, not merely to the
Legislature.
12
Santosky v. Kramer (1982) 455 U.S. 745; Stanley v. Illinois (1972) 405
U.S.645, 651; A parents interest in the 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.)
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civil litigants access to the judicial process when such a litigant is filing
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do not doubt that the state has rational and very urgent reasons to curtail a
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frivolous or vexatious claims. 13 They concede that state courts have found
that civil litigants right to petition grievances under the 1st Amendment does
not entitle them to clog the court system and impair everyone elses right to
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seek justice. 14 However, at the same time, the Appellants know from their
own unfortunate experiences as family law litigants, and as parents, that
the states unclogging its court docket rationale for curtailing, restricting,
or denying them access to family law courts is not rationale and certainly not
compelling. 15
Unlike civil litigants, the Appellants here are parents in custody

disputes, at least half of whom had no choice in being dragged into family
law court once dissolution pleadings were filed against them. The parents
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have absolutely no choice in where to resolve their custody disputes. Most
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"The constant suer for himself becomes a serious problem to others than
the defendant he dogs. By clogging court calendars, he causes real detriment
to those who have legitimate controversies to be determined and to the
taxpayers who must provide the courts." (Taliaferro v. Hoogs (1965) 237
Cal. App. 2d 73, 74.)
14
Wolfgram v. Wells Fargo Bank (1993) 53 Cal. App. 4th 43, 56.
15
Lammers v. Superior Court (2000) 83 Cal.App.4th 1309, 1325: [W]hen
an enactment broadly and directly impinges upon the fundamental
constitutional rights of a substantial portion of those individuals to whom it
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.
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cannot afford to hire attorneys to avoid acting in propria persona and

becoming a target for a vexatious litigant motion. The family law courts
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are the only forum that the state of California has provided for the parents
here to resolve their custody dispute. 16 Yet the state Legislature treats civil
litigants the same as family law litigants for purposes of the VLS. While the
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imposition of the VLS affects civil litigants right to petition under the First
Amendment, family law litigants suffer a double blow. Not only are their
procedural due process rights to petition affected, but their substantive due
process rights related to custody are undermined. Similarly, Californias
justification for imposing the VLS on parents in custody disputes is doubly
unjustified. 17
16
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*See, Boddie v. Connecticut (1971) 401 U.S. 371, 376-377: Thus,

although they assert here due process rights as would-be plaintiffs, we think
appellants' plight, because resort to the state courts is the only avenue to
dissolution 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 than that of the defendant called upon to defend
his interests in court.
17
Elkins v. Sup. Ct. (2007) 41 Cal. 4th 1337, 1353: In other words, court
congestion and 'the press of business' will not justify depriving parties of
fundamental rights and a full and fair opportunity to present all competent
and material evidence relevant to the matter to be adjudicated."; Boddie v.
Connecticut (1971) 401 U.S. 371:We are thus left to evaluate the State's
asserted interest in its fee and cost requirements as a mechanism of resource
allocation or cost recoupment. Such a justification was offered and rejected
in Griffin v. Illinois, 351 U. S. 12 (1956).
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In extreme but not uncommon situations, some Appellants here have

been denied access to family law courts after their parental rights have been
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severely curtailed by family law judges. (*See, Complaint, 47, 61). In one
case, a family law judge imposed a 50 year restraining order on a father.
(ER-15, pg. 7/5-10; ER 182). In the restraining order, the father was denied
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all contact with his ex-spouse as well as his three minor children until
midnight on August 24 in the year 2062. In another case, a father has been
denied access to the family law courts to challenge an order terminating his
parental right, though the father asserts the termination order was obtained
by fraud. (*See, Complaint, 29, ER 10, pg. 28; ER 131). In short, the
imposition of the VLS on these parents in custody disputes has caused and
continues to cause irreparable harm. Some of these parents have not seen
their children of period of up to three years and others only for token
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visits.(*See Complaint, 13).
There is no amount of money that can compensated Appellants for the
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years lost as parents. The wisdom of threatening to sever a child in two was
demonstrated by King Solomon. These cases, on the other hand, which
severed the parent-child relationship, can be characterized by the absence of
wisdom, an abundance of vitriol, and a systemic failure of the family law

courts in the state of California.
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STATEMENT OF FACTS
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The Class Members are parents involved in on-going custody disputes
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whose access to family law courts, the only forum that California provides
for the resolution of their custody, has been limited, restricted, if not
completely denied by application of the VLS.
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STATUTORY AND REGULATORY FRAMEWORK

The Vexatious Litigant Statute, since its enactment in 1963 (Stats.
1963, ch. 1471, 1, p. 3038), has expanded its reach both by amendments
from the California Legislature and by broad readings of the VLS by
various appellate courts. As applied in its current form, a moving
defendant in a civil case can move the court for an order requiring the
plaintiff to furnish security. (391.1).
18
The statute contemplates a
hearing with the right to call witness and provide evidence. (391.2). In
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1990, the Legislature broadened the scope of the VLS by adding 391.7
(Stats. 1990, ch. 621, 1-3), which provided that once a litigant was found
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vexatious, the court, on it own motion or the motion of any party, is
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authorized to impose prefiling orders on self-represented vexatious

litigants trying to file new litigation. (Stats. 1990, ch. 621, 3, pp. 3072-
18
CCP 391.1: .The motion must be based upon the ground, and
supported by a showing, that the plaintiff is a vexatious litigant and that
there is not a reasonable probability that he will prevail in the litigation
against the moving defendant.
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3073). Before being allowed to file new litigation, the vexatious litigant,
acting in propria persona, first has to get the permission of the court.
The 1990 amendment also expanded the definition of
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(391.7(a)).
plaintiffs under the VLS to include an attorney at law acting in propria
persona.
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In 1998, the first significant judicial expansion of the VLS occurred in

the case of McColm v. Westwood Park Assn. (1998) 62 Cal. App. 4th 1211.
In McColm, the Court of Appeals for the First District expanded the type of
litigation that could be counted as vexatious under 391.1(a-d) to include
writs, appeals, and petitions, supra 1219-1220:
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"Litigation" for purposes of vexatious litigant requirements

encompasses civil trials and special proceedings, but it is broader than
that. It includes proceedings initiated in the Courts of Appeal by
notice of appeal or by writ petitions other than habeas corpus or other
criminal matters.
As a result, self-represented vexatious litigants at the trial level as well as in
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appellate courts must obtain the presiding judges permission before being
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allowed to file. 19 Another significant expansion of the reach of the VLS
occurred in the case of Camerado Insurance Agency, Inc. v. Superior
19
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/mc701.pdf). The court of appeals have
their own forms.
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Court (1993) 12 Cal. App. 4th 838. In its broad reading of the VLS, the
Court of Appeals for the Fourth District in Camerado viewed the 1990
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amendments to the VLS as proof of legislative intent to expand the reach of
the VLS. 20 In abrogating the distinction in the VLS between represented and
self-represented litigants, the Camerado court ruled that representation did
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not shield a previously declared litigant from the security requirement of

391.3. (supra, at 845).
The trial courts reliance on the VLS to resolve custody disputes was
most clearly encouraged and promoted in a decision by Judge Jane Cardoza.
In In re R.H., almost two years after Chief Justice Georges decision in
Elkins v. Sup. Ct., Judge Jane Cardoza cites the legislative history of the
Vexatious Litigant Statute as a basis for using that statute as a tool for
gagging parents who try to regain custody of their children, (In re R. H.,170
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Cal. App. 678, 700 (2009)):
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(Bill History of Assem. Bill 1938, (2000-2001 Reg. Sess.), (enacted as

Stats. 2002. ch.1118.) "Under existing law, parties to family law and
probate law proceedings, as well as the court, may already use the
vexatious litigant statutes if they so desire. [] The intent of this bill,
20
Camerado, supra, at 8 43-844 : A review of the 1990 amendments

demonstrates the Legislature's intent to broaden the reach of the vexatious
litigant statute.Nothing in these amendments suggests a legislative intent
to 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.
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according to the author and the proponents, is to point the way to the
vexatious litigant statutes to the parties engaged in these proceedings
and to the court, as a tool to discourage repeated motions by parents to
regain custody of their children when there
are
no
changed
circumstances to justify a different result." (Sen. Com. on Judiciary
Analysis of Assem. Bill No. 1938 (2001-2002 Reg. Sess.)
Implicit in her characterization of parents attempt to regain custody is the
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belief that such attempts are frivolous, that the trial judge made the right
decision the first time, that custody cases are static and immutable, and that
custody matters dont involve fundamental rights. (*See, Santosky v.
Kramer (1982) 455 U.S. 745). The use of the VLS in this way is predicated
on a circular argument, that is, that any change of circumstance argument
is wrong and that access to the courts to make that argument would be
pointless. Therefore, denial of access to a parent trying to show changed
circumstances is needed. In this class action, there are members who have
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had their parental rights terminated and then the trial courts have relied on
the appellate courts denial of permission to appeal (the termination order)
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as proof that a request for emergency visitation is final and that there has
been no change of circumstances. (*See, ER 10, pg. 31, 32: ER 134, 135.
In short, the VLS is not used as a tool to discourage repeated motions by
parents to regain custody, but as a way to curtail a custody dispute by
locking one parent out of court.
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More than two years before Judge Cardoza decree, Chief Justice
George ruled that trials by declarations in family law proceedings violated
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the hearsay rules. (Elkins v. Sup. Ct. (2007) 41 Cal. 4th 1337, 1356). In
Elkins, Jeffrey Elkins was denied the right to testify, cross examine witness,
or present evidence because he failed to comply with a local rule requiring
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declarations as to the nature of the oral testimony. Although Jeffrey Elkins

argued that the local rule as applied was inconsistent with the guarantee of
due process, Chief Justice George deferred to the doctrine of judicial
restraint and avoided answering the constitutional questions. 21 Instead, he
based his decision on the hearsay violation. In reversing the trial court, Chief
Justice George noted that family law litigants deprived of their day in
court, as was Jeffrey Elkins, would express their shock, outrage, and
anger. (Id., 1367). Chief Justice George also pointed out, supra, 1345:
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Although we are sympathetic to the need of trial courts to process the

heavy case load of dissolution matters in a timely manner, a fair and
full adjudication on the merits is at least as important in family law
trials as in other civil matters, in light of the importance of the issues
presented such as the custody and well-being of children and the
21
Elkins, supra 1357: The conclusion we reach also permits us to avoid the
difficult question whether the local rule and order violate petitioner's right to
due process of law, "[m]indful [as we are] of the prudential rule of judicial
restraint that counsels against rendering a decision on constitutional grounds
if a statutory basis for resolution exists." ( NBC Subsidiary (KNBC-TV), Inc.
v. Superior Court (1999) 20 Cal.4th 1178, 1190.) [8] This rule directs that
"if reasonably possible, statutory provisions should be interpreted in a
manner that avoids serious constitutional questions." (Id. at p. 1197.)
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disposition of a family's entire net worth. Although respondent court

evidently sought to improve the administration of justice by adopting
and enforcing its rule and order, in doing so it improperly deviated
from state law. (emphasis added)
In riffing on due process of law, Chief Justice George pointed out the
common theme of cases that have invalidated fast-track rules, supra 1353:
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A common theme in the appellate decisions invalidating local rules,

and one that also appears in the present case, is that a local court has
advanced the goals of efficiency and conservation of judicial
resources by adopting procedures that deviated from those established
by statute, thereby impairing the countervailing interests of litigants as
well as the interest of the public in being afforded access to justice,
resolution of a controversy on the merits, and a fair proceeding.
Although Chief Justice George points out the need for access to justice
and mentions that his decision provides guidance to trial courts, 22 Judge
Jane Cardoza, more than two years later, would recommend that family law
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judges use of the VLS as a tool to discourage access to those parents

trying to regain custody. Unfortunately, the members of this class have
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found that family law judges are predisposed to follow the recommendations
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of Judge Cardoza rather than those of Chief Justice George or the Elkins
22
Elkins, supra 1346: In addition to providing guidance to the trial courts,

our discussion highlights the unusual burdens and restrictions that have been
imposed upon family law litigants at the local level in response to increasing
case loads and limited judicial resources. We observe that this problem may
merit consideration as a statewide policy matter, and suggest to the Judicial
Council that it establish a task force for that purpose.
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Task Force.
In Elkins, Chief Justice George referred to statewide surveys showing
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a loss of faith and confidence in the family law courts. (supra, 1368). That
is on-going sentiment shared by the member of this class. He also pointed
out that theses surveys revealed that 80% of the cases (family law) have at
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least one unrepresented party by the time of disposition. (supra, 1368). In

view of the failure of the family law courts to earn the public trust, Chief
Justice George directed that a task force be set up by the Judicial Council.
(supra, 1369, fn 20):
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We recommend to the Judicial Council that it establish a task force,

including representatives of the family law bench and bar and the
Judicial Council Advisory Committee on Families and the Courts, to
study and propose measures to assist trial courts in achieving
efficiency and fairness in marital dissolution proceedings and to
ensure access to justice for litigants, many of whom are selfrepresented. Such a task force might wish to consider proposals for
adoption of new rules of court establishing statewide rules of
practice and procedure for fair and expeditious proceedings in family
law, from the initiation of an action to postjudgment motions. Special
care might be taken to accommodate self-represented litigants.
Proposed rules could be written in a manner easy for laypersons to
follow, be economical to comply with, and ensure that a litigant be
afforded a satisfactory opportunity to present his or her case to the
court. (Emphasis added)
As noted above, for Judge Cardoza and family law judges of her ilk, the
special care taken to accommodate self-represented family law litigants is
to declare them vexatious litigants and curtail or deny them access.
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Although Judge Cardozas ruling was issued two years after the state
Supreme Courts decision in Elkins, she neither explained how her ruling
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squared with the rationale of Elkins or how the use of the VLS in custody
disputes ensured access for litigants, many of whom are self-represented.
The Elkins Task Force has done nothing to quash the pitched battle
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between Chief Justice Georges cry for more access and Judge Cardozas
rebel yell for less access. Judge Laurie D. Zelon, the Chairperson of the
Elkins Task Force, after a lengthy and comprehensive review of family
law courts, issued her final recommendations, which are cited here: 23
Our task forces recommendations fall under five broad categories:
I. Efficient and Effective Procedures to Help Ensure Justice,
Fairness, Due Process, and Safety
II. More Effective Child Custody Procedures for a Better Court
Experience for Families and Children
III. Ensuring Meaningful Access to Justice for All Litigants
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IV. Enhancing the Status of, and Respect for, Family Law Litigants
and the Family Law Process Through Judicial Leadership
V. Laying the Foundation for Future Innovation
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On April 23, 2010, the Judicial Council adopted the recommendations. 24

While Judge Zelons final recommendations repeated the lofty goals and
gilded promises of Chief Justice George, she fails to recognize the battle
23
http://www.courts.ca.gov/documents/20100423itemj.pdf
http://www.californiaprobono.org/news/article.310603Judicial_Council_Accepts_Elkins_Task_Force_Report
24
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being waged by Judge Cardoza for use of the VLS by family law judges
and by Chief Justice George for greater access for family law litigants.
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She does not address the subject of the Vexatious Litigant Statute and the
Task Force offered no opinion as to whether the VLS has a role in family
courts. By the time the final recommendations were being submitted on
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April 23, 2010, family law judges throughout California were following the
lead of Judge Cardoza and using the VLS to unclog their crowded family
court dockets, to curtail access, and to end custody disputes by labeling one
of the parents vexatious. In the final recommendations, Judge Zelon
seemed oblivious to the fact that parents acting in propria persona in
custody disputes could become targets for vexatious litigant actions under
391.1. While she did allude to potential difficulties for self-represented
parents, she seems to have been totally outflanked by the interests Judge
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Cardoza was promoting. (*See fn 7, pg. 79, Final Recom):,
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Cases in which one side has counsel and the other does not can pose a
variety of potential difficulties for the unrepresented litigant, the
attorney, and the judicial officer. Representation may be available in
more of these cases if courts were to make early needs-based attorney
fee awards.
Judge Zelon states that the Legislature has recognized the difficulties with
self-representation in some cases and drafted the Sargent Shriver Civil
Counsel Act (AB 590 [Feuer]; Stats. 2009, ch. 457), which became law and
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was funded, commencing October 1, 2011, for several pilot projects that
will provide representation to low-income parties on critical legal issues
25
Judge Zelon conceded in her final
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affecting basic human needs.
recommendations that most family law litigants would remain unrepresented
even if the Act were passed. 26 In short, the potential problems consist of
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the very real problem that unrepresented parents have been and remain
targets of vexatious litigant (for acting in propria persona) actions by the
opposing party (parent) or by the presiding judges on their own motions
under 391.7
The constitutionality of the VLS has been upheld. The constitutional

challenges to the VLS, however, have always been brought by civil litigants,
not family law litigants/parents who assert that the VLS, on its face or as
applied, violated their fundamental custody rights. (Stanley v. Illinois (1972)
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405 U.S. 645). In Shalant v. Girardi, (2010), 183 Cal. App. 545, the Court
of Appeals cautioned against broad interpretations of the VLS, supra, 557:
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Given the important constitutional concerns that section 391.7

implicates, we conclude that the statute should not be broadly
interpreted. Rather, it should be applied strictly according to its terms.
(emphasis added).
The Court of Appeals noted that it is incorrect to broadly interpret the

25
26
*See pg. 1: http://www.courts.ca.gov/documents/AB-590.pdf

*See pg. 79: http://www.courts.ca.gov/documents/20100423itemj.pdf
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VLS because the VLS has been upheld on the grounds that they have been
narrowly drawn and thus do not impermissively invade the right the right
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of access to the courts. 27 (Shalant, supra, 556-557). The Supreme Court
adopted the plain reading (strict construction) approach to the VLS,
cautioned courts to observe the limits set by statutory scheme of the VLS,
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and noted that the distinction by the Legislature between represented and
in propria persona litigants was not absurd. (Shalant v. Girardi (2011)
51 Cal. 4th 1164, 1176). Further, the Supreme Court lifted a passage from the
appellate decision that scolded courts for acts of judicial legislation, supra at
1177:
As the appellate court below remarked: "We sympathize with the

plight of already overburdened trial courts that are forced to contend
with the abusive conduct of vexatious litigants. But in their efforts to
deal with the problem of vexatious litigants, courts must observe the
27
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Shalant, supra at 556: Taken as a purely descriptive claim, the statement

is probably true--section 391.7 does appear to have been interpreted broadly.
(See Forrest, supra, 150 Cal.App.4th at pp. 195-196 & fn. 4 [collecting
cases].) But taken as a normative claim--that section 391.7 should be
interpreted broadly--the statement is incorrect, because the Court of Appeal
has repeatedly upheld the vexatious litigant statutes (including section
391.7) against constitutional challenges on the ground that the statutes are
narrowly drawn and thus do not impermissibly invade the right of access to
the courts. (See Wolfgram v. Wells Fargo Bank (1997) 53 Cal.App.4th 43,
55-57, 60; Luckett v. Panos (2008) 161 Cal.App.4th 77, 81; In re R.H.
(2009) 170 Cal.App.4th 678, 702; Kobayashi v. Superior Court (2009) 175
Cal.App.4th 536, 541.) Given the important constitutional concerns that [183
Cal.App.4th 557] section 391.7 implicates, we conclude that the statute
should not be broadly interpreted. Rather, it should be applied strictly
according to its terms.
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limits set by the applicable statutory scheme. If those limits are too
confining, then it is the function of the Legislature, not the courts, to
expand them."
Judicial officers are presumed to follow the law, but that is not always
evident to the members of this class. (Evid. Code 601, 604). The case here
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is rift with family law judge and appellate judges who construe the VLS both
broadly and inconsistently with the holding in Shalant v. Girardi.
While the Elkins Task Force, under Category IV, seeks to ensure the
status and respect of family law litigants through judicial leadership, its
unclear how a judges order that declares a family law litigant vexatious
in a custody dispute would achieve that goal. In fact, its clear that litigants
whove been declared vexatious are judicially profiled and vilified and
have less access to courts than criminal defendants (murders, rapists, child
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molesters) and less visitation rights if they had, in fact, committed murder.
For instance, in Kobayashi v. Superior Court (2009) 176 Cal. App. 4th, 535,
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a decision rendered after Elkins and during the public comment phase of
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the Elkins Task Force, Judge Sills opined that much vexatious litigation is
the product of the vexatious litigants propensity for dishonesty (supra,
541). In Luckett v. Panos, (2008) 161 Cal. App. 4th 77, Judge Sills asserted
that vexatious litigants have a habit of suing people as a way of life and
they watch too much day time television full of judge shows. (supra, at
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94). He characterized vexatious litigants as unemployed deadbeats who

sue in forma pauperis status and use their typewriters as weapons, filing
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lawsuits at virtually no costs to themselves (supra, at 94). He conjectured
that vexatious litigants very likely had mental disorders, (supra, 91):
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To be sure, of course, many vexatious litigants probably do suffer

from some sort of mental disorder, a fact that trial court staff around
the state would appear to have first hand knowledge.
Then, apparently not wishing to define the group too narrowly, Judge Sills
stated that it was perfectly imaginable that vexatious litigants could also
be like Professor Moriarty, the criminal mastermind of Conan Doyles
fiction, and the arch-enemy of Sherlock Holmes. 28 (supra 91-92). While
Judge Sills did not decide if Mr. Luckett suffered from a mental disorder
or was a criminal mastermind, he did rule that he should not be allowed to
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file any more actions for no less than four years and only after hes shown
remorse for being a vexatious litigant. (supra, 92, 96).
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The family law litigants in this class action can take little consolation
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in the fact that Mr. Luckett was a civil litigant as opposed to a family law
litigant. The ruling of Judge Sills in Luckett v. Panos is binding precedent,
28
Luckett, supra 92: And it is perfectly imaginable that a very sane, if

wrongfully-minded person -- Conan Doyle's fictional Moriarty comes to
mind -- who would be perfectly willing to pursue a course of vexatious
litigation in the course of some ulterior purpose.
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applicable to both civil and family law litigants. In view of the Luckett
holding, the class members recognize that their branding as a vexatious
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litigant works on various levels. First, their right to access can be curtailed
or even denied for no less than four years. Second, the branding is an
implicit psychological evaluation, either they suffer mental disorders or
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are criminal masterminds. Third, it is not the family law judge that must
earn the publics trust as Chief Justice George stated in Elkins, but the
family law vexatious parents who must show remorse. The Elkins Task
Force recommendation that family law litigants should be shown respect
is replaced with a requirement that they must show remorse. In this sense,
the branding is not merely a judicial ruling but a psychological evaluation
that the members have some untreatable illness. In Luckett, Judge Sills
points out that Mr. Lucketts supporting declarations show that he has not
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mended his ways, (supra, 92):
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All Luckett's declaration shows is that, instead of devoting his life to

something productive, he has spent the last 16 years suing people.
That fact only confirms the very trait of character on which the
determination of vexatious litigant was first based.
None of the class members here are prepared to concede that their battle to
regain custody of their children is something unproductive or the
product of some defective trait of character. Chief Justice George, in
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Elkins, realized that the problems with the family law courts are systemic.
Instead of trying to earn the publics respect, family law judges find it a
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better use of their scarce judicial resources to brand parents as vexatious
as a way of ending custody disputes and a quick fix to managing their
dockets.
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Finally, after being labeled vexatious, the class members here have
found that there are no clear procedures, no written standards, and no
practical way to erase the branding. While the Judicial Council has recently
added 391.8 to the VLS 29, this seems more a response to the constitutional
concern first raised by John E. Wolfgram in Wolfgram v. Wells Fargo
Bank (1993) 53 Cal. App. 4th 43 that the vexatious litigant declaration
functioned as a permanent branding. It also prompts the question as to
whether a party that files a 391.8 request is entitled to an evidentiary
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hearing. In this way, the Court of Appeals for the Second Appellate District
was troubled by this permanent branding issue. (PBA, LLC v. KPOD,
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Ltd. (2003) 112 Cal. App. 4th 965)). The PBA court stated, supra 976:
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While there is much to recommend this reasoning, the conclusion

section 391.7 is to be a permanent, irrevocable restriction is troubling.
29
Section 391.8 (a). A vexatious litigant subject to a prefiling order under

Section 391.7 may file an application to vacate the prefiling order and
remove his or her name from the Judicial Council's list of vexatious litigants
subject to prefiling orders.
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Although section 391.7 does not absolutely exclude the "pro per"
litigant from the courts, we believe fundamental fairness requires the
"vexatious litigant" brand be erasable in appropriate circumstances.
The PBC court ruled that a prefiling order under CCP 391.7 is not an
absolute exclusion. This ruling was predicated upon the language in
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Wolfgram, which stated that when a vexatious litigant knocks on the

courtroom door with a colorable claim, he may enter. 30 In Luckett, Judge
Sills stated that the branding was tantamount to an injunction under Code of
Civil Procedures 553, which could be lifted with a showing of changed
circumstances. (supra, 93). In Luckett, as noted above, Judge Sills invented
factors, such as his remorse factor, which courts could consider before
erasing the vexatious litigant branding. While the VLS does not spell out the
appropriate circumstances for erasure, the class members here are faced
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with the judge-created factors of remorse and no less than four year
banishment from filing. Judge Sills factors, while harsh and severe even for
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civil litigants, are nothing short of tyrannical and inquisitional in the context
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of custody cases.
The battle line here is between family law judges who want to unclog
30
Plaintiffs notes, having been repeatedly denied the right to file anything,
that the issue of what is a colorable claim as applied in custody case is
unconstitutionally vague because there is no clear standard (Grayned v. City
of Rockford, 408 U.S. 104, 108-109 (1972) quoted in Village of Hoffman
Estates v. The Flipside, 455 U.S. 489, 498 (1982).
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their dockets of difficult cases and parents who expect and deserve a wellinformed judiciary who know the law, the Family Code, Title Five Rules,
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and the facts of a particular case. The class members are not treated with
respect. Instead, the family law judges and lawyers for ex-spouses have
taken up the club of the VLS and used it to beat down the self-represented
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and often indigent parent. In essence, any attempt to resolve the custody
dispute has been scuttled.
STANDARD OF REVIEW
The issue of the constitutionality of a state statute is reviewed de

novo. (*See, Berry v. Department of Social Services, 447 F. 3d. 643, 648
(9th Cir. 2006); United States v. Harding, 971 F. 2d 410, 412 (9th
Cir.1992). The district courts rulings that the California Vexatious Litigant
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Statute does not violate either the Equal Protection or the Due Process
Clauses of the United States Constitution concern questions of law, which
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are reviewed de novo. (United States v. Sahhar, 56 F.3d 1026, 1028 (9th
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Cir. 1995)). A district court's determinations on mixed questions of law and
fact that implicate constitutional rights are also reviewed de novo. (Cogswell
v. City of Seattle, F.3d 809, 813 (9th Cir.2003); Berger v. City of Seattle,
569 F.3d 1029, 1035 (9th Cir. 2009)). Where the key "issues aris[e] under
the First Amendment," the court will conduct an independent review of the
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facts. (Rosenbaum v. City & County of San Francisco, 484 F.3d 1142,
1152 (9th Cir.2007).
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ARGUMENT
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A. District Court Ruling.
I. Strict Scrutiny Review Is Required Here In Family Law Proceedings

Implicating Fundamental Custody Rights.
As noted in the Introduction, both the Attorney General and district

court judge have argued that Wolfe v. George forecloses all of the
Appellants constitution claims. In the April 15, 2013 Motion to Dismiss
Plaintiffs Complaint, the Deputy Attorney General pointed out that the
Ninth Circuit applied rational basis review, the standard that is likewise
appropriate here. Wollfe, 486 F.3d at 1126. (ER 14, pg. 8/17-18; ER 172).
The Deputy Attorney said nary a word regarding the distinctions between
civil litigants and custody cases. Instead, the Deputy Attorney General
dispatched the Appellants claims by repeating the rational basis analysis
the Ninth Circuit conducted in Wolfe. (pg. 8-11). The Attorney General
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never conducted an initial determination of the proper level of scrutiny to

be used. The Attorney General never asked whether the parents right to
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access the family law courts rose to the same level as divorce. (Wolfe,
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supra, 1126).
The district court judge also asserted that Wolfe foreclosed the
Appellants claims in his August 13, 2013 Granting In Part and Denying In
Part the Motion to Dismiss (ER-6). In his order, the judge seemed to rely
solely on Wolfe without making a preliminary determination of the level of
scrutiny to be applied. For instance, he states (ER-6, pg. 8/26-28, ER 55):
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The Court concludes that these claims are foreclosed by George, even
though the Ninth Circuit evaluated the VLS in the context of civil
cases, rather than in the context of custody disputes.
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In his October 4, 2013 order Denying Plaintiffs Motion to Amend Judgment

Under FRCP 59(e), however, the judge back peddles, stating he relied on
M.L.B v. S.L.J, 519 U.S. 102 (1996) in determining the level of scrutiny.
He states that the Supreme Courts distinction in M.L.B. v. S.L.J between
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loss of custody and termination of parental rights was what supported his
conclusion that a rational basis review applied. (Id, at 10:1-25). (ER-2, pg.
3/23-24; ER 6). The judge also cited to In re R.H, 170 Cal. App. 4th 670,
702-705 (2009) as authority for the proposition that a strict scrutiny standard
of review was not applicable in custody cases.
B. District Courts Use of Rational Basis Review Predicated on

Erroneous View of Fundamental Rights.
1. District Courts Ruling that Fundamental Rights Are To Be
Protected Only If Fully, Finally and Irrevocably Terminated Is
Error.
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Initially, in his August 13, 2013 order Dismissing the Complaint (ER-
6), the district judge asserted that the Appellants section 1983 suit failed
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under the two-pronged standard of West v. Atkins because they had failed to
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show that a violation of their constitutional rights. (ER-6, pg. 8/21-22; ER55). Rather, Defendants argue that Plaintiffs have not alleged facts that
show they violated Plaintiffs constitutional rights.). Relying on the
distinction between a loss of custody and the termination of parental
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rights cited in M.L.B. v. S.L.J, the district judge ruled that Appellants
failed to show a constitutional violation under the first prong of West v.
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Atkins because none of the Plaintiffs has had their parental rights fully,
finally, and irrevocably terminated. (ER-6, pg. 10/24-25; ER 57).
To suggest that there can only be a violation of constitutional rights if
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the violation is absolute and irrevocable, is simply fantastic. Appellants are

unaware of any state or federal decision supporting such a standard for
adjudicating constitutional violations. Further, the district courts reasoning
is inconsistent with cases holding the deprivation of a fundamental right for
even a short period of time constitutes irreparable harm. (*See, Gutierrez v.
Municipal Court, 838 F. 2d 1031, 1035 (9th Cir. 1988); Cunningham v.
Adams, 808 F.2d 815, 822 (11th Cir. 1987); When an alleged deprivation of
a constitutional right is involved, most courts hold that no further showing
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of irreparable injury is necessary. Mitchell v. Cuomo, 748 F.2d 804, 806
(2nd Cir. 1984) quoting 11 C. Wright & A. Miller, Federal Practice &
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Procedure, 2948, at 440 (1973)); Deerfield Medical Ctr. v. City of Deerfield
Beach, 661 F.2d 328, 338 (5th Cir. 1981).

2. The Distinction Between Loss of Custody and Termination of
Parental Rights Was Not A Factor Announced in M.L.B. v. S.L.J
for Determining the Level of Scrutiny.
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In his October 4, 2013 order Denying the Motion to Amend Judgment

Under FRCP 59(e), the district court judge corrects and qualifies his early
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ruling by stating that the Supreme Courts distinction in M.L.B. v. S.L.J.
supports his conclusion that a rational basis review applied. (ER 2, pg.
3/22-25; ER 6). However, the Supreme Court relied on no such distinction
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in selecting or determining the proper level of scrutiny. To read M.LB. v.

S.L.J. to mean that the proper level of scrutiny is determined by the degree
or magnitude of a constitutional violation is unreasonable and contrary to
numerous decisions of the Supreme Court. Heightened scrutiny is triggered
when a constitutional right is implicated, impinged or infringed upon, not
when it is fully, finally, or irrevocably terminated. (ER 6, pg. 10/24-25;
ER 57). The 14th Amendment, like its 5th Amendment counterpart, provides
not only fair process but provides heightened protection against
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government interference with certain fundamental rights and liberty
interests. (Washington v. Glucksberg, 521 U.S. 702, 719-720; Reno v.
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Flores, 507 U.S. 292, 301-302 (1993).

The district courts full, final, and irrevocably terminated approach
to protecting rights or implementing heightened scrutiny would decimate

fundamental rights and gut any notion of fair process. The district courts
ruling that the Appellants are not entitled to a heightened level of scrutiny
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because their fundamental parental rights were merely infringed upon but
not terminated does violence to Supreme Court decisions. (*See, Stanley v.
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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 interest of
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parents in the care, custody and control of their children." The Supreme
Court held that the Due Process Clause of 14th Amendment "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. 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'.
In reaching its holding, the district court read much into its purported
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distinction in M.L.B. v. S.L.J, such as a factor for determining the proper
level of scrutiny. In construing the holding of M.L.B. v. S.L.J, the district
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court stated in its August 13, 2013 Motion to Dismiss, (ER 6, 10/18-25; ER
57):
In reaching that conclusion, the Supreme Court noted that because of

the finality involved, parental termination orders present a unique type
of deprivation and, thus, differ from mine run civil actions, even
from other domestic relations matters such as divorce, paternity, and
child support. Id. at 127 (emphasis added); see also id at 121 (In
contracts to loss of irretrievabl[y] destructi[ve] of the most
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fundamental family relationship. (quoting Santosky v. Kramer, 455

U.S. 745, 753 (1982)). As they confirmed at the hearing, none of the
Plaintiffs has had their parental rights fully, finally, and irrevocably
terminated.
In deconstructing this paragraph, it seems the district court views the
Supreme Courts statement regarding the extent of a deprivation as a
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distinction. In the M.L.B. v. S.L.J courts comparison of parental

termination orders with other domestic matters such as divorce, paternity,
and child support, the district court finds a distinction. This distinction then
becomes a factor for determining the appropriate level of scrutiny.
However, its clear that in contrasting various domestic matters the
Supreme Court in M.L.B. v. S.L.J was speaking to the degree of deprivation.
The Supreme Court was merely pointing out that termination decrees are
the most severe form of state action (supra, 128). To read this passage
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as a distinction or factor for determining the level of scrutiny is just wrong.
If the distinction indicated that heightened scrutiny was meant to be used for
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only the most severe cases of deprivation, such as termination orders, then
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contrasting termination orders with divorce would be nonsensical. Not

only did the Supreme Court use heightened scrutiny in M.L.B. v. S.L.J (a
termination of parental right case) but they did so in the divorce issue arising
in Boddie. (*See also, heightened scrutiny in paternity case, Weber v. Aetna
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3. The District Courts Reliance on In re R.H. to Deny Strict

Scrutiny Is Misplaced.
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Casualty & Surety Co., 406 U.S. 164 (1972); Yoder v. Wisconsin 406 U.S.
The In re R.H. case was a juvenile dependency proceeding rendered
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two years before the state Supreme Court ruling in Shalant v. Girardi which
rejected broad readings of the VLS. In In re R.H., Judge Jane Cardoza
concedes that she broadly construes the definition of vexatious litigation
under the VLS to include juvenile proceeding. 31 In expanding the reach of
the VLS to juvenile dependency cases and declaring the father vexatious,
she even relied on a decision, Forrest v. Department of Corporations
(2007) 150 Cal.App.4th 183, which the state Supreme Court disapproved
in Shalant for its broad reading. (supra, at 1172, fn 3).
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Its doubtful, after Shalant v. Girardi, if In re R.H. remains reliable
authority for the view that the VLS can be applied to parents in juvenile
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dependency proceedings. Even if the case remains viable, Judge Cardoza
31
In re R.H., supra, at 693: With these authorities in mind and given that
the vexatious litigant law has been both broadly written and interpreted, we
conclude R.H. meets the definition of a vexatious litigant under section 391,
subdivision (b)(1).
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stated that the reach of In re R.H. was limited to the facts of that case. 32 In
that regard, for the district court to rely on In re R.H. for the general
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proposition that the VLS can be applied against parents without raising
constitutional concerns regarding access and due process is equally
suspect. (*See, fn 27).
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Furthermore, Judge Cardoza rejected R.H.s (the father) assertion that

he was entitled to strict scrutiny review. 33(supra, at 704). Judge Cardoza
noted that R.H. cited M.L.B. v. S.L.J for the proposition that cases
involving parental rights are entitled to greater protection than other
litigants as a matter of due process. (supra, at 704). Judge Cardoza stated:
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In an abundance of caution, we nonetheless have reviewed R.H.'s

specific claim that he is entitled to greater due process protection than
other vexatious litigants, namely strict scrutiny of the prefiling order,
on a theory that his rights as a parent are at stake. We are not
persuaded because R.H. is not a parent whose rights have been
terminated and therefore our prefiling order is not subject to strict
scrutiny.
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Like the district court, Judge Cardoza interpreted M.L.B. v. S.L.J to mean
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that R.H. had no right to greater protection or heightened scrutiny unless

his parental rights were terminated. Apparently, Judge Cardoza thought
the point of the Supreme Courts ruling in M.L.B. v. S.L.J was that due
32
In re R.H., supra, at 707: Our holding is specifically limited to the

circumstances which R.H. presents. We are not dealing with just any parent
who appeals or seeks writ relief from a dependency court decision.
33
In re R.H., supra, at 704:
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process protections turned on the distinction between judicial proceedings

forever terminating parental rights and other custody proceedings. 34 As
years of jurisprudence related to fundamental parental rights.
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noted above, this reading of M.L.B. v. S.L.J does not square with over 75
C. Child Custody Cases Are Inherently Different From Civil Cases.
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Neither the Attorney General nor the district court address the factual
and legal distinctions between custody cases and civil actions. First, a
parents right to the care, custody, and control of the upbringing and
education of his/her children is a long-established fundamental right. Such
parental rights cannot be vindicated if access the state-monopolized family
law courts is restricted, limited, or denied by the VLS. (Santosky, Stanley,
Granville, etc.). On the other hand, the Ninth Circuit in Wolfe concluded
that the VLS did not deprive Burton H. Wolfe of an opportunity to
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vindicate a fundamental right in court. (Wolfe, supra, at 1126).
Second, the very nature of a custody case is different from a civil case
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in myriad ways. A civil litigant subject to the VLS files and prosecutes his
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complaint in propria persona and is designated the plaintiff. On the
34
In re R.H., supra, at 704: R.H. overlooks the point of the Supreme

Court's pronouncements, namely access to judicial proceedings forever
terminating parental rights cannot turn on ability to pay or be examined for
rationality. (M.L.B. v. S.L.J., supra, 591 U.S. at pp. 123-124.) In so doing,
the Supreme Court distinguished a parental rights termination proceeding
from other custody determinations.
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other hand, in a custody cases, half of the parents are dragged into court.
They are then targeted under the VLS by the represented parent because they
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cannot afford representation. In the instant case, most of the parents did not
file for dissolution of the marriage. Nevertheless, the represented parent
could move the court under 391.1 of the VLS to have the unrepresented
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parent declared vexatious. A third significant difference between custody

cases and civil suits is that a parent has no alternative but to resolve the
custody dispute in the state-monopolized family law courts.
A fourth difference is that civil litigants supposedly sue often and

lose often. A custody case, on the other hand, is a single action that can last
until a minor child reaches the age of maturity. When a civil litigant is
declared vexatious, the nature of his civil suit doesnt change. But if a parent
caught up in a custody dispute is declared vexatious, hes subject to an
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insidious legal fiction brought about by the prefiling order of the VLS.
Every new pleading in the ongoing custody dispute becomes new
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litigation for which the parent must get permission to file. In this case,
some parents have been locked out of the family law court without being
granted permission to file any pleadings.

The fifth difference is that the VLS may be rationally related to the
purpose of curtailing frequent pro se vexatious civil litigants. However,
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this rational breaks down for vexatious parents. In Wolfe, the Ninth
Circuit noted that the state has an interest in curtailing vexatious litigants
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who tie up a great deal of the courts time while denying that time to
others. The Ninth Circuit also noted that the state has an interest in
curtailing frivolous litigations, just as it has an interest in protecting people
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from stalking. (supra, 1126). The prefiling orders supposed weeds out the
frivolous litigation.
But subjecting one parent to a prefiling order isnt going to curtail

or resolve the custody dispute. It may have the effect of ending the dispute
by muzzling one parent. It also creates an incentive to use the VLS as a
tactic by the represented parent to deny due process. To allow one parent to
game the VLS for some tactical advantage is not in the best-interest of the
child or anyone elses. Likewise, its hard to imagine how any custody
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dispute could be characterized as frivolous or how a parent could be
mentioned in the same breath as a stalker. A prefiling order in the context
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of a custody dispute is just as likely to have a chilling effect on the filing of
meritorious motions. In fact, the threat of a vexatious litigant motion by a

deep-pocketed and represented parent may cause the unrepresented parent to
avoid filing meritorious motions for fear of a getting hit with 391.1 motion.
Finally, in the context of custody cases, visitations orders cannot be
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said to be adversely determined against a parent. Rather, they are issued in

the best-interest of the child. In that respect, the definitions of the VLS fit
the best-interest of a child is the purpose of the litigation.
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an adversarial civil suit but seem a poor match for a custody dispute where
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D. Heightened Level of Scrutiny Is Required Given The Infringement of

Fundamental Parental Rights.
1. Denial of Fundamental Rights, Boddie And Its Progeny.
In Boddie v. Connecticut, 401 U.S. 371 (1971), the Supreme Court
ruled that the states filing fee required to divorce functioned to deny a
indigent married couple access to the only forum provided by the state to
adjust a fundamental relationship.
(supra, at 383). In his concurring
opinion, Justice Douglas stated, (supra at 385):
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The Court today puts "flesh" upon the Due Process Clause by
concluding that marriage and its dissolution are so important that an
unhappy couple who are indigent should have access to the divorce
courts free of charge.
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The Supreme Court concluded that the denial of access violated their
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fundamental right to be heard in violation of the Due Process Clause. 35
35
Boddie, supra at 380-381: Drawing upon the principles established by the

cases just canvassed, we conclude that the State's refusal to admit these
appellants to its courts, the sole means in Connecticut for obtaining a
divorce, must be regarded as the equivalent of denying them an opportunity
to be heard upon their claimed right to a dissolution of their marriages, and,
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In M.LB v. S.L.J., 519 U.S. 102 (1996), another fee requirement case,
the U.S. Supreme Court expanded on Boddie. The Supreme Court
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concluded, (supra, at 107):
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Just as a State may not block an indigent petty offender's access to an

appeal afforded others, see Mayer v. Chicago, 404 U. S. 189, 195196, so Mississippi may not deny M. L. B., because of her poverty,
appellate review of the sufficiency of the evidence on which the trial
court based its parental termination decree.
In reaching its ruling, the Supreme Court in M.LB v. S.L.J noted that fee
requirements are ordinarily only examined for rationality, with two
exceptions. The first exception relates to filing fees that infringe upon
fundamental rights such as the right to divorce. (Boddie). The second
exception occurs when filing fees relate to the political processes as voters
or candidates. (supra, at 124, fn 14, quoting Harper v. Virginia Bd of
Elections, 383 U.S. 663 (1966)). In M.L.B. v. S.L.B., the Supreme Court
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created a third exception related to termination cases. 36 Using a heightened
scrutiny review, the Supreme Court held that the states asserted need for
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revenues (filing fees) to offset costs was rejected as a bar to the parents
right to access and to defend against the states termination proceeding.
in the absence of a sufficient countervailing justification for the States

action, a denial of due process.
36
M.L.B. v. S.L.J, supra, at 124 : In accord with the substance and sense of
our decisions in Lassiter and Santosky, see supra, at 117-120, we place
decrees forever terminating parental rights in the category of cases in which
the State may not "bolt the door to equal justice,"
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In Wolfe v. George, Barton H. Wolfe urged the Ninth Circuit to
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review its constitutional challenges to the VLS with heightened scrutiny
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2. Wolfe v. George, Selecting the Appropriate Level of Scrutiny. 37
rather than rational basis review In selecting the proper level of scrutiny for
review of the California VLS, the Ninth Circuit considered such cases as
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Boddie v. Connecticut, United States v. Kras,38 and Ortwein v. Schwab. 39

The Ninth Circuit then stated we review the California statute for a
rational basis. (fn 25) The California cases show that a rational basis
exists. In footnote 25, the Ninth Circuit noted, (supra, at 1126):
37
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*See, Clark v. Jeter, 486 U.S. 456, 461 (1988): In considering whether
state legislation violates the Equal Protection Clause of the Fourteenth
Amendment, U.S.Const., Amdt. 14, 1, we apply different levels of scrutiny
to different types of classifications. At a minimum, a statutory classification
must be rationally related to a legitimate governmental purpose. San Antonio
Independent School Dist. v. Rodriguez, 411 U. S. 1, 411 U. S. 17 (1973); cf.
Lyng v. Automobile Workers, 485 U. S. 360, 485 U. S. 370 (1988).
Classifications based on race or national origin, e.g., Loving v. Virginia, 388
U. S. 1, 388 U. S. 11 (1967), and classifications affecting fundamental
rights, e.g., Harper v. Virginia Bd. of Elections, 383 U. S. 663, 383 U. S.
672 (1966), are given the most exacting scrutiny. Between these extremes of
rational basis review and strict scrutiny lies a level of intermediate scrutiny,
which generally has been applied to discriminatory classifications based on
sex or illegitimacy. See, e.g., Mississippi University for Women v. Hogan,
458 U. S. 718, 458 U. S. 723-724, and n. 9 (1982); Mills v. Habluetzel, 456
U. S. 91, 456 U. S. 99 (1982); Craig v. Boren, 429 U. S. 190, 429 U. S. 197
(1976); Mathews v. Lucas, 427 U. S. 495, 427 U. S. 505-506 (1976).
38
United States v. Kras, 409 U.S. 434, (1973)
39
Ortwein v. Schwab, 410 U.S. 656 (1973).
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See Kras, 409 U.S. at 448, 93 S.Ct. 631 (reviewing filing fee
requirement for rational basis when there was no fundamental right to
discharge one's debts in bankruptcy).
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See Ortwein, 410 U.S. at 660, 93 S.Ct. 1172 (holding that because
poverty is not a suspect classification subject to heightened review,
"[t]he applicable standard is that of rational justification") (citing
Kras).
On the other hand, the Ninth Circuit noted that the Supreme Court in Boddie
rejected a rational basis analysis because divorce involved a fundamental
right, (supra, at 383): 40
A] State may not, consistent with the obligations imposed on it by the

Due Process Clause of the Fourteenth Amendment, pre-empt the right
to dissolve this legal relationship without affording all citizens access
to the means it has prescribed for doing so.").
In Boddie, the Supreme Court used a heightened review given the basic
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position of the marriage relationship in this societys hierarchy of values

and the concomitant state monopolization of the means for legally dissolving
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this relationship. (supra, at 376).
40
Boddie, supra at 379: Our cases further establish that a statute or a rule
may be held constitutionally invalid as applied when it operates to deprive
an individual of a protected right although its general validity as a measure
enacted in the legitimate exercise of state power is beyond question.
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After reviewing these decisions, the Ninth Circuit then stated we

review the California statute for a rational basis. (fn 25) The California
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cases show that a rational basis exists.
a. Due Process Clause
3. Wolfe v. George, Applying the Selected Level of Review.
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In Wolfe v. George, the Ninth Circuit noted that Burton H. Wolfe had
filed civil suits regarding San Francisco tax cab companies. In rejecting
Mr. Wolfes argument that the VLS denies him due process by denying him
access, the Ninths Circuit ruled that his right to bring a civil suit, unlike this
child custody case, did not rise to the same constitutional level as divorce.
Rather, the Ninth Circuit concluded that Mr. Wolfes suit did not implicate
fundamental rights and was, in that way, in keeping with the rational basis
review used in Ortwein and Kras.
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In Kras, the Supreme Court found Robert Kras right to file for
bankruptcy was distinguishable from the married couple case in Boddie in
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two ways. First, there was no protected interest in filing for bankruptcy.
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(Kras, supra, 445: We see no fundamental interest that is gained or lost

depending on the availability of a discharge in bankruptcy). Second,
bankruptcy was not the only method available for Mr. Kras to adjust his
legal relationship with his creditors. (supra, 445). The state did not have a
monopoly over Mr. Kras problem managing his debt. The Ninth Circuit
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went on to examine if there was a rational relationship between with

Californias interest in controlling scarce judicial resources and curbing
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frivolous litigant. In the context of civil suit, it found there was a rational
basis. 41
b. Equal Protection Clause
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With respect to Mr. Wolfes assertion that the VLS created a suspect
class, which triggered strict scrutiny, the Ninth Circuit ruled that [T]he
California statute does not violate equal protection. Frequent pro se
litigants are not a suspect class meriting strict scrutiny. (supra, at 1126).
Applying a rational basis review, the Ninth Circuit next examined the states
rational and concluded that [A] state can rationally distinguish litigants
who sue and lose often, sue the same people for the same thing after they
have lost, and so on, from other litigants. (emphasis added).
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E. District Courts Deference To Wolfes Rational Basis Review Without

Examining Facts Related to Custody Disputes Was Reversible Error.
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1. The VLS Violates Parents Substantive Due Process Rights.
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The district court ruled that Wolfe v. George rational basis review
precludes the Appellants suit. In Wolfe v. George, before selecting the
41
Wolfe, supra, at 1126: First, vexatious litigants tie up a great deal of a

court's time, denying that time to litigants with substantial cases. Second, the
state has an interest in protecting defendants from harassment by frivolous
litigation, just as it has an interest in protecting people from stalking.
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proper level of scrutiny, the Ninth Circuit asked whether Mr. Burtons suit
rises to the same constitutional level as divorce. The Wolfe court
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considered the two Boddie factors (fundamental interest and state
frame the legal issue, which is:
control/monopoly). Here, on the other hand, the district court fails to even
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Does a parents access to a family law court in a custody dispute rise

to the same constitutional level as divorce?
In this case, the Attorney General avoided any discussion as to whether a

custody dispute involves a protected interest, a fundamental right. There was
no discussion as to the distinctions between civil and custody cases. For its
part, the district court ruled, on its misreading of M.L.B. v. S.L.B, that
fundamental parental rights are not implicated unless fully, finally, and
irrevocably terminated. In view of holding in cases such Santosky v.
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Kramer, Stanley v. Illinois, and Granville, its certain Appellants suit
implicates fundamental rights. Likewise, the Appellants custody cases, like
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the couple seeking to divorce in Boddie, is bound to the state-created and

monopolistic family law courts, the only forum California provides for
the resolution of custody disputes. In short, the district court erred in not
using a heightened scrutiny review because the VLS has not been narrowly
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vexatious parents. (Shalant, supra, 183 Cal. App. 4th 545, 556)
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2. No Compelling Interest Justifying Due Process Violations In

Custody Cases.
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drawn and impermissibly invades the right of access to the courts by these
Under a heightened review, Californias stated interest in applying the
VLS to manage judicial resources or curtail frivolous litigation is not
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compelling in the context of fundamental parental rights. It does not pass

constitutional muster. In Boddie, the Supreme Court rejected these stated
interest and suggested that the statute could have been more narrowly
drawn. (*See, Lammers, Elkins, fn 15, fn 17.). It pointed out that there were
other methods, other available alternatives the state could use to achieve
its objectives, supra, 381:
The arguments for this kind of fee and cost requirement are that the
State's interest in the prevention of frivolous litigation is substantial,
its use of court fees and process costs to allocate scarce resources is
rational, and its balance between the defendant's right to notice and
the plaintiff's right to access is reasonable.
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In our opinion, none of these considerations is sufficient to override

the interest of these plaintiff appellants in having access to the only
avenue open for dissolving their allegedly untenable marriages.
(emphasis added).
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The district court did not explain how custody pleadings are frivolous or
become so after a parent is declared vexatious. Further, the district court
did not meet its burden of showing other alternatives, such as restricting
the reach of the VLS so that custody disputes are not subject to the VLS.
3. The VLS Violates Equal Protection In Custody Cases.
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In the context of custody cases, the VLS creates suspect

classifications based on the ability to obtain representation. Those parents
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who can afford to hire a lawyer or have found a pro bono attorney are
shielded and immune from the VLS and have full and immediate access to
the courts. Furthermore, represented parents have the privilege of filing
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vexatious litigant motions against the parent acting in propria persona.

On the other hand, unrepresented parents are subject to 391.1 motions and
are denied immediate and full access once declared vexatious.
These classifications in the context of custody cases are neither
rational nor compelling. Unlike civil litigants, parents in custody disputes
are not frequent pro se litigants who sue often. (Wolfe, supra, at 1126).
There is no rational or compelling distinction in a custody dispute between
one parent who is represented and another who is not. Neither parent has any
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choice in the forum. Similarly, to declare a parent vexatious in a custody
dispute, the other parent would have to show that there is no reasonably
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probability that he/she will prevail in the litigation. (CCP 391.1, 391.2).
In the context of a custody dispute, to argue that a parent has no probability
of prevailing is nonsensical, if not absurd. A vexatious parent is an absurd
classification in a custody dispute. The absurdity is more evident when one
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considers Family Code 3040 that creates the public policy of frequent
and continuous contact for both parents.
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In Wolfe, the Ninth Circuit was not presented with a case involving
parents with protected interests in the care and custody of their children.
Unlike Barton H. Wolfe, the Appellants suit implicates implicate
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constitutional concerns, that is, their fundamental custody rights. In that

regard, in Santosky v. Kramer, Justice Blackmun quoted from the legislative
history of the Indian Relief Act for the proposition that the removal of a
child from the parents is a penalty as great [a], if not greater, than a
criminal penalty Unlike the civil litigant in Wolfe v. George, the
Appellants here are a suspect class and heightened scrutiny review was
required. For the district court to defer to the holding of Wolfe v. George
without considering the facts and legal issues involved in the custody case
CONCLUSION
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was clear and reversible error.
district courts dismissal order and direct that court to consider their
constitutional challenges with a heightened scrutiny standard of review.
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For the foregoing reasons, the Court of Appeals should reverse the
Respectfully submitted,
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s/Archibald Cunningham
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____________________
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STATEMENT OF RELATED CASE
Pursuant to Ninth Circuit Rule 28-2.6, Appellants certify that there are
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court case as the present appeal.
no related appeals pending in this court that arise out of the same district
Dated: November 5, 2013
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s/ Archibald Cunningham
Archibald Cunningham,
Counsel for Appellants
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CERTIFICATE OF SERVICE
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I hereby certify that I electronically filed the foregoing with the Clerk
of the Court for the United States Court of Appeals for the Ninth Circuit by
using the appellate CM/ECF system on November 5th, 2013.
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I certify that all participants in the case are registered CM/ECF users
and that service will be accomplished by the CM/ECF system.
s/ Archibald Cunningham
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______________________
Attorney for Appellants
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Certificate of Compliance Pursuant to 9th Circuit Rules 28-4,

29-2(c)(2) and (3), 32-2 or 32-41 for Case Number 13-1 7170
Form 8.
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Note: This form must be signed by the attorney or unrepresented litigant and
attached to the end ofthe brief
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I certify that (check appropriate option; :
brief complies with the enlargement of brief size permitted by Ninth Circuit
Rule 28-4. The briefs type size and type face comply with Fed. R. App. P. 32(a)(5)
words,
lines of text or
and (6). This brief is 12,936
SO
pages, excluding the portions exempted by Fed. R. App. P.
32(a)(7)(B)(iii), if applicable.
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r>_<; This
I This brief complies with theenlargement of brief size granted by court order dated
- --
- . The briefs type size and type face comply with Fed. R.
App. P. 32(~)(5) and (6). This brief is

words,
- - - -iines of text or
pages, excluding the portions exempted by Fed.
R. App. P. 32(a)(7)(B)(iii), if applicable.
This brief is accompanied by a motion for leave to file an oversize brief

pursuant to Circuit Rule 32-2 and is
words,
lines
of text or
pages, excluding the portions exempted by Fed. R.
App. P. 32(a)(7)(B)(iii), if applicable.
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1 This brief is accompanied by a motion for leave to file an oversize brief

pursuant to Circuit Rule 29-2(c)(2) or (3) and is
words,
pages, excluding the portions
lines of text or
exempted by Fed. R. App. P. 32(a)(7)(B)(iii), if applicable.
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1 This brief complies with the length limits set forth at Ninth Circuit Rule 32-4.
The briefs type size and type face comply with Fed. R. App. P. 32(a)(5) and (6).
Signature of Attorney or
Unrepresented Litigant ./ac/ s/Archibald Cunm~gham ,
("s/" plus typed name is acceptable for electronically-filed documents)
..
Datel ll/5113
If filing a brief that falls within the length limitations set forth at Fed. R. App. P.
32(a)(7)(B), use Form 6, Federal Rules of Appellate Procedure.
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No. 13-17170
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RON PIERCE, et al.,

Plaintiffs-Appellants,
v.
UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT
_______________________________________________
CALIFORNIA CHIEF JUSTICE CANTIL-SAKAUYE, et al.,
Defendants-Appellees.
_______________________________________________
Appeal from U.S. District Court for the Northern District of California
Civil Case No. C 13-01295 JSW (Honorable Jeffrey S. White)
_______________________________________________
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EXCERPTS OF RECORD
_______________________________________________
1489 McAllister St.
415 563.1828
Attorney for Appellants/Plaintiffs
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Plaintiffs/Appellants Excerpts of Record
ER 1:
ER 2:
ER 3:
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ER 4:
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ER Number
Document Title
Filing Date
Pages
_____________________________________________________________
10/23/13
1-3
Order Denying Motion to Amend

10/04/13
Judgment Under FRCP 59(e) AND/Or
Motion for Relief From Judgment Under
FRCR 60(b)(1)(6): Request for Statement
of Reasons
4-7
Plaintiffs Response to Opposition to

Amend Judgment Under 59(e) or
60(b)(1)(6).
8-18
9/7/13
Opposition to Motion to Amend

9/3/13
Judgment Under FRCP 59(e) And/Or
Motion for Relief From Judgment Under
FRCP 60(b)(1)(6)
19-26
Plaintiffs Motion to Amend Judgment

Under FRCP 59(e) And/Or Motion for
Relief From Judgment Under FRCP
60(b)(1)(6): Request for Statement
of Reasons
27-47
9/5/13
ER 6:
Order Granting, In Part, and Denying,

8/13/13 48-59
In Part, Motion to Dismiss, and Denying
As Moot Motion for Preliminary Injunction
ER 7:
Second Declaration in Support of

Preliminary Injunction
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ER 5:
Notice of Appeal
7/7/13
60-66
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ER 9:
Defendants Opposition to Plaintiffs

Motion for Preliminary Injunction
5/24/13 85-100
RE 10:
Plaintiffs Second Request for Judicial

Notice; Declaration of Counsel for
Plaintiffs
5/12/13 101-135
Plaintiffs Response and Objection to

Defendants Reply Brief in Support of
Its Motion to Dismiss
5/4/13 136-143
Reply Brief In Support of Defendants

Motion to Dismiss
5/2/13 144-149
Plaintiffs Response and Objection to

Defendants Motion to Dismiss
4/22/13 150-157
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Order Re Petitioners Request to Renew 8/27/12 176-182

Restraining Order (Case No. 1-09-FL-149682)
Kamil Hiramenek v. Adil Hiramenek
ER 16:
District Court Docket Sheet
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ER 15:
Defendants Notice of Motion and

4/15/13 158-175
Motion To Dismiss Plaintiffs Complaint for Injunctive
and Declaratory Relief; Memorandum of Points
and Authorities
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ER 14:
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6/27/13 67-84
ER 13:
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Reply to Defendants Opposition to

to Plaintiffs Motion for a Preliminary
Injunction
ER 12:
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ER 8:
ER 11:
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183-189
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ER-1
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Arch Cunningham
-State Bar 210625
1489 McAllister St.
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Case: 13-17170
archcunnghm~yahoo.com
it:
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(415) 563-1828
';
Attorney for Plaintiffs
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UNITED STATES DISTRJCT COURT

FOR THE NORTHERN DISTRJCT OF
CALIFORNIA SAN FRANCISCO
9
10
II
12
13
14
) Case No. C 13-01295 JSW

)
RONALD PIERCE, KERRY HICKS,
)
ANDREW KARRES, MICHELE
FOTINOS, AMIL HIRAMENK, LISA
) NOTICE OF APPEAL/
HUNT-NOCERA, NICOLE ANN RAY, ) PRELIMINARY INJUNCTION
ARCHIBALD CUNNINGHAM,
) APPEAL (FRAP 3-3)
)
RICHARD RIFKIN, et. al.
)
)
15
)
)
)
)
Plaintiffs,
16
v.
17
19
ia
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CALIFORNIA CHIEF JUSTICE

CANTIL-SAKAUYE, Chair of Judicial
Council, and MR. STEVEN JAHR, the
Administrative Director of the
Administrative Office of the Courts .
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21
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25
)
)
)
)
)
)
)
)
Defendants, and DOES l

through 10.
NOTICE is hereby given that Plaintiffs, Ronald Pierce, Kerry l-Iicks, Andrew
\
Karres, Michele Fotinos, Adil Hiramenk, Lisa-Hunt-Nocera, Nicole Ann Ray, Archibald
26
Cunningham and Richard Rifkin et al, hereby appeal to the United State Court of Appeals
27
Ninth Circuit from:
28
Notice of Appeal - PAGE I
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1. The October 4, 2013 order of the district court denying Plaintiffs' Motion
to Amend Judger under FRCP 59( e).

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2. The August 13, 2013 order of the district court dismissing Plaintiffs
class action lawsuit and Motion for a Preliminary Injunction staying enforcement
of the Vexatious Litigant Statute against "vexatious litigant parents' enmeshed in
custody disputes in family law courts in the state of California.
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Under FRAP 3-3, Plaintiffs point out that this appeal is designated a "preliminary
ihjunction appeal." In that respect, the class members/parents point out that many of them
have been denied all access to both the state trial and appellate courts by operation of the
10
Vexatious Litigant Statute. As a consequence, many of the class member/parents have no
11
seen their children for years and the visitation/custody orders restricting their parental
12
13
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rights have become de facto termination orders. As designated "vexatious litigants," they
are denied or restricted in their access to the state-created and monopolized family law
2
courts, the "only forum" the parents have to "adjust the fundamental relationship" which
is the custody of their children. Hence, the parents continue to suffer irreparablle harm.
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Archibald C~.gli~ , Esq.

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Dated:
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*See, FRAP 4(A )( iv).

(4) Effect of a Motion on a Notice of Appeal .
(A). !fa party timely files in the district court any of the following motions under the Federal Rules of Civi l
Procedure, the time to tile an appeal runs for all parties from the
entry of the order disposing of the last such remaining motion:
(i)...
(iv) to alter or amend the judgment under Rule 59; ...

~ Boddie v. Connecticut ( 1971)
40 I U.S. 371 , 382-383: We do not decide that access for all indi vidual s to the couns
is a right that is, in all circumstances, guaranteed by the Due Process Clause of the Fourteenth Amend ment so that
its exercise may not be placed beyond the reach of any individuat, for, as we have already noted, in the case bel'ore ,
us. thi s right is the exclusive precondition to the adjustment of a fund amental human relationship.
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AO 440 (Rev. I:-2/09) Summons in a Civil Aciion (Page 2)
Civil Action No.
This summons for (name of individual and title.
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PROOF OF SERVICE
(This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (/))
1j any)
I personally served the summons on the individual at (place)
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on (date)
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was received by me on (date)
I left the summons at the individual's residence or usual place of abode with (name)
, a person of suitable age and discretion who resides there,

- - - - --- - - - - - - - - on (date)
, and mailed a copy to the individual's last known address; or
- - - - - -- -
"'fJ- l served the summons on (name of individual)
, who is
designated by law to accept service of process on behalf of (name of organization)
/ffto!L/./7( 0ct~.t<;A;Izts/I
~--CF""~
0 1 returned the summons unexecuted because

0
Other (specify):
My fees are$
for travel and $
on(date)
C+-
to?z.'?/o
;or
; or
for services, for a total of$
0.00
~-------------------
---.,.
Server's address
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NOT FOR CITATION
IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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No. C 13-01295 JSW

ANDREW KARRES, MICHELE FOTINOS,
AMIL HIRAMANEK, LISA HUNTNOCERA, NICOLE ANN RAY,
ARCHIBALD CUNNINGHAM, RICHARD
RIFKIN, et al.,
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For the Northern District of California
United States District Court
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ORDER DENYING MOTION TO

AMEND JUDGMENT UNDER
FRCP 59(e) AND/OR MOTION
FOR RELIEF FROM JUDGMENT
UNDER FRCP 60(b)(1)(6);
REQUEST FOR STATEMENT OF
REASONS
Plaintiffs,
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v.
(Docket Nos. 52, 55)
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CALIFORNIA CHIEF JUSTICE CANTILSAKAUYE, Chair of the Judicial Council, and

MR. STEVEN JAHR, Administrative Director
of the Administrative Office of the Courts,
Defendants.
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INTRODUCTION
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from judgment, filed by Plaintiffs, Ronald Pierce (Mr. Pierce), Kerry Hicks (Ms. Hicks),
Andrew Karres (Mr. Karres), Michelle Fotinos (Ms. Fotinos), Amil Hiramanek (Mr.
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This matter comes before the Court upon the motion to amend judgment or for relief
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Hiramanek), Lisa Hunt-Nocera (Ms. Hunt-Nocera), Nicole Ann Ray (Ms. Ray), Archibald
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Cunningham (Mr. Cunningham), and Richard Rifkin (Mr. Rifkin) (collectively
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Plaintiffs).
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The Court has considered the parties papers, relevant legal authority, the record in this
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case, and it finds the motion suitable for disposition without oral argument. See N.D. Civ. L.R.
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7-1(b). The Court VACATES the hearing scheduled for November 8, 2013, and it HEREBY
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DENIES the motion.

BACKGROUND
The Court has previously set forth the facts underlying this dispute, and it shall not
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repeat them in detail in this Order. In brief, during the court of various proceedings related to
custody disputes, each of the nine named Plaintiffs has been declared a vexatious litigant under
Californias Vexatious Litigant Statute (VLS), California Code of Civil Procedure Sections
391, et. seq. Plaintiffs filed this putative class action for declaratory and injunctive relief
pursuant to the Civil Rights Act, 42 U.S.C. Section 1983, and sued Chief Justice Tani Gorre
Cantil-Sakauye (Chief Justice Cantil-Sakauye) and Steven Jahr (Mr. Jahr), Administrative
10
Director of the Administrative Office of the Courts. Plaintiffs asserted seven claims for relief,
11
each of which was premised on the basic argument that the VLS is unconstitutional as it applies
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to and affects parents in custody disputes.
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On August 13, 2013, the Court granted, in part, and denied, in part, Defendants motion
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to dismiss. The Court rejected, in part, the Defendants argument that Plaintiffs claims were
15
barred by the Eleventh Amendment to the United States Constitution. (See Docket No. 49,
16
Order on Motion to Dismiss at 5:8-6:26.) It concluded that the claims asserted by Mr.
17
Cunningham on his own behalf were barred as a result of a previous lawsuit. (Id. at 7:1-8:13.)
18
It also concluded that the Plaintiffs had failed to state a claim on the alleged constitutional
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violations, and it denied them leave to amend. (Id. at 8:14-11:20.)
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Applicable Legal Standards.
Plaintiffs move for relief from the judgment pursuant to Federal Rule of Civil Procedure
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A.
ANALYSIS
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59(e) and Rules 60(b)(1) and 60(b)(6).1 There are four grounds upon which a Rule 59(e)
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The Plaintiffs timely filed their motion within twenty-eight days of the
Courts judgment. Fed. R. Civ. P. 59(e). Accordingly, the Court shall evaluate the motion
under Rule 59(e), rather than under Rule 60(b)(1) or 60(b)(6). However, even if the Court
were to evaluate the motion under Rule 60(b), the outcome would be the same, because the
Plaintiffs have failed to convince the Court that it committed manifest legal error. See, e.g.,
Gila River Ranch, Inc. v. United States, 366 F.2d 354, 357 (9th Cir. 1966) (notwithstanding
express terms of Rule 60(b)(1), may seek relief under that rule on the basis of judicial error,
if the motion is made before the time to file an appeal has expired); see also Phonometrics v.
1
motion may be granted, only one of which is applicable here. Plaintiffs contend that the motion
is necessary to correct manifest errors of law or fact upon which the judgment is based. See
Turner v. Burlington Northern Santa Fe Railroad, 338 F.3d 1058, 1063 (9th Cir. 2003); cf.
School Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1995)
While Rule 59(e) permits a district court to reconsider and amend a previous order, the rule
offers an extraordinary remedy, to be used sparingly in the interests of finality and conservation
of judicial resources. Kona Enterprises, Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir.
2000) (internal quotations omitted). Rule 59(e) may not be used to relitigate old matters, or to
raise arguments or present evidence that could have been raised prior to the entry of judgment.
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Exxon Shipping Co. v. Baker, 554 U.S. 471, 467 n. 5 (2008) (internal quotes and citations
11
omitted); see also Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003).
12
B.
The Court Denies Plaintiffs Motion.
Plaintiffs primary argument in support of their motion is that the Court committed
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manifest legal error when it failed to review their claims under a strict scrutiny analysis The
15
Court found that rational basis review applied, relying on Wolfe v. George, 486 F.3d 1120, 1226
16
(9th Cir. 2006). (Order on Motion to Dismiss at 9:1-14.) The VLS applies to all pro se
17
litigants. In George, the Ninth Circuit stated that [f]requent pro se litigants are not a suspect
18
class meriting strict scrutiny.
Moreover, contrary to Plaintiffs argument, the Court did consider the fact that Plaintiffs
19
are parents and are involved in custody disputes in its evaluation of the level of scrutiny to be
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applied to their claims. Specifically, the Court cited to the Supreme Courts decision in M.L.B.
v. S.L.J., in which that Court distinguished between loss of custody and termination of parental
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rights, a distinction that also supported this Courts conclusion that a rational basis review
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applied. (Id. at 10:1-25.) This Court also relied on In re R.H., 170 Cal. App. 4th 670, 702-05
25
(2009). In that case, the court rejected the plaintiffs due process claim based no the fact that he
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Hospitality Franchise, Inc., 126 Fed. Appx. 793, 794 (9th Cir. 2005) (same); Latshaw v.
Trainer Wortham Co., Inc., 452 F.3d 1097, 1103 (9th Cir. 2006) (Rule 60(b)(6) should be
used sparingly as an equitable remedy to prevent manifest injustice and is to be utilized only
where extraordinary circumstances prevented a party from taking timely action to prevent or
correct an erroneous judgment) (quotations omitted).
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had been declared a vexatious litigant during the course of dependency proceedings, and it
expressly concluded that strict scrutiny did not apply to its pre-filing order. See id., 170 Cal.
App. 4th at 704. Plaintiffs are, in essence, re-litigating old issues, and the Court concludes they
have not shown it committed a manifest error of law when it dismissed their constitutional
claims.
Plaintiffs also claim that this Court erred by concluding that any claims against
Defendant Steve Jahr were barred by the Eleventh Amendment. The Court finds no basis to
revisit its conclusion that the claims against Mr. Jahr were barred by the Eleventh Amendment.
However, even if it were to conclude that it erred on that issue, it would not lead to the Court
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reinstating those claims, because it also dismissed the claims against Mr. Jahr for the same
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reasons it dismissed the claims against Chief Justice Cantil-Sakauye. (Order on Motion to
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Dismiss at 6:24-26.) For the reasons set forth above, the Court finds no basis to revisit that
13
decision.
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Finally, Mr. Cunningham argues that the Court erred when it excluded him as a class
15
member. The Court again concludes that Mr. Cunningham has not shown the Courts decision
16
on this point was manifestly erroneous.
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For each of the foregoing reasons, the Court DENIES Plaintiffs motion for relief from
judgment.
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Dated: October 4, 2013
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JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE
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Arch Cunningham
State Bar 210625
1489 McAllister St.
(415) 563-1828
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UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF
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HUNT-NOCERA, NICOLE ANN RAY,
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Plaintiffs,
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v.
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Administrative Office of the Courts.
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Defendants, and DOES 1

through 10.
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Case No. C 13-01295 JSW

PLAINTIFFS RESPONSE TO
OPPOSITION TO AMEND
JUDGMENT UNDER 59(e) or
60(b)(1)(6).
Date: October 4, 2013

Time: 9am
Courtroom 10, 19th Fl
Judge: Hon. Judge White
Trial Date:
Action Filed 3/22/13
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INTRODUCTION
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In her Opposition to Plaintiffs Motion to Amend Judgment under the FRCP 59(e)
or 60(b)(1)(6) 1 , Deputy Attorney General P. Patty Li 2 urges Judge Jeffrey White to
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Hereinafter referred to as OMAJ.

_____________________________________________________________________________________________________
Plaintiffs Response to Opposition to Motion to Set Aside Judgment PAGE 1
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reject Plaintiffs attempt to reargue the motion to dismiss. However, the Plaintiffs have
always maintained that their fundamental custody rights have been curtailed, restricted,
or denied by operation of the Vexatious Litigant Statute. (VLS). Deputy Attorney
General Li acknowledges this herself in her pleading. (OMAJ, pg. 2/14). The Plaintiffs
are not rearguing the issue of what is the proper standard of review (rational basis or
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The fact is that Judge White did not address this matter at oral argument on August 4,
heightened scrutiny). That issue was raised by Plaintiffs but has never been argued.
2013. He did not direct the parties to brief the issue of what standard of review applied or
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was proper. Judge White failed to apply the proper standard of review in ordering the
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dismissal of Plaintiffs complaint. He also abused his discretion in failing to raise the
issue at oral argument.
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In their pleading Plaintiffs Response and Objection to Defendants Motion to

Dismiss, the Plaintiffs noted that the previous Deputy Attorney General, Daniel Powel,
13
offered up some self-serving conclusions that rational basis review as opposed to
14
strict scrutiny was proper simply because the Ninth Circuit applied that standard in
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Wolfe v. George and, in Mr. Powells view, it logically followed that the rational basis
16
review is likewise appropriate here. (*See, Deputy Attorney General Daniel Powells
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Motion to Dismiss, pg. 8/16-18). Its beyond cavil that this civil rights case stands or falls
18
on the standard of review that is applied by the court. That is the crux of this case. In their
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complaint, Plaintiffs recognized this and were adamant in asserting that a heightened
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standard of review applied, (Comp. 70):
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The states rationale of managing its dockets and unclogging its courts of frivolous or
unmeritorious claims may stand up in civil cases, but in the context of family law custody
cases, the states rationale is neither compelling nor narrowly drawn. 3 The Defendants
know or should know that the states rationale for the VLS, at least with respect to
matters touching on fundamental rights, has been rejected by the state 4 and federal
Supreme Courts. (Boddie, supra, 382: We are thus left to evaluate the State's asserted
interest in its fee and cost requirements as a mechanism of resource allocation or cost
recoupment. Such a justification was offered and rejected in Griffin v. Illinois, 351 U.S.
20
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Hereinafter Attorney Li.

*See fn 4 above, Lammers v. Superior Court (2000) 83 Cal.App.4th 1309, 1325: [W]hen an enactment broadly
and directly impinges upon the fundamental constitutional rights
4
Elkins v. Sup.Ct. of Contra Costa Co., 41 Cal. 4th 1337 (2007), In other words, court congestion and the press of
business will not justify depriving parties of fundamental rights and a full and fair opportunity to present all
competent and material evidence relevant to the matter to be adjudicated.
3
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12 (1956).
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Likewise, the Plaintiffs, in their May 3, 2013 Response and Objection to Defendants
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Motion to Dismiss, recognize the importance of a heightened standard of review and

noted that it was dispositive of the outcome, (pg. 10/19 to 11/14):
Apparently, the Attorneys deference to the rational basis review is predicated upon a
presumption that a custody dispute is no different than a civil suit. Of course, a rational
basis review all but predetermines the outcome of this case because there is only one case
that Plaintiffs are aware of in which a rational basis analysis was used to overturn a
state statute. (City of Cleburne v. Cleburne Living Center, Inc, (1985) 473 U.S. 432).
In place of analysis of the facts and law of this case, the Attorney rehashes the
rulings of the Ninth Circuit in Wolfe v. George. The Ninth Circuit, however, made those
rulings against a civil litigant, not parents locked in protracted custody disputes. The
Attorney acknowledges that this class action relates to parents in custody disputes, not
civil litigants. However, he treats both types of litigants the same without explaining why.
He does not dispute that parental rights are fundamental rights. (Santosky v. Kramer
(1982) 455 U.S. 745). He does not dispute the events and circumstances related to the
custody cases, such as the fact that at least three parents here have been denied all access
to the family law courts under the VLS after their parental rights were terminated. (*See,
Complaint, Factual Allegations for Parents AH, C, and H). 5 He offers no explanation as
to why parents in these situations should be treated the same as civil litigants for purposes
of the VLS. He simply revisits, rehashes, and runs through the time-tested rulings of
Wolfe v. George as if the family law litigants were identical to litigants in civil lawsuits.
He does not condescend to address the clear distinction between family law and civil
litigants spelled out in 50 pages of the class-action complaint.
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language, and asserts that Wolfe forecloses the complaint. Now, Attorney Li rephrases
Judge Whites ruling with its misreading of and misapplication of one Supreme Court
case, namely, M.L.B. v S.L.J, and urges that Plaintiffs motion for reconsideration under
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Judge White, in his August 13, 2013 dismissal order, adopt Deputy Attorney Powells
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59(e) be denied.
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ARGUMENT
I. Judge Whites Use of Rational Basis Review In A Civil Rights Case Involving
Fundamental Custody Rights Was Clear Error Under FRCP.
A. Judge Whites Decision to Apply the Rational Basis Review Is Based on
Erroneous Assumptions About Fundamental Rights and The Use of Heightened
5
For instance, in one case a family law judge impose a 50 year restraining order against a father who is denied any
contact with his children until midnight on August 24, 2062. (RJN, Ex M. pg. 310, For law enforcement
purposes, the restraining order shall be for 50 years, and shall expire at midnight on August 24, 2064. The children
shall be listed as protected persons.).
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Scrutiny.
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In her OMAJ, Attorney Li dodges the issue that Plaintiffs have been asserting in
their complaint, their pleadings, and most recently in their August 19, 2013 motion to set
aside the judgment in view of Judge Whites clear error in applying a rational basis
analysis rather than heightened scrutiny. Like prior Attorney General Daniel Powell and
Judge White, Attorney Li does not deny that a parents right to the care and custody of
their children is a constitutionally recognized and guaranteed right. Nor could she, Judge
White or Deputy Attorney General Powell deny the fundamental parental rights involved
here in light of the overwhelming plethora of Supreme Court cases recognizing and
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guaranteeing these parental rights. (Stanley v. Illinois, Santosky v. Kramer, etc.).

1. Dont Let the Fact of Fundament Parental Rights Get in the Way.
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Similarly, Judge White and Attorney General Powell, and now, Attorney Li, dont
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deny that the VLS denies unrepresented parents immediate and full access to family
law courts while parents who are represented are granted full access. 6 Further, they do
not deny that family law courts are the only forum the state provides for the resolution
of their custody disputes and the state may not deny access in such cases. 7 (Boddie v.
Connecticut, 401 U.S. 371 (1971)). They do not try to distinguish or deny that custody
disputes, just like divorce cases, are monopolized by the state. 8 They do not deny
18
that the parents here cannot avoid going through the States judicial machinery in
19
resolving their custody dispute. Finally, Judge White relies heavily on the Supreme
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Calif. Const. Art I, Sec 7(b): A citizen or class of citizens may not be granted privileges or immunities not granted
on the same terms to all citizens. Privileges or immunities granted by the Legislature may be altered or
revoked. The VLS violates the Privileges and Immunities Clause of the state and federal constitution by granting
represented parents immunity from the statute.
7
Boddie, supra 383: The requirement that these 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 the right to dissolve this legal relationship without affording all
citizens access to the means it has prescribed for doing so.
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Boddie, supra, 375-376: The legitimacy of the State's monopoly over techniques of final dispute settlement, even
where some are denied access to its use, stands unimpaired where recognized, effective alternatives for the
adjustment of 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 of resolving the dispute at hand, and denial of a defendant's full access to that process raises grave problems
for its legitimacy.
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Courts decision in M.LB v. S.L.J., 519 U.S. 102 (1996) in reaching its ruling but he then
cherry-picks one passage while ignoring others, such as the one cited here, supra 103:
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Although both Lassiter and Santo sky yielded divided opinions, the Court was
unanimously of the view that "the interest of parents in their relationship with their
children is sufficiently fundamental to come within the finite class of liberty
interests protected by the Fourteenth Amendment," Santosky, 455 U. S., at 774
(REHNQUIST, J., dissenting), and that "[f]ew consequences of judicial action are
so grave as the severance of natural family ties," id., at 787. Pp. 116-119.
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In rejecting a rational basis review in M.LB v. S.L.J, the Supreme pointed out that the
parent satisfied both of the two Boddies factors of fundamental rights (parental rights)
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and state monopoly. It also cited to others Supreme Court decisions upholding custody
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rights as fundamental, supra, 104:
Guided by Lassiter, Santosky, and other decisions acknowledging the primacy of

the parent-child relationship, the Court agrees with M. L. B. that Mayer points to
the disposition proper in this case: Her parental termination appeal must be treated
as the Court has treated petty offense appeals, and Mississippi may not withhold
the transcript she needs to gain review of the order ending her parental status.
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In dismissing the complaint, Judge White just air-brushes these passage out of his way.
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2. Judge Whites New Jurisprudence on Constitutional Law.
17
In the instant case, Judge White whitewashes over these decisions (Lassiter,
Santosky, etc.) which acknowledge the primacy of the parent-child relations. He does
19
this not by denying that parental rights are fundamental, but by adopting an entirely
20
new approach, a new jurisprudence related to a state statutes degree of infringement of a
21
fundamental right. The degree of deprivation of the fundamental rights is the basis for
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selecting a standard of review. On the other hand, in all other cases involving a partys
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constitutional challenge of a statute such as Lassiter, Santosky, Mayer, Boddie, Stanley
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etc., the Supreme Court first determines if a parties fundamental right9 have in fact been
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*See, Clark v. Jeter, 486 U.S. 456, 461 (1988): In considering whether state legislation violates the Equal
Protection Clause of the Fourteenth Amendment, U.S.Const., Amdt. 14, 1, we apply different levels of scrutiny to
different types of classifications. At a minimum, a statutory classification must be rationally related to a legitimate
governmental purpose. San Antonio Independent School Dist. v. Rodriguez, 411 U. S. 1, 411 U. S. 17 (1973); cf.
Lyng v. Automobile Workers, 485 U. S. 360, 485 U. S. 370 (1988). Classifications based on race or national origin,
e.g., Loving v. Virginia, 388 U. S. 1, 388 U. S. 11 (1967), and classifications affecting fundamental rights, e.g.,
Harper v. Virginia Bd. of Elections, 383 U. S. 663, 383 U. S. 672 (1966), are given the most exacting scrutiny.
Between these extremes of rational basis review and strict scrutiny lies a level of intermediate scrutiny, which
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infringed upon as in Boddie or if a suspect classification exists or is implicated. 10 If so,
the Supreme Court will review the statute by a strict scrutiny standard, which is a three-
pronged test asking the following questions;
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1) is there a compelling government interest justifying the statute;

2) is the statute narrowly tailored to achieve its objective (or is it overbroad as in
Romer v. Evans 517 U.S. 620 (1996);
3) are there less restrict means for achieving the states objective.
4
5
For instance, in Boddie, the Supreme Court rejected the states cost concerns and interest
in ending frivolous litigant and pointed out that there were alternative methods that did
not infringe on fundamental rights. Boddie. 11
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Despite this well-traveled road of jurisprudence, Judge White blazes a new path
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that is at once novel, fatally flawed, and utterly incomprehensible. In his August 13, 2013
order to dismiss, as noted above, he reads Santosky and Lassiter to mean that a strict
scrutiny review is triggered only if the parents have had their fundamental parental
rights fully, finally, and irrevocably terminated. (Dismissal Order, pg. 10/12-25). In his
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view, apparently, if the parents rights are not officially terminated, then the primacy of
parent-child relationship is not implicated. Hes concluding that strict scrutiny review
is not triggered when a fundamental right is impinged, but only when it is impaired and
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then only when such infringement (of the fundamental right) is full and irrevocable. In
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other words, hes rewritten the time-honored heightened scrutiny test to be;
1) strict scrutiny is triggered only if the fundamental right in fully, finally, and
irrevocably terminated.
2) the state does not need a compelling reason for intruding upon a fundamental
right as long as it does not irrevocably terminate the parental right.
3) alternative measures dont need to be taken nor do statutes need to be narrowly
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generally has been applied to discriminatory classifications based on sex or illegitimacy. See, e.g., Mississippi
University for Women v. Hogan, 458 U. S. 718, 458 U. S. 723-724, and n. 9 (1982); Mills v. Habluetzel, 456 U. S.
91, 456 U. S. 99 (1982); Craig v. Boren, 429 U. S. 190, 429 U. S. 197 (1976); Mathews v. Lucas, 427 U. S. 495, 427
U. S. 505-506 (1976).
10
See, Craig v. Boren, 429 U.S. 190, (1976), suspect classifications must serve important governmental objectives
and must be substantially related to the achievement of those objectives."
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Boddie, supra at 381: Moreover, other alternatives exist to fees and cost requirements as a means for conserving
the time of courts and protecting parties from frivolous litigation, such as penalties for false pleadings or affidavits,
and actions for malicious prosecution or abuse of process, to mention only a few.
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drawn statutes as long as the fundamental right is not fully, finally, and
irrevocably terminated.
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Plaintiffs are unaware of any Supreme Court, Ninth Circuit, or federal case that has ever
made such a ruling regarding the process of selecting rational basis or a strict scrutiny
review.
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While Judge White cites to M.LB v. S.L.J, there is nothing in that case that
suggest such a test or standard. Rather, Judge Jeffrey White relies on a solitary passage,
which he takes out of context, misconstrues, and concludes is a hard and fast rule of law
regarding the method of selecting the proper standard of review. The passage taken from
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the Supreme Court in M.LB v. S.L.J is cited below and mixed with Judge Whites order,
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which takes a leap of illogic and becomes his dismissal order, supra pg. 10/12-25:
In reaching that conclusion, the Supreme Court noted that because of the finality
involved, parental termination orders present a unique type of deprivation and,
thus, differ from mine run civil actions, even from other domestic relations
matters such as divorce, paternity, and child custody. Id. at 127 (emphasis
`added); see also id. at 121 (In contrast to loss of custody, which does not sever
the parent-child bond, parental status termination is irretrievabl[y] destructi[ve] of
the most fundamental family relationship.) (quoting Santosky v.Kramer, 455 U.S.
745, 753 (1982)). As they confirmed at the hearing, none of the Plaintiffs has had
their parental rights fully, finally, and irrevocably terminated.
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Judge White construes this passage to mean that unless a deprivation of fundamental
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rights is full, final, and irrevocable, there is no duty to conduct a heightened scrutiny
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review.
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However, reading this passage in context, along with holdings Santosky, Boddie,
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Lassiter, and the myriad other cases, its clear that the Supreme Court in M.LB v. S.L.J
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was not ruling that heightened scrutiny review hinges on the degree of deprivation of
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fundamental rights which a party endures in a domestic relation cases. The Supreme
Court suggested no such thing. Rather, the Supreme Court in M.LB v. S.L.J was placing
termination cases along the spectrum of domestic relations cases for which it had
already provided heightened scrutiny. In essence, the Supreme Court was noting the
termination cases provide a degree of deprivation that is even greater than divorce
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cases (for which heightened scrutiny was used as evinced in Boddie) and is even greater
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than paternity cases (for which heighted scrutiny was used as shown by Weber v.
Aetna Casualty & Surety Co., 406 U.S. 164 (1972); Picket v. Brown 406 U.S. 175
(1983)) and is even greater than care and custody of children cases for which strict and
heightened scrutiny has been used. (Yoder v. Wisconsin 406 U.S. 205 (1972), Troxel v.
Granville, 530 U.S. 57, 65-66 (2000) (plurality opinion)("it cannot now be doubted
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of parents to make decisions concerning the care, custody, and control of their
that the Due Process Clause of the Fourteenth Amendment protects the fundamental right
children.")). Judge White can only reach his erroneous ruling, his clear error, by ignoring
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a swath of Supreme Court decisions.

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Judge Whites seems to willfully ignore the lengthy string of Supreme Court cases
that have laid out the path and procedures to follow in selecting the proper standard of
review when a fundamental right has been infringed upon. Judge White does not merely
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take a path less traveled but seems to have stumbled down the rabbit hole into some
13
unruly judicial Wonderland. This was clear error.
14
B. Plaintiffs Motion For Reconsideration and Their Preliminary Injunction Should

Be Granted to Prevent Manifest Injustice Under FRCP 59(e)(3).
15
The Ninth Circuit, as noted by Attorney Li, will grant a 59(e) motion to prevent
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manifest injustice. (*See, Turner v. Burlington Northern Santa Fe R.R. Co., 338 F.3d
18
1058).
20
the Plaintiffs motion should be granted to avoid manifest injustice. Judge White points
out and acknowledges that parents here have suffered de facto terminations of their
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Even assuming arguendo that Judge Whites rational basis review were correct,
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parental right but not full, final, irrevocable terminations. He seems to distinguish
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between juvenile cases were the state can terminate parental rights under the Welf. &
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Inst. Code 361.5(b), (h), (i); 366.26(c)(1) and family law cases were parents, such as
the class members here, suffer merely de facto terminations. Judge White does not
deny that Adil Hiramenek had a 50 year restraining order imposed on him. (RJN Exhibit
26
M, pg 310, line 13;[F]or law enforcement purposes, the restraining order shall be for
27
50 years, and shall expire at midnight on August 24, 2062. The children shall be listed as
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protected persons.). He was then denied the right to appeal. (2RJN Exhibits A-D).
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Archibald Cunningham has been denied the right to appeal the February 26, 2010 order
that terminated his visitation rights by the fraud of his ex-wifes attorney, Maria Schopp.
(RJN, Exhibits T, U, VV). He does not deny that Kerry Hicks has been denied all her
parental rights since July, 2008 and denied access by the VLS. (RJN, Exhibit A). Lisa
Nicero was denied access under the VLS and was unable to restore her parental rights for
To allow the ongoing de facto termination of these parents custody rights merely
because their rights were not officially terminated by the state under the Welf. & Inst.
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a period of over two years.
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Code creates a manifest injustice. It also allows greater due process rights for parents in
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juvenile cases than those in family law proceedings. There is no Supreme Court decisions
that support such a result.
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Further, Judge Whites distinction between full, final and irrevocable

terminations and de facto terminations is not even supported by case law. He assumes,
13
erroneously, that juvenile cases are final or irrevocably. But that is not the case.
14
For instance, Judge Cantil-Sakauye, before she was appointed Chief Justice, ruled in In
15
re T.M (2009) 175 Cal. App. 4th 1166 that the termination of a mothers parental rights
16
while she was under multiple psychiatric holds (under CCP 5150) was improper. The
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Court of Appeals in an opinion written by Judge Cantil-Sakauye reversed the juvenile
18
courts termination order because no reunification services were provided to the mother.
19
In this case, the parents are denied any present or future contract by operation of the VLS.
and irrevocable than parents in juvenile cases. This is manifestly unjust.

II. Under Lazy Y Ranch 12 , Plaintiffs Had Right to Prevent Evidence That Judges
Such As Beth Freeman Had Improper Motives In Applying the VLS Against Ms.
Fotinos Attorney.
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In view of the VLS, the orders terminating these parents right are, ironically, more final
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Here, Plaintiffs have alleged that Judge Beth Freeman, Presiding Judge of the San
Mateo County Court, imposed the VLS not only against Ms. Fotinos but named her
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Lazy Y Ranch, 591: Additionally, we have stated that "in an equal protection claim based on selective
enforcement of the law, a plaintiff can show that a defendant's alleged rational basis for his acts is a pretext for an
impermissible motive." Engquist v. Or. Dep't of Agric., 478 F.3d 985, 993 (9th Cir.2007) (emphasis added); (citing
Squaw Valley Dev. Co. v. Goldberg, 375 F.3d 936, 944 (9th Cir.2004))
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attorney, Ms. Patricia Barry on the MC-701 form in violation of the express provision of
the VLS and the holding of Shalant v. Girardi (2011) 51 Cal. 4th 1164. Judge Freeman
was also disqualified (preemptory challenge under CCP 170.6) and had no right to issue
prefiling orders. Judge Freeman was also named as a defendant in Ms. Barrys federal
civil rights suit and was alleged to have obstructed justice by interfering with the
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the VLS against an attorney representing a client. Its almost self-evident that Judge
independent judgment of family law judges. Judge Freeman has no authority to impose
Freeman did not impose the VLS against Ms. Barry to curb vexatious litigant but for
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the improper motive of retaliating against her for naming her in the federal suit.
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The same improper motives could be made against Judge Kane in his ruling
against Ron Pierce. Its clear Judge Mahoney had improper motives in imposing
multiple vexatious actions against Mr. Cunningham with multiple fee sanctions. Judge
12
Clark sua sponte motion to declare Adil Hiramerek vexatious and impose a prefiling
13
order against him when Judge Clark was not a moving defendant (those allowed to
14
file 391.1 motions) and not a presiding judge (those allowed under 391.7 to impose
15
prefiling orders) speaks to improper motives.
In short, Plaintiffs were denied their right under Lazy Y Ranch to show that the
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VLS is consistently abused by trial and appellate judges. Judge White clearly erred in
18
dismissing this case without giving the Plaintiffs an opportunity to present evidences on
19
the issue of improper motives.
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III. Judge Whites Clearly Erred in Finding That Archibald Cunningham Should
Be Denied Status As a Class Member.
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Archibald Cunningham has not seen his daughter since February 26, 2010 and the
state trial and appellate courts have repeated denied him all access to the courts. Clearly,
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Mr. Cunningham continues to suffer an ongoing violation of his federal right to access
and his fundamental rights as a parent. (*See, Wilbur v. Locke, 423 F.3d 1101 (9th Cir.
2005). Now, Judge White asserts that Mr. Cunningham cannot be a member of the class
26
because of his previous case and principles of res judicata. The first clear error Judge
27
White made was characterizing the previous suit as a de facto appeal rather than a
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general challenge to the constitutionality of the VLS. Given the ongoing violation of Mr.
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Cunninghams right to access the trial of appellate courts, Judge White should have
recognized that his previous ruling was erroneous. Instead, he repeats the same error.
Thats his second clear error.
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Judge Whites third clear error is that he claims to have reached the merits of the
first suit and found that it lacked merit. The problem is that he once again seems to have
issues of fundamental parental rights and a strict scrutiny review was mandated, not the
used the wrong standard of review. The present and prior civil rights cases involved
rational basis review that Judge White used here. The fourth clear error is that a
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dismissal of a de facto appeal under Rooker-Feldman is procedural because the federal

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court lacks subject matter jurisdiction to review the case. 13 For Judge White to now
say he reached the merits of the earlier case runs afoul of Rooker-Feldman and the Ninth
Circuit ruling in Kougasian v. TMSL, Inc.
12
CONCLUSION
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Plaintiffs motion for reconsideration and its motion for a preliminary injunction
should be granted give the clear errors and erroneous ruling of Judge White.
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/ac/
________________________
Archibald Cunningham, Esq.
Dated:
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Kougasian v. TMSL, Inc. 359 F.3d 1136, 1140 (9th Cir. 2004): The Rooker-Feldman doctrine has evolved from
the two Supreme Court cases from which its name is derived. See Rooker v. Fidelity Trust Co., 263 U.S. 413, 44
S.Ct. 149, 68 L.Ed. 362 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303,
75 L.Ed.2d 206 (1983). Rooker-Feldman prohibits a federal district court from exercising subject matter jurisdiction
over a suit that is a de facto appeal from a state court judgment. Bianchi v. Rylaarsdam, 334 F.3d 895, 898 (9th
Cir.2003). In part, this prohibition arises through a negative inference from 28 U.S.C. 1257, which grants
jurisdiction to review a state court judgment in the United States Supreme Court. In re Gruntz, 202 F.3d 1074, 1078
(9th Cir.2000) (en banc). That is, while 1257 explicitly authorizes the United States Supreme Court to hear an
appeal from a state court judgment, it impliedly prohibits the lower federal courts from doing so. If a plaintiff brings
a de facto appeal from a state court judgment, Rooker-Feldman requires that the district court dismiss the suit for
lack of subject matter jurisdiction. Id. Determining what constitutes a forbidden de facto appeal, however, has
sometimes proven difficult for the lower courts. See Noel, 341 F.3d at 1161-62 (collecting cases).
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SAN FRANCISCO DIVISION
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C 13-1295 JSW
OPPOSITION TO MOTION TO AMEND

JUDGMENT UNDER FRCP 59(e)
AND/OR MOTION FOR RELIEF FROM
JUDGMENT UNDER FRCP 60(b)(1)(6)
Plaintiffs, Date:
Time:
v.
Courtroom:
Judge:
The Honorable Jeffrey S. White
Trial Date:
Not set
CALIFORNIA CHIEF JUSTICE CANTIL- Action Filed: March 22, 2013
SAKAUYE, Chair of Judicial Council, and
MR. STEVEN JAHR, the Administrative
Director of the Administrative Office of the
Courts, and DOES 1 through 10,
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RIFKIN, et al.,
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KAMALA D. HARRIS
Attorney General of California
TAMAR PACHTER
Supervising Deputy Attorney General
P. PATTY LI
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
Telephone: (415) 703-1577
Fax: (415) 703-1234
E-mail: Patty.Li@doj.ca.gov
Attorneys for Defendants
Defendants.
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Opposition to Motion to Amend Judgment (C 13 1295 JSW)
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INTRODUCTION
Plaintiffs seek reconsideration of the Courts order dismissing all of their claims
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challenging the constitutionality of Californias Vexatious Litigant Statute (VLS), Cal. Civ.
Proc. Code 391, et seq., arguing that the order suffers from clear error in a number of areas.
Plaintiffs motion has no merit, as the Courts legal analysis was firmly grounded in precedents
set by the Supreme Court and the Ninth Circuit Court of Appeals, in addition to well-established
preclusion and sovereign immunity principles. The Court should reject Plaintiffs attempt to
reargue the motion to dismiss, and deny the motion to amend.
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PROCEDURAL BACKGROUND
Plaintiffs are nine individuals who have been named vexatious litigants under the VLS, and
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who purport to represent a class of parents engaged in custody disputes in the family law courts
12
(and on appeal with appellate courts) who have been declared vexatious under the California
13
Vexatious Litigant Statute and whose access to state courts, both trial courts and appellate courts,
14
has been curtailed, restricted, or denied. (Compl. 63.) The Complaint asserted seven claims
15
for relief, each of which is premised on the basic argument that the VLS is unconstitutional as it
16
applies to and affects parents in custody disputes. (Order Granting, in Part, and Denying, in
17
Part, Motion to Dismiss, and Denying as Moot Motion for Preliminary Injunction, August 13,
18
2013 (MTD Order) at 2.)
On August 13, 2013, the Court dismissed all claims without leave to amend, and denied
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Plaintiffs motion for a preliminary injunction as moot. (MTD Order at 11.) On August 19,
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2013, Plaintiffs filed a Motion to Amend Judgment Under FRCP 59(e) and/or Motion for Relief
22
from Judgment Under FRCP 60(b)(1)(6): Request for Statement of Reasons (Motion to
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Amend). Through this motion, Plaintiffs seek reconsideration of the Courts order dismissing all
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claims.
LEGAL STANDARD
Federal Rule of Civil Procedure (Rule) 59(e) provides, A motion to alter or amend a
judgment must be filed no later than 28 days after the entry of the judgment. A request for
reconsideration of a judgment or order made within the time limit specified by Rule 59(e) is
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treated as a motion to alter or amend judgment under Federal Rule of Civil Procedure 59(e),
instead of a motion for relief from a judgment or order under Rule 60(b). Am. Ironworks &
Erectors, Inc. v. N. Am. Constr. Corp., 248 F.3d 892, 89899 (9th Cir. 2001) (citation omitted).
A district court has considerable discretion when considering a motion to amend a
judgment under Rule 59(e). Turner v. Burlington Northern Santa Fe R.R. Co., 338 F.3d 1058,
1063 (9th Cir. 2003) (citation omitted). The Ninth Circuit recognizes four grounds for granting a
Rule 59(e) motion: (1) to correct manifest errors of law or fact upon which the judgment is
based; (2) newly discovered or previously unavailable evidence; (3) to prevent manifest
injustice; or (4) an intervening change in controlling law. Id. (internal quotation marks and
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citation omitted).
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ARGUMENT
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Plaintiffs argue in the Motion to Amend that the Court committed clear error or clearly
13
erred in dismissing their claims,1 but Plaintiffs have not identified any error of law or fact that
14
would undermine the Courts decision. Rather, Plaintiffs insist, in the face of solid legal authority
15
to the contrary, that the Court should have applied heightened scrutiny to their constitutional
16
claims, and that the Courts preclusion and sovereign immunity analyses were simply mistaken.
17
The Motion to Amend falls far short of establishing the clear error required to amend the
18
judgment.
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I.
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NO CLEAR ERROR OF LAW OR FACT
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A.
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Plaintiffs argue that the Court committed clear error by applying rational basis review, and
1120 (9th Cir. 2006), which applied rational basis review in considering constitutional challenges
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they object to the Courts reliance on the Ninth Circuits analysis in Wolfe v. George, 486 F.3d
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The Court Properly Applied Rational Basis Review
to the VLS. However, as the Court explained in its MTD Order, rational basis review is the
25
appropriate level of scrutiny for Plaintiffs equal protection and due process claims,2 because the
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Plaintiffs do not rely on the other grounds available for a Rule 59(e) motion, as they
have not identified any newly discovered or previously unavailable evidence, an intervening
change in controlling law, or a manifest injustice. Turner, 338 F.3d at 1063.
2
The Motion to Amend makes no reference to, and therefore does not challenge, the
(continued)
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class that Plaintiffs purport to represent is not defined by a suspect classification or a fundamental
right warranting heightened scrutiny.
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Plaintiffs contend that they had alleged sufficient law and facts to trigger strict scrutiny
review under the Equal Protection Clause or for violation of their fundamental custody rights
(Motion to Amend at 6), but this is incorrect. Both the Complaint and the Motion to Amend refer
to a suspect class consisting of parents who cannot afford counsel in child custody disputes.
(Compl. 66-78; Motion to Amend at 6, 7, 12.) But where fundamental or substantive due
process rights are not involved, filing fees or other fiscal prerequisites to litigation do not
establish suspect classifications requiring heightened scrutiny. See Ortwein v. Schwab, 410 U.S.
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656, 660 (1973) (applying rational basis review to equal protection challenge to filing fee
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required for appeal of welfare agency determination, because interest in welfare payments has
12
far less constitutional significance than interest in obtaining a divorce, and because [n]o
13
suspect classification, such as race, nationality, or alienage, is present); cf. Boddie v.
14
Connecticut, 401 U.S. 371 (1971) (due process entitles indigents to file for divorce, due to
15
constitutionally protected status of marriage and divorce).
16
The crux of Plaintiffs argument is that the VLS infringes upon the fundamental or
substantive due process rights of parents who cannot afford representation before family law
18
courts. (Motion to Amend at 7-13.) Plaintiffs fault the Court for fail[ing] to ask if the VLS
19
infringes on a parents fundamental rights and blocks access, and for failing to frame the legal
20
issue, which they describe as, Does a parents access to a family law court in a custody dispute
21
rise to the same constitutional level as divorce? (Id. at 7, 11.)
issues when it relied upon Supreme Court precedent analyzing the constitutional significance of
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These criticisms of the Courts order are unfounded. The Court explicitly considered these
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different types of custody determinations. As the Court explained, the Supreme Court explicitly
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distinguished parental rights termination proceedings from other types of custody determinations
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(continued)
Courts rulings on the First Amendment, vagueness and overbreadth, bill of attainder, and ex post
facto law claims.
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in M.L.B. v. S.L.J.: In contrast to loss of custody, which does not sever the parent-child bond,
parental status termination is irretrievabl[y] destructi[ve] of the most fundamental family
relationship. 519 U.S. 102, 121 (1996) (quoting Santosky v. Kramer, 455 U.S. 745, 753 (1982)).
The Supreme Court concluded that rational basis review does not apply when considering access
to judicial proceedings forever terminating parental rights, and that due process and equal
protection do not permit appeals from trial court decrees terminating parental rights to hinge on
the affected parents ability to pay record preparation fees. Id. at 123-28.
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As reflected in the Complaint and the Motion to Amend, no Plaintiff has had his or her
parental rights terminated, and Plaintiffs have not alleged that the VLS has impacted a parental
10
rights termination proceeding. Plaintiffs argument that their parental rights have been the subject
11
of de facto termination (Motion to Amend at 15-16) as a result of unfavorable custody or
12
visitation determinations ignores the Supreme Courts reasoning in M.L.B., which specifically
13
distinguished loss of custody from parental status termination when applying heightened
14
scrutiny in the context of the latter. 519 U.S. at 121.
15
There is no basis for applying heightened scrutiny to Plaintiffs claims, because Plaintiffs
16
do not represent a suspect class and their fundamental rights are not at issue. It was therefore
17
entirely proper for the Court to rely on George and its application of rational basis review in
18
upholding the constitutionality of the VLS.3
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Plaintiffs also argue that the Court committed clear error by failing to assess the
sufficiency of the Complaints factual allegations, and that similar to Lazy Y Ranch Ltd. v.
Behrens, 546 F.3d 580 (9th Cir. 2008), the Complaints factual allegations establish that there is
no rational basis for the VLS. (Motion to Amend at 2-4.) However, the Courts dismissal of all
claims was based on George, which is controlling Ninth Circuit precedent directly on point. The
Court was not required to consider the sufficiency of the Complaints factual allegations because
even if the Court accepted all of the factual allegations as true, rational basis review would still
apply and the claims would still fail. None of Plaintiffs factual allegations would undermine the
Ninth Circuits conclusion that the VLS survives rational basis review, which is based on a
finding that vexatious litigants tie up a great deal of a courts time, denying that time to litigants
with substantial cases and that the state has an interest in protecting defendants from
harassment by frivolous litigation . . . . George, 486 F.3d at 1126.
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The Court properly dismissed the claims brought by Plaintiff Cunningham as precluded by
prior litigation. Plaintiff Cunningham has provided no legal authority for his contention that
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new facts or new law required the Court to find no preclusion. The Motion to Amend does
not identify the new facts at issue, but claim preclusion applies even if new facts are alleged in
support of a previous claim. As the Ninth Circuit has held, in this situation [t]here is no new
claim; instead there is a new fact supporting an old claim. Gospel Missions of America v. City of
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Los Angeles, 328 F.3d 548, 558 (9th Cir. 2003) (in action involving [t]he same evidence, the
same right, and the same transactional nucleus of facts, claim preclusion applied where plaintiffs
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could have challenged particular provision of city ordinance in previous litigation, prior to
11
enforcement of that provision). An action that merely alleges new facts in support of a claim
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that has gone to judgment in a previous litigation will be subject to claim preclusion. Id.
13
(quoting 18 James W. Moore et al., Moores Federal Practice 131.21[1] (3d ed. 2001)).
14
Whatever new facts Plaintiff Cunningham seeks to raise now cannot disturb the Courts claim
15
preclusion analysis.
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Plaintiff Cunninghams argument regarding new law is also unavailing. The Motion to
17
Amend cites Shalant v. Girardi, a decision by the California Supreme Court, as the new law
18
that present[s] a compelling inference that the Courts previous ruling in the Cunningham v.
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Mahoney litigation was erroneous. (Motion to Amend at 14.) However, Shalant did not involve
20
a constitutional challenge to the VLS. Rather, Shalant held that the requirement in California
21
the courts of [California] in propria persona without first obtaining leave of the presiding justice
or presiding judge of the court where the litigation is proposed to be filed) did not apply to a
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Code of Civil Procedure 391.7 (prohibiting vexatious litigants from filing any new litigation in
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The Court Correctly Found That Plaintiff Cunninghams Claims Are

Precluded
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plaintiff who was represented by counsel at the time the action was filed. 51 Cal. 4th 1164, 1168
(2011). This has no bearing on the claims and issues litigated in Cunningham, namely whether
the VLS is unconstitutional . . . based on alleged violations of the Due Process Clause, the First
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Amendment, and as an Ex Post Facto law . . . . (MTD Order at 8.) Shalant thus has no effect
on the Courts preclusion analysis.
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The Court dismissed the Administrative Director of the Courts based on its finding that
Plaintiffs failed to allege[] a sufficient connection between Mr. Jahr and the enforcement of the
VLS. (MTD Order at 6.) As the Court explained, the Ex parte Young exception to Eleventh
Amendment sovereign immunity does not apply if the state officer sued in his or her official
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capacity lacks some connection with the enforcement of the act . . . . (Id. at 5 (citing Ex parte
Young, 209 U.S. 123, 157 (1908).) It was not clear error for the Court to find that the
10
Complaints allegations that the Administrative Director of the Courts duties include
11
accomplishing the goals and priorities of the Judicial Council fail to establish a sufficient
12
connection with the enforcement of the VLS. Plaintiffs now argue that the Administrative
13
Director of the Courts is presumably the boss of the defendant in a separate action that also
14
challenged the VLS, but even if Plaintiffs had alleged this in the Complaint, the Complaint would
15
still lack specific factual allegations tying the Administrative Director of the Courts to the
16
enforcement of the VLS.
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Even if Plaintiffs could establish clear error in the Courts sovereign immunity analysis,
18
the Courts dismissal of the Administrative Director of the Courts would still stand. As the Court
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held, even if the claims against Mr. Jahr are not barred pursuant to the Eleventh Amendment, the
20
Court would still grant Mr. Jahrs motion to dismiss, based on Plaintiffs failure to state a claim
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The Court Appropriately Dismissed Administrative Director of the Courts

Jahr from the Litigation
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CONCLUSION
For the reasons stated above, the Motion to Amend should be denied.
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Respectfully Submitted,
KAMALA D. HARRIS
TAMAR PACHTER
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/s/ P. Patty Li
P. PATTY LI
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SA2013110505
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Arch Cunningham
State Bar 210625
1489 McAllister St.
(415) 563-1828
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Plaintiffs,
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through 10.
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PLAINTIFFS MOTION TO AMEND
AND/OR MOTION FOR RELIEF
FROM JUDGMENT UNDER FRCP
60(b)(1)(6): REQUEST FOR
STATEMENT OF REASONS
Date:
Time:
Courtroom:
Trial Date:
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I. Basis for Reconsideration..... 1
II. Judge Jeffrey S. White Committed Clear Error In Dismissing Based on the
Standard of Review Rather Than An Insufficiency of Factual Allegations.. 2
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A.Judge Jeffrey Whites August 13th, 2013 Order Dismissing

Complaint.. 2
B. Judge Whites Failure to Conduct Any Rational Basis Analysis Was Clear
Error 3
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1.Requirement to Make Meaningful Examination Under Rational

Basis Review Under Lazy Y Ranch 3
9
10
2. Judge White Clearly Erred In Denying Plaintiffs An Opportunity

to Rebut Factual and Legal Premises of Its Deference to the Wolfe
Decision 4
11
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3. Bare Citation to Wolfe v. George Is Not a Meaningful

Determination5
13
14
15
III. Failure to Apply Heightened Scrutiny to Custody Dispute Was Egregiously

Wrong. 6
16
A. Strict (Heightened) Scrutiny v. Rational Basis. 6
17
B. Judge Whites Deference to Wolfe v. George Was Clear Error.......... 7
18
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C. Right to Access and Appellate Review Cases.. 7
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TABLE OF CONTENTS
ID: 8850783
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1. Criminal Cases 7
2. Civil Cases. 8
3.Wolfe v. George, Selecting the Proper Standard of Review..9
4. Wolfe v. George, Applying the Selected Standard of
Review. 10
a. Due Process Clause. 10
b. Equal Protection Clause. 11
IV. It Was Clear Error For Judge White Not to Adopt a Strict Scrutiny Review In
This Family Law Case Involving Fundamental Custody Rights.. 11
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A. Substantive Due Process Violation.. 11

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1. Heightened Scrutiny. 11
B. Equal Protection Violations. 12
V. Judge White Committed Clear Error In Excluding Steve Jahr From

This Case. 13
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VII. Judge Whites Reasoning Goes Beyond Clear Error And Lands Squarely Into
Pure Incomprehension.. 15
VI. Judge White Clearly Erred In Excluding Mr. Cunningham As a Class

Member 14
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VIII. CONCLUSION. 16
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1
TABLE OF AUTORITIES
2
Federal Cases
Backlund v. Barnhart, 778 F.2d 1386, 1388 (9th Cir.1985)..1
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)3
Boddie v. Connecticut, 401 U.S. 371, 383 (1971)..7, 8, 9, 14
City of New Orleans v Dukes, 427 US 297, 303 (1976)..6
Douglas v. California, 372 U. S. 353...8
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Dunn v. Blumstein, 405 U.S. 330 (1972)..7
9
10
Ex Parte Young 209 U.S. 123 (1908).13

Fuller v. M.G. Jewelry, 950 F.2d 1437, 1441 (9th Cir.1991)..1
11
Griffin v. Illinois, 351 U.S. 12 (1956)..7, 8
12
Hinton v. Pacific Enterprises (9th Cir. 1993) 5 F3d 391...2
13
Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008), 3, 4
14
15
16
Loving v. Virginia 388 U.S. 1 (1967).6

Mayer v. City of Chicago, 404 U.S. 189 (1971)8
Miller v Johnson, 515 US 900, 904 (1995)....5
M.LB v. S.L.J., 519 U.S. 102 (1996).8, 9, 15
Ortwein v. Schwab, 410 U.S. 656 (1973)....9, 10, 14
18
Planned Parenthood v. Casey 505 U.S. 833..6
19
Romer v. Evans, 517 U.S. 620 (1999)...4, 6
20
San Antonio Independent School Dist. V. Rodriquez, 411 U.S. 1 (1973)7

Santosky v. Kramer (1982) 455 U.S. 7456, 10, 13, 15
21
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School Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc.

(9th Cir. 1993) 5 F3d 12551
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Skinner v. Oklahoma 316 U.S. 535 (1942).7
Stanley v. Illinois 405 U.S. 645 (1972)..6, 10

United States v. Kras, 409 U.S. 434, (1973)9, 10, 14
25
Wolfe v. George, 486 F.3d 1120 (9th Cir. 2007)2, 3, 5, 6, 7, 9, 10, 12, 13, 14
26
Wolfe v. Strankham 391 F.3d 358 (9th Cir. 2004)2
27
State Cases
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In re Bittaker (1996) 55 Cal. App. 4th 10412, 13
McColm v. Westwood Park Assn. (1998) 62 Cal. App. 4th 121112
Shalant v. Girardi (2011) 51 Cal. 4th 1164....13, 14
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STATE STATUTES
CCP 391..2-7, 9-16

CCP 391.1.12
CCP 391.7....16
Family Code ..16
Welf. & Inst. Code, ( 366.26, 395)16
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FEDERAL RULES OF CIVIL PROCEDURE
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FRCP 12(b)(1).. 2
FRCP 12(b)(6).. 2, 3
FRCP 59(e)...1, 2
FRCP 60(b)(1)(6).. 1, 2
13
14
U.S. CONSTITUTION
15
16
14th Amendment 4, 5, 6, 7, 8, 10, 11, 12, 15
17
CALIFORNIA CONSTITUTION
18
20
TREATISE
Putting the Mice in Charge of the Cheese, Why Federal Judges Cannot Always Be
Trusted to Police Themselves and What Congress Can Do About It, by Professor Lara
A. Bazelon, 97 Kentucky L.J. 439 (2009).14
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Cal. Const. Art. I, sec 7(b)(2).6
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Robert C. Farrell, Successful Rational Basis Claims in the Supreme Court from the 1971
Term through Romer v. Evans.5
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Arch Cunningham
State Bar 210625
1489 McAllister St.
(415) 563-1828
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5
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Plaintiffs,
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through 10.
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PLAINTIFFS MOTION TO AMEND
AND/OR MOTION FOR RELIEF
FROM JUDGMENT UNDER FRCP
60(b)(1)(6): REQUEST FOR
STATEMENT OF REASONS
Date:
Time:
Courtroom:
Trial Date:
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I.Basis for Reconsideration

A district court may reconsider a motion to dismiss under either Federal Rule of
Civil Procedure 59(e) (motion to alter or amend a judgment) or Rule 60(b) (relief from
judgment). School Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc. (9th Cir.
27
1993) 5 F3d 1255: Fuller v. M.G. Jewelry, 950 F.2d 1437, 1441 (9th Cir.1991);
28
Backlund v. Barnhart, 778 F.2d 1386, 1388 (9th Cir.1985).

_____________________________________________________________________________________________________
Plaintiffs Request for Relief Under FRCP PAGE 1
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Local Rule 7-9(a), which provides that a party must seek the leave of the court
1
2
in order to obtain a motion for reconsider, does not limit motions taken under Rule 59(e)
or 60(b). (*See, Hinton v. Pacific Enterprises (9th Cir. 1993) 5 F3d 391, 395).
explained that reconsideration under 59(e) was appropriate if the district court, supra
1263:
(1) is presented with newly discovered evidence, (2) committed clear error or the
initial decision was manifestly unjust, or (3) if there is an intervening change in
controlling law.
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The Ninth Circuit, in School District NO. 1J, Multhomah County, Oregon,
In the instant Rule 59(e) motion, Plaintiffs assert that Judge White committed clear in
10
applying a rational basis analysis rather than strict scrutiny review.
11
II. Judge Jeffrey S. White Committed Clear Error In Dismissing Based on the
Standard of Review Rather Than An Insufficiency of Factual Allegations.
12
A. Judge Jeffrey Whites August 13th, 2013 Order Dismissing Complaint.
13
In his motion to dismiss (MTD), Judge White properly notes that Plaintiffs are
14
15
challenging the constitutionality of the Vexatious Litigant Statute (VLS) as it infringes on
16
their fundamental custody rights or as their status as parents in protracted custody
17
disputes (MTD, pg. 2/12-14):
Plaintiffs assert seven claims for relief, each of which is premised on the basic argument
that the VLS is unconstitutional as it applies to and affects parents in custody disputes.
19
20
Judge White notes that the Deputy Attorney General, Daniel Powell, sought to dismiss
under rule 12(b)(6) 1 and under 12(b)(1). 2 He points out that Defendants argue that
21
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Plaintiffs have not alleged facts that show they violated Plaintiffs constitutional rights.
Next, Judge White concludes that Plaintiffs claims are foreclosed, not by insufficient
23
facts, but by Wolfe v. George, which reviewed the suit by a rational basis analysis
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rather than strict scrutiny.
25
26
1
27
28
Judge White states, MTD, pg 3/11-12:A motion to dismiss is proper under Federal Rule of Civil Procedure
12(b)(6) where the pleadings fail to state a claim upon which relief can be granted.
2
Judge White seems to disregard this rule as a basis for dismissal, presumably because Wolfe v. Strankham 391
F.3d 358 (9th Cir. 2004) rejected the same argument that the court lacked subject-matter jurisdiction under the
Rooker-Feldman doctrine.
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In that sense, Plaintiffs failed to state a claim, under FRCP 12(b)(6) not because
of an insufficient factual basis or poorly a pleaded complaint, but by Judge Whites use of
the rational basis rather than heightened review. Judge White seems to conclude that
Plaintiffs fail to state a claim upon which relief can be granted because, under the
rational basis analysis applied by Wolfe v. George, their claims are automatically and
To survive a motion to dismiss for failure to state a claim, a plaintiff must allege
enough facts to state a claim to relief that is plausible on its face. Bell Atl. Corp. v.
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summarily determined and decided.
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Twombly, 550 U.S. 544, 570 (2007). In general, the inquiry is limited to the allegations
9
10
in the complaint, which are accepted as true and construed in the light most favorable to
the plaintiff. Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008).
11
In this case, Judge Jeffrey Whites dismissal is predicated not upon the
12
insufficiency of facts alleged in Plaintiffs complaint, but his choice of the standard of
13
review. (rational basis v. heightened scrutiny). In that regard, Judge Whites dismissal
14
was clear error.
15
B. Judge Whites Failure to Conduct Any Rational Basis Analysis Was Clear
Error.
16
Even assuming a rational basis analysis applies to family law litigants engaged in
17
custody battles, Judge White failed to conduct a meaningful examination of the facts or
19
law in this case. He simply presumes that Wolfe v. George forecloses the Plaintiffs
H. Wolfes case and the class of parents in the present case is irrelevant. He concludes
that the rational the state has for denying or restricting a civil litigant such as Burton H.
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suit. Judge White presumes that any difference or distinction in the facts between Burton
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Wolfe (who filed civil suits regarding the operation of taxicab operations) applies
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equally to parents in custody disputes.

1.Requirement to Make Meaningful Examination Under Rational
Basis Review Under Lazy Y Ranch.
26
27
Even if rational basis analysis was the proper standard of review, Judge White was
still required to examine the factual allegations contained in Plaintiffs complaint to
28
determine whether the states asserted reasons for the VLS bore any rational relationship
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to the classification resulting in custody disputes (between represented parents who are
shielded from the VLS and parents acting in propria persona who are targets of the
VLS):
[T]he Supreme Court has cautioned that even the standard of rationality . . . must
find some footing in the realities of the subject addressed by the legislation. . . .
Consistent with this admonition, our circuit has allowed plaintiffs to rebut the facts
underlying defendants asserted rationale for a classification, to show that the
challenged classification could not reasonably be viewed to further the asserted
purpose.
Lazy Y Ranch LTD v. Behrens, 546 F.3d 580, 590-91 (9th Cir. 2008); see also Romer v.
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Evans, 517 U.S. 620, 632-33 (classification must be narrow enough in scope and
9
grounded in sufficient factual context to ascertain rational relationship).
10
11
Under the Ninth Circuit ruling in Lazy Y Ranch, Plaintiffs were to be given the
opportunity to rebut the states asserted rational by providing testimony and
12
evidence on disputed facts. 3 Moreover, the Lazy Y Ranch court ruled that a plaintiff in an
13
Equal Protection claim can provide evidence to show an improper motive for a stated
14
rational. 4 (the use of the VLS to end custody disputes at the expense of due process).
15
2. Judge White Clearly Erred In Denying Plaintiffs An Opportunity to

Rebut Factual and Legal Premises of Its Deference to the Wolfe
Decision.
Oddly, at oral argument on July 26, 2013, Judge White did not even raise the issue
16
17
of whether parents in custody disputes were a suspect class or whether the VLS
19
infringed upon their fundamental rights as parents. In their complaint and pleadings, the
20
Plaintiffs have continually argued that the VLS infringes upon their fundamental custody
rights and that the state does not have a compelling reason for applying the VLS to
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Lazy Y Ranch, supra 591-592 : For example, in Lockary v. Kayfetz, homeowners challenged a city's moratorium
on new water hookups, which the city claimed was needed due to a water shortage. 917 F.2d 1150, 1155-56 (9th
Cir.1990). Because the plaintiffs introduced evidence that there was no water shortage at all, their Equal Protection
claim survived summary judgment even under rational basis review. Id. Similarly, in Parks v. Watson, a developer
claimed a city violated its Equal Protection rights when it required the developer to relinquish a well before it could
build. 716 F.2d 646, 654-55 (9th Cir.1983).. We found factual disputes as to whether the developer failed to
submit drawings and whether there was actually a concern over access, and found that a bare desire to take the
developer's wells was not a legitimate interest. Id. at 654-55.
4
Lazy Y Ranch, 591: Additionally, we have stated that "in an equal protection claim based on selective enforcement
of the law, a plaintiff can show that a defendant's alleged rational basis for his acts is a pretext for an impermissible
motive." Engquist v. Or. Dep't of Agric., 478 F.3d 985, 993 (9th Cir.2007) (emphasis added); (citing Squaw Valley
Dev. Co. v. Goldberg, 375 F.3d 936, 944 (9th Cir.2004)).
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custody disputes. 5 But neither Judge White nor Deputy Attorney General Daniel Powell
have ever explained how the purported rational California has for imposing the VLS
applies to unrepresented parents. Further, they have not explained how imposing the VLS
against represented parents but imposing it against unrepresented parents is rationally
connected to their asserted interest in managing scare judicial resources.
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3. Bare Citation to Wolfe v. George Is Not a Meaningful Determination.
Instead, both Judge White and Deputy Attorney General Powell rely on the bare
citation to the holding of George v. Wolfe as the basis for dismissing the civil rights suits.
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For instance, Mr. Powell in his May 24, 2013 Defendants Opposition to Plaintiffs
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Motion for Preliminary Injunction, asserted that Plaintiffs equal protection claims are
foreclosed by Wolfe. (DOPI, pg. 7/18). This foreclosed by Wolfe language was the line
Judge Jeffrey White borrowed and used in his dismissal order. Mr. Powell also points out
12
that the Ninth Circuit in Wolfe applied rational basis review, the standard that is
13
appropriate here. In short, the only thing that was foreclosed was an opportunity for
14
Plaintiffs to argue or rebut the legal presumption that the rational basis standard of
15
review was proper.
Likewise, Plaintiffs were not given a chance to rebut either Judge Whites or
16
Mr. Powells characterization of the factual allegations as frivolous. Plaintiffs in their
18
Request for Judicial Notice included over 400 pages related to their custody disputes,
19
which both Mr. Powell and Judge White seem to summarily characterize as frivolous.
disputes, describing the Plaintiffs pleadings in absolute and overbroad terms, (DOPI):
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In his DOPI, Mr. Powell cautions against curtailing the reach of the VLS to custody
20
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Preventing application of the VLS to custody proceedings would clog the already
overwhelmed family law courts with frivolous litigation, and would slow the
administration of justice for those with meritorious claims.
Mr. Powell does not explain how pleadings in a custody dispute could even be fairly or
reasonably described as frivolous. Many of these parents have been locked out of the
family law courts since being declared vexatious and denied permission to file for
27
28
Legislation that is targeted under strict scrutiny analysis must be narrowly tailored to serve a compelling
governmental interest. (Miller v Johnson, 515 US 900, 904 (1995).
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emergency visitation. To suggest that all litigation a vexatious litigant parent might
file is presumptively frivolous, is overbroad. Its also too narrow in that it presumes that
any pleadings filed by a represented parent are not frivolous. In this way, represented
parents are also thereby granted a privilege or given immunity from the reach of the
VLS that unrepresented parents are not. This creates further equal protection concerns
8
9
10
11
12
13
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granted privileges or immunities not granted on the same terms to all citizens).
while violating of Cal. Const. Art. I, sec 7(b)(2). (A citizen or class of citizens may not be
III. Failure to Apply Heightened Scrutiny to Custody Dispute Was Egregiously

Wrong.
As noted above, both Deputy Attorney General Powell and Judge White assert that
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the rational basis analysis of Wolfe v. George controls in this case. Plaintiffs realize
that federal and state courts routinely uphold and rarely overturn state statutes under a
rational basis analysis. 6 However, after rulings by the Supreme Court in Romer v. Evan
and Lazy Y Ranch, federal courts cannot automatically uphold a state statute by deciding
to apply a rational basis as opposed to strict scrutiny review. Although the Plaintiffs
14
15
16
believed that they had alleged sufficient law and facts to trigger a strict scrutiny review
under the Equal Protection Clause or for violation of their fundamental custody rights,
Judge White seems to ignore the issue. Judge Whites order is devoid of any analysis or
determination as to what the appropriate standard of review is here.
18
A. Strict (Heightened) Scrutiny v. Rational Basis.
19
The more rigorous strict scrutiny standard of review applies in cases where the
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statute or law in question is based on a suspect classification such as race, religion, or
21
alienage 7 or where the statute or law adversely affects a fundamental right such as the
20
right to obtain an abortion 8, right to care and custody of a minor child 9, right to
23
marriage 10, right to privacy 11, right to procreation 12, etc. Under the strict scrutiny
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26
27
28
Robert C. Farrell, Successful Rational Basis Claims in the Supreme Court from the 1971 Term through Romer v.
Evans, 32 Ind L Rev 357, 359 (1999).
7
City of New Orleans v Dukes, 427 US 297, 303 (1976) (Unless a classification trammels fundamental personal
rights or is drawn upon inherently suspect distinctions such as race, religion, or alienage, our decisions presume the
constitutionality of the statutory discriminations and require only that the classification challenged be rationally
related to a legitimate state interest.).
8
Planned Parenthood v. Casey 505 U.S. 833
Santosky v. Kramer, 455 U.S. 745 (1982); Stanley v. Illinois 405 U.S. 645 (1972)
10
Loving v. Virginia 388 U.S. 1 (1967)

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standard of review, it is the governments burden to demonstrate that the challenged
statute or law or practice is strictly necessary to promote a compelling state interest or is
narrowly drawn to achieve that objective. San Antonio Independent School Dist. V.
Rodriquez, 411 U.S. 1 (1973); Dunn v. Blumstein, 405 U.S. 330 (1972).
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B. Judge Whites Deference to Wolfe v. George Was Clear Error.
There is no clear indication in the dismissal order that Judge White decided what
the proper standard of review was in this case. While Judge White referred to the Equal
Protection Clause, he did not address what the suspect class was in this case. (civil
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6
7
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suits v. custody cases? represented parents v. unrepresented parents?). He seems to have

9
10
11
just lumped the vexatious parents in with all civil litigants, assuming that the Plaintiffs
(parents) were no different than a civil litigant like Burton H. Wolfe. But he failed to
consider the two Boddie factors used in reviewing substantive due process violations. He
12
failed to ask if the VLS infringes on a parents fundamental rights and blocks access. He
13
also failed to ask if the state has a monopoly over custody dispute or if there were
14
available alternatives to the VLS.
15
Judge Whites reference to the Equal Protection Clause was cursory at best. He
did not address the issue of whether the VLS, on its face or as applied, resulted in a
17
suspect class. He did not ask if the state has a rational basis under the VLS for
18
distinguishing between represented parents who are shielded from the VLS and
19
unrepresented parents who can be targeted. To the extent that Judge White deferred the
20
holding of Wolfe v. George without an independent and meaningful examination on

either due process or equal protection process violations, he was in clear error.
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C. Right to Access and Appellate Review Cases.

1. Criminal Cases.
The Supreme Court has ruled that the right of access to courts is a fundamental
right for criminal defendants and the state could not bar access without compelling
reasons. 13 In Griffin v. Illinois, the Supreme Court ruled, under the Equal Protection
26
27
11
12
28
Union Pacific R. Co. v. Botsford, 141 U.S. 250 (1891)

Skinner v. Oklahoma 316 U.S. 535 (1942)
13
Griffin v. Illinois, 351 U.S. 12 (1956), is the watershed case on the issue of access and the need for transcript
decisions. The Supreme Court held there that "[d]estitute defendants must be afforded as adequate appellate review
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Clause as well as the Due Process Clause, that a state could not deny a free transcript to
an indigent criminal defendant where the transcript was necessary for a direct appeal
from his conviction. The Supreme Court stated that "it is now fundamental that, once
established . . . avenues [of appellate review] must be kept free of unreasoned
distinctions that can only impede open and equal access to the courts." (*See also, Mayer
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"record of sufficient completeness" to permit proper consideration of his claims.: also,
v. City of Chicago, 404 U.S. 189 (1971), We conclude that appellant cannot be denied a
Douglas v. California, 372 U. S. 353. If the more affluent have counsel on appeal, then
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counsel for indigents must be provided on appeal of a criminal conviction.).

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2. Civil Cases.
10
11
In Boddie v. Connecticut, 401 U.S. 371 (1971), the Supreme Court stated that
Griffin controlled, ruling that the states filing fee required to divorce functioned to deny
12
a indigent married couple access to the only forum provided to adjust a fundamental
13
relationship. In his concurring opinion, Justice Douglas stated, supra at 385:
14
The Court today puts "flesh" upon the Due Process Clause by concluding that
marriage and its dissolution are so important that an unhappy couple who are
indigent should have access to the divorce courts free of charge.
15
16
17
18
The Supreme Court concluded that the denial of access violated their right to be heard in
violation of the Due Process Clause. 14
19
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In M.LB v. S.L.J., 519 U.S. 102 (1996), another fee requirement case, the U.S.
Supreme Court expanded on Boddie. Here, Plaintiffs cite to the holding because it
21
differs from the paraphrased holding Judge White includes in his motion, (*See, MTP,
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pg. 10/15-17, contrast his paraphrased version with the actual holding cited here.) :
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26
27
Just as a State may not block an indigent petty offender's access to an appeal
afforded others, see Mayer v. Chicago, 404 U. S. 189, 195-196, so Mississippi
as defendants who have money enough to buy transcripts."

14
Boddie, supra at 380-381: Drawing upon the principles established by the cases just canvassed, we conclude that
the State's refusal to admit these appellants to its courts, the sole means in Connecticut for obtaining a divorce, must
be regarded as the equivalent of denying them an opportunity to be heard upon their claimed right to a dissolution of
their marriages, and, in the absence of a sufficient countervailing a denial of due process.
28
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may not deny M. L. B., because of her poverty, appellate review of the sufficiency
of the evidence on which the trial court based its parental termination decree.
In reaching its ruling, the Supreme Court noted that fee requirements are ordinarily
only examined for rationality, with two exceptions where the filing fees infringe upon
or bar fundamental rights. The Supreme Court noted that heightened scrutiny is used
cases. However, in M.L.B. v. S.L.J., the Supreme Court created a third exception related
for termination cases. 15 Using a heightened scrutiny review, the Supreme Court then held
when filing fees relate to the political processes as voters or candidates and in criminal
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that the states asserted need for revenues (filing fees) to offset costs was rejected as a bar
9
10
11
to the parents right to access and to defend against the states termination proceeding.
The Supreme Court noted that a termination case provided even greater deprivation of
fundamental rights than divorce (for which it used heightened scrutiny in Boddie.).
12
3. Wolfe v. George, Selecting the Proper Standard of Review. 16
13
In selecting the proper standard of review of the California VLS, the Ninth Circuit
14
considered such cases as Boddie v. Connecticut, United States v. Kras, 17 and Ortwein
15
v. Schwab. 18 The Ninth Circuit then stated we review the California statute for a
16
rational basis. (fn 25) The California cases show that a rational basis exists. In footnote
17
25, the Ninth Circuit noted, supra:
See Kras, 409 U.S. at 448, 93 S.Ct. 631 (reviewing filing fee requirement for
rational basis when there was no fundamental right to discharge one's debts in
bankruptcy).
18
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Likewise, in footnote 29, the Ninth Circuit noted:
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See Ortwein, 410 U.S. at 660, 93 S.Ct. 1172 (holding that because poverty is not a
suspect classification subject to heightened review, "[t]he applicable standard is
that of rational justification") (citing Kras).
On the other hand, the Ninth Circuit noted that the Supreme Court in Boddie rejected a
25
26
27
28
15
M.L.B. v. S.L.J, supra at : In accord with the substance and sense of our decisions in Lassiter and Santosky, see
supra, at 117-120, we place decrees forever terminating parental rights in the category of cases in which the State
may not "bolt the door to equal justice,"
16
Wolfe v. George, 486 F.3d 1120 (9th Cir. 2007)
17
United States v. Kras, 409 U.S. 434, (1973)
18
Ortwein v. Schwab, 410 U.S. 656 (1973).
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rational basis analysis because divorce involved a fundamental right, supra at 383 19:
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A] State may not, consistent with the obligations imposed on it by the Due Process
Clause of the Fourteenth Amendment, pre-empt the right to dissolve this legal
relationship without affording all citizens access to the means it has prescribed for
doing so.").
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4
In Boddie, the Supreme Court used a heightened review given the basic position of the
marriage relationship in this societys hierarchy of values and the concomitant state
monopolization of the means for legally dissolving this relationship. (supra, at 376).
In rendering its decision, the Ninth Circuit in Wolfe v. George then reviewed the
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constitutionality of the VLS under both the Due Process and the Equal Protection Clause.
4. Wolfe v. George, Applying the Selected Standard of Review.
10
a. Due Process Clause
11
In Wolfe v. George, the Ninth Circuit noted that Burton H. Wolfe had filed civil
12
13
suits regarding San Francisco tax cab companies. In rejecting Mr. Wolfes argument
that the VLS denied him due process by denying him access, the Ninths Circuit ruled
14
15
16
17
that his right to bring a civil suit did not rise to the same constitutional level as divorce
as in Boddie. Rather, the Ninth Circuit found that Mr. Burton H. Wolfes suit did not
implicate fundamental rights and was, in that way, more consistent with the holding in
Ortwein and Kras.
18
In Kras, the Supreme Court found Robert Kras right to file for bankruptcy was
distinguishable from the married couple suit in Boddie in two ways. First, there was no
20
protected interest in filing for bankruptcy. (Kras, supra, 445: We see no fundamental
21
interest that is gained or lost depending on the availability of a discharge in bankruptcy).
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Second, bankruptcy was not the only method available for Mr. Wolfe to adjust his
23
legal relationship with his creditors. (supra, 445). The state did not have a monopoly
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26
27
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over Mr. Kras problem managing his debt. The Ninth Circuit went on to examine if there
was a rational relationship between with Californias interest in controlling scarce
judicial resources and curbing frivolous litigant. It found there was a rational basis. 20
19
Boddie, supra at 379: Our cases further establish that a statute or a rule may be held constitutionally invalid as
applied when it operates to deprive an individual of a protected right although its general validity as a measure
enacted in the legitimate exercise of state power is beyond question.
20
Kras, supra: First, vexatious litigants tie up a great deal of a court's time, denying that time to litigants with
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b. Equal Protection Clause

With respect to Mr. Wolfes assertion that the VLS created a suspect class, the
Ninth Circuit ruled that [T]he California statute does not violate equal protection.
Frequent pro se litigants are not a suspect class meriting strict scrutiny. (supra). The
Ninth Circuit next examined the states rational and concluded that [A] state can
thing after they have lost, and so on, from other litigants. (emphasis added).
rationally distinguish litigants who sue and lose often, sue the same people for the same
IV. It Was Clear Error For Judge White Not to Adopt a Strict Scrutiny Review In
This Family Law Case Involving Fundamental Custody Rights.
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A. Substantive Due Process Violation.
10
In his MTD, Judge White asserts that Wolfe v. George precludes the Plaintiffs
11
12
13
suit. However, in Wolfe v. George, the Ninth Circuit asked whether Mr. Burtons suit
rises to the same constitutional level as divorce. The Wolfe court considered the two
Boddie factors (fundamental interest and state control/monopoly). Judge White, on the
14
other hand, fails to even frame the legal issue, that is:
15
Does a parents access to a family law court in a custody dispute rise to the same
constitutional level as divorce?
16
17
First, neither Deputy Attorney General nor Judge White allowed any discussion as to
19
20
of such a protected interest would not likely be viable in view of holdings in cases such
Santosky v. Kramer, Stanley v. Illinois, etc. Nor did Judge White rebut the obvious and
21
whether a custody dispute involves a protected interest, a fundamental right. The denial
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overwhelming fact that California maintains monopolistic control over the only forum
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(family law courts) it provides for the resolution of custody disputes.

1. Heightened Scrutiny.
Under a heightened review, the states interest in managing judicial resources or
25
curtailing frivolous litigation would not pass constitutional muster. In Boddie, the
26
Supreme Court rejected these stated interest and noted there were other methods, other
27
available alternatives the state could use to achieve its objectives, supra, 381:
28
substantial cases. Second, the state has an interest in protecting defendants from harassment by frivolous litigation,
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The arguments for this kind of fee and cost requirement are that the State's interest
in the prevention of frivolous litigation is substantial, its use of court fees and
process costs to allocate scarce resources is rational, and its balance between the
defendant's right to notice and the plaintiff's right to access is reasonable.
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3
4
In our opinion, none of these considerations is sufficient to override the interest of

these plaintiff appellants in having access to the only avenue open for dissolving
their allegedly untenable marriages. (emphasis added).
Judge White did not explain how pleadings in a custody dispute are frivolous. In the
same way, Judge White did not explain how a parents custody pleadings are transformed
10
into frivolity after a parent is declared vexatious. Similarly, he did not consider other
11
alternatives, such as restricting the reach of the VLS so that custody disputes are not
12
subject to the VLS.
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B. Equal ProtectionViolations.
14
Judge White does not explain how the state has a either a compelling or a rational
reason for distinguishing between represented parents and unrepresented parents. While
16
the Plaintiffs have repeatedly asserted in their complaint and pleadings that the VLS, on
17
its face and as applied, creates suspect classes, Deputy Attorney General Powell and
18
Judge White rely on bare citation. (Wolfe forecloses). Its evident that the VLS as
19
applied to custody disputes results in a class of parent, unrepresented ones, who are
20
targets of the VLS for acting in propria person. At the same time, those represented
21
parents are shielded from the VLS and can gain a tactical advantage by filing a motion
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for security under section 391.1 of the VLS.
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In Wolfe v. George, the Ninth Circuit reviewed Burton H. Wolfes suit under a
24
rational basis analysis after finding that the VLS did not create a suspect class among
25
civil litigations. On its face the VLS only applies to civil proceedings and does reach to
26
criminal matters or habeas corpus proceedings. (In re Bittaker (1996) 55 Cal. App. 4th
27
28
just as it has an interest in protecting people from stalking.
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104 21; McColm v. Westwood Park Assn. (1998) 62 Cal. App. 4th 1211 22). More than
five years after Wolfe, the Supreme Court of California issued its ruling in Shalant v.
Girardi (2011) 51 Cal. 4th 1164, directing state courts to avoid broad readings of the
VLS and to observe the statutory limits of the statute. (supra, 1176). In the appellate
decision, the Shalant court noted that the VLS had been repeatedly upheld because it
has narrowly drawn and thus does not impermissibly invade the right of access to the
courts. (183 Cal.App. 4th 545, 556). 23
In Wolfe, the Ninth Circuit was not presented with a case involving parents with
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protected interests in the care and custody of their children. Unlike Barton H. Wolfe,
the Plaintiffs/parents here implicate constitutional concerns involving fundamental
11
custody rights. In that regard, in Santosky v. Kramer, Justice Blackmun quoted from the
12
legislative history of the Indian Relief Act for the proposition that the removal of a child
13
from the parents is a penalty as great [a], if not greater, than a criminal penalty
14
In short, unlike the civil plaintiff (Harold H. Barton) in Wolfe v. George, the
15
Plaintiffs here raise issues of whether there is a suspect class and whether a heightened
16
scrutiny review is required. For Judge White to defer to the holding of Wolfe v. George
17
without considering the facts and legal issues involved in the present case was clear error.
18
V. Judge White Committed Clear Error In Excluding Steve Jahr From This Case.
19
In his MTD (pg. 6/16-20), Judge White asserts that Plaintiffs do not allege that
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Mr. Jahr holds a position similar to the court services analyst named as a defendant in
21
George and Strankman and dismisses under Ex Parte Young for lack of connection
20
with enforcement of the VLS. The court services analyst in Wolfe, Ms. Silva, was an
23
employee of the Judicial Council. Here, Steve Jahr is the Administrator of the Judicial
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24
Council and presumably the boss of any court services analyst. The Plaintiffs cited to
25
21
26
27
28
In re Bittaker, supra 108: The question in this case is not whether petitioner was properly declared a vexatious
litigant, but whether the prefiling order applies to his filing of a petition for habeas corpus.
22
McColms, supra 1219: It includes proceedings initiated in the Courts of Appeal by notice of appeal or by writ
petitions other than habeas corpus or other criminal matters.
23
Shalant, supra, at 556-557: Given the important constitutional concerns that section 391.7 implicates, we
conclude that the statute should not be broadly interpreted. Rather, it should be applied strictly according to its
terms. (emphasis added).
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the same provisions of the California Constitution and the same Government Code in
naming Mr. Jahr that Barton H. Wolfe did in naming Ms. Silva. To the extent Judge
White substitutes bare conclusions and erroneous comparisons, he committed clear error.
VI. Judge White Clearly Erred In Excluding Mr. Cunningham As a Class Member.
In the three years since Judge White dismissed the case of Cunningham v.
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has not seen his daughter in over three and a half years and has been denied all access
Mahoney, Mr. Cunningham has been locked out of the family law court by the VLS. He
under the VLS to challenge the February 26, 2010 order that terminated his parental
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rights. This creates an obvious inference of an ongoing violation of his federal rights.
9
10
11
At oral argument on July 26, 2013, Mr. Cunningham brought to Judge Whites
attention that there were new facts and new law (Shalant v. Girardi) that not only
provided a basis for his inclusion in the class but presented a compelling inference that
12
Judge Whites original ruling was erroneous. Now, Judge White rules that res judicata
13
precludes Mr. Cunningham as a party to this suit. However, he fails to explain away the
14
new facts or new law and does not cite any state/federal case holding that principles
15
of res judicata apply proactively to cover new facts and new law.
In their motion to disqualify Judge White, the Plaintiffs expressed their concern
16
regarding the institutional bias that judges having when they are asked to judge each
18
other. In this case, Judge White would not only have to judge the judicial officers who
19
issued the various vexatious litigant orders but hed have to judge himself in ruling on
20
the earlier case of Cunningham v. Mahoney. In essence, he was placed in position to

reconsider his own decision. This created obvious layer of conflicts of interest. (*See,
21
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Putting the Mice in Charge of the Cheese, Why Federal Judges Cannot Always Be
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Trusted to Police Themselves and What Congress Can Do About It, by Professor Lara
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24
25
A. Bazelon, 97 Kentucky L.J. 439 (2009)).

In their pleadings, Plaintiffs expressed their fear that this case had been fasttracked for dismissal. In view of the dearth of legal analysis of this case, the deliberate
26
indifference to the factual differences between this case and Wolfe, the obliviousness to
27
cases such as Kras, Ortwein, and Boddie, the Plaintiffs cannot help but feel that his case
28
is the product of bias and prejudgment.

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VII. Judge Whites Reasoning Goes Beyond Clear Error And Lands Squarely Into
Pure Incomprehension.
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In his MTD (10/12-25), Judge White strings together a series of citations and
arrives at a conclusion that baffles Plaintiffs. First, he paraphrases the Supreme Courts
holding in M.L.B. v. S.L.J. (*see actual holding above), cherry picks out a passage
setting up some comparisons of cases, then quotes from Santosky, and concludes that the
Plaintiffs rights have not been violated because there has no irrevocable termination
of their parental rights. The Plaintiffs cite to passage in its entirely, (pg. 10/12-25):
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Indeed, in M.L.B. v. S.L.J., the Supreme Court held that a state could not condition a
parents right to appeal the termination of parental rights on costs they could not afford.
519 U.S. 102, 107 (1996).
involved, parental termination orders present a unique type of deprivation and, thus,
differ from mine run civil actions, even from other domestic relations matters such as
divorce, paternity, and child custody. Id. at 127 (emphasis added); see also id. at 121
(In contrast to loss of custody, which does not sever the parent-child bond, parental
status termination is irretrievabl[y] destructi[ve] of the most fundamental family
relationship.) (quoting Santosky v.Kramer, 455 U.S. 745, 753 (1982)). As they
confirmed at the hearing, none of the Plaintiffs has had their parental rights fully, finally,
and irrevocably terminated.
Accordingly, the Court concludes that, on its face, the VLS does not violate
Plaintiffs Equal Protection, Due Process or First Amendment rights.
9
10
11
12
13
14
15
16
18
19
Judge Whites reasoning (legal collaging?) is inscrutable. The Plaintiffs are not sure if he
reads M.L.B. v. S.L.J, a fee requirement case, to mean that the Plaintiffs fundamental
rights as parents are only implicated if they are fully, finally, irrevocably terminated.
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Or is he suggesting only termination triggers a heightened scrutiny review? Thats
21
not the holding of any of the cases Judge White cites. That would be an extreme view.
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Even if that were a plausible reading of M.L.B. v. S.L.J (together with Boddie,
and Kras, and Ortwein, and 70 years of jurisprudence on the Due Process Clause or
24
Equal Protection Clause), Judge White has to ignore the undisputed facts of this case. At
25
oral argument, Plaintiffs attorney responded to Judge Whites question as the Plaintiffs
26
use of the term de facto termination of their parental rights. At oral argument, Plaintiffs
27
explained that the VLS has been used to deny access to both trial courts and appellate
28
courts after all parental rights have been terminated.

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For instance, at oral argument, the Plaintiffs Attorney noted that Mr. Adil
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Hiramanek was denied, under section 391.7 of the VLS, from appealing a 50 year
restraining order that prevents him from contacting his children until midnight on
August 24, 2062. Likewise, Archibald Cunningham has been denied all access, under the
VLS, to the trial and appellate court to challenge a February 26, 2010 order terminating
July, 2008, to challenge the termination of her supervised visitation rights. Lisa Hunt
his visitation rights. Also, Kerry Hicks has been denied access, under the VLS and since
was denied access for periods of years to regain custody. Andrew Karres has not seen his
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daughter since he was declared vexatious almost a year ago. In sum, Judge Whites
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final termination rational isnt even consistent with the facts of this case.
10
11
In short, Judge White seems to suggest that unless the Plaintiffs parental rights
were officially terminated by the state under the Welf.& Inst. Code as in juvenile
12
cases, they have nothing to complain about. To suggest that the parents constitutional
13
rights depend on whether they were terminated in juvenile proceedings under the Welf. &
14
Inst. Code, ( 366.26, 395) rather than by the Family Code is judicial activism on
15
steroids. 24 Judge Whites holding has no basis in jurisprudence. His ruling can only be
16
explained by the most virulent bias and prejudice.
17
VIII. CONCLUSION
If Judge White was uncertain about the proper standard for review, Plaintiffs are
19
flummoxed why he did not request briefing or bring the matter up at oral argument.
20
To Plaintiffs, this hints at his bias and his prejudgment. Plaintiffs dont expect Judge
White to reconsider his decision consistent with case law. But if he should have a relapse
21
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into fairness and impartiality, it should be clear after reading this what the proper course
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of action is (grant the preliminary injunction and use heightened scrutiny review.).
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/ac/
________________________
Dated: 8/19/13
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*See Judge Cantil-Sakauye ruling in In re T.M. (2009) 175 Cal. App. 4th 1166, where that the juveniles courts
termination order for a mother under multiple psychiatric holds was reversed because the court failed to provide
the mother reunification services.
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NOT FOR CITATION
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ANDREW KARRES, MICHELE FOTINOS,
AMIL HIRAMANEK, LISA HUNTNOCERA, NICOLE ANN RAY,
RIFKIN, et al.,
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Plaintiffs,
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ORDER GRANTING, IN PART,

AND DENYING, IN PART,
MOTION TO DISMISS, AND
DENYING AS MOOT MOTION
FOR PRELIMINARY
INJUNCTION
(Docket Nos. 11 and 19.)
v.
14
15
No. C 13-01295 JSW
CALIFORNIA CHIEF JUSTICE CANTILSAKAUYE, Chair of the Judicial Council, and

MR. STEVEN JAHR, Administrative Director
of the Administrative Office of the Courts,
Defendants.
17
18
INTRODUCTION
19
Honorable Chief Justice of the Supreme Court of California and Chair of the Judicial Council,
Tani Gorre Cantil-Sakauye (Chief Justice Cantil-Sakauye), and Steven Jahr (Mr. Jahr),
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Now before the Court for consideration are: (1) the Motion to Dismiss, filed by the
20
Administrative Director of the Administrative Office of the Courts (collectively Defendants);
24
and (2) the Motion for a Preliminary Injunction, filed by Plaintiffs, Ronald Pierce (Mr.
25
Pierce), Kerry Hicks (Ms. Hicks), Andrew Karres (Mr. Karres), Michelle Fotinos (Ms.
26
Fotinos), Amil Hiramanek (Mr. Hiramanek), Lisa Hunt-Nocera (Ms. Hunt-Nocera),
27
Nicole Ann Ray (Ms. Ray), Archibald Cunningham (Mr. Cunningham), and Richard Rifkin
28
(Mr. Rifkin) (collectively Plaintiffs).
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The Court has considered the parties papers, relevant legal authority, the record in this
case, and it has had the benefit of oral argument, the Court HEREBY GRANTS, IN PART,
AND DENIES, IN PART, the motion to dismiss and DENIES AS MOOT the motion for a
preliminary injunction.1
Each of the nine named Plaintiffs has been declared a vexatious litigant under
Californias Vexatious Litigant Statute (VLS), California Code of Civil Procedure Sections
391, et. seq. (See Compl. 9-32; see generally Docket No. 8, Plaintiffs Request for Judicial
Notice (First RJN).) Further, those rulings were either made during the course of or made
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applicable to custody proceedings. (Compl., 9-32, 48-62; see also First RJN.)
On March 22, 2013, Plaintiffs filed this putative class action for declaratory and
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BACKGROUND
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injunctive relief pursuant to the Civil Rights Act, 42 U.S.C. Section 1983. Plaintiffs assert
13
seven claims for relief, each of which is premised on the basic argument that the VLS is
14
unconstitutional as it applies to and affects parents in custody disputes.2

The Court shall address, to the extent necessary, additional facts in the remainder of this
15
16
Order.
ANALYSIS
17
18
A.
Legal Standards Applicable to Motion to Dismiss.
Defendants move to dismiss for lack of subject matter jurisdiction, pursuant to Federal
19
Rule of Civil Procedure 12(b)(1), and for failure to state a claim, pursuant to Rule 12(b)(6).
21
When a defendant moves to dismiss a complaint or claim for lack of subject matter jurisdiction,
the plaintiff bears the burden of proving that the court has jurisdiction to decide the claim.
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Thornhill Publn Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979). Federal
25
26
27
28
Plaintiffs filed a sur-reply in connection with the motion to dismiss. Although

Plaintiffs did not seek leave of court to do so, Defendants have not objected to that filing.
Accordingly, the Court has considered it.
1
Plaintiffs listed the Judicial Council as a defendant in paragraph 33 of their

Complaint. In their opposition to the motion to dismiss, they concede that the Judicial
Council would be immune from suit, and they state any reference to the Judicial Counsel as a
defendant was inadvertent. (Docket No. 13, Plaintiffs Opp. Br. at 3:23-25.)
2
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courts can only adjudicate cases which the Constitution or Congress authorize them to
adjudicate: cases involving diversity of citizenship, or those cases involving a federal question,
or where the United States is a party. See, e.g., Kokkonen v. Guardian Life Ins. Co. of Am., 511
U.S. 375, 377 (1994).
facial or factual. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).
Where an attack on jurisdiction is a facial attack on the allegations of the complaint, as is the
case here, the factual allegations of the complaint are taken as true and the non-moving party is
entitled to have those facts construed in the light most favorable to him or her. Federation of
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African Am. Contractors v. City of Oakland, 96 F.3d 1204, 1207 (9th Cir. 1996).
11
A motion to dismiss is proper under Federal Rule of Civil Procedure 12(b)(6) where the
12
pleadings fail to state a claim upon which relief can be granted. The Courts inquiry is limited
13
to the allegations in the complaint, which are accepted as true and construed in the light most
14
favorable to the plaintiff. Lazy Y Ranch LTD v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008).
15
Even under the liberal pleading standard of Federal Rule of Civil Procedure 8(a)(2), a
16
plaintiffs obligation to provide the grounds of his entitle[ment] to relief requires more than
17
labels and conclusions, and a formulaic recitation of the elements of a cause of action will not
18
do. Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 555 (2007) (citing Papasan v. Allain,
19
478 U.S. 265, 286 (1986)).
21
must instead allege enough facts to state a claim to relief that is plausible on its face. Id. at
570. A claim has facial plausibility when the plaintiff pleads factual content that allows the
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Pursuant to Twombly, a plaintiff must not merely allege conduct that is conceivable but
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A motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) may be
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court to draw the reasonable inference that the defendant is liable for the misconduct alleged.
24
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). If the
25
allegations are insufficient to state a claim, a court should grant leave to amend, unless
26
amendment would be futile. See, e.g., Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th Cir.
27
1990); Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv., Inc., 911 F.2d 242, 246-47 (9th
28
Cir. 1990).
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B.
Requests for Judicial Notice.

As a general rule, a district court may not consider any material beyond the pleadings
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in ruling on a Rule 12(b)(6) motion. Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994),
overruled on other grounds, Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002)
(citation omitted). However, documents subject to judicial notice may be considered on a
motion to dismiss. In doing so, the Court does not convert a motion to dismiss to one for
summary judgment. See Mack v. South Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir.1986),
overruled on other grounds by Astoria Fed. Sav. & Loan Assn v. Solimino, 501 U.S. 104
(1991).
Plaintiffs filed a request for judicial notice in conjunction with their complaint, and they
11
ask the Court to take judicial notice of various state court records. (First RJN.) Defendants
12
filed a request for judicial notice in conjunction with their motion to dismiss, and they ask the
13
Court to take judicial notice of two Judicial Council forms and of records filed in Cunningham
14
v. Mahoney, 10-CV-3211-JSW (Defendants RJN). (Docket No. 12.) Plaintiffs filed a
15
second request for judicial notice with their motion for a preliminary injunction, and they ask
16
the Court to take judicial notice of additional court records (Second RJN). (Docket No. 20.)
Defendants have not objected to the First RJN, and Plaintiffs have not objected to
18
Defendants RJN. On a motion to dismiss pursuant to either Rule 12(b)(1) or Rule 12(b)(6), the
19
Court may take judicial notice of court records in other cases. See United States v. Wilson, 631
20
F.2d 118, 119 (9th Cir. 1980); cf. Lee v. City of L.A., 250 F.3d 668, 689 (9th Cir. 2001); White
21
v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). In addition, documents whose contents are
referenced in a complaint and whose authenticity no party questions are a proper subject of
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judicial notice. See, e.g., Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994), overruled on
24
other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119, 1123-24 (9th Cir. 2002).
25
However, the court may not take judicial notice of a fact that is subject to reasonable
26
dispute, and when a court takes judicial notice of a court document, a court may do so not for
27
the truth of the facts recited therein, but for the existence of the [document], which is not subject
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to reasonable dispute over its authenticity. Lee, 258 F.3d at 690 (internal quotations and
citation omitted).
Accordingly, the Court GRANTS the First RJN and Defendants RJN. However, the
takes judicial notice solely of the existence of those court records. Because the Court did not
reach the merits of Plaintiffs motion for a preliminary injunction, the Court DENIES AS
MOOT the Second RJN.
C.
Eleventh Amendment Immunity.
Defendants argue that the Court lacks subject matter jurisdiction, because Plaintiffs
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claims are barred by the Eleventh Amendment to the United States Constitution. The Eleventh
10
Amendment provides that the Judicial power of the United States shall not be construed to
11
extend to any suit in law or equity, commenced or prosecuted against one of the United States
12
by Citizens of another State, or by Citizens or Subjects of any Foreign State. U.S. Const.
13
amend. XI. The ultimate guarantee of the Eleventh Amendment is that nonconsenting States
14
may not be sued by private individuals in federal court. Beentjes v. Placer County Air
15
Pollution Control Dist., 397 F.3d 775, 777 (9th Cir. 2005) (quoting Bd. of Trs. of Univ. of Ala.
16
v. Garrett, 531 U.S. 356, 363 (2001)).
Ordinarily, the Eleventh Amendment bars official-capacity suits against state officials
18
such as Defendants. See Kentucky v. Graham, 472 U.S. 159, 169-70 (1985). However, a suit
19
against state officials seeking prospective injunctive relief from unconstitutional state action is
20
not barred. See id. at 167 n.14; Ex parte Young, 209 U.S. 123, 159-60 (1908). This principle
21
generally is referred to as the Ex parte Young exception and is limited to prospective injunctive
relief from continuing or impending state action which violates the federal constitution or a
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federal statute. See Armstrong v. Wilson, 124 F.3d 1019, 1026 (9th Cir. 1997). However, a
24
state officer sued in his or her official capacity must have some connection with the
25
enforcement of the act, or else it is merely making him [or her] a party as a representative of the
26
State, and thereby attempting to make the state a party. Ex Parte Young, 209 U.S. at 157.
27
Defendants do not dispute the fact that Plaintiffs seek prospective injunctive relief.
28
However, Defendants argue that neither Chief Justice Cantil-Sakauye nor Mr. Jahr has the
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requisite connection to the enforcement of the allegedly unconstitutional act to trigger the Ex
Parte Young exception. With respect to Chief Justice Cantil-Sakauye, the Court finds
Defendants argument foreclosed by Wolfe v. Strankman, 392 F.3d 358, 361 (9th Cir. 2004)
(Strankman) and Wolfe v. George, 486 F.3d 1120 (9th Cir. 2006) (George).
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In Strankman, the plaintiff brought claims pursuant to Section 1983 and raised a number
of arguments challenging the constitutionality of the VLS. The Ninth Circuit concluded that the
plaintiff could not bring claims against many of the named defendants, who had argued, inter
alia, that the claims were barred by Eleventh Amendment immunity. 392 F.3d at 361.
However, the court expressly stated that the plaintiffs claims against Chief Justice George ...
10
fall within the Ex parte Young exception to sovereign immunity and are properly brought under
11
1983. Id. at 364. The Ninth Circuit reiterated that position in George, when it noted that it
12
had concluded in Strankman that, despite the Eleventh Amendment, the plaintiff could seek
13
declaratory and injunctive relief against former Chief Justice George and the California official
14
who administered vexatious litigant statutes, in their official capacities. George, 486 F.3d at
15
1123-24.
In their Complaint, Plaintiffs allege that Mr. Jahr is the Administrative Director of the
17
Court and that part of his duties include accomplishing the goals and priorities of the Judicial
18
Council. (Compl. 35.) However, Plaintiffs do not allege that Mr. Jahr holds a position similar
19
to the court services analyst named as a defendant in George and Strankman. Based on the
20
allegations in the Complaint, and the record in this case, the Court concludes that Plaintiffs have
21
not sufficiently alleged a sufficient connection between Mr. Jahr and the enforcement of the
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23
Accordingly, the Court GRANTS, IN PART, AND DENIES, IN PART Defendants
24
motion on this basis. However, for the reasons set forth below, even if the claims against Mr.
25
Jahr are not barred pursuant to the Eleventh Amendment, the Court would still grant Mr. Jahrs
26
motion to dismiss.
27
//
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D.
The Claims Brought by Mr. Cunningham As an Individual Plaintiff Are Barred.

Defendants also move to dismiss on the basis that Mr. Cunninghams claims are barred
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by principles of both claim and issue preclusion. At the hearing, the Defendants clarified that
this argument applies only to the claims that Mr. Cunningham has asserted on his own behalf.
This argument is premised on Mr. Cunninghams previous lawsuit, Cunningham v. Mahoney, et
al., 10-CV-3211 JSW (the Cunningham litigation), in which he also asserted that the VLS
was unconstitutional on its face. (See Defendants RJN, Ex. C (Cunningham Complaint); Ex. D
(Order Granting Motion to Dismiss and Joinders Therein, and Denying as Moot Motion for
Preliminary Injunction dated December 7, 2010 (Dec. 7 Order).)
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Res judicata, also known as claim preclusion, bars litigation in a subsequent action of
11
any claims that were raised or could have been raised in [a] prior action. Owens v. Kaiser
12
Foundation Health Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001) (quoting Western Radio Servs.
13
Co. v. Glickman, 123 F.3d 1189, 1192 (9th Cir. 1997)). Res judicata applies when, as between
14
two (or more) actions, there is (1) an identity of claims, (2) a final judgment on the merits, and
15
(3) identity or privity between parties. Id.
Collateral estoppel, or issue preclusion, bars relitigation of issues actually litigated and
17
necessarily decided, after a full and fair opportunity for litigation, in a prior proceeding. Shaw
18
v. Hahn, 56 F.3d 1128, 1131 (9th Cir. 1995). In order to show that collateral estoppel applies
19
Defendants must show that (1) the issue at stake [is] identical to the one alleged in the prior
20
litigation; (2) the issue must have been actually litigated in the prior litigation; and (3) the
21
determination of the issue in the prior litigation [was] a critical and necessary part of the
judgment in the earlier action. Clark v. Bear Stearns & Co., 966 F.2d 1318, 1320 (9th Cir.
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1992).
In the Cunningham litigation, Mr. Cunningham named, inter alia, former Chief Justice
25
George as a defendant in his capacity as Chair of the Judicial Council and alleged that the VLS
26
was unconstitutional in the context of family law proceedings, because it violated his Due
27
Process rights under the Fourteenth Amendment, his First Amendment rights to petition, and
28
was unconstitutionally vague. (Cunningham Complaint 106-161.) Mr. Cunningham also

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alleged that fee sanctions under the VLS amounted to an ex post facto law. (Cunnigham
Compl. 102-105.) Mr. Cunningham raises similar, if not identical, claims in this case. (See
Compl. 79-104, 134-143.) Contrary to Mr. Cunninghams argument here, the Courts
decision in the Cunningham litigation was not based solely on the Rooker-Feldman doctrine.
Rather, the Court noted that Mr. Cunninghams theory of the case was that the VLS is facially
unconstitutional in the context of family law proceedings, and it expressly rejected Mr.
Cunninghams facial challenges to the VLS. (See Dec. 7 Order at 5: 6:22-23, 7:25-26, and
8:17-18.)
is unconstitutional in the context of the Cunningham litigation based on alleged violations of the
11
Due Process Clause, the First Amendment, and as an Ex Post Facto law, and he is barred from
12
re-litigating those issues and those claims, on his behalf, in this case.
Accordingly, the Court GRANTS the motion to dismiss on this basis as well.
14
E.
Plaintiffs Constitutional Claims.
The remaining Plaintiffs bring their claims pursuant to Section 1983. In order to state a
16
claim under Section 1983, a plaintiff must allege two essential elements: (1) that a right secured
17
by the Constitution or laws of the United States was violated and (2) that the alleged violation
18
was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48
19
(1988); see also Ketchum v. Alameda County, 811 F.2d 1243, 1245 (9th Cir. 1987). Defendants
20
do not dispute that Plaintiffs allege facts that show Defendants acted under color of state law.
21
Rather, Defendants argue that Plaintiffs have not alleged facts that show they violated
Plaintiffs constitutional rights.
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1.
24
In their first, second, fourth, and fifth claims for relief, Plaintiffs assert that the VLS
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Mr. Cunningham had a full and fair opportunity to litigate the issue of whether the VLS
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Equal Protection, Due Process and First Amendment Claims.
25
violates their Equal Protection, Due Process, and First Amendment rights, on a number of
26
theories. The Court concludes that these claims are foreclosed by George, even though the
27
Ninth Circuit evaluated the VLS in the context of civil cases, rather than in the context of
28
custody disputes.
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With respect to the equal protection claim, equal protection jurisprudence is concerned
with governmental classifications that affect some groups of citizens differently than others.
Enquist v. Oregon Dept. of Agriculture, 553 U.S. 591, 601 (2008) (quoting McGowan v.
Maryland, 366 U.S. 420, 425 (1961)). The Equal Protection Clause generally requires that
similarly situated individuals be treated similarly. City of Cleburne, Texas v. Cleburne Living
Center, 473 U.S. 432, 439 (1985). However, as set forth in George,
[f]requent pro se litigants are not a suspect class meriting strict scrutiny.
A state can rationally distinguish litigants who sue and lose often, sue the
same people for the same thing after they have lost, and so on, from other
litigants. When no bond is required, the California prefiling order does
little more than require sua sponte review of a vexatious litigants
complaint to see whether it states a claim before imposing the burden of
litigation on a defendant. The defendant could move to dismiss for the
same reason, so the statute is not a substantial or irrational bar to access.
Before the court can require security, it must determine in an
individualized hearing that the plaintiff is a vexatious litigant and that
there is not a reasonable probability that he will prevail in the litigation.
The court must also make an individualized determination of the
appropriate amount of security.
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George, 486 F.3d at 1226 (omitting footnotes).
With respect to the First Amendment claims, the George court rejected a facial
15
challenge to the VLS, because [j]ust as false statements are not immunized by the First
17
Amendment right to freedom of speech, ... baseless litigation is not immunized by the First
18
Amendment right to petition. ... [A] vexatious litigant may file potentially meritorious claims
19
not intended solely to harass or delay, so the courthouse doors are not closed to him. Id. at
20
1125. Similarly, the fact that the VLS permits a court to impose a security requirement or pre-
21
filing requirement does not render the VLS unconstitutional. Nor does that fact lead to the
conclusion that the VLS amounts to a prior restraint on speech. Id. at 1126-27; see also In re
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R.H., 170 Cal. App. 4th 678, 702-05 (2009). Before a court can require any person deemed to
24
be a vexatious litigant to post security, it must ... make an individualized determination of the
25
appropriate amount of security. George, 486 F.3d. at 1127; cf. Wolfgram v. Wells Fargo Bank,
26
53 Cal. App. 4th 43, 60-61 (1997) (noting that judge reviewing a pre-filing request presumably
27
will take the nature of the action into consideration).
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Boddie v. Connecticut, 401 U.S. 371 (1971), upon which Plaintiffs rely here.
Boddie did not prohibit all financial barriers to litigation, regardless of
frivolity or vexatiousness. We do not decide that access for all individuals
to the courts is a right that is, in all 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 exclusive precondition to the
adjustment of a fundamental human relationship. In United States v.
Kras, the Supreme Court held that access to bankruptcy courts does not
rise to the same constitutional level as divorce, and in Ortwein v. Schwab
it reached the same conclusion for challenges to reduction of welfare
benefits. Likewise, the California vexatious litigant statute does not deprive
Wolfe of the opportunity to vindicate a fundamental right in court.
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486 F.3d at 1126 (footnotes with citations omitted); see also In re R.H., 170 Cal. At 702-05
11
(finding no due process violations in context of dependency proceeding).

There is no doubt that a parents desire for and right to the companionship, care,
12
13
custody, and management of his or her children is an important interest. Lassiter v.
14
Department of Social Servs. of Durham Cty., 452 U.S. 18, 27 (1981) (quoting Stanley v. Illinois,
15
405 U.S. 645, 651 (1972).) Indeed, in M.L.B. v. S.L.J., the Supreme Court held that a state
16
could not condition a parents right to appeal the termination of parental rights on costs they
17
could not afford. 519 U.S. 102, 107 (1996).
19
involved, parental termination orders present a unique type of deprivation and, thus, differ from
20
mine run civil actions, even from other domestic relations matters such as divorce, paternity,
21
and child custody. Id. at 127 (emphasis added); see also id. at 121 (In contrast to loss of
custody, which does not sever the parent-child bond, parental status termination is
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In addition, the George court rejected the plaintiffs due process claim and distinguished
irretrievabl[y] destructi[ve] of the most fundamental family relationship.) (quoting Santosky v.
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Kramer, 455 U.S. 745, 753 (1982)). As they confirmed at the hearing, none of the Plaintiffs has
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had their parental rights fully, finally, and irrevocably terminated.
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Accordingly, the Court concludes that, on its face, the VLS does not violate Plaintiffs
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Equal Protection, Due Process or First Amendment rights.
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3.
In their third claim for relief, Plaintiffs set forth a number of specific ways in which they
claim the VLS is unconstitutionally vague and overbroad. Again, these claims are foreclosed
by George, in which the court stated that the VLS is not unconstitutionally vague, because it
gives fair notice to those who might violate the statute. It is not overbroad, because there is no
constitutional right to file frivolous litigation. George, 486 F.3d at 1125.

Bill of Attainder.
In their sixth claim for relief, Plaintiffs allege that the VLS functions as bill of attainder.
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Contrary to Plaintiffs allegations, [t]he statute is not a bill of attainder, because it does not
single anyone out. George, 486 F.3d at 1125.
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5.
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In their seventh claim for relief, Plaintiffs allege that the VLS operates as an ex post
Ex Post Facto Law.
13
facto law. The Court concludes that their facial challenge to the VLS on this basis fails as well.
14
See George, 486 F.3d at 1127 (The Double Jeopardy and Ex Post Facto Clauses do not apply
15
because the vexatious litigant statute does not impose criminal penalties.).
16
CONCLUSION
For the foregoing reasons, Defendants motion to dismiss is GRANTED, IN PART,
18
AND DENIED, IN PART. Plaintiffs motion for a preliminary injunction is DENIED, AS
19
MOOT. Although, in general, a court should grant Plaintiffs leave to amend, the Court
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concludes that the defects identified in this Order could not be cured by amendment.
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The Court shall enter a separate judgment, and the Clerk shall close this file.
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IT IS SO ORDERED.
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Dated: August 13, 2013

JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE
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SAN FRANCISCO/OAKLAND DIVISION

Plaintiffs,
v.
REPLY TO DEFENDANTS
OPPOSITIN TO PLAINTIFFS MOTION
FOR A PRELIMINARY INJUNCTION
Date: July, 26, 2013

Time: 9am
Judge: Hon. Jeffrey S. White
Trial Date:
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SBN 210625
1489 Mcallister St.
415. 563.1828
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TABLE OF CONTENTS
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INTRODUCTION. 1
BACKGROUND 4
A. Constitutional Challenges... 4
I.Californias Vexatious Litigant Statute 4
B. Purpose of VLS 6
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II.ARGUMENT
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A. 11th Amendment/Likelihood of Success on the Merits 8

B. Strict Scrutiny v. Rational Basis/Likelihood of Success on the Merits.. 9
C. Plaintiffs Have Shown Irreparable Harm. 11
D. The Balance of Equities and the Public Interest Weigh in Favor of Granting
the PI. 12
CONCLUSION 14
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TABLE OF AUTORITIES
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Federal Cases
Boddie v. Connecticut, 401 U.S. 371, 383 (1971)6, 10, 11
Ex parte Young 209 U.S. 123 (1908).. 8, 9
Hafer v. Melo, 502 U.S. 21 (1985).. 9
Madrid v. Gomez, 150 F. 3d 1030, 1040 (9th Cir. 1998. 10
Nordinger v. Hahn, 505 U.S. 1 (1992).. 11
Santosky v. Kramer (1982) 455 U.S. 7452, 3, 10
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Winter v. Natural Def. Council, 129 S. Ct. 364 (2008).. 8, 12
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Wolfe v. George 486 F.3d 1120 (9th Cir. 2007) 9, 10, 11

Wolfe v. Strankman, 392 F.3d 358 (9th Cir. 2004) 8, 9
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State Cases
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Bravo v. Ismaj, 99 Cal. App. 4th 211 (1997).3
15
Elkins v. Sup. Ct. of Contra Costa 41 Cal. 4th 1336 (2007)7,10, 13, 14
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Golin v. Allenby (2010) 190 Cal. App. 6166
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In re R. H.,170 Cal. App. 678, 700 (2009).7, 13
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Lammers v. Superior Court (2000) 83 Cal.App. 4th 130910, 12
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In re Bittaker (1997) 55 Cal. App. 4th 1004 2, 6

Shalant v. Girardi (2011) 51 Cal. 4th 11644, 5
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Luckett v. Panos (2008) 161 Cal. App. 4th 77..2, 5
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Wolfgram v. Wells Fargo Bank (1997) 53 Cal. App. 4th 43..5
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STATE STATUTES
CCP 391.2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 13, 14

CCP 391(a).2
CCP 391.7..3
CCP 170.4(d)5
Family Code 2032 7
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U.S. CONSTITUTION
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1st Amendment.4, 5, 6, 12
11th Amendment8
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14th Amendment..12
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Arch Cunningham
State Bar 210625
1489 McAllister St.
(415) 563-1828
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PLAINTIFFS RESPONSE TO
DEFENDANTS OPPOSITION TO
MOTION FOR PRELIMINARY
INJUNCTION
Date: July 26, 2013
Time: 9am
Trial Date:
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INTRODUCTION
On May 24, 2013, Daniel Powell, the attorney for the Defendants (hereinafter the
Attorney), filed THE DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION FOR
PRELIMINARY INJUNCTION. (DOPI). In the Introduction, the Attorney argues that:
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that parental rights are fundamental rights. 1 Unlike civil litigants, the parents here are
involved in custody proceedings that implicate their fundamental rights. While Judge
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The Attorney, however, ignores the essential nature of this class action. Its beyond cavil
4
Sills in Luckett v. Panos faults vexatious litigants for their propensity for dishonesty
and habit of suing people as a way of life, most, if not many of the parents here did not
sue anybody but were dragged by the other spouse. 2 Unlike civil litigation, a parent
caught in a custody dispute can be called back to a family law court again and again for
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myriad reasons 3 and against their wishes and until the child is 18 years old. Nobody,
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nobody, nobody, and again nobody, despite Judge Sills comments to the contrary, choses
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this as a way of life.
Judge Sills, in Luckett v. Panos, also noted that most people dont sue anyone 4,
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but he failed to realize that half of marriages end up in family law courts. The fact is that
most people get married and a majority of those people end up in family law courts, often
in bitter custody disputes. Neither Judge Sills nor the Attorney here seem to recognize the
inherent difference between civil litigation and custody proceedings. The Attorney makes
no attempt to distinguish the inherent differences between civil litigants and vexatious
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criminal or habeas corpus cases. (*See, 391, subd. (a); A petition for writ of habeas
corpus is not a civil action or proceeding within the meaning of the vexatious litigant
statute. In re Bittaker (1997) 55 Cal. App. 4th 1004, 1010).
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parents. Yet, the VLS, by definition applies only to any civil or proceeding not to
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The Attorney also notes that the VLS distinguishes between represented litigants
and self-represented, but ignores the fact that judges ignore this clear and unambiguous
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Santosky v. Kramer (1982) 455 U.S. 475: Stanley v. Illinois (1972) 405 U.S. 645, 651: A parents interest in the
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.
2
Luckett v. Panos (2008) 161 Cal. App. 4th 77, 93: Fourth, the applicant must actually give up the habit of suing
people as a way of life.
3
Disputes between parents arise over choice of schools, medical care, move-away orders, or the other parents
fitness, whether resulting from illness or accident or allegations of abuse.
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Luckett, supra at 95: As the court in Wolfgram cogently noted, "Most people never sue anybody." (Wolfgram,
supra, 53 Cal.App.4th at p. 58.)
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distinction and apply the VLS not only to represented parents but to their attorneys.5
(DOPI pg. 7/13-15). The fact that the Attorney simply refuses to respond to the inherent
differences between civil litigants and custody disputes seems deliberate. The
Plaintiffs, in their Proposed Order for the preliminary injunctions, also suggested that
the distinction between criminal matters and custody proceeding was neither clear
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history of the Indian Relief Act for the proposition that the removal of a child from the
nor self-evident. In Santosky v. Kramer, Justice Blackmun quoted from the legislative
parents is a penalty as great [a], if not greater, than a criminal penalty Here, Adil
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Haramenk has been told he cannot see his children under a TRO until midnight on
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August 24, 2062. (RNJ, Exhibit M). Also, Archibald Cunningham has had all his parental
rights terminated by the apparent fraud of his ex-wifes attorney. Likewise, Kerry Hicks
was assured that shed be able to restore her visitation after if she complied with a drug
12
and mental health screening, but over four years later she hasnt seen her children. (RJN,
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Exhibit A, B).
14
That raises the next issue that the Attorney fails to recognize in his DOPI. In his
DOPI, the Attorney relies on state law cases involving civil litigants, not vexatious
16
parents, for the proposition that the VLS does not deny access to the court. 6 But this
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view is predicated upon the presumption that there is no difference between civil cases
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and custody disputes. The fact is that once parents are declared vexatious, they are
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denied immediate and full access to both the trial courts and appellate courts if they are
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not represented. Unlike civil cases, custody cases are fraught with emergencies such
as issues of medical coverage for an injured child or supervision when a parent is ill or
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hurt. The denial of immediate and full access is critical in custody cases.
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The Attorney also cites to decisions that suggest that if a parents motions have
merit, then the parent will be granted permission under the VSLs prefiling order
procedures to file. But in the instant case we see here that each and every parent is denied
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*See where Michele Fotinos attorney, Patricia Barry is declared vexatious and named on the prefiling order. RJN
Exhibit K, pg. 289). Plaintiffs attorney were forced to fill out MC-700 forms and denied access. RJN, pg. 380).
6
DOPI, pg. 13/15-20: As California courts have observed, Californias VLS does not deny the vexatious litigant
access to the courts, but operates solely to preclude the initiation of meritless lawsuits and their attendant
expenditures of time and costs. Bravo v. Ismaj, 99 Cal. App. 4th 211, 22122 (2002); see also In re R.H., 170 Cal.
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full and immediate access and then is denied any access. In making this argument,
the Attorney presumes that all of the presiding judges merit determinations, where he
checks the granted box or the denied box are valid, even though there is no need
under the VLS prefiling order procedures to furnish written reasons for granting or
denying access. At a more fundamental level, the Attorney presumes nothing is lost by
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appellate review under the state Constitution for a merit determination under the
substituting a parents 1st Amendment right to petition grievances and their right to
VLS. This may be true for civil litigants who are not fighting for fundamental custody
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rights, but it begs the question to presume parents arent getting the short end of the stick.
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BACKGROUND
I. Californias Vexatious Litigant Statute

A. Constitutional Challenges.
12
In his DOPI, the Attorney points out that the VLS has survived numerous
13
constitutional challenges. (pg. 2/10-12). However, none of those challenges involved
14
parents in custody disputes. The Attorney then cites to various cases but fails to mention
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the most important case from Californias Supreme Court, Shalant v. Girardi (2011) 51
16
Cal. 4th 1164. In Shalant, the Supreme Court rejected broad readings of the VLS and
17
cautioned trial courts to observe the statutory limits of the VLS and to refrain from
18
judicial legislating, (1176):
20
The Legislature's express distinction between litigation filed in propria persona

and that filed through an attorney, therefore, is not an absurd one that could not
have been intended. Even if a broader rule, barring vexatious litigants from filing
or maintaining new litigation in propria persona, would serve the statute's
purposes better by ending more frivolous litigation more quickly, we have no
warrant to ignore section 391.7's unambiguous language in favor of such a rule. As
the appellate court below remarked: "We sympathize with the plight of already
overburdened trial courts that are forced to contend with the abusive conduct of
vexatious litigants. But in their efforts to deal with the problem of vexatious
litigants, courts must observe the limits set by the applicable statutory scheme. If
those limits are too confining, then it is the function of the Legislature, not the
courts, to expand them."
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The Supreme Court then overruled the broad holding of a recent case. (*See, fn 3:
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App. 4th 678, 700 (2009) (a prefiling order does not prevent an appeal; it provides a means by which a vexatious
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We therefore disapprove Forrest v. Department of Corporations, supra, 150 Cal. App.
4th 183, to the extent it held section 391.7 applies to acts other than the filing of new
litigation in propria persona.). Specifically the Shalant court ruled, (1167):
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We agree with the Court of Appeal. By its unambiguous terms, section 391.7,
subdivision (a) authorizes only a "prefiling" order prohibiting a vexatious litigant
from "filing" new litigation without prior permission, and only when the litigant is
unrepresented by counsel.
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Despite the unequivocal ruling that section 391.7 applies only to unrepresented parties
and that representation is not absurd, the Attorney fails to note that Presiding Judge
Betsy Freeman imposed a prefiling order against a represented parent, Ms. Fotinos, as
10
well as her attorney, Ms. Barry. (RJN, Exhibit K). Judge Freeman was also disqualified
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when she did this. Oddly, Judge Freeman seems unwilling to follow stare decisis or the
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Code of Civil Procedure (CCP 170.4(d) prohibited her from further rulings after her
disqualification), but know shes slotted to join the district court judges. 7
Further, the Attorneys characterization of the VLS creates the impression that the
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courts have never reined in the broad readings of judges. That is not the case. In the
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Court of Appeals, the Shalant court pointed out that the VLS has been narrowly
construed to infringe upon the right of access to courts. (Shalant v. Girardi (2010) 183
Cal. App. 4th 545, 557);
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the Court of Appeal has repeatedly upheld the vexatious litigant statutes
(including section 391.7) against constitutional challenges on the ground that the
statutes are narrowly drawn and thus do not impermissibly invade the right of
access to the courts. (See Wolfgram v. Wells Fargo Bank (1997) 53 Cal.App.4th
43, 55-57, 60; Luckett v. Panos (2008) 161 Cal.App.4th 77, 81; In re R.H. (2009)
170 Cal.App.4th 678, 702; Kobayashi v. Superior Court (2009) 175 Cal.App.4th
536, 541.) Given the important constitutional concerns that [183 Cal.App.4th 557]
section 391.7 implicates, we conclude that the statute should not be broadly
interpreted. Rather, it should be applied strictly according to its terms.
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The cases cited here, for narrow interpretation were also cited by the Attorney. None of
this case, however, involved constitutional challenges by parents locked out and denied
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litigant may nonetheless pursue litigation.).

7
Judge Betsy Freeman was nominated for the district court by Senator Feinstein:
http://www.contracostatimes.com/breaking-news/ci_23503423/white-house-nominates-two-bay-area-federal-judges
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access to the only forum the state effectively empowers to resolve their custody
dispute. (Boddie v. Connecticut (1971) 401 U.S. 371, 376).
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Further, the Attorney fails to point out the ruling in In re Bittaker (1997) 55 Cal.
th
App. 4 1004, 1010, where the court refused to apply the VLS to a habeas corpus petition
even though such proceedings are no longer purely criminal. 8 Nor did the Attorney
proceedings as litigation for purposes of finding parents, such as Richard Rilkin, to be
mention that certain trial judges have counted pleadings related to criminal contempt
vexatious. (*See, RNJ Exhibit Y). Likewise, the Attorney does not mention the case of
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Golin v. Allenby (2010) 190 Cal. App. 616, where the Court of Appeals found that a trial
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judge lacked authority to impose, on its own motion, a prefiling order before the party
had been declared vexatious. Yet, Judge Kane, of the Fifth Appellate District, as a
moving defendant brings his own section 391.1 motion to declare Ron Pierce to be
vexatious and then impose a 391.7 prefiling order against him.
13
B. Purpose of VLS.
In his DOPI, the Attorney notes that purpose of the VLS was to curb misuse of
15
the court system by those acting in propria persona who repeatedly relitigate the same
16
issues. (In re Bittiker, supra, 1008). He points out that this misuse waste scare judicial
17
resources and prejudices other parties waiting their turn before the courts. (In re
18
Bittaker, 1008). The Attorney is long on the states interest but neglects to address the
19
countervailing interest litigants, particularly parents in custody disputes, have in access
20
to courts. Plaintiffs have pointed out that the nature and reality of a custody cases are
different than civil cases. Here, most of the parents did not sue for dissolution (Mr.
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Karres, Mr. Cunningham, Mr. Hiramenek, Ms. Hunt, Ms. Nicole Ray) and had no choice
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as to the forum in which to resolve their custody dispute. Nor did they elect to proceed
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in propria persona, but were forced to do so by the fact they lacked funds. The Attorney
faults one father for filing eight requests to rescind his status as a vexatious litigant
(DOPI, pg. 11/1-2). However, either the Attorney misunderstand or misstated the facts.
26
27
28
In re Bittaker, supra, at 1011, 1012: To overlay this habeas corpus process with the vexatious litigant process
would serve only to add unnecessary, time consuming steps, illustrated by the case at benchWe note also that a
petition for writ of habeas corpus subjected to a prefiling order and then determined not worthy of filing would not
be publicly recorded, a fact which we find contrary to public policy and the protection of the integrity of the writ
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That father filed eight motion for need-based attorney fees under Family Code 2032
so that hed be relieved of the burden of self-representation and no longer a target of a
VLS motion for having to act in propria persona.
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The purpose of the VLS and its application here to custody cases cannot be
41 Cal. App. 1337. In Elkins, Chief Justice George stated that at least 80% of the cases
(family law) have at least one unrepresented party by the time of disposition. (supra,
properly squared with the decision of Chief Justice George in Elkins v. Sup. Ct. (2007)
1368). As self-represented parents, theyre targets for the imposition of the VLS. Over
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two years after Elkins, Judge Jane Cardoza t issued her ruling in In re R.H. (2009) 170
9
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Cal. App. 678, 700, where she quoted from the legislative record for the proposition that
the VLS could be used as a tool by family law courts to gag parents trying to regain
custody. (Comp. pg. 11/10-14). Although Judge Cardoza was aware of the Elkins ruling
12
and the fact that Chief Justice George had set up the Elkins Task Force, 9 she encouraged
13
family law judges to impose the VLS on parents. In issuing her decision, she was aware
14
that Chief Justice George has made the following statement in Elkins, (supra, 1369, fn
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20; *See Discussion in Comp., pg. 13):
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We recommend to the Judicial Council that it establish a task force, including

representatives of the family law bench and bar and the Judicial Council Advisory
Committee on Families and the Courts, to study and propose measures to assist
trial courts in achieving efficiency and fairness in marital dissolution proceedings
and to ensure access to justice for litigants, many of whom are self-represented.
Such a task force might wish to consider proposals for adoption of new rules of
court establishing statewide rules of practice and procedure for fair and
expeditious proceedings in family law, from the initiation of an action to
postjudgment motions. Special care might be taken to accommodate selfrepresented litigants. Proposed rules could be written in a manner easy for
laypersons to follow, be economical to comply with, and ensure that a litigant be
afforded a satisfactory opportunity to present his or her case to the court.
At the time of her decision in In re R.H., Judge Laura Zelon, head of the Elkins Task
Force, had not issued her final recommendations. Although Judge Jane Cardoza knew
of the Elkins case and the Elkins Task Force, she apparently believed that the special
27
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process.
9
http://www.courts.ca.gov/documents/elkins-finalreport.pdf
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care taken to accommodate self-represented litigants in custody disputes is to label the
parents vexatious and deny them access if they cannot afford to hire an attorney to
avoid being a target of the VLS. When Judge Zelon issued her final recommendations,
she pointed out potential difficulties for the self-representation and noted that the
Legislature has recognized the difficulties with self-representation in some case.
In his DOPI, the Attorney does not explain why a parent who cannot afford to hire
an attorney should be subject to the VLS in a custody disputes but a parent who has
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(COMP, pg. 14/7-28).
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money is not. Nor does the Attorney understand what all the parents here know too well,
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which is that the attorneys in custody disputes have learned to use the VLS as a litigation
tactic to lock out the self-represented parent.
II. ARGUMENT
A. 11th Amendment/Likelihood of Success on the Merits.
13
The Attorney correctly notes that the Plaintiffs must satisfy the four Winter factors
14
to prevail in their request for a preliminary injunction. The Attorney then repeats his 11th
15
Amendment arguments for the convenience of the court and renews his request for
16
dismissal on that basis. The Plaintiffs will not repeat their arguments, but they will make
17
a few comments regarding the application of the 11th Amendment.

First, the Attorneys broad reading of the relationship to enforcement language
19
of the Ex Parte Young case would result in absolute sovereign immunity. His reading
20
of Ex Parte Young would prevent any challenge to an unconstitutional challenge where

a judge enforcing a ruling. The legal fiction that is an Ex Parte Young case would be
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negated. The Attorney opines, (DOPI, pg. 6/9-18: As neither of the defendants in their
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official capacities is responsible for the conduct of individual judges applying the VLS,
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an injunction could not properly bind judges throughout California.). Because absolute
immunity precludes the Plaintiffs from suing Legislators or judges in their judicial
capacity, there would be no proper defendants under a section 1983 civil rights case.
26
There is no authority to support this. Second, the Attorney knows that this type of 11th
27
Amendment argument was rejected in Wolfe v. Strankman, 392 F.3d 358 (9th Cir.
28
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2004). 10 That is why the Ninth Circuit heard the merits of Baron H. Wolfes case in
Wolfe v. George 486 F.3d 1120 (9th Cir. 2007). Third, Plaintiffs point out that Chief
Justice Cantil-Sakauye did enforce the VLS issued against class member Ron Pierce.
On February 3, 2012, she denied him leave to writ the order of Judge Kane issuing
from impromptu 391.1 hearing at the Court of Appeals for the Fifth District. (RJN,
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Exhibit D, pg. 198).
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B. Strict Scrutiny v. Rational Basis/Likelihood of Success on the Merits.
The Plaintiffs have alleged that the court should review this case under strict scrutiny
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rather than by a rational basis analysis because the vexatious parents are either a
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suspect class or the VLS infringes upon their fundamental right to access the family law
courts to resolve their custody dispute. This is the crux of the Plaintiffs case. Unlike
Barton H. Wolfe, they do not seek to overturn the entire VLS. Rather, they challenge the
12
constitutionality of the VLS as it applies to and affects parents in custody disputes. In
13
essence, they are asserting that the state may have a rational basis for applying the VLS
14
to civil litigants but it has no compelling reason for applying it to parents.\
15
This has been the Plaintiffs position in their complaint and pleadings. In his DOPI,
the Attorney did not address the issue even though Plaintiffs again raised it in their May
17
4, 2013 reply to the Attorneys motion to dismiss. Here, it seems the Attorney goes out of
18
his way to dodge the issue. In his DOPI, the Attorney asserts that the Plaintiffs equal
19
protection claims are foreclosed by Wolfe. (DOPI, pg. 7/18). At another point, he notes
20
that the Ninth Circuit in Wolfe applied rational basis review, the standard that is
appropriate here. (DOPI, pg. 7/3-4). However, the Attorney does not explain why that
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standard of review is appropriate to this class action. He notes that the Ninth Circuit in
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Wolfe dispatched all of Barton Wolfes claims under the rational basis review. In view of
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Strankman, supra: It is true that official-capacity suits "generally represent only another way of pleading an
action against an entity of which an officer is an agent." Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 116 L.Ed.2d
301 (1991) (quoting Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985)) (additional
citations and quotation marks omitted). However, under Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714
(1908), "a state official in his or her official capacity, when sued for injunctive relief, [is] a person under 1983,
because `official-capacity actions for prospective relief are not treated as actions against the State.'" Will, 491 U.S. at
71 n. 10, 109 S.Ct. 2304 (quoting Graham, 473 U.S. at 167 n. 14, 105 S.Ct. 3099). Wolfe has sued the defendants in
their official capacities for prospective injunctive and declaratory relief. He does not seek damages. Thus, Wolfe's
claims against Chief Justice George, Justice Strankman, and Ms. Silva fall within the Ex parte Young exception to
sovereign immunity and are properly brought under 1983.
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the fact that every rational basis review every decided in the last 100 years has been
upheld by the U.S. Supreme court, the Plaintiffs concede that under a rational basis
review their case would fail.
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However, the Plaintiffs insist that his case requires strict scrutiny review. The
rights. (Sankosky v. Kramer). He does not deny that strict scrutiny applies in cases where
fundamental rights are infringed upon. (*See, Nordlinger v. Hahn, 505 U.S. 1, 10
(1992); Madrid v. Gomez, 150 F. 3d 1030, 1040 (9th Cir. 1998).). Likewise, the Attorney
Attorney does not deny that custody rights are fundamental and constitutionally protected
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does not deny that the Supreme Court in Boddie v. Connecticut decided that the right to
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divorce involved fundamental rights and that the Equal Protection claim in that case was
reviewed using strict scrutiny. The Plaintiffs, in their complaint (COMP, pg. 27), assert
that the VLS creates a suspect class because only those parent who can afford an
12
attorney are granted immediate and full access. On the other hand, self-represented
13
parents are denied full and immediate access under the VLS because they cannot afford
14
an attorney and thereby avoid the prefiling order of section 391.7. The Plaintiffs also
15
assert that the VLS could be more narrowly tailored to apply only to civil litigants,
16
not parents in custody disputes.
Plaintiffs assert that their case is analogous to Boddie v. Connecticut rather than
18
Wolfe v. George. On the other hand, the Attorney relies on Wolfe and states the Ninth
19
Circuit applied rational basis review, the standard that is likewise appropriate in this
20
case. Wolfe, 486 F.3d at 1126. (DOPI, pg. 7/4-5). In a previous pleading, the Attorney
pointed out that the Wolfe court stated that Burton H. Wolfe was not deprived of an
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opportunity to vindicate a fundamental right in court. 486. F.3d at 1126. In response,
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the Plaintiff, in their April 22, 2013 pleading, pointed out four problems with this. First,
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Mr. Wolfe was involved in a civil suit, not a custody case. Second, the Attorney failed to
explain why, unlike a civil litigant, a parents fundamental rights are not infringed by the
VLS. Third, the Attorney ignored the cases cited by Plaintiffs, such as Santosky, Elkins,
26
and Lammers v. Sup. Ct. (2000) 83 Cal. App. 4th 1309.(infringement of fundamental
27
rights can be upheld only if the state has compelling reasons).
28
Fourth, the Attorney just concluded that rational basis review applied without
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undertaking the legal analysis that the Ninth Circuit did in Wolfe. Before adopting their
rational basis review and ruling that Mr. Wolfes fundamental rights were not infringed
upon, the Ninth Circuit examined various Supreme Court cases. Here, however, the
Attorney just cherry-picked the last sentence of the Wolfe decision that supported his
purpose (dismissal) and avoided the legal analysis that undermined his position (no
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fundamental rights). The Plaintiff quote from Wolfe, (supra, at 1126):
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Wolfe argues that the California statute denies due process of law by requiring
"vexatious litigants" to furnish security, because it imposes a financial barrier to
access to the courts. In Boddie v. Connecticut, the Supreme Court held that the due
process clause entitles indigents to file for divorce even if they cannot pay a filing
fee because of the special status of marriage and divorce.21 But Boddie did not
prohibit all financial barriers to litigation, regardless of frivolity or vexatiousness.
"We do not decide that access for all individuals to the courts is a right that is, in
all 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
exclusive precondition to the adjustment of a fundamental human relationship."22
In United States v. Kras, the Supreme Court held that access to bankruptcy
courts does not "rise to the same constitutional level" as divorce,23 and in
Ortwein v. Schwab it reached the same conclusion for challenges to reduction of
welfare benefits.24 Likewise, the California vexatious litigant statute does not
deprive Wolfe of the opportunity to vindicate a fundamental right in court.
(emphasis added).
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While Judge Jeffrey S. White has directed Plaintiffs to respond to the Attorneys
19
Opposition to the Preliminary Injunction, the Plaintiffs find it hard to respond when the
20
Attorney dodges the proper-standard-of-review issue they raised in their April 22, 2013
21
pleading. The Attorney does not undertake any Wolfe-style analysis. He does not argue
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that Boddie is not applicable to this class. He does not argue access to the family courts
23
does not rise to the same constitutional level as divorce. He offers only his unsupported
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conclusion.
C. Plaintiffs Have Shown Irreparable Harm.
Plaintiffs have shown that the VLS has been used to deny them all access to the
family law courts to challenge custody orders that, in some instances, have terminated all
their parental rights. For instance, family law Judge Clark imposed a 50 year restraining
28
order against Adil Hiramanek, preventing him from seeing his children until midnight
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on August 24, 2062. (RJN, Exhibit M, pg. 304-310). Adil has not seen in children in
almost a year and was denied the right to appeal under the presiding judges VLS merit
determination.(2 RJN, Exhibit E, pg. 7). Likewise, Kerry Hicks was stripped of all
parental rights on the suspicion she was using drugs or in the throes of some mental
illness. (RJN, Exhibits A, B, pg. 1-183). Her requests for permission to change
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seen her children in over four years. Likewise, Archibald Cunningham has not seen his
custody are routinely denied, most recently January 23, 2013. (RJN, pg. 184). She has not
daughter since his parental rights were terminated by the fraud of his ex-wife on
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February 26, 2010. (typing his name on the signature line of a proposed order; RJN T,
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pg. 375). Since then, family law judges have used the VLS to deny him and his attorney
any and all access to the family law court.
11
In the same way, the other class members are denied immediate and full access,
12
as declared vexatious litigants, by operation of the prefiling order procedures of the
13
VLS. Unless they can afford to hire an attorney or luck into finding a pro bono lawyer,
14
they have to file in propria persona and hope the court will grant permission under
15
section 391.7. But even if they have an attorney, as the fact show here, presiding judges,
16
such as Judge Betsy Freeman, will name a parents attorney to the prefiling order and
17
deny both attorney and client immediate and full access. (RJN, pg. 289).
19
20
The final Winter factor ask that equities be balanced. Here, the Plaintiffs are not
arguing that the state does not have a rational basis for imposing the VLS against
21
D. The Balance of Equities and the Public Interest Weigh in Favor of Granting
the PI.
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civil litigants. Rather, the Plaintiffs assert that custody cases involve fundamental
23
constitutionally protected rights and that the state does not have a compelling reason to
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infringe upon those rights as it does when it imposes the VLS against parents. (*See,
Lammers v. Sup. Ct.,). Further, the Plaintiffs argue that the state could avoid infringing
upon their fundamental rights by more narrowly drawing the VLS and limiting its reach
to civil, not custody cases. The Attorney argues that the states reason for imposing the
VLS against all litigants, including parents in custody cases, serves the rational purpose
28
of conserving judicial resources and giving the next litigant in line a chance to bring
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his/her case. (DOPI, pg. 1):
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The public interest in particular weighs against issuing an injunction in this case.
As noted above, Chief Justice George pointed out in Elkins that 80% of parents are self-
represented and, therefore, prospective targets of the VLS. The Attorney fails to explain
how making 80% of parents possible targets for motions under the VLS works to curb
vexatious litigation. The Attorneys statement that the use of the VLS in custody disputes
is going to dissuade parents from having custody disputes or that the next custody case
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in line is somehow more meritorious. He also suggests that some custody disputes are
or can be vexatious but other, brought by rich parents, are not. There is no reason to
believe the underlying assumptions of the Attorney fit in the context of a custody dispute.
The use of the VLS in custody disputes also encourages insidious litigation tactics.
13
By allowing the VLS in custody disputes, wealthier parents who can hire attorneys have
14
15
16
realized that they can use the VLS as a weapon in the custody dispute. They can have
their attorneys file section 391.1 motions against the unrepresented parents and gag the
other parent. In the same way, Judge Cardoza states in In re R.H. that the VLS is a tool
to prevent parents from relitigating custody orders unless they can show that there are
18
changed circumstances. But how can parents show changed circumstances if they are
19
denied hearings, as has occurred to every class member here? There is no indication that
20
adding another layer of vexatious litigant actions over the custody disputes is to the
21
advantage of the state or parents.
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As applied by family law judges, the VLS is a tool to gag parents and end
custody disputes, even if means that parents are denied relationships with their children.
Preventing vexatious litigation and ending custody disputes by hook or by crook are
not the same thing, despite the Attorneys arguments to the contrary. The Attorney may
argue the state has a rational basis for doing this, but Chief Justice George rejected that
view in Elkins, (supra, 1353).
28
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The Court of Appeal explained that "a measure implemented for the sake of
efficiency cannot jeopardize the constitutional integrity of the judicial process
[citation]. In other words, court congestion and 'the press of business' will not
justify depriving parties of fundamental rights and a full and fair opportunity to
present all competent and material evidence relevant to the matter to be
adjudicated." (Id. at p. 1319.)
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hearing, which involves the resolution of custody disputes. Its hard to imagine that a
The Elkins case involved a family law litigants fundamental right to a fully-litigated
family law litigant has a fundamental right to a trial involving a custody dispute but
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then loses that fundamental right if there is an order to show cause to change custody.
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In short, there is no balance of equities for either party. The VLS does not prevent
or discourage custody disputes and only adds another layer of litigation to the mix. In
fact, its arguable that the use of the VLS causes more litigation and that its purpose has
12
been usurped by family law lawyers as a tactic for prevailing in their dispute. The balance
13
of equities, for everyone, favors limiting the reach of the VLS to civil suits, not custody
14
cases.
15
CONCLUSION
The VLS, in the context of family law custody disputes, is a lose-lose for all
16
parties. It increases costs, enhances acrimony, and destroys parent-child relationships in
18
the nave hope of curtailing or ending acrimonious custody dispute. There is no evidence
19
that the use of the VLS in family law proceedings is saving family law courts resources.
compelling reason for the VLS. In fact, one might argue that its utter insanity, as
Patricia Barry did when Judge Karesh labeled her vexatious (Judge Freeman then named
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Nor is saving resources by destroying the parent-child relationship either a rational or
20
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her in the prefiling order; *see, RJN, Exhibit J, K). The preliminary injunction should be
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granted.
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________________________
Dated:
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RIFKIN, et al.,
Plaintiffs,
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v.
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Defendants.
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C 13 1295 SI
DEFENDANTS OPPOSITION TO
PLAINTIFFS MOTION FOR
PRELIMINARY INJUNCTION
Date:
Time:
Courtroom:
Judge:
Action Filed:
9:00 a.m.
June 11, 2013
10, 19th Floor
Hon. Susan Illston
March 22, 2013
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CALIFORNIA CHIEF JUSTICE CANTILSAKAUYE, Chair of Judicial Council, and

Director of the Administrative Office of the
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KAMALA D. HARRIS
TAMAR PACHTER
DANIEL J. POWELL
Telephone: (415) 703-5830
Fax: (415) 703-1234
E-mail: Daniel.Powell@doj.ca.gov
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Defendants Opp. to Motion for Preliminary Injunction (C 13-1295 SI)
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TABLE OF CONTENTS
Page
Introduction ..................................................................................................................................... 1
Background ..................................................................................................................................... 1
I.
Californias vexatious litigant statute...................................................................... 1
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I.
Plaintiffs have no likelihood of success on the merits ............................................ 4

A.
The Eleventh Amendment bars this suit. .................................................... 4
II.
Summary of the complaint ...................................................................................... 2
Argument ........................................................................................................................................ 3
B.
II.
10
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12
III.
Californias vexatious litigant statute is constitutional on its face

and as applied to individuals in custody disputes ....................................... 6
Plaintiffs fail to meet their burden to demonstrate irreparable harm .................... 10
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The balance of equities and the public interest weigh against granting
injunctive relief. .................................................................................................... 10
Conclusion .................................................................................................................................... 11
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TABLE OF AUTHORITIES
2
3
CASES
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Agua Caliente Band of Cahuilla Indians v. Hardin

223 F.3d 1041 (9th Cir. 2000)................................................................................................... 5
5
6
Alliance for the Wild Rockies v. Cottrell

632 F.3d 1127 (9th Cir. 2011)................................................................................................... 4
Almond Hill Sch. v. U.S. Dept. of Agric.

768 F.2d 1030 (9th Cir. 1985)................................................................................................... 5
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9
Atascadero State Hasp. v. Scanlon

473 U.S. 234 (1985) .................................................................................................................. 5
10
11
Ayala v. Wong
693 F.3d 945 (9th Cir. 2012)..................................................................................................... 8
12
Boddie v. Connecticut
401 U.S. 371 (1971) .............................................................................................................. 8, 9
13
14
Bravo v. Ismaj
99 Cal. App. 4th 211 (2002)...................................................................................................... 8
15
16
Childs v. PaineWebber Inc.

29 Cal. App. 4th 982 (1994)................................................................................................ 2, 10
17
Coalition for Econ. Equity v. Wilson

122 F.3d 718 (9th Cir. 1997)..................................................................................................... 4
18
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Cupolo v. Bay Area Rapid Transit

5 F. Supp. 2d 1078 (N.D. Cal. 1997) ........................................................................................ 4
20
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First Western Development Corp. v. Super. Ct.

212 Cal. App. 3d 860 (1989)..................................................................................................... 7
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Ex parte Young
209 U.S. 123 (1908) .............................................................................................................. 5, 6
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Hosp. v. Halderman
465 U.S. 89 (1984) .................................................................................................................... 5
In re R.H.
170 Cal. App. 4th 678 (2009).................................................................................................... 8
28
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(continued)
L.A. Branch NAACP v. L.A. Unified Sch. Dist.

714 F.2d 946 (9th Cir. 1983)..................................................................................................... 5
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L.A. County Bar Ass n v. Eu, 979 F.2d 697 (9th Cir. 1992) .......................................................... 5
Long v. Van de Kamp

961 F.2d 151 (9th Cir. 1992)..................................................................................................... 5
6
7
McColm v. Westwood Park Assn

62 Cal. App. 4th 1211 (1998).................................................................................................... 1
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Muller v. Tanner
2 Cal. App. 3d 445 (1969)......................................................................................................... 2
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Papasan v. Allain
478 U.S. 265 (1986) .................................................................................................................. 5
11
12
Quern v. Jordan
440 U.S. 332 (1979) .................................................................................................................. 5
13
Snoeck v. Brussa
153 F.3d 984 (9th Cir. 1998)..................................................................................................... 5
14
15
Taliferro v. Hoogs
236 Cal. App. 2d 521 (1965)..................................................................................................... 2
16
17
Wilbur v. Locke
423 F.3d 1101 (9th Cir. 2005)................................................................................................... 5
18
Winter v. Natural Res. Def. Council, Inc.

555 U.S. 7 (2008) .................................................................................................................. 3, 4
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Wolfe v. George
486 F.3d 1120 (9th Cir. 2007)....................................................................................... 2, 7, 8, 9
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Wolfgram v. Wells Fargo Bank

53 Cal. App. 4th 43 (1997)........................................................................................................ 1
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STATUTES
California Code of Civil Procedure

391, et seq. ............................................................................................................................. 2
391(b) ..................................................................................................................................... 9
391.2 ....................................................................................................................................... 6
391.7(a)-(b) ............................................................................................................................ 1
391.7(b) ............................................................................................................................ 1, 10
391.7(e) .............................................................................................................................. 1, 2
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California Penal Code

1983 ........................................................................................................................................ 5
CONSTITUTIONAL PROVISIONS
11
United States Constitution

First Amendment ........................................................................................................... 3, 4, 7, 8
Eleventh Amendment .................................................................................................... 1, 4, 5, 6
12
13
14
California Constitution
Article VI, 11 ......................................................................................................................... 3
15
COURT RULES
16
Federal Rules of Civil Procedure

Rule 65 ...................................................................................................................................... 6
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INTRODUCTION
Plaintiffs are not entitled to a preliminary injunction prohibiting the state defendants from
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enforcing Californias Vexatious Litigant Statute (VLS) in any custody proceeding throughout the
state. As established in defendants Motion to Dismiss (Docket No. 11), plaintiffs claims are
barred by the Eleventh Amendment, and in any event fail as a matter of law. Accordingly,
plaintiffs are unable to show a likelihood of success on the merits. In addition, plaintiffs cannot
show that they will be irreparably injured. The VLS prohibits them from filing new litigation that
has no merit or was filed for the purpose of harassment or delay. Cal. Code Civ. P. 391.7(b). If
plaintiffs have a meritorious suit, however, they will be permitted to file it. Moreover, each of the
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plaintiffs has, by definition, been found to have abused the state courts by repeatedly filing
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frivolous lawsuits, and the equities do not tip in their favor. The public interest in particular
12
weighs against issuing an injunction in this case. Preventing application of the VLS to custody
13
proceedings would clog the already overwhelmed family law courts with frivolous litigation, and
14
would slow the administration of justice for those with meritorious claims. Plaintiffs motion for
15
a preliminary injunction should be denied.
BACKGROUND
16
I.
17
CALIFORNIAS VEXATIOUS LITIGANT STATUTE
California adopted its Vexatious Litigant Statute to ease the unreasonable burden placed
19
upon the courts by groundless litigation. Wolfgram v. Wells Fargo Bank, 53 Cal. App. 4th 43,
20
48 (1997). The statute allows a judge to enter a prefiling order prohibiting a vexatious litigant
21
from filing any new pro se litigationincluding an appeal or writ proceedingwithout the
22
permission of the presiding judge or justice. Cal. Civ. Proc. Code 391.7(a)-(b); McColm v.
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Westwood Park Assn, 62 Cal. App. 4th 1211, 1216-1217 (1998) (the [Court of Appeal] will
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enforce the vexatious litigant statute by requiring the permission of the administrative presiding
25
justice before a vexatious litigant subject to a prefiling order may proceed).
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Litigants who are subject to prefiling orders are placed on a statewide vexatious litigant list
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maintained by the Judicial Council of California and disseminated to clerks of the state courts.
28
Cal. Civ. Proc. Code 391.7(e). Court clerks, in turn, have no discretion to accept filings from
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vexatious litigants absent prior court approval. Id. 391.7(c) (The clerk may not file any
litigation presented by a vexatious litigant subject to a prefiling order unless the vexatious litigant
first obtains an order from the presiding judge permitting the filing.). And such approval can be
given by the presiding judge or justice only if it appears that the litigation has merit and has not
been filed for the purposes of harassment or delay. Id. 391.7(b). An individual who has been
determined to be a vexatious litigant may file an application to vacate the prefiling order and
remove his or her name from the list of vexatious litigants upon a showing of a material change in
the facts upon which the order was granted and that the ends of justice would be served by
vacating the order. Id. 371.8.
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The Vexatious Litigant Statute has survived numerous constitutional challenges. See, e.g.,
10
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Wolfe v. George, 486 F.3d 1120 (9th Cir. 2007); Wolfgram, 53 Cal. App. 4th at 48 (prefiling
12
statute does not violate federal due process because the minimal delay and effort in drafting the
13
request for permission to file the action [is not] an unreasonable hurdle); Childs v. PaineWebber
14
Inc., 29 Cal. App. 4th 982, 993 (1994) (The vexatious litigant statutes are constitutional.);
15
Muller v. Tanner, 2 Cal. App. 3d 445, 452 (1969) (vexatious litigant statutes do not violate equal
16
protection or due process); Taliferro v. Hoogs, 236 Cal. App. 2d 521, 525-530 (1965) (same).
17
II.
SUMMARY OF THE COMPLAINT
Plaintiffs are nine individuals who have been named vexatious litigants under Californias
19
VLS, Cal. Civ. Proc. Code 391, et seq. Each of the named plaintiffs was declared a vexatious
20
litigant in the context of custody proceedings before various state superior courts. Plaintiffs
21
purport to bring this action on behalf of a class of parents engaged in custody disputes in the
22
family law courts (and on appeal with appellate courts) who have been declared vexatious under
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the California Vexatious Litigant Statute and whose access to state courts, both trial courts and
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appellate courts, has been curtailed, restricted, or denied. (Compl. 63.) Defendants are the
25
Chief Justice of the State of California, in her role as Chair of the California Judicial Council, and
26
Administrative Director of the Courts Steven Jahr. (Compl. 34, 35.)
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Plaintiffs, on their own behalf and on behalf of the putative class, challenge the
constitutionality of the VLS as it is applied in the context of family law custody proceedings.
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(Id. 1.) Plaintiffs further allege that the VLS on its face and as applied infringes on their
fundamental custody rights. (Id.) Specifically plaintiffs allege that the VLS:
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Draws an impermissible distinction on the basis of affluence in violation of the

Equal Protection Clause. (Compl. 66-78.)
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Deprives plaintiffs of a meaningful opportunity to be heard in their custody

cases in violation of the Due Process Clause. (Compl. 8081.)
Violates the right to appeal and the right to file a petition for writ of mandate
under the First Amendment to the U.S. Constitution and Article VI, section 11 of the
California Constitution. (Compl. 8289.)
10
Is an unconstitutional prior restraint in violation of the First Amendment.

(Compl. 105111.)
11
Violates due process insofar as Judicial Council form MC-701 is inconsistent

with the VLS and fails to provide for a hearing as to whether a litigant meets the
requirements of the VLS. (Compl. 112123.)
12
13
14
15
Constitutes an improper Bill of Attainder. (Compl. 124133.)

Violates the Ex Post Facto Clause. (Compl. 134143.)
16
Plaintiffs seek an injunction prohibiting California courts from enforcing the VLS in the context
17
of custody proceedings.1
18
ARGUMENT
In order to prevail on a motion for a preliminary injunction, a plaintiff must establish that
20
he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of
21
preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the
22
public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). A preliminary
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injunction is appropriate when a plaintiff demonstrates . . . that serious questions going to the
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Is unconstitutionally vague and overbroad in violation of due process. (Compl.

91101.)
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Plaintiffs also request that they not be required to post a bond. (Motion at p. 29.) While
it is true that a court has discretion to waive the requirement that individuals seeking an injunction
post bond, that is the exception, not the rule. A bond would be appropriate here where plaintiffs
by definition have a history of filing frivolous actions, thereby increasing court congestion and
causing parties in other matters to incur damages because they cannot get their legitimate matters
timely heard. Further, while plaintiffs state in their moving papers that they are mostly
impoverished, they have not submitted any evidence to this effect.
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merits were raised and the balance of hardships tips sharply in the plaintiffs favor. Alliance for
the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134-35 (9th Cir. 2011) (internal quotations
omitted). Plaintiffs must make a showing of all four Winter factors even under the alternative
sliding scale test. Id. at 1135.
A preliminary injunction is an extraordinary remedy never awarded as a matter of right. In

each case, courts must balance the competing claims of injury and must consider the effect on
each party of the granting or withholding of the requested relief. In exercising their sound
discretion, courts of equity should pay particular regard for the public consequences in employing
the extraordinary remedy of injunction. Winter, 555 U.S. at 24 (internal quotations and citations
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omitted). Because a preliminary injunction is an extraordinary remedy, the moving party must
11
establish the elements necessary to obtain injunctive relief by a clear showing. Id. at 22. A
12
plaintiffs burden is particularly heavy when, as here, it seeks to enjoin operation of a statute
13
because it is clear that a state suffers irreparable injury whenever an enactment of its people or
14
their representatives is enjoined. Coalition for Econ. Equity v. Wilson, 122 F.3d 718, 719 (9th
15
Cir. 1997). A strong factual record is therefore necessary before a federal district court may
16
enjoin a State agency. Cupolo v. Bay Area Rapid Transit, 5 F. Supp. 2d 1078, 1085 (N.D. Cal.
17
1997). In this case, plaintiffs cannot meet their burden and the motion for a preliminary
18
injunction should therefore be denied.
19
I.
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PLAINTIFFS HAVE NO LIKELIHOOD OF SUCCESS ON THE MERITS2
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A.
21
The Eleventh Amendment3 bars suit against a state or its instrumentalities for legal or
equitable relief in the absence of consent by the state or an abrogation of that immunity by
2
These arguments mirror those made in defendants Motion to Dismiss, and are repeated
here for the convenience of the Court.
3
The Eleventh Amendment states in its entirety:
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The Eleventh Amendment Bars this Suit
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The Judicial power of the United States shall not be construed to extend to any suit in
law or equity, commenced or prosecuted against one of the United States by Citizens
of another State, or by Citizens or Subjects of any Foreign State.
U.S. Const. amend. XI.
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Congress. Papasan v. Allain, 478 U.S. 265, 276-77 (1986); Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 100 (1984). Section 1983 did not abrogate a states Eleventh
Amendment immunity. Quern v. Jordan, 440 U.S. 332, 341 (1979). The State of California has
not waived that immunity with respect to claims brought under section 1983 in federal court.
Atascadero State Hasp. v. Scanlon, 473 U.S. 234, 241 (1985).
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The Eleventh Amendment [also] bars a suit against state officials when the state is the
real, substantial party in interest. Pennhurst, 465 U.S. at 101 (citations omitted); see Almond
Hill Sch. v. U.S. Dept. of Agric., 768 F.2d 1030, 1033 (9th Cir. 1985). The general rule is that
relief sought nominally against an officer is in fact against the sovereign if the decree would
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operate against the latter. Pennhurst, 465 U.S. at 101 (citation omitted). [A]s when the State
11
itself is named as the defendant, a suit against state officials that is in fact a suit against a State is
12
barred regardless of whether it seeks damages or injunctive relief. Id. at 101-02 (citation
13
omitted).
Ex parte Young, 209 U.S. 123 (1908), created an exception to Eleventh Amendment
15
immunity for suits for prospective declaratory and injunctive relief against state officers, sued in
16
their official capacities, to enjoin an alleged ongoing violation of federal law. Wilbur v. Locke,
17
423 F.3d 1101, 1111 (9th Cir. 2005) (quoting Agua Caliente Band of Cahuilla Indians v. Hardin,
18
223 F.3d 1041, 1045 (9th Cir. 2000)). However, this exception applies only where it is plain
19
that such officer [has] some connection with the enforcement of the act, or else it is merely
20
making him a party as a representative of the State, and thereby attempting to make the State a
21
party. Snoeck v. Brussa, 153 F.3d 984, 986 (9th Cir. 1998) (quoting Ex parte Young, 209 U.S.
22
at 157). This connection must be fairly direct; a generalized duty to enforce state law or general
23
supervisory power over the persons responsible for enforcing the challenged provision will not
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subject an official to suit. L.A. County Bar Assn v. Eu, 979 F.2d 697, 704 (9th Cir. 1992)
25
(citing Long v. Van de Kamp, 961 F.2d 151, 152 (9th Cir. 1992); L.A. Branch NAACP v. L.A.
26
Unified Sch. Dist., 714 F.2d 946, 953 (9th Cir. 1983)).
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The defendants lack a sufficient connection with the alleged unconstitutional acts to satisfy
the Eleventh Amendment. 4 While plaintiffs appear to suggest that the VLS is a creation of the
Judicial Council (see, e.g., Compl. 45), it is the Legislature that enacted the VLS, not the
Judicial Council or the Administrative Office of the Courts, and certainly not Chief Justice Cantil-
Sakauye or Administrative Director of the Courts Jahr. While judges interpret and apply the VLS
in specific cases, they and their rulings are not subject to the control of the defendants. As the
defendants do not have a sufficiently direct connection to the alleged unconstitutional act to
satisfy Ex Parte Young, the Eleventh Amendment prohibits this suit.
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The request for a preliminary injunction crystallizes this argument. Neither the Judicial
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Council nor the Chief Justice in her capacity as Chair of the Judicial Council nor the
11
Administrative Director of the Courts has the authority or the ability to instruct California judges
12
not to apply the VLS. Each Judge or Justice of the State of California is an independent judicial
13
officer. While their individual decisions are the subject of review by a higher court in a specific
14
case, judicial officers are not the officers, agents, servants, employees, or attorneys of either of
15
the named defendants for purposes of Federal Rule of Civil Procedure 65. As neither of the
16
defendants in their official capacities is responsible for the conduct of individual judges applying
17
the VLS, an injunction could not properly bind judges throughout California. For the same
18
reason, the Eleventh Amendment bars this suit.

B.
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Californias VLS against a myriad of constitutional challenges. See, e.g., Wolfe v. George, 486
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Although plaintiffs assert that the forms approved by the Judicial Council for optional
use violate due process, that claim is frivolous. Form MC-701 is a form that a vexatious litigant
may use to request permission to file a new lawsuit (which must itself be attached to the form),
and Form MC-702 can be used by the court to rule on such a request. None of these forms
replace the requirements of the VLS, including the requirement of a hearing (see Cal. Civ. Proc.
Code 391.2) and use is entirely optional. It does not violate due process to provide a litigant
with forms that assist him in filing materials with the court, particularly where he is not required
to use them. Copies of these forms are included as Exhibits AB to Defendants Request for
Judicial Notice.
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Both the California Courts of Appeal and the Ninth Circuit Court of Appeals have upheld
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Californias Vexatious Litigant Statute is Constitutional on its Face and As

Applied to Individuals in Custody Disputes
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F.3d 1120 (9th Cir. 2007); Taliaferro v. Hoogs, 236 Cal. App. 2d 521, 52730 (1965); First
Western Development Corp. v. Super. Ct., 212 Cal. App. 3d 860, 868 (1989). In Wolfe, the Ninth
Circuit rejected various constitutional challenges to Californias VLS, many of which are made
here. In resolving these claims, the Ninth Circuit applied rational basis review, the standard that
is likewise appropriate in this case. Wolfe, 486 F.3d at 1126.
In Wolfe, the Ninth Circuit squarely rejected the equal protection claim made by plaintiffs.
First, neither frequent pro se litigants nor those who are poor constitute a suspect class meriting
strict scrutiny. Id. at 1226 & n.29. Under rational basis, the court concluded that California can
rationally distinguish litigants who sue and lose often, sue the same people for the same thing
10
after they have lost, and so on, from other litigants. Id. at 1226. The court noted that where a
11
security bond is required before filing, the court makes an individualized determination that the
12
individual should be subject to a bond and the appropriate amount. Id. at 1127. Thus, the VLS
13
does not draw a classification between those who can pay a bond and those who cannot. While
14
the VLS does draw a distinction between those individuals who are represented by counsel and
15
those who appear pro se, California can rationally conclude that pro se litigants pose a different
16
problem, since they are not subject to oversight by the State Bar and are not governed by the
17
ethical and legal obligations of licensed attorneys. Plaintiffs equal protection claims are
18
foreclosed by Wolfe.
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Plaintiffs claim that the VLS is a prior restraint in violation of the First Amendment is also
foreclosed by Wolfe. Because the VLS simply prohibits an individual from filing frivolous
21
litigation, it does not implicate the First Amendment. Just as false statements are not immunized
22
by the First Amendment right to freedom of speech . . . baseless litigation is not immunized by
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the First Amendment right to petition. Id. at 1225.
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The Ninth Circuit also squarely rejected plaintiffs claims that the VLS constitutes an
25
improper Bill of Attainder and that it violates the Ex Post Facto Clause. The Ex Post Facto
26
Clause is inapplicable because the vexatious litigant statute does not impose criminal penalties.
27
Id. at 1227. The Court also concluded that [t]he statute is not a bill of attainder because it does
28
not single anyone out. Id. Accordingly, these claims must also be rejected.
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Wolfe also disposes of plaintiffs claims that the statute is unconstitutionally vague and
overbroad in violation of Due Process. The California vexatious litigant statute is not
unconstitutionally vague, because it gives fair notice to those who might violate the statute. It is
not overbroad, because there is no constitutional right to file frivolous litigation. Id. at 1125.
Plaintiffs claims to the contrary are foreclosed by Wolfe.
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The Ninth Circuits reasoning also forecloses plaintiffs arguments that the VLS violates
their right to appeal under the First Amendment. It is true that [i]f a state provides for a direct
appeal as of right from a criminal conviction, it must also provide certain minimum safeguards
necessary to make that appeal adequate and effective. Ayala v. Wong, 693 F.3d 945, 958 (9th
10
Cir. 2012) (internal quotations omitted). But just as the First Amendment does not protect false
11
statements or baseless litigation, the due process clause does not protect the right to file frivolous
12
appeals. Moreover, the Ninth Circuit has expressly rejected any argument that the VLS prohibits
13
access to the courts (including, presumably, the courts of appeal) but rather concluded that
14
California may set the terms on which it will permit litigation in its courts. Wolfe, 486 F.3d at
15
1126 (quoting Taliaferro, 236 Cal. App. 2d at 528). As California courts have observed,
16
Californias VLS does not deny the vexatious litigant access to the courts, but operates solely to
17
preclude the initiation of meritless lawsuits and their attendant expenditures of time and costs.
18
Bravo v. Ismaj, 99 Cal. App. 4th 211, 22122 (2002); see also In re R.H., 170 Cal. App. 4th 678,
19
700 (2009) (a prefiling order does not prevent an appeal; it provides a means by which a
20
vexatious litigant may nonetheless pursue litigation.).
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Finally, plaintiffs argument that the VLS is unconstitutional as applied in the context of
custody proceedings also fails. Plaintiffs cite to Boddie v. Connecticut, in which the United
23
States Supreme Court prohibited Connecticut from charging fees to initiate divorce proceedings.
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401 U.S. 371, 372 (1971). The plaintiffs in Boddie were unable to afford those fees, and were
25
unable to obtain a waiver of them. The Court concluded:
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[T]he States refusal to admit these appellants to its courts, the sole means in
Connecticut for obtaining a divorce, must be regarded as the equivalent of denying
them an opportunity to be heard upon their claimed right to a dissolution of their
marriages, and, in the absence of a sufficient countervailing justification for the
States action, a denial of due process.
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Id. at 38081. Plaintiffs reason that because, like divorce, parental rights also implicate
fundamental due process, application of the VLS in custody proceedings is inconsistent with
Boddie.
The difference between the circumstances of Boddie and this case could not be more stark.
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without paying a fee. They thus had no access to the courts whatsoever. The VLS, on the other
hand, applies only to individuals who have repeatedly abused access to the judicial system by
filing meritless litigation. Before declaring an individual to be a vexatious litigant, a court must
determine that the individual has filed at least five lawsuits that have been determined adversely
10
to the litigant; repeatedly relitigated or attempted to relitigate issues against the same defendants;
11
or engaged in conduct that is frivolous or solely intended to cause unnecessary delay. Cal. Civ.
12
Proc. Code 391(b). Even then, the court will permit the individual to initiate litigation where a
13
court determines that the litigation has merit. Id. 391.7. A litigant can also be removed from
14
the list of vexatious litigants upon a showing that there has been a material change in the facts
15
that formed the basis of the prefiling order and that removing the individual would serve the
16
interests of justice. Id. 391.8. Thus, unlike in Boddie, parents are not barred from pursuing
17
their parental rights in court; they are simply prohibited from filing frivolous actions in state
18
courts. As the Ninth Circuit recognized in Wolfe, the California vexatious litigant statute does
19
not deprive Wolfe of the opportunity to vindicate a fundamental right in court. 486 F.3d at 1126.
20
Indeed, the Boddie court held that states may take measures like Californias VLS to protect the
21
integrity of the judicial system. [O]ther alternatives exist to fees and cost requirements as a
22
means for conserving the time of courts and protecting parties from frivolous litigation, such as
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penalties for false pleadings or affidavits, and actions for malicious prosecution or abuse of
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process, to mention only a few. Boddie, 401 U.S. at 382.

California does not prohibit parents from accessing the courts to protect their custody rights.
26
Rather, it prohibits litigants such as plaintiffs from abusing the judicial process and from
27
repeatedly filing frivolous actions. The underlying subject matter is irrelevant to the
28
constitutionality of the VLS: California has a legitimate interest in prohibiting litigants from filing
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unmeritorious actions and clogging its courts. The VLS is constitutional both on its face and as it
applies to custody proceedings.
II.
PLAINTIFFS FAIL TO MEET THEIR BURDEN TO DEMONSTRATE IRREPARABLE HARM
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Plaintiffs cannot show irreparable injury for the simple reason that they are not prohibited
from filing meritorious litigation in the state courts. Under the VLS, a presiding judge or justice
is required to accept for filing any new litigation that has merit and is not being filed for the
purpose of delay or harassment. Cal. Code Civ. P. 391.7(b). While plaintiffs lodge numerous
complaints about the fact that they have been declared vexatious litigants, they have not shown
that they are regularly being denied the ability to file a lawsuit with actual merit. The inability to
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file a frivolous lawsuit is not an injury that can form the basis for a preliminary injunction.
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Because plaintiffs are able to pursue legitimate claims in their custody cases, they are unable to
12
show an irreparable injury.
13
III. THE BALANCE OF EQUITIES AND THE PUBLIC INTEREST WEIGH AGAINST
GRANTING INJUNCTIVE RELIEF
14
The balance of hardships and the public interest strongly weigh against granting the
16
preliminary injunction. Plaintiffs have, by definition, repeatedly abused the judicial process and
17
clogged the courts with frivolous litigation. The VLS was designed to deal with the persistent
18
and obsessive litigant whose conduct can cause serious financial results to the unfortunate object
19
of his or her attack, which often includes the judges and other court officers who decide or were
20
concerned in the decision of previous actions adversely to him. Childs v. PaineWebber
21
Incorporated 29 Cal. App. 4th 982, 993 (1994). It is not equitable to permit plaintiffs to use the
22
judicial system to allow their continued abuse of it.
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Finally, the public interest strongly weighs against granting an injunction in this case. Were
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California courts to be prohibited from using the VLS, family courts would face a deluge of
25
meritless litigation. After years of budget cuts, these courts struggle to provide the judicial
26
resources necessary to resolve legitimate grievances. Depriving them of an important tool to deal
27
with those who abuse the judicial process would further delay justice for the countless parents and
28
children who appear in the family courts every day. One of the named plaintiffs has admitted to
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filing numerous requests for emergency visitation and no fewer than eight requests for a
court to rescind his status as a vexatious litigant. (Motion for Preliminary Injunction at 10.) As
the voluminous filings in this case indicate, this is just the tip of the iceberg should California
courts be prohibited from applying the VLS in cases involving custody disputes. The public
interest thus weighs strongly against issuing an injunction in this case.
The motion for a preliminary injunction should be denied.
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Dated: May 24, 2013
10
KAMALA D. HARRIS
TAMAR PACHTER
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/s/ Daniel J. Powell
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DANIEL J. POWELL
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CONCLUSION
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Case3:13-cv-01295-SI Document20 Filed05/13/13 Page1 of 35
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(415) 563-1828
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Arch Cunningham
State Bar 210625
1489 McAllister St.
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SAN FRANCISCO/OAKLAND DIVISION
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)
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ANDREW KARRES, MICHELE FOTINOS, )
AMIL HIRAMENK,LISA HUNT-NOCERA,)
NICOLE ANN RAY, ARCHIBALD
)
CUNNINGHAM, RICHARD RIFKIN, et. al. )
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Plaintiffs,
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V.
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PLAINTIFFS' SECOND REQUEST FOR

JUDICIAL NOTICE; DECLARATION 0
COUNSEL FOR PLAINTIFFS
CALIFORNIA CHIEF JUSTICE CANTIL

SAKAUYE, Chair of Judicial Council,and
Director of the Administrative Office ofthe
Courts.
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Case No. C 13-01295 SI
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Defendants, and DOES 1 through 10. )
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______
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Plaintitrs Second Request for Judicial Notice- PAGE I
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Plaintiffs' counsel, Archibald Cunningham, respectfully requests pursuant to Fed. R.
Evid. 20I that the District Court take judicial notice of official records, transcriptis,judicial
council forms, pleadings, and correspondences from various superiors courts of the state of
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California as well as pleadings from Court of Appeals for the Fifth District of California and the
California Supreme Court, as specified in the attached declaration of Plaintiffs' counsel.
Fed. R. Evid. 20I (b) states that"[a] judicially noticed fact must be one not subject to
reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the
trial court or (2) capable of accurate and ready determination by resort to sources whose
accuracy cannot reasonably be determined." It is appropriate for a court to take judicial notice of
court filings and other matters of public interest such as the pleadings in related litigation. *See,
Reyna
v.
II
12
Pasta Bella, LLC v. Visa USA, Inc.
442 F. 3d 741,746,n. 6 (91h Cir. 2006) Schweitze
1979). Sufficient notice of matters subject to
judicial notice is provided by lodging a copy of the relevant documents and records with the
Court. Fed. R. Evid. 20I(d).
DECLARATION OF PLAINTIFFS' COUNSEL
14
I, Archibald Cunningham, counsel for Plaintiffs,declare as follows:
15
1. I am the attorney of records for the Plaintiffs in this class-action suit.
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v.
Scott, 469 F. Supp.JOJ7, 1020 (C.C. Cal.
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2. I have personal knowledge of the matters set forth in this declaration and could
competently testify if called as a witness, except for matters stated upon information and belief,
and as to those matters I believe them to be true.
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3. A true and correct copy of the following court records are attached to this declaration as
Exhibits A-V. The records,pleadings, transcripts are from proceedings in superior courts of the
21
state of California, the Court of Appeals for the Fifth and Sixth District of California.
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Exhibit
Name of Exhibit
Exhibit A
Request and Order to File New
Date of Exhibit
Pages
9/19/12
1-3
9/28/12
Litigation By Vexatious Litigant
26
27
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Exhibit 8
Letter from Michael Yerly,

Depute Clerk of Sixth Appellate District
Plaintiffs' Second Request for Judicial Notice- PAGE 2
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Exhibit C
Exhibit E
Sept. 21,2012 Decision and TRO
Exhibit G
Order Denying Petitioner's Ex Parte
4/30113
9-14
7/17112
15-26
Name from Judicial Council's List
Of Vexatious Litigants
Exhibit H
h
Unpublished Opinion,6t Appellate
District F063789; Tulare County Health
and Human Services Agency v. Barbara H.
Exhibit I
Request and Order to File New Litigation 12/6111
27-30
By Vexatious Litigant
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Exhibit K
Request for Family Case Resolution
Request for Family Case Resolution
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Exhibit J
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Application to Vacate Prefiling Order
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4/25113
and Removal of Vexatious Litigant's
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Order Designating Judge Charlotte

Vacate Prefiling Order
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Woolard to Rule on Application to
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2/1113
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Denial of Permission to Appeal

Denied by Sixth District
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(Sixth District Court of Appeals)
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Denial of Permission W/0 Prejudice
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Exhibit D
11119112
(Sixth Appellate District)
10/2/12
Litigation By Vexatious Litigant-
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3
Request and Order to File New
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1123/13
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Calendar Hearing and Order Thereon
Calendar Hearing and Order Thereor
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Plaintiffs' Second Request tor Judicial Notice- PAGE 3
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Case3:13-cv-01295-SI Document18 Filed05/04/13 Pagel of 8
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Arch Cunningham
State Bar 210625
1489 McAllister St.
archcunnghm(a:}_yahoo.com
(415) 563-182-s
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FOR THE NORTHEltNDISTR!CTOF

10
II
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ARCHIBALD CUNNINGHATvl,
Plaintiffs,
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v.
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20

Administrative Director ofthe
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PLAINTIFFS' RESPONSE AND

OBJECTION TO DEFENDANT'S
REPLY BRIEF IN SUPPORT OF ITS
MOTION TO DISMISS
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Date: June 11, 2013

Time: 9am
Courtroom I o, t 9th FI
Judge: Hon. Susan Illston
Trial ))ate:
Action Filed 3/22113
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through 10.
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) Case No. C 12-01295 SI
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INTRODUCTION
On May 2, 2013, Daniel Powell, the attorney ror the Defendants (hereinafter
26
27
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refened to as the Attorney), filed his reply brief in support of his motion to dismiss. In his
reply brief{RB), the Attomey tosses offthe objections Plaintiffs raises, tries to clarify
some of his lega1 positions, and asserts new objections .
- -------------- - - - -----
Plaintiffs' Second Objection to the Motion to Dismiss- PAGE 1
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Document18 Filed05/04/13 Page2 of 8
The VLS As Applied .and On Its Faces V'iolute$ the Fundamental Rights of
Parents in Custody Disputes in California's Family Law Courts.
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ARGUMENT
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In his RB, the Attorney argues that Wolfe v. George 486 F3d 1120 (9 1h Cir. 2007)
"forecloses plaintiffs' claim." (RB pg, 5115~2.1 ). He dismisses any "distinction" between
are denied all access after their parental rights have been terminated. He reasons that the
"vexatious" parents are not denied access because they are "permitted to proceecf' with
civil litigants such as Barton H. Wolfe and many of the parents in this class action who
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by CCP section 391.7(b). (RB, pg. 5/22-28).
10
11
if a. presiqingJudge,determines that their' motion ha.s ''1nerit'' as mandated
The first set of problems with the Attorney's legal position is that it is predicated
on self-serving conclusions and specious presumptions. The attorney presumes that a
12
presiding judge, by checking one of the boxes on the MC-701 fonns 1, whether that is the
13
"denied" or "granted" or "other'' box, has made the right decision. However, without any
14
written reasons or statements as to why a motion is "denied," it is impossible to know the
15
basis for the "merit detennination" and impossible to determine if it was properly made.
16
This oblique "merit determination" procedure, thereby, renders any appellate review
17
virtually impossible because there is no trial court record to review. The denial of a
18
"merit determination" also creates the mandatory presumption that the parent's motion
19
was not "meritorious." The underlying problemishow .does
what is a "meritorious'' motion in a custody dispute without an evidentiary hearing?

Further, the Attorney also presumes that the ''merit determination" is narrowly
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presidingjudge decide
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drawn not only for "civil litigants" such as Barton Wolfe, but for the "vexatious litigant"
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parents. He does not deny that parental rights are funda1nentaL (Santosky v. Kramer 455
23
U.S. 745 (1982)). Unlike Mr. Wolfe ' s civil actions, the Attorney does not deny that the
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parents' motions relate to their fundamental custody rights. The Attorney does not deny
that family law courts are the "only forum" the state lias provided for a parent to resolve a
26
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1
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Judicial Council Form MC-701 allows apresidingjudge to make its ''merit determination'' by simply checking the
"denied" box without providing one word ofexplanation . *See, MC-70 l forms in RJN, Exhibit U. As noted in the
RJN, Exhibit U pg. 380, the presiding judges even fqrce attorneys to comply with the VLS.
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custody dispute. 2 The Attorney does not address these distinction$ and 4ifferences
between "civil" suits and custody cases other than to offer his self-ser\ling conclusions
that there is no distinction.
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The Attorney also presumes that the state only needs a "rational basis" rather than
George court applied a rational basis standard). The problem is that the Attorney's selfserving conclusions beg the fundamental question. The Attorney does not dispute the
3
holdings of Boddie v. Connecticut and Elkins v. Sup. Ct. in which both the California
a "compelling" reason to intrude on a parent's fundamental rights (because the Wolfe v.
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and U.S. Supreme Courts rejected the state's asserted rational basis analysis for the state
9
10
statute. (Boddie, supra, 382: "We are thus left to evaluate the State's asserted interest in
its fee and cost requirements as a mechanism of resource allocation or cost recoupment.
11
Such a justification was offered and rejected in Grijfin v. lllituJis, 351 U.S. 12 (1956)").
12
It seems the state of California could avoid the "constitutional concerns''4 raised by
13
imposing the VLS on both civil litigants and parents (mentioned in Shalant v. Girardi
14
(20 11) 51 Cal. 4th 1164) by a narrowly tailoring the VLS to "civil" as opposed to parents
15
in custody disputes. The Attorney does not address this issue apparently because he just
16
presumes there are no ''fundamental rights" at play.
The most significant problem with the Attorney's position relates to the parents'
17
right to petition under the I st Amendment. The Attorney wi$hes to construe Boddie v.
19
Connecticut to support his view that the VLS does not violate or intrude on fundamental
21
~preclude
all access to the court.'' (RB pg 6/b9). However, a
prefiling order denies a vexatious litigant parent "acting in propria persona" from filing
any new litigation without "permission." In that sense, a vexatious parent is denied all
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rights because it does not
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"immediate" access to the court if he/she cannot afford an attorney. The Attorney does
not deny the "pre filing order" requirement of CCP 391. 7(b) restricts a vexatious and self-
represented parent all "immediate access." And, as applied, (*See Factual Allegations for
25
26
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Elkins v. Sup. Ct. o.fContra Costa Co., 41 Cal. 4111 1331 (2001), tn other words, court congestion and 'the press o
business' will notjustify 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."
4
Shalant v. Girardi (20 11) 51 Cal. 41h 1164)
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1, Parent F, Parent C), the state courts apply the VLS against "represented" parents. Further,
as noted above, a presiding judge's "merit determination" precludes any effective
"appellate review" because it does not create an order With stated reasons that can be
challenged on appeal. (P()wers v. City qf Richmond (1995) 10 CaL 4th 85, l 10: " ... the
6
7
Legislature may regulate the mode of appellate review, it may do so only to the extent
that it does not thereby "substantially impair the constitutionalpowers of the courts, or
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practically defeat their exercise.' "). The Attorney does not address whether the "merit
determination," with their summary denials and lack of stated reasons, function to
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"substantially impair" a parent's 1st Amendment right to "appellate review."

9
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In essence, the Attorney reads Boddie v. Connecticut, combined with the VLS, to
mean that since.a presidingjudge may make a favorable "merit deterrnination'' and grant
"access," that the VLS does not ''preclude all access to the court."' He seems to reason
12
that because the "possibility" of being granted access exists, that the. VLS is square up
13
and not inconsistent with the
14
the fact that vexatious parents here have been denied "all'' access for years at a time and
15
only gained access, and only if represented, after the Supreme Courts holding in Shalant
16
v. Girardi. Further, the Attorney's view diminishes the holding of"full access" stated by
17
the Supreme Court in Boddie, supra at 3 75-376:
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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 are denied access to its use, stands
unimpaired where. recognized, effective alternatives for the adjustment of
differences remain. But the successtul invocation of this governmental power by
plaintiffs has often created $erious problem$ for<.lefendants' rights. For at that
point, the judicial proceeding becomes the only effective means of resolving the
dispute at hand, and denial of a defendant's full access to that process raises grave
problems for its legitimacy. (Emphasis added).
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Amendment right to petition. He simply does not address
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Unlike civil litigants, California has created a "rnonopoly" regarding custody disputes
and created the family law courts as the "only forurn" for resolving disputes over those
"fundamental relationships." While the Attorney implies that the VLS restricts, limits, or
impedes access, he does not argue that the imposition of the VLS on parents is a mere
"incidental" denial to the "full access" called for by the Supreme Court in Boddie. The
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1 ~ Attorney does not try to explain or distinguish the "full access" language with the facts o
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v. George, but ttever undertakes
this case. In fact, the Attorney repeatedly refers to Wolfe
the same analysis of case law conducted by the Ninth Circuit. (*See Wolfe v George,
supm, discussing: U.S. v. Kras 490 US, 434 (1973}; Ortwein v. Schwab 410 U.S. 656). In
6
7
Wolfe, the Ninth Circuit, in a,na,lyz.ing these ca,ses., fra,med the. question and found that
"access to the bankruptcy court does not rise to the same constitutional level" as
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divorce. 5 It would seem that the question in this case is whether a vexatious parent's
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"access to the family law courts rises to the same constitutional level as divorce." The
8
Attorney neither asks nor answers that question. He just proclaims that Boddie supports
his legal position. The Plaintiffs are underwhelmed ..
II. The Attorney's View of the 11th Amendment Bar To Suits Against States Is
Fantastic.
12
The Attorney persists in construing the ll 1h Amendment as a,n absplute bar to suit.
He argues that the defendants, Chief Justice Cantil- Sakauye and Steve Jahr, are immune
14
from suit under the 11 111 Amendment because they have ''no role in enforcing the VLS.
15
The Eleventh Amendment accordingly bars this suit.'' (RB pg. 3/16-17). The Attorney has
16
construed the "some connection to the eriforcement of the ... statute" language in In Re
17
Young in the broadest sense. The Attorney asserts there is a rigid requirement for an
18
"enforcement role in the allegedly unconstitutional act" under In re Young. This view,
19
however, would eviscerate the In Re Young exception to a state's immunity from suit
21
In his RB (fn 2, pg. 3), he recognizes that the Chief Justice Cantil-Sakauye may
"apply" (enforce) the VLS "in the cont~x:tofa specific case," put she would be immune
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under the ll th Amendment.
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from suit becausethe ruling was ma(ie in her ''judicial capacity."15 To support his view of
an "an enforcement role" requirement, he persists in arguing that the Snoeck v. Brussa"
case was dismissed not because there was no "ongoing violations of federal law," but
because the Nevada Commission on Judicial
Disci~line
"lacked authority under state law
26
5
27
28
Wolfe, supra: "In United States v. Kras, the Supreme Court held that access to bankruptcy courts does not ''rise to
the same constitutional level" as divorce, 23 and in Ortwein v. Schwab it reached the same conclusion for challenges
to reduction of welfare benefits."
6
The Plaintiffs sued the Chief Justice in her "official capacity," not her "judicial capacity," even though she denied
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to alter the procedures complaint of, there was an insufficient connection between the
alleged unconstitutional conduct and the Commission's duties to satisfy Ex Parte Young.
!d. at 987." (RB pg.. 317-12). However,Snoeck relied on Shell Oil Co. v. Noel, 608 F.2d
208 (1st Cir. 1979) to support its decision, "{A]ny supposed threat of a contempt action
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by the Commission, and there has nevf!r been one, can therefore be seen to be no more
than 'imaginary, speculative or chimerical."' Shell OilCo. vNoel was. dismisse.d not on
10
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Article III "case or controversy." 7
''lack of enforcement of the ongoing constitutional violation'; but because there was no
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Likewise, the other cases relied upon by the Attorney, such as LA County Bar
Ass 'n v. Eu, 979 F .2d 697, does not support his view for a rigid "enforcement role in the
alleged unconstitutional act." (RB pg. 3/ 16-17). In fact, in LA County Bar Ass 'n v. Eu,
the district court heldjust the opposite. The fact that the defendants, Governor Wilson
12
and Secretary of State March F ongEu, lacked a connection with the enforcement of the
13
challenged statute did not bar the State Bar Association~s Sl.lit under the 11th Amendment.
14
The court held, supra 704:
15
16
17
The la<>k of any '.enforcement proceeding by E.u and Wilson against the Bar
Association under the challenged statute does not preclude this suit. Government
Code section 69586 is currently being given effect by state officials, including Eu
and Wilson. It is simply not the type of statute that gives rise to enforcement
proceedings.
18
21
enforcement of the allegedly unconstitutional statute" was sufficient to make that
properly named defendants under the second prong of the In Re Young exception to
immunity under the 11th Amendment.
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The fact that the defendants had a "specific connection" rather than "a role in the
19
In this case, the named defendants have a ''specific connection" with the ongoing
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violations oftheparentts.fundamental custodyrights. Here, Chief Justice Cantil-Sakauye

has a duty under Cal. Canst. Art 6, section 6( d) to ensure the constitutionality of state
statutes and to provide "Judicial Council" forms that implement the statutes. (Gov. Code
section 68511). In the same way, Steven Jahr's connection with the ongoing violation is
'27
28
one of the class members the right to tile a writ (RJN, Exhibit 0 , pg. I98).
7
Shell Oil Co. v. Noel, supra 208-209: "We affirm the dismissal on the ground that there is no "case or controversy"
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specific. As the Administrative Director of the AOC, Steven Jahr has the duty to carry
out the goals of Judicial Council, such as implementing the final recommendations of the
Elkins Task Force, which sought greater access to courts and the creation of"fonns" for
need-based attorney fe.es.
8
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Cir. 20.04).. He concedes that the Wolfe
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enforcement" is not consistent with the holding in Wolfe v. Strankman, 392 F .3d 358 (9th
v. Strankmatt.rejec;.ted the ~'sovereign immunity''
challenge and allowed the case "'to go forward'~ on the rnerits. (RB pg. 3118-21 ). He notes
The Attorney acknowledges that his reading of a rigid requirement for a "role in
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that "the Court did not address whether they [the defendants] had a sufficient connection
with the alleged unconstitutional actions under Ex Parte Young. (RB, pg. 4/4-6). The
Attorney does not expressly ass.ert the Wolfe v. Strankman was improperly decided for
failing to make the "connection to enforcement" determination. Yet, he invites the court
12
here to make such a "determination" in the present case. (RB, pg. 4/4-5). Plaintiffs, on th
13
other hand, would hope the court would decline this invitation for "judicial legislating."
14
III. Issue Preclusion Does Not Ap.ply After a Dismissal Based on Rooker-Feldman.
15
The Attorney does not dispute that the Rooker-Feldman doctrine bars a de facto
16
appeal of a state court decision. In a dismissal under RQoker-Feldman, a district court
17
simply bars the suit without reaching the merits. The Attorney does not suggest that a
18
Rooker-Feldman dismissal involves a "relitigation" of the merits of the state court's
21
was both a "general challenge" to the VLS that the district court judge reviewed on the
merits as well as a "dismissal" under Rooker-Feldman. Ofcourse, if the earlier cas.e were
in fact a general constitutional challenge, then the district court would have reached the
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ruling. Instead, the Attorney seems to argue that "Plaintiff-Cunningham's" earlier case
19
merits and "issue preclusion" would apply (at least to the issues related to Plaintiff-
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Cunningham's case as opposed to the present class action). If, on the other hand, the
earlier case were a "de facto appeal," then it was properly dismissed without reaching the
appeal. The Attorney wants to have his cake and e(l.t ittoo.
26
The simple response to the Attorney's take on events is that he cites no case law
27
providing that a case can simultaneously be a "general constitutional challenge" as well
28
within Article Ill of the United States Constitution."
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1:- as a "de facto appeal." Nor are Plaintiffs aware ofany suGh case. From their view point,
the Plaintiffs sec the Attorney's legal machinations as the judicial equivalent of trying to
make a silk purse out of a cow's ear. It's a nice trick if you can pull it off or get away
with it. The Attorney is engaging in an exercise of obfuscation rather than legal analysis.
Even assuming, arguendo, that Plaintiff~Cunningham' s earlier case was barred by
dismissal of the class-action suit. He d0es not assert, nor could he, that all the new facts
and new issues in this case are precluded h.Y Plaintiff-Cunningham's prior case.
issue preclusion, the Attorney does not explain how that would provide a basis for the
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CONCLUSION
9
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II
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The Attorneys motion to dismiss is based on erroneous readings of statute and

case law, and self-serving characterizations of the facts and issues in this class action as
well as the earlier case by one of the class member. For the reasons stated, the Attomey's
motion to dismiss should be denied and the Defendants should be directed to file their
"answer."
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21
Dated:
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Archib,W..etmii.ingham,
Attorti.:~?.'_!<!t .P..laintiff: ,-.;:-
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ANDEW KARRES, MICHELE FOTINOS,
AMIL HIRAMENK, LISA HUNTNOCERA, NICOLE ANN RAY,
RIFKIN, et al.,
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v.
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Defendants.
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REPLY BRIEF IN SUPPORT OF

DEFENDANTS MOTION TO DISMISS
June 11, 2013
9:00 a.m.
10, 19th Floor
The Honorable Susan Illston
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C 13-1295 SI
Date:
Time:
Plaintiffs, Courtroom:
Judge:

Director of the Administrative office of the
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KAMALA D. HARRIS
TAMAR PACHTER
DANIEL J. POWELL
Telephone: (415) 703-5830
Fax: (415) 703-1234
INTRODUCTION
Plaintiffs Response and Objection to Defendants Motion to Dismiss (Opp.) fails to show
26
that plaintiffs have stated a claim for which relief should be granted. Plaintiffs argument that
27
there is no requirement under the Eleventh Amendment that the defendants have some connection
28
with the alleged unconstitutional act is flatly inconsistent with established law. And there is no
1
Defendants Reply in Support of Motion to Dismiss (C 13 1295 SI)
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such connection: the defendants do not enforce the Vexatious Litigant Statute (VLS) except
(respecting Chief Justice Cantil-Sakauye) in ruling on specific cases. This Court thus lacks
jurisdiction under the Eleventh Amendment. Moreover, the suit is procedurally barred with
respect to plaintiff Cunningham. Cunningham argues that the prior case he litigated before this
Court cannot form the basis for collateral estoppel because it was dismissed on the basis of the
Rooker-Feldman doctrine. This is incorrect. Although Judge White dismissed the as applied
aspect of plaintiffs complaint under the Rooker-Feldman doctrine, he reached the merits of
Cunninghams claims to the extent they presented a general challenge to the application of the
VLS in custody proceedings. Accordingly, Cunnigham is collaterally estopped from bringing this
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suit. Finally, Wolfe v. George is dispositive of plaintiffs claims. In Wolfe, the Ninth Circuit
11
rejected virtually all of the challenges to Californias VLS. As demonstrated in defendants
12
Motion to Dismiss (MTD), the fact that the VLS applies in custody proceedings does not render it
13
unconstitutional.
14
The fundamental flaw in plaintiffs argument is that the VLS does not prohibit parents (or
anyone else) from filing a lawsuit in state court: it prohibits vexatious litigants from filing
16
unmeritorious lawsuits in state courts. Anytime a parent who has been deemed a vexatious
17
litigant wishes to initiate a suit to regain custody, the presiding judge or justice will review the
18
complaint to determine if it has merit: if it does, the judge will permit it to be filed. Cal. Code
19
Civ. P. 397.1(b). Whatever due process right a parent has to initiate custody proceedings, it
20
does not permit him to file a suit that a judge has deemed to be meritless. The VLS is
21
constitutional both on its face and as it applies to parents in custody proceedings, and plaintiffs
22
complaint fails to state a claim on which relief can be granted. It should thus be dismissed with
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prejudice and without leave to amend.
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I.
ARGUMENT
PLAINTIFFS SUIT IS BARRED BY THE ELEVENTH AMENDMENT
26
In their Opposition, plaintiffs mischaracterize the Ninth Circuits decision in Snoeck, and
27
argue that the decision was based on the case or controversy requirement of Article III. (Opp. at
28
5.) That is incorrect. In Snoeck, the Ninth Circuit squarely held that Notwithstanding the
2
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thoughtful reasoning of the district court, the Eleventh Amendment bars the plaintiffs action
against the Commission. Snoeck v. Brussa, 153 F.3d 984, 987 (9th Cir. 2004) (emphasis added).
Snoeck involved a suit against the Nevada Commission on Judicial Discipline in which the
plaintiffs argued that the Commissions confidentiality restrictions governing complaints against
two sitting judges violated plaintiffs First Amendment rights. Id. at 98586. The Ninth Circuit
concluded the Commission had no control over the confidentiality restrictions, which were
derived from the Nevada Supreme Courts rules. Since the Commission lacked the authority
under state law to alter the procedures complained of, there was an insufficient connection
between the alleged unconstitutional conduct and the Commissions duties to satisfy Ex Parte
10
Young. Id. at 987. The Ninth Circuit did not reverse the district courts decision for lack of a
11
case or controversy, as argued by plaintiffs, but rather on the Eleventh Amendment issue which
12
the Ninth Circuit held conclusively ends this dispute. . . . Id. at 988.1
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The Eleventh Amendment bar likewise conclusively ends this dispute. Just as the
13
14
Commission did not create the confidentiality rules that were the subject of the lawsuit in Snoeck,
15
the defendants did not enact, and do not enforce, the VLS.2 Aside from their promulgation of the
16
judicial council forms (which do not form the basis of plaintiffs lawsuit), the defendants have no
17
role in enforcing the VLS. The Eleventh Amendment accordingly bars this suit.
The Ninth Circuits decision in Wolfe v. Strankman, 392 F.3d 358 (9th Cir. 2004) is not to
18
the contrary. While it is true that the Ninth Circuit permitted a challenge to the VLS to go
20
forward against then-Chief Justice George, the Presiding Justice of the First Appellate District of
21
the California Court of Appeal, and an employee of the judicial council, the issue in Wolfe was
a
1
Snoeck is just one of many cases discussing the requirement of Ex Parte Young that a
state defendant have a connection with the alleged unconstitutional conduct for the suit to be
brought under the Eleventh Amendment. See, e.g., Confederated Tribes & Bands of Yakama
Indian Nation v. Locke, 176 F.3d 467, 46970 (9th Cir. 1999); Los Angeles County Bar Assn v.
Eu, 979 F.2d 697, 704 (9th Cir. 1992). Even if the Ex Parte Young analysis overlaps with Article
IIIs case or controversy requirement, it would simply mean that the suit is improper under the
Eleventh Amendment and Article III. See, e.g., Long v. Van De Kamp, 961 F.2d 151, 152 (9th
Cir. 1992) (per curiam).
2
Chief Justice Cantil-Sakauye may interpret and apply the VLS in the context of a
specific case that is before her in her judicial capacity. As plaintiffs acknowledge, however, she
would have judicial immunity in a suit based on her action in a specific case.
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whether those individuals were persons for purposes of section 1983. Id. at 364. Although the
Court determined they were persons for purposes of section 1983 and thus not immune from suit
on that basis, the Court did not address whether they had a sufficient connection with the alleged
unconstitutional acts under Ex Parte Young. That question is squarely presented by the present
Motion, and it requires dismissal of plaintiffs suit.
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Finally, plaintiffs argument that if this suit is dismissed, then they will never be permitted
to bring a federal challenge to Californias VLS is no reason to ignore the commands of the
Eleventh Amendment. The purpose of that amendment is to protect states from suit in federal
court. While the Supreme Court has established certain exceptions to the Eleventh Amendment
10
that permit suits against state officials to go forward, there is nothing surprising about the fact that
11
certain types of suits against states may not be brought in federal court. The California courts
12
remain open to facial and as applied challenges to the VLS, and they are competent to resolve
13
such claims. See, e.g., Tafflin v. Levitt, 493 U.S. 455, 458 (1990) (noting that the Supreme Court
14
has consistently held that state courts have inherent authority, and are thus presumptively
15
competent, to adjudicate claims arising under the laws of the United States).
16
II.
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ISSUE PRECLUSION PROHIBITS PLAINTIFF CUNNINGHAM FROM RELITIGATING THE

CONSTITUTIONALITY OF THE VLS.
In addition to dismissing Cunninghams as-applied claims on the basis of the Rooker-
18
Feldman doctrine, Judge White dismissed Cunninghams facial challenges3 on the merits, and
20
that decision precludes this suit as to Cunningham. In the order granting the motion to dismiss,
21
the court stated that As he confirmed at the hearing, Mr. Cunninghams theory is that the
22
Vexatious Litigant Statute is facially unconstitutional in the context of family law proceedings
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Notice (DRJN), Ex. D at p. 5. The Court then went on to reject each of the facial claims on the
3
The facial challenges were not, technically speaking, facial challenges since they
concerned the application of the VLS in custody proceedings, as do the claims in this case.
Nevertheless, it is simpler to refer to them as facial challenges to distinguish them from the claims
in the earlier suit that the application of the VLS to Cunningham in a specific judicial proceeding
was unconstitutional. Defendants refer to these claims as the as-applied claims.
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merits. See, e.g., id. at 6 (The Court also finds Mr. Cunninghams facial challenges to the
Vexatious Litigant Statute in the context of family law proceedings to lack merit.); id. at 7 (To
the extent Mr. Cunningham alleges only that the ability to impose security or award attorneys
fees in connection with Vexatious Litigant Proceedings amount to a taking, the facial challenge
to the statute fails because the fees imposed are not for public use.); id. (Mr. Cunninghams
facial challenge to the Vexatious Litigant Statute on this basis [that it is an Ex Post Facto law]
fails.). In each case, the Court also addressed a potential as-applied challenge, and concluded
that even when the Court liberally construes the complaint to include such a challenge, it would
fail under the Rooker-Feldman doctrine. The fact that Judge White liberally construed
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Feldman does not change the fact that he addressed the facial challenges to the VLS on the merits,
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and found such challenges to be lacking. Accordingly, that decision collaterally estops
13
Cunningham from bringing the instant suit.
14
III. PLAINTIFFS CLAIMS FAIL ON THE MERITS
As discussed in defendants Motion, the Ninth Circuits decision in Wolfe v. George, 486
15
F.3d 1120 (9th Cir. 2007) forecloses plaintiffs claims. Although plaintiffs argue that Wolfe can
17
be distinguished on the ground that this case involves custody proceedings, their claims that the
18
statute is vague, that it violates the First Amendment, draws a classification on the basis of
19
affluence, constitutes an improper bill of attainder, and is an ex post facto law have nothing to do
20
with the fact that the VLS was applied in custody proceedings and are definitively foreclosed by
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Wolfe.
been applied to individuals in custody disputes. As explained in the motion to dismiss, the VLS
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does not prohibit parents from filing meritorious lawsuits concerning custody. (Motion at 1011.)
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Even after an individual is declared a vexatious litigant, their subsequent filings are still reviewed
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by a judicial officer, and if those filings have any merit, the litigant is permitted to proceed. Cal.
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Code Civ. P. 391.7(b). A pro se vexatious litigant is only prohibited from filing frivolous
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claims. Just as the First Amendment does not protect the ability of a litigant to file a frivolous
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lawsuit despite the fact that there may be a right to access the courts, Wolfe, 486 F.3d at 1225, the
Due Process Clause does not protect the right of parents to file frivolous lawsuits, even though
they have certain parental rights that are protected by the Due Process Clause. Boddie itself, on
which plaintiff relies, recognized that states may place some restrictions on access to the courts;
states simply cannot preclude all access to the courts. Boddie v. Connecticut, 401 U.S. 371, 382
(1971). California has not done so here. Rather, all it has done is precluded individuals that have
been determined by a court to be vexatious litigants from filing more frivolous lawsuits.
Precluding plaintiffs from further abusing the judicial process does not violate the Fourteenth
Amendment.
10
CONCLUSION
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Plaintiffs complaint should be dismissed, with prejudice, and without leave to amend.
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Dated: May 6, 2013
14
KAMALA D. HARRIS
TAMAR PACHTER
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DANIEL J. POWELL
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RIFKIN, et al.,
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Director of the Administrative office of the
Date:
Time:
Courtroom:
Judge:
Trial Date:
Action Filed:
9:00 a.m.
May 31, 2013
10, 19th Floor
Hon. Susan Illston
March 22, 2013
Defendants.
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C 13-1295 SI
DEFENDANTS NOTICE OF MOTION

AND MOTION TO DISMISS
PLAINTIFFS COMPLAINT FOR
Plaintiffs, INJUNCTIVE AND DECLARATORY
RELIEF; MEMORANDUM OF POINTS
AND AUTHORITIES
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KAMALA D. HARRIS
TAMAR PACHTER
DANIEL J. POWELL
Telephone: (415) 703-5830
Fax: (415) 703-1234
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Defendants Motion to Dismiss (C 13-1295 SI)
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NOTICE OF MOTION AND MOTION TO DISMISS
TO PLAINTIFFS AND ALL COUNSEL OF RECORD:
PLEASE TAKE NOTICE that on May 31, 2013 at 9:00 a.m. or as soon thereafter as
counsel may be heard, in Courtroom 10 of the above-entitled court, located at 450 Golden Gate
Ave., 19th Floor, San Francisco, California, defendants, the Honorable Tani Gorre Cantil-
Sakauye, Chair of the Judicial Council, and Steven Jahr, Administrative Director of the
Administrative Office of the Courts, will move this Court for an order under Federal Rule of Civil
Procedure 12(b)(1) and 12(b)(6) dismissing the complaint for injunctive and declaratory relief on
the following grounds:
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The Court lacks subject matter jurisdiction under the Eleventh Amendment of the United
10
11
States Constitution; the complaint is barred by principles of collateral estoppel as to plaintiff
12
Cunningham; and Californias vexatious litigant statute is constitutional on its face and as applied
13
to parents in custody disputes.
This motion will be based on this Motion and Notice of Motion, the Memorandum of Points
14
15
and Authorities in support thereof, the accompanying Request for Judicial Notice, the pleadings,
16
papers, and documents on file with the Court, and the oral argument of counsel.
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Dated: April 15, 2013
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KAMALA D. HARRIS
TAMAR PACHTER
DANIEL J. POWELL
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TABLE OF CONTENTS
Page
Introduction ..................................................................................................................................... 1
Background ..................................................................................................................................... 2
I.
Californias vexatious litigant statute...................................................................... 2
III.
9
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I.
II.
The Eleventh Amendment bars this suit. ................................................................ 4

Principles of collateral estoppel bar this suit as against plaintiff
Cunningham ............................................................................................................ 6
Californias vexatious litigant statute is constitutional on its face and as
applied to individuals in custody disputes .............................................................. 8
II.
Summary of the complaint ...................................................................................... 3
Argument ........................................................................................................................................ 4
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Conclusion .................................................................................................................................... 11
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Page
CASES
Adams v. California Dept. of Health Services

487 F.3d 684 (9th Cir. 2007)..................................................................................................... 8
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Agua Caliente Band of Cahuilla Indians v. Hardin

223 F.3d 1041 (9th Cir. 2000)................................................................................................... 5
6
7
Almond Hill Sch. v. U.S. Dept. of Agric.

768 F.2d 1030 (9th Cir. 1985)................................................................................................... 5
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Alvares v. Erickson
514 F.2d 156 (9th Cir. 1975)..................................................................................................... 4
10
Associated Gen. Contractors of CA, Inc. v. CA State Council of Carpenters

459 U.S. 519 (1983) .................................................................................................................. 4
11
12
Atascadero State Hasp. v. Scanlon

473 U.S. 234 (1985) .................................................................................................................. 5
13
Ayala v. Wong
693 F.3d 945 (9th Cir. 2012)..................................................................................................... 9
14
15
Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation

402 U.S. 313 (1971) .................................................................................................................. 7
16
17
Boddie v. Connecticut
401 U.S. 371 (1971) ................................................................................................................ 10
18
Bravo v. Ismaj
99 Cal. App. 4th 211 (2002).................................................................................................... 10
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Childs v. PaineWebber Inc.

29 Cal. App. 4th 982 (1994)...................................................................................................... 2
Ex parte Young
209 U.S. 123 (1908) .............................................................................................................. 5, 6
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First Western Development Corp. v. Super. Ct.

212 Cal. App. 3d 860 (1989)..................................................................................................... 8
Gompper v. VISX, Inc.
298 F.3d 893 (9th Cir. 2002)..................................................................................................... 4
Hosp. v. Halderman
465 U.S. 89 (1984) .................................................................................................................... 5
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(continued)
In re R.H.
170 Cal. App. 4th 678 (2009).................................................................................................. 10
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Kokkonen v. Guardian Life Ins. Co. of Am.

511 U.S. 375 (1994) .................................................................................................................. 4
5
6
L.A. Branch NAACP v. L.A. Unified Sch. Dist.

714 F.2d 946 (9th Cir. 1983)................................................................................................. 5, 6
L.A. County Bar Assn v. Eu

979 F.2d 697 (9th Cir. 1992).................................................................................................... 5
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Long v. Van de Kamp

961 F.2d 151 (9th Cir. 1992)..................................................................................................... 6
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Masson v. New Yorker Magazine, Inc.

85 F.3d 1394 (9th Cir. 1996)..................................................................................................... 7
12
McColm v. Westwood Park Assn

62 Cal. App. 4th 1211 (1998).................................................................................................... 2
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Muller v. Tanner
2 Cal. App. 3d 445 (1969)......................................................................................................... 3
15
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Papasan v. Allain
478 U.S. 265 (1986) .................................................................................................................. 5
17
Parklane Hosiery Co. v. Shore

439 U.S. 322 (1979) .................................................................................................................. 7
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Pierce v. Kane et al.

Case No. 2:13-cv-00482 (E.D. Cal.) ......................................................................................... 7
20
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Robertson v. Dean Witter Reynolds, Inc.,

749 F.2d 530 (9th Cir. 1984)..................................................................................................... 4
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Quern v. Jordan
440 U.S. 332 (1979) .................................................................................................................. 5
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San Remo Hotel, L.P. v. San Francisco City and County

364 F.3d 1088 (9th Cir. 2008)................................................................................................... 8
Sauceda v. Dept. of Labor & Indus., of State of Washington
917 F.2d 1216 (9th Cir. 1990)................................................................................................... 6
28
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(continued)
Snoeck v. Brussa
153 F.3d 984 (9th Cir. 1998)..................................................................................................... 5
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Taliferro v. Hoogs
236 Cal. App. 2d 521 (1965)..................................................................................................... 3
5
6
Wilbur v. Locke
423 F.3d 1101 (9th Cir. 2005)................................................................................................... 5
Wolfe v. George
486 F.3d 1120 (9th Cir. 2007)..................................................................................... 2, 8, 9, 11
Wolfgram v. Wells Fargo Bank

53 Cal. App. 4th 43 (1997)........................................................................................................ 2
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STATUTES
12
28 U.S.C. 636(b)(1)(C) ................................................................................................................ 7
13
42 U.S.C. 1988 ............................................................................................................................. 1
14
California Code of Civil Procedure

391. ............................................................................................................................. 3, 10, 11
391.2 ....................................................................................................................................... 6
391.7 ....................................................................................................................................... 2
15
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CONSTITUTIONAL PROVISIONS
18
United States Constitution

First Amendment ............................................................................................................... 1, 3, 9
Eleventh amendment ..................................................................................................... 1, 4, 5, 6
Fourteenth Amendment ............................................................................................................. 1
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California Constitution .................................................................................................................... 3

Article VI, 11
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COURT RULES
Federal Rule of Civil Procedure

Rule 12(b)(1) ............................................................................................................................. 4
Rule 12(b)(6) ............................................................................................................................. 4
5
6
Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2d 4406 ....................... 8
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OTHER AUTHORITIES
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INTRODUCTION
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Plaintiffs bring a purported class action lawsuit challenging the constitutionality of
Californias Vexatious Litigant Statute (VLS) as it applies to litigants involved in custody
disputes. Although these claims have been repeatedly rejected (including in a related case
brought by one of the named plaintiffs here), plaintiffs assert that the VLS violates the Due
Process Clause and Equal Protection Clause of the Fourteenth Amendment, is an Ex Post Facto
Law and an improper Bill of Attainder under Article I, section 10, and constitutes an
impermissible prior restraint that violates the First Amendment. Not only does this Court lack
jurisdiction to consider these claims under the Eleventh Amendment, but they fail as a matter of
law.
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As an initial matter, plaintiffs claims are barred by the Eleventh Amendment. Plaintiffs
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challenge the constitutionality of the VLS as it is applied in the context of family law custody
13
proceedings. (Complaint for Injunctive and Declaratory Relief Under 42 U.S.C. 1983;
14
Attorney Fees Under 42 U.S.C. 1988 (Compl.) 1.) Neither the Judicial Council nor the
15
Administrative Office of the Courts (AOC) is responsible for the application of the VLS, which is
16
independently interpreted and applied by courts making individualized determinations of whether
17
the VLS applies to a particular litigant. Accordingly, the defendants lack a sufficient connection
18
to the alleged injury in this case to be subject to suit under the Eleventh Amendment.
Even if the Court were to reach the merits, it should dismiss the suit for failure to state a
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claim for which relief can be granted. With respect to plaintiff Cunningham (who is also acting
21
as the attorney for the named plaintiffs), the claims are barred by collateral estoppel, as he has
22
already litigated virtually identical claims in this court. In any event, the Ninth Circuit has
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rejected identical constitutional challenges to Californias VLS, which is dispositive of the claims
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asserted in this case. Accordingly, plaintiffs cannot state a claim for which relief can be granted,
25
and the court should dismiss the complaint, with prejudice.
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BACKGROUND
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I.
CALIFORNIAS VEXATIOUS LITIGANT STATUTE
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California adopted its Vexatious Litigant Statute to ease the unreasonable burden placed
upon the courts by groundless litigation. Wolfgram v. Wells Fargo Bank, 53 Cal. App. 4th 43,
48 (1997). The statute allows a judge to enter a prefiling order prohibiting a vexatious litigant
from filing any new pro se litigationincluding an appeal or writ proceedingwithout the
permission of the presiding judge or justice. Cal. Civ. Proc. Code 391.7(a)-(b); McColm v.
Westwood Park Assn, 62 Cal. App. 4th 1211, 1216-1217 (1998) (the [Court of Appeal] will
enforce the vexatious litigant statute by requiring the permission of the administrative presiding
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justice before a vexatious litigant subject to a prefiling order may proceed).
Litigants who are subject to prefiling orders are placed on a statewide vexatious litigant list
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maintained by the Judicial Council of California and disseminated to clerks of the state courts.
13
Cal. Civ. Proc. Code 391.7(e). Court clerks, in turn, have no discretion to accept filings from
14
vexatious litigants absent prior court approval. Id. 391.7(c) (The clerk may not file any
15
litigation presented by a vexatious litigant subject to a prefiling order unless the vexatious litigant
16
first obtains an order from the presiding judge permitting the filing.). And such approval can be
17
given by the presiding judge or justice only if it appears that the litigation has merit and has not
18
been filed for the purposes of harassment or delay. Id. 391.7(b). An individual who has been
19
determined to be a vexatious litigant may file an application to vacate the prefiling order and
20
remove his or her name from the Judicial Councils list of vexatious litigants upon a showing of a
21
material change in the facts upon which the order was granted and that the ends of justice would
22
be served by vacating the order. Id. 371.8.
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The Vexatious Litigant Statute has survived numerous constitutional challenges. See, e.g.,
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Wolfe v. George, 486 F.3d 1120 (9th Cir. 2007); Wolfgram, 53 Cal. App. 4th at 48 (prefiling
25
statute does not violate federal due process because the minimal delay and effort in drafting the
26
request for permission to file the action [is not] an unreasonable hurdle); Childs v. PaineWebber
27
Inc., 29 Cal. App. 4th 982, 993 (1994) (The vexatious litigant statutes are constitutional.);
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Muller v. Tanner, 2 Cal. App. 3d 445, 452 (1969) (vexatious litigant statutes do not violate equal
protection or due process); Taliferro v. Hoogs, 236 Cal. App. 2d 521, 525-530 (1965) (same).
II.
SUMMARY OF THE COMPLAINT
Plaintiffs are nine individuals who have been named vexatious litigants under Californias
VLS, Cal. Civ. Proc. Code 391, et seq. Each of the named plaintiffs was declared a vexatious
litigant in the context of custody proceedings before various state superior courts. Plaintiffs
purport to bring this action on behalf of a class of parents engaged in custody disputes in the
family law courts (and on appeal with appellate courts) who have been declared vexatious under
the California Vexatious Litigant Statute and whose access to state courts, both trial courts and
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appellate courts, has been curtailed, restricted, or denied. (Compl. 63.)
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Plaintiffs, on their own behalf and on behalf of the putative class, challenge the
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constitutionality of the VLS as it is applied in the context of family law custody proceedings.
13
(Id. 1.) Plaintiffs further allege that the VLS on its face and as applied infringes on their
14
fundamental custody rights. (Id.) Specifically plaintiffs allege that the VLS:
15
Draws an impermissible distinction on the basis of affluence in violation of the

Equal Protection Clause. (Compl. 66-78.)
16
17
Deprives plaintiffs of a meaningful opportunity to be heard in their custody

cases in violation of the Due Process Clause. (Compl. 8081.)
18
Violates the right to appeal and the right to file a petition for writ of mandate
under the First Amendment to the U.S. Constitution and Article VI, section 11 of the
California Constitution. (Compl. 8289.)
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Is unconstitutionally vague and overbroad in violation of due process. (Compl.

91101.)
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Is an unconstitutional prior restraint in violation of the First Amendment.

(Compl. 105111.)
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Violates due process insofar as Judicial Council form MC-701 is inconsistent

with the VLS and fails to provide for a hearing as to whether a litigant meets the
requirements of the VLS. (Compl. 112123.)
Constitutes an improper Bill of Attainder. (Compl. 124133.)
Violates the Ex Post Facto Clause. (Compl. 134143.)
Plaintiffs seek declaratory relief to this effect, as well as attorneys fees.

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ARGUMENT
Subject matter jurisdiction is a threshold issue which goes to the power of the court to hear
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this case. Accordingly, a jurisdictional challenge should be decided before other grounds for
dismissal that will be moot if dismissal is granted. Alvares v. Erickson, 514 F.2d 156, 160 (9th
Cir. 1975). A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) challenges
a federal courts subject matter jurisdiction over the action. The burden of establishing subject
matter jurisdiction rests upon the party seeking to invoke it, and the court presumes a lack of
jurisdiction until the plaintiff proves otherwise. Kokkonen v. Guardian Life Ins. Co. of Am., 511
U.S. 375, 377 (1994). As the complaint is barred by the Eleventh Amendment, the Court lacks
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jurisdiction over this suit.
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Further, a suit may be dismissed as a matter of law for two reasons: (1) lack of a cognizable
11
legal theory, or (2) insufficient facts under a cognizable theory. Robertson v. Dean Witter
13
Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984). In considering a motion to dismiss brought
14
under Rule 12(b)(6), the court must assume the truth of all factual allegations and must construe
15
them in the light most favorable to the nonmoving party. Gompper v. VISX, Inc., 298 F.3d 893,
16
895 (9th Cir. 2002). Courts will not assume that plaintiffs can prove facts which [they have] not
17
alleged, or that the defendants have violated . . . laws in ways that have not been alleged.
18
Associated Gen. Contractors of CA, Inc. v. CA State Council of Carpenters, 459 U.S. 519, 526
19
(1983). With respect to plaintiff Cunningham, collateral estoppel bars relitigation of these
20
matters. Even if the Court does reach the underlying merits of the suit, the constitutional claims
21
advanced by plaintiffs are without merit.
22
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THE ELEVENTH AMENDMENT BARS THIS SUIT.
The Eleventh Amendment1 bars suit against a state or its instrumentalities for legal or
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equitable relief in the absence of consent by the state or an abrogation of that immunity by
1
The Eleventh Amendment states in its entirety:
The Judicial power of the United States shall not be construed to extend to any suit in
law or equity, commenced or prosecuted against one of the United States by Citizens
of another State, or by Citizens or Subjects of any Foreign State.
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Congress. Papasan v. Allain, 478 U.S. 265, 276-77 (1986); Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 100 (1984). Section 1983 did not abrogate a states Eleventh
Amendment immunity. Quern v. Jordan, 440 U.S. 332, 341 (1979). The State of California has
not waived that immunity with respect to claims brought under section 1983 in federal court.
Atascadero State Hasp. v. Scanlon, 473 U.S. 234, 241 (1985).
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The Eleventh Amendment [also] bars a suit against state officials when the state is the
real, substantial party in interest. Pennhurst, 465 U.S. at 101 (citations omitted); see Almond
Hill Sch. v. U.S. Dept. of Agric., 768 F.2d 1030, 1033 (9th Cir. 1985). The general rule is that
relief sought nominally against an officer is in fact against the sovereign if the decree would
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operate against the latter. Pennhurst, 465 U.S. at 101 (citation omitted). [A]s when the State
11
itself is named as the defendant, a suit against state officials that is in fact a suit against a State is
12
barred regardless of whether it seeks damages or injunctive relief. Id. at 101-02 (citation
13
omitted).
Ex parte Young, 209 U.S. 123 (1908), created an exception to Eleventh Amendment
15
immunity for suits for prospective declaratory and injunctive relief against state officers, sued in
16
their official capacities, to enjoin an alleged ongoing violation of federal law. Wilbur v. Locke,
17
423 F.3d 1101, 1111 (9th Cir. 2005) (quoting Agua Caliente Band of Cahuilla Indians v. Hardin,
18
223 F.3d 1041, 1045 (9th Cir. 2000)). However, this exception applies only where it is plain
19
that such officer [has] some connection with the enforcement of the act, or else it is merely
20
making him a party as a representative of the State, and thereby attempting to make the State a
21
party. Snoeck v. Brussa, 153 F.3d 984, 986 (9th Cir. 1998) (quoting Ex parte Young, 209 U.S.
22
at 157). This connection must be fairly direct; a generalized duty to enforce state law or general
23
supervisory power over the persons responsible for enforcing the challenged provision will not
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subject an official to suit. L.A. County Bar Assn v. Eu, 979 F.2d 697, 704 (9th Cir. 1992)
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(continued)
U.S. Const. amend. XI.
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(citing Long v. Van de Kamp, 961 F.2d 151, 152 (9th Cir. 1992); L.A. Branch NAACP v. L.A.
Unified Sch. Dist., 714 F.2d 946, 953 (9th Cir. 1983)).
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As an initial matter, the court should dismiss the Judicial Council as a defendant to the
extent plaintiffs have included it as a defendant. Although the Judicial Council is not listed in the
caption, and was not served by plaintiffs, it is listed as a party in the complaint. (Compl. 33.)
State agencies are immune from suit under the Eleventh Amendment, and do not by definition fall
within the Ex Parte Young exception. Sauceda v. Dept. of Labor & Indus., of State of
Washington, 917 F.2d 1216, 1218 (9th Cir. 1990) (To the extent that appellants suit seeks
damages and injunctive relief against a state agency, it is barred by the eleventh amendment.).
10
With the exception of a claim that the forms approved by the Judicial Council for optional
11
use are inconsistent with the VLS and violate due process,2 the defendants lack a sufficient
12
connection with the alleged unconstitutional acts to satisfy the Eleventh Amendment. While
13
plaintiffs appear to suggest that the VLS is a creation of the Judicial Council (see, e.g., Compl.
14
45), it is the Legislature that enacted the VLS, not the Judicial Council or the AOC. While judges
15
interpret and apply the VLS in specific cases, they are not subject to the control of the defendants
16
in those rulings. Plaintiffs constitutional claims are focused on the application of the VLS itself,
17
not the forms. As the defendants do not have a sufficiently direct connection to the alleged
18
unconstitutional act to satisfy Ex Parte Young, the Eleventh Amendment prohibits this suit.
19
II.
Plaintiff Cunningham (who is also acting as attorney for plaintiffs) has previously litigated
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the constitutionality of the VLS before this court, and his claims are barred under principles of
defensive collateral estoppel.3 The doctrine of collateral estoppel has the dual purpose of
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The claims that the Judicial Council forms violate due process are frivolous. Form MC701 is a form that a vexatious litigant may use to request permission to file a new lawsuit (which
must itself be attached to the form), and Form MC-702 can be used by the court to rule on such a
request. None of these forms replace the requirements of the VLS, including the requirement of a
hearing (see Cal. Civ. Proc. Code 391.2) and use is entirely optional. It does not violate due
process to provide a litigant with forms that assist him in filing materials with the court,
particularly where he is not required to use them. Copies of these forms are included as Exhibits
AB to Defendants Request for Judicial Notice.
3
In addition, on February 5, 2013, plaintiff Pierce filed a complaint in the Eastern District
(continued)
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PRINCIPLES OF COLLATERAL ESTOPPEL BAR THIS SUIT AS AGAINST PLAINTIFF

CUNNINGHAM
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protecting litigants from the burden of relitigating an identical issue with the same party or his
privy and of promoting judicial economy by preventing needless litigation. Parklane Hosiery
Co. v. Shore, 439 U.S. 322, 326 (1979). Defensive collateral estoppel applies when a defendant
seeks to prevent a plaintiff from asserting a claim the plaintiff has previously litigated and lost
against another defendant. Masson v. New Yorker Magazine, Inc., 85 F.3d 1394, 1400 (9th Cir.
1996) (quoting Parklane Hosiery, 439 U.S. at 326 n.4). Findings made in one proceeding in
which a party has had a full and fair opportunity to litigate may be used against that party in
subsequent litigation. Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation,
402 U.S. 313, 329 (1971).
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In Cunningham v. Mahoney, Judge White dismissed a suit where plaintiff Cunningham also
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challenged application of the VLS to litigants in custody disputes. (Case No. 3:10-cv-03211.) In
12
that case, Cunningham challenged the VLS as violating his due process right to access the courts
13
and as interfering with his ability to vindicate his custodial rights. (Order Granting Motion to
14
Dismiss, and Joinders Therein, and Denying As Moot Motion for Preliminary Injunction,
15
Defendants Request for Judicial Notice (DRJN), Ex. D at 7.) Plaintiff Cunningham also
16
challenged the VLS under the Takings Clause (id. at 7), as an invalid ex post facto law (id.), and
17
also alleged it was vague and overbroad (id. at 8). This court rejected each of those claims. On
18
the same day Judge White dismissed Cunninghams first federal action, Judge White entered final
19
judgment. (DRJN, Ex. E.) Cunningham thus had a full opportunity to litigate his claims in the
20
prior federal court proceeding that concluded two years ago. Therefore, the doctrine of collateral
21
estoppel precludes Cunningham from proceeding in this action.
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(continued)
of California raising some of the issues raised in this complaint. See Pierce v. Kane et al., Case
No. 2:13-cv-00482 (E.D. Cal.). Although the complaint is largely unintelligible, plaintiff Pierce
also appeared to be raising issues as to the constitutionality of the VLS in that case. On April 3,
2013, Judge Shubb adopted the recommendations of a magistrate judge and dismissed the action
with prejudice pursuant to 28 U.S.C. 636(b)(1)(C) and Local Rule 304 of the Eastern District of
California.
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That conclusion applies both with respect to the issues actually litigated in the first federal
suit and with respect to issues that should have been litigated in that suit. Wright, Miller &
Cooper, Federal Practice and Procedure: Jurisdiction 2d 4406. Claim preclusion precludes
relitigation of claims that were raised or should have been raised in earlier litigation. San Remo
Hotel, L.P. v. San Francisco City and County, 364 F.3d 1088, 1094 (9th Cir. 2008). As this suit
presents a common transactional nucleus of facts, to the extent Cunningham brings claims in
this suit that he did not raise in the first federal suit, claim preclusion also acts to bar those claims.
Adams v. California Dept. of Health Services, 487 F.3d 684, 689 (9th Cir. 2007). Accordingly,
the complaint should be dismissed as to plaintiff Cunningham.
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III. CALIFORNIAS VEXATIOUS LITIGANT STATUTE IS CONSTITUTIONAL ON ITS FACE

AND AS APPLIED TO INDIVIDUALS IN CUSTODY DISPUTES
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Both the California Courts of Appeal and the Ninth Circuit Court of Appeals have upheld
13
Californias VLS against a myriad of constitutional challenges. See, e.g., Wolfe v. George, 486
14
F.3d 1120 (9th Cir. 2007); Taliaferro v. Hoogs, 236 Cal. App. 2d 521, 52730 (1965); First
15
Western Development Corp. v. Super. Ct., 212 Cal. App. 3d 860, 868 (1989). In Wolfe, the Ninth
16
Circuit rejected various constitutional challenges to Californias VLS, many of which are made
17
here. In resolving these claims, the Ninth Circuit applied rational basis review, the standard that
18
is likewise appropriate in this case. Wolfe, 486 F.3d at 1126.
In Wolfe, the Ninth Circuit squarely rejected the equal protection claim made by plaintiffs.
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First, neither frequent pro se litigants nor those who are poor constitute a suspect class meriting
21
strict scrutiny. Id. at 1226 & n.29. Under rational basis, the court concluded that California can
22
rationally distinguish litigants who sue and lose often, sue the same people for the same thing
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after they have lost, and so on, from other litigants. Id. at 1226. The court noted that where a
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security bond is required before filing, the court makes an individualized determination that the
25
individual should be subject to a bond and the appropriate amount. Id. at 1127. Thus, the VLS
26
does not draw a classification between those who can pay a bond and those who cannot. While
27
the VLS does draw a distinction between those individuals who are represented by counsel and
28
those who appear pro se, California can rationally believe that pro se litigants pose a different
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problem, since they are not subject to oversight by the State Bar and are not governed by the
ethical and legal obligations of licensed attorneys. Plaintiffs equal protection claims are
foreclosed by Wolfe.
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Plaintiffs claim that the VLS is a prior restraint in violation of the First Amendment is also
foreclosed by Wolfe. Because the VLS simply prohibits an individual from filing frivolous
litigation, it does not implicate the First Amendment. Just as false statements are not immunized
by the First Amendment right to freedom of speech . . . baseless litigation is not immunized by
the First Amendment right to petition. Id. at 1225.
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The Ninth Circuit also squarely rejected plaintiffs claims that the VLS constitutes an
10
improper Bill of Attainder and that it violates the Ex Post Facto Clause. The Ex Post Facto
11
Clause is inapplicable because the vexatious litigant statute does not impose criminal penalties.
12
Id. at 1227. The Court also concluded that [t]he statute is not a bill of attainder because it does
13
not single anyone out. Id. Accordingly, these claims must also be rejected.
Wolfe also disposes of plaintiffs claims that the statute is unconstitutionally vague and
14
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overbroad in violation of Due Process. The California vexatious litigant statute is not
16
unconstitutionally vague, because it gives fair notice to those who might violate the statute. It is
17
not overbroad, because there is no constitutional right to file frivolous litigation. Id. at 1125.
18
Plaintiffs claims to the contrary are foreclosed by Wolfe.
The Ninth Circuits reasoning also forecloses plaintiffs arguments that the VLS violates
20
their right to appeal under the First Amendment. It is true that [i]f a state provides for a direct
21
appeal as of right from a criminal conviction, it must also provide certain minimum safeguards
22
necessary to make that appeal adequate and effective. Ayala v. Wong, 693 F.3d 945, 958 (9th
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Cir. 2012) (internal quotations omitted). But just as the First Amendment does not protect false
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statements or baseless litigation, the due process clause does not protect the right to file frivolous
25
appeals. Moreover, the Ninth Circuit has expressly rejected any argument that the VLS prohibits
26
access to the courts (including, presumably, the courts of appeal) but rather concluded that
27
California may set the terms on which it will permit litigation in its courts. Wolfe, 486 F.3d at
28
1126 (quoting Taliaferro, 236 Cal. App. 2d at 528). As California courts have observed,
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Californias VLS does not deny the vexatious litigant access to the courts, but operates solely to
preclude the initiation of meritless lawsuits and their attendant expenditures of time and costs.
Bravo v. Ismaj, 99 Cal. App. 4th 211, 22122 (2002); see also In re R.H., 170 Cal. App. 4th 678,
700 (2009) (a prefiling order does not prevent an appeal; it provides a means by which a
vexatious litigant may nonetheless pursue litigation.).
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Finally, plaintiffs argument that the VLS is unconstitutional as applied in the context of
custody proceedings also fails. Plaintiffs cite to Boddie v. Connecticut, in which the United
States Supreme Court prohibited Connecticut from charging fees to initiate divorce proceedings.
401 U.S. 371, 372 (1971). The plaintiffs in Boddie were unable to afford those fees, and were
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unable to obtain a waiver of them. The Court concluded:
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[T]he States refusal to admit these appellants to its courts, the sole means in
Connecticut for obtaining a divorce, must be regarded as the equivalent of denying
them an opportunity to be heard upon their claimed right to a dissolution of their
marriages, and, in the absence of a sufficient countervailing justification for the
States action, a denial of due process.
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Id. at 38081. Plaintiffs reason that because, like divorce, parental rights also implicate
15
fundamental due process, application of the VLS in custody proceedings is inconsistent with
16
Boddie.
The difference between the circumstances of Boddie and this case could not be more stark.
17
In Boddie, indigent individuals were barred from appearing in court and obtaining a divorce
19
without paying a fee. They thus had no access to the courts whatsoever. The VLS, on the other
20
hand, applies only to individuals who have repeatedly abused access to the judicial system by
21
filing meritless litigation. Before declaring an individual to be a vexatious litigant, a court must
22
determine that the individual has filed at least five lawsuits that have been determined adversely
23
to the litigant; repeatedly relitigated or attempted to relitigate issues against the same defendants;
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or engaged in conduct that is frivolous or solely intended to cause unnecessary delay. Cal. Civ.
25
Proc. Code 391(b). Even then, the court will permit the individual to initiate litigation where a
26
court determines that the litigation has merit. Id. 391.7. A litigant can also be removed from
27
the list of vexatious litigants upon a showing that there has been a material change in the facts
28
that formed the basis of the prefiling order and that removing the individual would serve the
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interests of justice. Id. 391.8. Thus, unlike in Boddie, parents are not barred from pursuing
their parental rights in court; they are simply prohibited from filing frivolous actions in state
courts. As the Ninth Circuit recognized in Wolfe, the California vexatious litigant statute does
not deprive Wolfe of the opportunity to vindicate a fundamental right in court. 486 F.3d at 1126.
Indeed, the Boddie court held that states may take measures like Californias VLS to protect the
integrity of the judicial system. [O]ther alternatives exist to fees and cost requirements as a
means for conserving the time of courts and protecting parties from frivolous litigation, such as
penalties for false pleadings or affidavits, and actions for malicious prosecution or abuse of
process, to mention only a few. Boddie, 401 U.S. at 382.
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California does not prohibit parents from accessing the courts to protect their custody rights.
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Rather, it prohibits litigants such as plaintiffs from abusing the judicial process and from
12
repeatedly filing frivolous actions. The underlying subject matter is irrelevant to the
13
constitutionality of the VLS: California has a legitimate interest in prohibiting litigants from filing
14
unmeritorious actions and clogging its courts. The VLS is constitutional both on its face and as it
15
applies to custody proceedings.
16
CONCLUSION
17
The motion to dismiss should be granted and the complaint dismissed, with prejudice.
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DANIEL J. POWELL
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KAMALA D. HARRIS
TAMAR PACHTER
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. AUG 2 7 2012
DAVID H. YAMASAKI
Chief 6XIICUtillt Olfloar/~lrk

Superior court of CA Cou~~nta ~PrLJrY
j.
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SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
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II
In re the Marriage of:
12
KAMAL HIRAMANEK,
13
Petitioner,
and
14
ADIL HIRAMANEK,
'
Respondent.
16
) Case No.: 1-09-FL-149682

)
) ORDER RE PETITIONER'S REQUEST TO
) RJ;:NEW RESTRAINING ORDER
)
)
)
)
)
)
)
)
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This matter came regularly before the Court for trial on August 8, 2012, in Depmiment
18
75 of the Family Court, the Hon. L. Michael Clark, presiding. Cluistopher Hirz, Esq ., appeared
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BY
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for and with Petitioner, Kamal Kapadia fka Hirmanek ("Mother"). Respondent, Adil Hiramanek
21
("Father"), appeared and represented himself. At issue was Mother),request tiled September 16,
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2011, to renew her restraining order against Father under Family Code section 6345. Father's
23
responsive declaration filed October 3, 2011, opposed the request

. The matter was originally set
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for hearing in October 20 II, but was continued numerous times at the request of the parties.
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The court has considered the written declarations and testimony of the parties, the evidence
presented at the hearing, and the court file. The Court now renders decision as follows.
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Background
The underlying domestic violence restraining order against Father was filed on October
18, 2010. It issued following a contested hearing on September 13 and October 18, 2010, dming
which both parties were represented by counsel. At the conclusion of the hearing on October 18,
2010, the Court issued a one-year no-contact and stay-away order against Father. The Court
found that Father violated a written stipulation filed by the parties on June 24, 2009, in which
Father agreed to have no contact with Mother and agreed to stay away from Mother, her
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residence, place of employment and vehicle.
At the trial on the underlying restraining order in 2010, the Court found credible
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Mother's testimony that on February 4, 2010, Father sat in his parked car in front of Mother's
~
residence. The Court found} that Father's presence in front of the residence cause Mother to have
14
a reasonable fear and constituted harassment and disturbing Mother's peace. At Father's request,
15
the Court crafted some nanow exceptions to the restraining order. One exception included a
16
provision which permitted Father to come to the Mother's residence to pick up his elderly
17
mother, Roda Hiramanek, who still resided in the home at the time, as long as he remained in his
18
car curbside. Another exception allowed Father to attend events at the Zoroastrian Association
19
of Northern California when Mother and the children were present, so long as he did not
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underlying restraining order, Father's contact with the children was restricted to professional
22
supervised visitation.
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approach them or attempt to communicate with them. At the time the Court issued the
23
Current Trial
24
During the trial on August 9, 2012, on Mother' s request to renew her restraining order,
25
Mother testified that she still fears Father, and she is afraid he will continue to harass her if the
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restraining order is allowed to expire. She testified that, for the most part, the existing
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restraining order has protected her, except for a few times when Father violated the cunent order.
She testified that some of the violations have occuned when she has sat in the courtroom or
outside the courtroom, and Father has come and sat near her and stared at her. She described an
incident in February 2011 when she arrived to pick up the children from a therapeutic supervised
visit between Father and the children supervised by Carol Tait-Stames, MFT, and Father
approached her car with
she was subpoenaed to attend a deposition scheduled by Roda Hiramanek (Mother's ex-mother-
in-law) in Roda's lawsuit against Mother. When Mother anived for the deposition, Father sat in
10
the same room with Mother until Mother's attorney threatened to call the police, at which time
II
Father left. Finally, Mother described an incident on June 15, 2011, when she was at court
12
participating in a mandatorv settlement conference. Father came over and sat in front of her and
13
stared at her "with a hateful stare."
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children. She also described an incident on October 14 2011, when
Mother testified that all these incidents made her afraid, and that the look he gave her was
14
the same look he gave her during her experience of domestic violence during marriage. She
16
testified that these incidents made her hemi race, and her hands clammy, and she started shaking.
17
Mother believes that Father is on a quest to destroy her.
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Father denied violating the existing restraining order. He called attorney Mmie Bechtel
19
to testify. She testified that she served as a volunteer pro tem settlement judge for the parties in
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2011 on matters related to custody and visitation. She testified that during the time she was with
21
the family, she did not see any deputies get involved with the family, nor did anyone tell her that
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deputies got involved with the family that day, nor did anyone present her with any complaints
23
that day. On cross-examination she agreed that it was possiq1e that something occurred that she
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did not see.
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Father elicited testimony from his non-certified process server, Javad Majd, and from his
mother, Roda Hirarnanek. Father did not testify himself, per se, as he used up his tria1 time
allotment cross-examining Mother and eliciting testimony from his wit11esses. However, the
Court allotted Father extra time to present closing argument, during which he denied violating
the existing restraining order. He characterized the existing restraining order as "bogus," he
characterized Mother 's asse11ions of fear as "bogus," and he argued that Mother's request to
renew the restraining order was "just a game" to keep him away from the family residence.
Finally, Father argued that a restraining order negatively affects his reputation and ability to
obtain employment.
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Applicable Law
11
Family Code section 6345, subdivision (a), pennits a protected pa1iy to request renewal
12
of a restraining order: "These orders may be renewed, upon the request of a party, either for five
13
years or pem1anently, without a showing of any fllliher abuse since the issuance of the original
14
order, subject to termination or modification by further order of the court either on written
15
stipulation filed with the court or on the motion of a party."
When considering a request to renew a domestic violence restraining order, the Court
16
must detennine by a preponderance of the evidence whether the victim has a reasonable
18
apprehension of future abusive conduct if the restraining order is allowed to expire. (Ritchie v.
19
Konrad (2004) 115 Cai.App.4th 1275, 1290; Loeffler v. Medina (2009) 174 Cai.App.4th 1495.)
20
The Ritchie case provides the most detailed guidance.
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We conclude that in Califomia, as in the rest of the country, an objective test must
be satisfied before a protective order is renewed in contested cases . . . . A trial
court should renew the protective order, if, and only if, it finds by a
preponderance of the evidence that the protected party entertains a "reasonable
apprehension" of future abuse. So there should be n'O misunderstanding, this does
not mean the court must find it is more likely than not future abuse will occur if
the protective order is not renewed. It only means the evidence demonstrates it is
more probable than not uhere is a sufficient risk of future abuse to find the
protected party's apprehension is genuine and reasonable .
179
All of which is to say the mere existence of a protective order, typically issued
several years earlier, seldom if ever will provide conclusive evidence the
requesting party entertains a "reasonable apprehension" of fi..1ture abuse of any
kind should that order expire. But the existence of the initial order certainly is
relevant and the underlying findings and facts supporting that order often will be
enough in themselves to provide the necessary proof to satisfy that test.
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The other side of the equation-the "burdens" the protective order imposes on the
restrained party-may or may not be a relevant factor in the trial court's
consideration of a contested request for renewal of a protective order. Certainly
those burdens would never justify denial of a renewed protective order where the
"reasonable apprehension" is of future acts of physical violence. It is true those
"burdens" on the restrained party can be very real. There often will be some social
stigma attached while a person is subject to a protective order. Existing employers
may frown on an employee who is subject to such an order and prospective
employers almost surely will. Thus the restrained party may lose out on a
promotion or a job. The continued existence of such an order likewise may, fairly
or unfairly, interfere with the restrained party's social life. Furthermore, where
children are involved, a protective order designed to prohibit access to an abused
spouse may have the collateral effect of limiting the restrained party's access to
his (or her) children even when they are not potential targets ofabuse.
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Also potentially relevant are any significant changes in the circumstances

sunounding the events justifying the initial protective order. For instance, have
the restrained and protected parties moved on with their lives so far that the
opportunity and likelihood of future abuse has diminished to the degree they no
longer support a renewal of the order? Or have there been no significant changes
or even perhaps changes that enhance the oppmiunity and possibility of fuhtre
abuse?
11
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(260 of 270)
Consequently, the trial judge ordinarily should consider the evidence and findings
on which that initial order was based in appraising the risk of future abuse should
the existing order expire. On the other hand, the trial court should not permit the
restrained party to challenge the truth of the evidence and findings underlying the
initial order, as Konrad seeks to do in this case. This would contradict principles
of collateral estoppel and undercut the policies supporting those principles. But
this does not mean the trial court should be prohibited from looking behind the
order itself when evaluating whether that order, often three years old, should be
extended another three years or even, as here, pe1manently . .. .
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Once again, however, the physical security of the protected party tmmps all of
these burdens the original or renewed protective1 order may impose on the
restrained pmiy . Thus, where the protected party has a "reasonable apprehension"
of future physical abuse if the current protective order expires, that order should
be renewed despite any burdens this inflicts on the restrained party. The
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(261 of 270)
Legislature has left little doubt about this balancing of risks and burdens in its
domestic violence legislation.
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The burdens the restrained party suffers fiom a renewed-and especially a

pennanent-protective order may become relevant, however, where the existing
order focuses not on the threat of physical violence, but lesser fmms of abuseunwanted telephone calls or mail, for example. Where the worst "danger" the
protected party must fear is a few unwanted calls or letters or e-mail messages,
the court may have to weigh the seriousness as well as the degree of the risk
against the significance of the burdens the restrained party will experience if
subjected to a continuing protective order. (Ritchie v. Konrad (2004) 115 Cal.
App. 4th 1275, 1290- 1292.)
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Analysis
Applying these standards to the facts of this case, the Court finds by a preponderance of
10
the evidence that Mother has a genuine and reasonable apprehension of future domestic violence.
11
First, the Court finds her apprehension of future domestic violence is genuine. The Court found
12
her testimony credible. The fear she expressed
13
of the physical symptoms she experienced on the occasions when Father violated the order was
14
consistent with her demeanor in the courtroom . She avoided eye contact with Father during the
15
hearing, and she trembled as she described what she thought it would be like without a
16
restraining order. Second, the Court finds her apprehension is reasonable. Her descriptions of
17
several incidents when Father violated the existing restraining order were detailed, consistent and
18
credible. And third, Father ' s .characterization of the existing restraining order as "bogus," and
19
his multiple violations of the existing restraining order, dictate in favor of the need for renewal of
the hearing was palpable. Her description
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the existing restraining order.

The Court has considered various changes in the parties' circumstances since the
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underlying restraining order was issued. The parties are now divorced. The Court has
23
suspended visitation between Father and the children. The Court has ordered Father to complete
24
a 52-week parenting without violence program based on testimony received in the eight-day
25
custody trial in June 2012. The Court has also considered Father's pattem of intimidation and
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(262 of 270)
control as more fully described in the proposed statement of decision filed on August 3, 2012.
Finally, the Court has considered the impact on Father's reputation and ability to obtain
employment if the Court renews the restraining order. Under the facts ofthis case, the Court
finds that the safety of Mother outweighs the burden placed on Father.
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Accordingly, the Court grants Mother's request to renew her restraining order against
Father. The Court also grants her request for a "pennanent" restraining order under Family Code
section 6345. For law enforcement purposes, the restraining order shall be for 50 years, and
shall expire at midnight on August 24, 2062. The children shall be listed as protected persons.
There shall be exceptions to this restraining order for brief and peaceful contact as required for
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court-ordered visitation . The restraining order shall expire as to the children only on each child's
11
twenty-first birthday. At Mother's request, the existing exception for limited contact at the
12
Zoroastrial Association will be included in the pennanent order. Counsel for Mother shall
13
prepare and submit a Restraining Order After Hearing on Judicial Council Form DV -130
14
consistent with this order.
15
SO ORDERED.
16
Date: August 24, 2012
19
HON. L. MICHAEL CLARK

Judge ofthe Superior Court
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ER-16
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(264 of 270)
Case: 3:13-cv-01295-JSW As of: 11/03/2013 05:05 PM PST 1 of 7
ADRMOP,APPEAL,CLOSED,RELATE
Plaintiff
Date Filed: 03/22/2013

Date Terminated: 08/13/2013
Jury Demand: Plaintiff
Nature of Suit: 950 Constitutional State
Statute
Jurisdiction: Federal Question
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Pierce et al v. CantilSakauye et al
Assigned to: Hon. Jeffrey S. White
Relate Case Case: 3:10cv03211JSW
Cause: 42:1983 Civil Rights Act
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U.S. District Court

California Northern District (San Francisco)
CIVIL DOCKET FOR CASE #: 3:13cv01295JSW
represented by Archibald Robert Cunningham

Attorney at Law
1489 Mcallister Ln
(415) 5631828
Email: archcunnghm@yahoo.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Plaintiff
Kerry Hicks

(See above for address)
LEAD ATTORNEY
Plaintiff
Andrew Karres
Plaintiff
Ju
Michele Fotinos
Plaintiff
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Amil Hiramenk

LEAD ATTORNEY

LEAD ATTORNEY

LEAD ATTORNEY
Plaintiff
Lisa HuntNocera
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Ronald Pierce

LEAD ATTORNEY
Plaintiff
Nicole Ann Ray

LEAD ATTORNEY
Plaintiff
183
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(265 of 270)
LEAD ATTORNEY
Plaintiff
LEAD ATTORNEY
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Richard Rifkin
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V.
Defendant
represented by Daniel J. Powell

Department of Justice, Attorney General's
Office
(415)7035830
Fax: 4157031234
Email: Daniel.Powell@doj.ca.gov
LEAD ATTORNEY
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CantilSakauye
California Chief Justice, Chair of Judicial
Council
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Peiyin Patty Li
California Department of Justice
Office of the Attorney General
455 Golden Gate Ave., Suite 11000
4157031577
Email: patty.li@doj.ca.gov
LEAD ATTORNEY
Tamar Pachter
Office of the California Attorney General
4157035970
Fax: 4157031234
Email: Tamar.Pachter@doj.ca.gov
LEAD ATTORNEY
Kari Lynn Krogseng
1300 I Street, Suite 125
P.O. Box 944255
Sacramento, CA 942442550
(916) 3221067
Fax: (916) 3248835
Email: Kari.Krogseng@doj.ca.gov
Defendant
Steven Jahr
the Administrative Director of the
Administrative Office of the Courts
represented by Daniel J. Powell

LEAD ATTORNEY
Peiyin Patty Li
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Kari Lynn Krogseng

#
Docket Text
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LEAD ATTORNEY
1 Class Action COMPLAINT (with jury demand) against CantilSakauye, Steven

Jahr (Filing fee $350, receipt number 34611084369). Filed by Lisa HuntNocera,
Kerry Hicks, Michele Fotinos, Amil Hiramenk, Richard Rifkin, Archibald
Cunningham, Ronald Pierce, Nicole Ann Ray, Andrew Karres. (Attachments: # 1
Civil Cover Sheet)(cjl, COURT STAFF) (Filed on 3/22/2013) (Entered:
03/26/2013)
03/22/2013
2 Summons Issued as to CantilSakauye, Steven Jahr. (cjl, COURT STAFF) (Filed

on 3/22/2013) (Entered: 03/26/2013)
03/22/2013
3 ADR SCHEDULING ORDER: Case Management Statement due by 6/11/2013.

Case Management Conference set for 6/18/2013 01:30 PM in Courtroom 4, 3rd
Floor, Oakland. (Attachments: # 1 Standing Order)(cjl, COURT STAFF) (Filed on
3/22/2013) (Entered: 03/26/2013)
03/29/2013
4 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by

Archibald Cunningham, Michele Fotinos, Kerry Hicks, Amil Hiramenk, Lisa
HuntNocera, Andrew Karres, Ronald Pierce, Nicole Ann Ray, Richard Rifkin.
(cjl, COURT STAFF) (Filed on 3/29/2013) (Entered: 03/29/2013)
03/29/2013
5 SUMMONS Returned Executed by Lisa HuntNocera, Kerry Hicks, Michele

Fotinos, Amil Hiramenk, Richard Rifkin, Archibald Cunningham, Ronald Pierce,
Nicole Ann Ray, Andrew Karres. Steven Jahr served on 3/25/2013, answer due
4/15/2013. (cjl, COURT STAFF) (Filed on 3/29/2013) (Entered: 03/29/2013)
03/29/2013
6 SUMMONS Returned Executed by Lisa HuntNocera, Kerry Hicks, Michele

Fotinos, Amil Hiramenk, Richard Rifkin, Archibald Cunningham, Ronald Pierce,
Nicole Ann Ray, Andrew Karres. CantilSakauye served on 3/25/2013, answer due
4/15/2013. (cjl, COURT STAFF) (Filed on 3/29/2013) (Entered: 03/29/2013)
04/10/2013
7 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by

CantilSakauye, Steven Jahr.. (Powell, Daniel) (Filed on 4/10/2013) (Entered:
04/10/2013)
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03/22/2013
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04/11/2013
8 Request for Judicial Notice re 1 Complaint, Section 1983 filed byRonald Pierce.
(Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Related
document(s) 1 ) (Cunningham, Archibald) (Filed on 4/10/2013) (Entered:
04/10/2013)
9 CLERK'S NOTICE of Impending Reassignment to U.S. District Judge (sisS,
COURT STAFF) (Filed on 4/10/2013) (Entered: 04/10/2013)
10 ORDER REASSIGNING CASE. Case reassigned to Judge Hon. Susan Illston

for all further proceedings. Magistrate Judge Kandis A. Westmore no longer
assigned to the case. Signed by the Executive Committee on April 11, 2013.
(cjl, COURT STAFF) (Filed on 4/11/2013) (Entered: 04/11/2013)
04/15/2013
11 MOTION to Dismiss Plaintiffs' Complaint for Injunctive and Declaratory Relief;

Memorandum of Points and Authorities filed by CantilSakauye, Steven Jahr.
Motion Hearing set for 5/31/2013 09:00 AM in Courtroom 10, 19th Floor, San
Francisco before Hon. Susan Illston. Responses due by 4/29/2013. Replies due by
5/6/2013. (Powell, Daniel) (Filed on 4/15/2013) (Entered: 04/15/2013)
04/15/2013
12 Request for Judicial Notice re 11 MOTION to Dismiss Plaintiffs' Complaint for

Injunctive and Declaratory Relief; Memorandum of Points and Authorities filed
byCantilSakauye, Steven Jahr. (Attachments: # 1 Exhibit A to E)(Related
document(s) 11 ) (Powell, Daniel) (Filed on 4/15/2013) (Entered: 04/15/2013)
185
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13 RESPONSE and Objection to (re 11 MOTION to Dismiss Plaintiffs' Complaint for
Injunctive and Declaratory Relief; Memorandum of Points and Authorities ) filed
by Archibald Cunningham. (Cunningham, Archibald) (Filed on 4/22/2013)
Modified on 4/22/2013 (ysS, COURT STAFF). (Entered: 04/22/2013)
04/26/2013
14 CLERKS NOTICE Initial Case Management Conference set for 6/21/2013 02:30
PM in Courtroom 10, 19th Floor, San Francisco. This is a docket text entry only,
there is no document associated with this notice. (tfS, COURT STAFF) (Filed on
4/26/2013) (Entered: 04/26/2013)
04/26/2013
15 Judge Illston's Standing ORDER (tfS, COURT STAFF) (Filed on 4/26/2013)

(Entered: 04/26/2013)
04/30/2013
16 CLERKS NOTICE Continuing Motion Hearing, Set/Reset Deadlines as to 11

MOTION to Dismiss Plaintiffs' Complaint for Injunctive and Declaratory Relief;
Memorandum of Points and Authorities. Motion Hearing set for 6/11/2013 09:00
AM in Courtroom 10, 19th Floor, San Francisco before Hon. Susan Illston. No
adjustments shall be made to the oringally set briefing scheudle. This is a docket
text entry only, there is no document associated with this notice. (tfS, COURT
STAFF) (Filed on 4/30/2013) (Entered: 04/30/2013)
05/02/2013
17 REPLY (re 11 MOTION to Dismiss Plaintiffs' Complaint for Injunctive and

Declaratory Relief; Memorandum of Points and Authorities ) filed
byCantilSakauye, Steven Jahr. (Powell, Daniel) (Filed on 5/2/2013) (Entered:
05/02/2013)
05/04/2013
18 RESPONSE and Objection to 17 Reply Brief in support of (re 11 MOTION to

Dismiss Plaintiffs' Complaint for Injunctive and Declaratory Relief; Memorandum
of Points and Authorities ) filed byRonald Pierce. (Cunningham, Archibald) (Filed
on 5/4/2013) Modified on 5/6/2013 (ysS, COURT STAFF). (Entered: 05/04/2013)
05/13/2013
19 First MOTION for Preliminary Injunction filed by Kerry Hicks. Motion Hearing
set for 6/11/2013 09:00 AM in Courtroom 10, 19th Floor, San Francisco before
Hon. Susan Illston. Responses due by 5/28/2013. Replies due by 6/4/2013.
(Cunningham, Archibald) (Filed on 5/13/2013) (Entered: 05/13/2013)
05/13/2013
20 Request for Judicial Notice re 19 First MOTION for Preliminary Injunction filed
byAndrew Karres. (Related document(s) 19 ) (Cunningham, Archibald) (Filed on
5/13/2013) (Entered: 05/13/2013)
05/24/2013
21 RESPONSE (re 19 First MOTION for Preliminary Injunction ) filed

byCantilSakauye, Steven Jahr. (Powell, Daniel) (Filed on 5/24/2013) (Entered:
05/24/2013)
05/29/2013
22 Proposed Order granting 19 MOTION for Preliminary Injunction filed by Amil

Hiramenk. Motion Hearing set for 6/11/2013 09:00 AM in Courtroom 10, 19th
Floor, San Francisco before Hon. Susan Illston. Responses due by 6/10/2013.
Replies due by 6/11/2013. (Cunningham, Archibald) (Filed on 5/29/2013)
Modified on 5/30/2013 (ysS, COURT STAFF). (Entered: 05/29/2013)
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04/22/2013
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05/29/2013
23 Declaration of Archibald Cunningham in support of 19 MOTION for Preliminary

Injunction filed by Archibald Cunningham. Motion Hearing set for 6/11/2013
09:00 AM in Courtroom 10, 19th Floor, San Francisco before Hon. Susan Illston.
Responses due by 6/10/2013. Replies due by 6/10/2013. (Cunningham, Archibald)
(Filed on 5/29/2013) Modified on 5/30/2013 (ysS, COURT STAFF). (Entered:
05/29/2013)
24 CLERKS NOTICE : The motion for preliminary injunction and the motion to
dismiss set for hearing on 6/11/13 is continued to 6/14/2013 09:00 AM in
Courtroom 10, 19th Floor, San Francisco before Hon. Susan Illston.Continuing
Motion Hearing, Set/Reset Deadlines as to 11 MOTION to Dismiss Plaintiffs'
Complaint for Injunctive and Declaratory Relief; Memorandum of Points and
Authorities, 19 First MOTION for Preliminary Injunction . THIS S A DOCKET
TEXT ENTRY ONLY, THERE IS NO DOCUMENT ASSOCIATED WITH THIS
NOTICE. (tfS, COURT STAFF) (Filed on 5/30/2013) (Entered: 05/30/2013)
06/11/2013
25 SUA SPONTE ORDER OF REFERRAL to C103211 JSW; JUNE 14, 2013

HEARING VACATED (Illston, Susan) (Filed on 6/11/2013) Modified on
05/30/2013
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6/12/2013 (ysS, COURT STAFF). (Entered: 06/11/2013)
26 RESPONSE (re 11 MOTION to Dismiss Plaintiffs' Complaint for Injunctive and
Declaratory Relief; Memorandum of Points and Authorities ) Response Local Rule
312 filed byArchibald Cunningham. (Cunningham, Archibald) (Filed on
6/14/2013) (Entered: 06/14/2013)
06/17/2013
27 CLERKS NOTICE Initial Case Management Conference set for 6/21/13 is

continued to 7/26/2013 02:30 PM in Courtroom 10, 19th Floor, San Francisco.
THIS IS A DOCKET TEXT ENTRY ONLY, THERE IS NO DOCUMENT
ASSOCIATED WITH THIS NOTICE. (tfS, COURT STAFF) (Filed on 6/17/2013)
(Entered: 06/17/2013)
06/18/2013
28 ORDER RELATING CASE. Counsel are instructed that all future filings in
any reassigned case are to bear the initials of the newly assigned judge (JSW)
immediately after the case number. Any case management conference in any
reassigned case will be rescheduled by the Court. The parties shall adjust the
dates for the conference, disclosures and report required by FRCivP 16 and
26 accordingly. Unless otherwise ordered, any dates for hearing noticed
motions are vacated and must be renoticed by the moving party before the
newly assigned judge.. Signed by Judge Jeffrey S. White on 6/18/13. (jjoS,
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06/14/2013
06/19/2013
Case reassigned to Hon. Jeffrey S. White. Hon. Susan Illston no longer assigned to
the case. (ha, COURT STAFF) (Filed on 6/19/2013) (Entered: 06/19/2013)
29 ORDER SETTING HEARING ON 11 Motion to Dismiss Plaintiffs'

Complaint AND SETTING DEADLINE FOR REPLY AND HEARING ON
19 First MOTION for Preliminary Injunction. Motion Hearing set for
7/26/2013 09:00 AM in Courtroom 11, 19th Floor, San Francisco before Hon.
Jeffrey S. White. Signed by Judge Jeffrey S. White on June 19, 2013. (jswlc3,
06/21/2013
30 First MOTION to Disqualify Judge Jeffrey S. White filed by Archibald

Cunningham. Responses due by 7/5/2013. Replies due by 7/12/2013.
06/22/2013
31 Declaration in Support 30 filed by Archibald Cunningham. Responses due by

7/8/2013. Replies due by 7/15/2013. (Cunningham, Archibald) (Filed on
6/22/2013) Modified on 6/26/2013 (hdjS, COURT STAFF). (Entered: 06/22/2013)
06/27/2013
32 ORDER by Judge Jeffrey S. White denying 30 Motion to Disqualify Judge

(jjoS, COURT STAFF) (Filed on 6/27/2013) (Entered: 06/27/2013)
33 REPLY (re 19 First MOTION for Preliminary Injunction ) Reply to Opposition to
PI filed byArchibald Cunningham. (Cunningham, Archibald) (Filed on 6/27/2013)
(Entered: 06/27/2013)
06/27/2013
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34 Amended MOTION to Disqualify Judge Jeffrey White, MOTION for Extension of

Time to Complete Discovery filed by Archibald Cunningham. Responses due by
7/16/2013. Replies due by 7/23/2013. (Attachments: # 1 Affidavit)(Cunningham,
Archibald) (Filed on 7/2/2013) (Entered: 07/02/2013)
35 EXHIBITS re 34 Amended MOTION to Disqualify Judge Jeffrey White MOTION
for Extension of Time to Complete Discovery Certificate of Interested Parties filed
byArchibald Cunningham. (Attachments: # 1 Exhibit)(Related document(s) 34 )
36 Declaration of Archibald Cunningham in Support of 19 First MOTION for
Preliminary Injunction Second Declaration filed byArchibald Cunningham.
(Related document(s) 19 ) (Cunningham, Archibald) (Filed on 7/7/2013) (Entered:
07/07/2013)
07/12/2013
37 ORDER by Judge JEFFREY S. WHITE denying 34 Motion to Disqualify

Judge (jjoS, COURT STAFF) (Filed on 7/12/2013) (Entered: 07/12/2013)
07/12/2013
38 DECLARATION of Cunningham in Opposition to 34 Amended MOTION to

Disqualify Judge Jeffrey White MOTION for Extension of Time to Complete
07/07/2013
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Discovery Noncompliance LR 315 filed byArchibald Cunningham. (Related
document(s) 34 ) (Cunningham, Archibald) (Filed on 7/12/2013) (Entered:
07/12/2013)
39 AFFIDAVIT in Support re 34 Amended MOTION to Disqualify Judge Jeffrey
White MOTION for Extension of Time to Complete Discovery Noncompliance LR
315 filed byArchibald Cunningham. (Related document(s) 34 ) (Cunningham,
Archibald) (Filed on 7/12/2013) (Entered: 07/12/2013)
07/12/2013
40 Declaration in Support of 34 Amended MOTION to Disqualify Judge Jeffrey White

MOTION for Extension of Time to Complete Discovery Dec Re JSW's
Noncompliance filed byArchibald Cunningham. (Related document(s) 34 )
07/16/2013
45 Letter addressed to Judge Wilken from Archibald Cunningham. (hdjS, COURT

07/18/2013
41 ORDER DENYING DEMAND RE LOCAL RULE 315. Signed by Judge

Jeffrey S. White on 7/18/13. (jjoS, COURT STAFF) (Filed on 7/18/2013)
(Entered: 07/18/2013)
07/18/2013
42 Renotice motion hearing re 34 Amended MOTION to Disqualify Judge Jeffrey

White MOTION for Extension of Time to Complete Discovery Renewed Request
to Comply With LR 315 filed byArchibald Cunningham. (Related document(s) 34
) (Cunningham, Archibald) (Filed on 7/18/2013) (Entered: 07/18/2013)
07/19/2013
43 ORDER DENYING 42 RENEWED DEMAND THAT JUDGE WHITE

COMPLY WITH PLAIN LANGUAGE OF LOCAL RULE 315 AND
REFER THE ISSUE OF DISQUALIFICATION UNDER 28 U.S.C. 144 TO
ANOTHER JUDGE. Signed by Judge Jeffrey S. White on 7/19/13. (jjoS,
07/19/2013
Set/Reset Deadlines as to 11 MOTION to Dismiss Plaintiffs' Complaint for

Injunctive and Declaratory Relief; Memorandum of Points and Authorities, 19
First MOTION for Preliminary Injunction . Motion Hearing set for 7/26/2013
09:00 AM in Courtroom 11, 19th Floor, San Francisco before Hon. Jeffrey S.
White. (jjoS, COURT STAFF) (Filed on 7/19/2013) (Entered: 07/19/2013)
di
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07/12/2013
44 AFFIDAVIT in Support Renewed Request to Comply filed byArchibald

Cunningham. (Cunningham, Archibald) (Filed on 7/19/2013) (Entered:
07/19/2013)
07/25/2013
46 NOTICE of Appearance by Kari Lynn Krogseng on behalf of Defendants

(Krogseng, Kari) (Filed on 7/25/2013) (Entered: 07/25/2013)
47 Minute Entry: Motion Hearing held on 7/26/2013 before Judge Jeffrey S. White
(Date Filed: 7/26/2013). (Court Reporter Lydia Zinn.) (jjoS, COURT STAFF)
(Date Filed: 7/26/2013) (Entered: 07/26/2013)
07/26/2013
Ju
07/19/2013
48 Proposed Order re 19 First MOTION for Preliminary Injunction After Oral

Argumwnt by Archibald Cunningham. (Cunningham, Archibald) (Filed on
7/26/2013) (Entered: 07/26/2013)
08/13/2013
49 ORDER by Judge Jeffrey S. White granting in part and denying in part 11

Motion to Dismiss; denying as moot 19 Motion for Preliminary Injunction
(jjoS, COURT STAFF) (Filed on 8/13/2013) (Entered: 08/13/2013)
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07/26/2013
08/13/2013
50 JUDGMENT. Signed by Judge Jeffrey S. White on 8/13/13. (jjoS, COURT

08/16/2013
51 NOTICE of Substitution of Counsel by Tamar Pachter (Pachter, Tamar) (Filed on

8/16/2013) (Entered: 08/16/2013)
08/19/2013
52 First MOTION to Set Aside Judgment Clear Error By Judge White filed by
Archibald Cunningham. Responses due by 9/3/2013. Replies due by 9/10/2013.
09/03/2013
53 NOTICE of Substitution of Counsel by Peiyin Patty Li (Li, Peiyin) (Filed on

9/3/2013) (Entered: 09/03/2013)
188
11/05/2013
ID: 8850783
DktEntry: 2-2
Page: 208 of 208

(270 of 270)
et
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Case: 13-17170
54 RESPONSE (re 52 First MOTION to Set Aside Judgment Clear Error By Judge
White ) Opposition to Motion to Amend Judgment filed byCantilSakauye, Steven
Jahr. (Attachments: # 1 Proposed Order)(Li, Peiyin) (Filed on 9/3/2013) (Entered:
09/03/2013)
09/05/2013
55 Second MOTION to Set Aside Judgment Reconsideration of Dismissal filed by

Archibald Cunningham. Motion Hearing set for 10/4/2013 09:00 AM in Courtroom
10, 19th Floor, San Francisco before Hon. Jeffrey S. White. Responses due by
9/5/2013) (Entered: 09/05/2013)
09/07/2013
56 REPLY (re 55 Second MOTION to Set Aside Judgment Reconsideration of

Dismissal ) Reply to Opposition to Set Aside Judgment filed byArchibald
Cunningham. (Cunningham, Archibald) (Filed on 9/7/2013) (Entered: 09/07/2013)
09/09/2013
57 Renotice of Hearing Date of Third Motion to Set Aside Judgment filed by

Archibald Cunningham. Motion Hearing set for 11/8/2013 09:00 AM in Courtroom
11, 19th Floor, San Francisco before Hon. Jeffrey S. White. Responses due by
9/9/2013) Modified on 9/9/2013 (hdjS, COURT STAFF). (Entered: 09/09/2013)
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09/03/2013
10/03/2013
Set/Reset Deadlines as to 55 Second MOTION to Set Aside Judgment

Reconsideration of Dismissal. Motion Hearing set for 11/8/2013 09:00 AM before
Hon. Jeffrey S. White. (hdjS, COURT STAFF) (Filed on 10/3/2013) (Entered:
10/03/2013)
59 NOTICE OF APPEAL to the 9th CCA Archibald Cunningham, Michele Fotinos,

Kerry Hicks, Amil Hiramenk, Lisa HuntNocera, Andrew Karres, Ronald Pierce,
Nicole Ann Ray, Richard Rifkin. Appeal of Order on Motion to Set Aside
Judgment, 58 (Appeal fee of $455 paid#34611090702) (hdjS, COURT STAFF)
(Filed on 10/23/2013) (Entered: 10/23/2013)
rn
i
10/23/2013
58 ORDER by Judge JEFFREY S. WHITE DENYING MOTION TO AMEND

JUDGMENT UNDER FRCP 59(e) AND/OR MOTION FOR RELIEF FROM
JUDGMENT UNDER FRCP 60(b)(1)(6); REQUEST FOR STATEMENT OF
REASONS (jjoS, COURT STAFF) (Filed on 10/4/2013) (Entered: 10/04/2013)
Ju
10/04/2013
60 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 59

Notice of Appeal, (hdjS, COURT STAFF) (Filed on 10/23/2013) (Entered:
10/23/2013)
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10/23/2013
189
268
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Sacramento Family Court News

Investigative Reporting, News, Analysis, Opinion & Satire
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JUDICIAL MISCONDUCT
(72)
JUDGE PRO TEM
(51)
ATTORNEY MISCONDUCT
(37)
Judge-Attorney "Cartel" Controls Court Operations Constitutes Racketeering Enterprise, Charge

Whistleblowers
MATTHEW J. GARY
(34)
KICKBACKS
(33)
FLEC
(28)
PETER J. McBRIEN
(26)
Sacramento Family Court News Exclusive Investigative Report

This special investigative report is ongoing and was last updated in October, 2015. Hyperlinks throughout this
report link to original source material including whistleblower leaked documents, records obtained under
public records law, public court documents, and our previously published articles with hyperlinks to source
CHILD CUSTODY
(23)
ROBERT SAUNDERS
(22)
material.
SCBA
(22)
As many of the articles on our main page

reflect,Sacramento Superior Court employee
whistleblowers and other court watchdogs contend
that a "cartel" oflocal family lawattorneys receive
kickbacks and other forms ofpreferential treatment
from family courtjudges, administrators and
employees.
CJP
(21)
JAMES M. MIZE
(21)
CHARLOTTE KEELEY
(19)
EMPLOYEE MISCONDUCT
(19)
The whistleblowers assert that lawyers in the

privileged group receive an assortment of illegal perks
because they volunteer towork as part-time
judgesand run the family court settlement
conference program on behalf of the court.
WATCHDOGS
(19)
PRO PERS
(18)
DIVORCE CORP
(17)
The kickbacks usually consist of "rubber-stamped"

court ordersissued when the attorneys represent
clients in court. The orders consistently are contrary
to established law, and the rulings cannot be
attributed to the exercise of judicial discretion.
As a matter of law, the orders are illegal, according

to court reform advocates, "outsider" attorneys, and
thelaw practice reference publicationsused by
judges and lawyers.SFCN hasposted the
ordersonline atScribdand other document
publishingsites. Order links are provided throughout
this report.
ARTS & CULTURE

(23)
DOCUMENTS
(17)
PAULA SALINGER
(15)
ROBERT HIGHT
(14)
SACRAMENTO SUPERIOR
COURT
(13)
Sacramento Superior Court reform advocates assert that collusion
between judges and local attorneys deprives pro per court users of
their parental rights, community assets, and due process and access
to the court constitutional rights.
CARLSSON CASE
(12)
RAPTON-KARRES
(12)
APPEALS
(11)
Scheme Primarily Targets Divorce Cases Where Only One Side Has a Lawyer
Most of the demonstrablyillegal orders are issued against indigent, or financially disadvantaged "pro per"
parties without an attorney. Manypro per litigants-who make up over 70 percent of court users -also are
disabled.
In most cases, pro pers - who have little or no knowledge of family law - are unaware that the orders issued against
them are illegal. In addition, court clerks and employees are trained or encouraged tointentionally, and illegally
mislead unrepresented parties about their appeal rights. Pro pers who do attempt to file an appeal are forced to
navigate a gauntlet of unlawful obstructionserected by court employees andtrial court judges,and most
eventually give up.
Further handicapping pro pers, when representing clients in court judge pro tem lawyers are allowed to obstruct an
opposing parties' court access and ability to file documents through the court-sanctioned misuse ofvexatious
litigant lawand Family Codecase management law,according to whistleblowers andcourt records.The illegal
litigation tactic effectively deprives pro per litigants of their constitutional right of access to the courts, a violation of
federal law.
In exchange for acting as sworn temporary judges, operating the settlement program and reducing the caseload
and workload of judges and court employees, the attorneys also receive preferential trial scheduling, an
unlawful "emolument, gratuity or reward" prohibited by Penal Code 94.
The ultimate consequences of the systemic divorce court corruption include one-sided divisions of community
property, illegal child custody arrangements and the deprivation of parental rights, and unlawful child and
spousal support terms.
Court reform advocates also assert that the racketeering enterprise enables rampant fee churningandunjust
enrichmentby judge pro tem divorce lawyers, results in pro per financial devastation,homelessness, and
imprisonment, and hascaused, or contributed to at least two child deaths.
Years of illegal, pay-to-play child custody orders have resulted in the formation of several Sacramento-based court
reform and oversight organizations, including Fathers 4 Justice, California Protective Parents Association, and
the Family Court Accountability Coalition. The same family court watchdog group phenomenon has not
occurred in any other county in the state.
COLOR OF LAW SERIES
(11)
CONFLICT OF INTEREST
(11)
SATIRE
(11)
WHISTLEBLOWERS
(11)
WOODRUFF O'HAIR
POSNER and SALINGER
(11)
JAIME R. ROMAN
(10)
LAURIE M. EARL
(10)
NO CONTACT ORDERS
(10)
SHARON A. LUERAS
(10)
FERRIS CASE
(9)
JESSICA HERNANDEZ
(8)
ROBERT O'HAIR
(8)
CANTIL-SAKAUYE
(7)
JULIE SETZER
(7)
MATTHEW HERNANDEZ
(7)
YOUTUBE
(7)
3rd DISTRICT COA
(6)
CIVIL RIGHTS
(6)
CHRISTINA ARCURI
(5)
CONTEMPT
(5)
MIKE NEWDOW
(5)
THADD BLIZZARD
(5)
FAMILY LAW FACILITATOR
(4)
During three days of sworn testimony at his Commission on Judicial Performance misconduct prosecution, Judge Peter McBrien
inadvertently revealed aspects of an alleged RICO racketeering enterprise operating in the Sacramento County family court system.
LUAN CASE
(4)
MALPRACTICE
(4)
The alleged criminal conduct also deprives victims of their state and federal constitutional rights, including due
process, equal protection of law, access to the courts, and the fundamental liberty interest in the care,
management and companionship of their own children, according to several "outsider" attorneys.
Court watchdogs charge that the settlement conference kickback arrangement between the public court and private
sector attorneys constitutes aracketeering enterprisewhich also deprives the public of thefederally
protectedright tohonest government services.
THOMAS M. CECIL
(4)
CHILD ABDUCTION
(3)
VANCE W. RAYE
(3)
VEXATIOUS LITIGANT
(3)
The alleged federal crimes also include thetheft, misuse, or conversion of federal fundsreceived by the court,
predicate acts ofmail or wire fraud,andpredicate state law crimes, including obstruction of justice,child
abduction, and receipt of an illegal emolument, gratuity, or reward by a judicial officer(Penal Code 94).
RACKETEERING
(2)
With the help of court employeewhistleblowers, Sacramento Family Court News has partially reconstructed the
framework of the alleged criminal enterprise that, in scale and scope, rivals theKids for Cashcourt scandal in
Luzerne County, Pennsylvania, and the Orange County Superior Court case-fixing corruption scheme recently
exposed by the FBI.
WE SUPPORT
Electronic Frontier
Foundation
First Amendment Coalition
Settlement Conference Program Quid Pro Quo Arrangement
Californians Aware
The current day Sacramento County Family Court

system and judge pro tem attorney operated
settlement conference program was set up in 1991
by Judge Vance Raye,Judge Peter McBrien and
lawyers from theSacramento County Bar Association
Family Law Section, according to the sworn
testimony of McBrienat his 2009Commission on
Judicial Performancemisconduct prosecution.
LAW BLOGS WE LIKE

Family Law Professor Blog
Law Librarian Blog
Law Professor Blogs
Thurman Arnold Family
Law Blog
Click here to read the transcript of the controversial

judge's testimony.
In his own testimony during the same proceedings,

local veteran family law attorney and judge pro tem
Robert J. O'Hair corroborated McBrien's testimony
and attested to McBrien's character and value to
Sacramento County Bar Association Family Law
Section members. Click here to view this excerpt of
O'Hair's testimony. To view O'Hair's complete
testimony, click here.
Kafkaesq
Above the Law
The Divorce Artist
3rd District Court of Appeal Presiding Justice Vance Raye

is the co-architect of the current Sacramento County Family
Court system. Click here for details.
Judge Vance Raye is now the Presiding Justice of

the 3rd District Court of Appeal in Sacramento, the
court responsible for hearing appeals from Sacramento Superior Court. The appellate court has been embroiled in
a number of controversies surrounding the review of Sacramento family court cases.
In 2012,troubled Sacramento County Judge James Mize, - a personal friend of McBrien - further privatized
family court services and expanded the ability of ostensibly "volunteer" temporary judge lawyers to earn kickbacks
and other preferential treatment with his so-called "One Day Divorce Program."
Court watchdogs charge that the system was designed to, and does servethe needs and financial interests of
family law lawyers at the expense of the 70 percent of family court users who cannot afford representation.
LEGAL NEWS &

INFORMATION
California Lawyer Magazine
Courthouse News Service
Metropolitan News
Enterprise
California Official Case Law
Google Scholar-Includes
Unpublished Case Law
California Statutes
Reducing the Caseload and Workload of Judges and Court Staff in Exchange for
Kickbacks
One objective of the allegedlyillegal public-private

partnership is to significantly reduce the caseload, and
workload of full-time judges by having private sector
lawyers - instead of judges or court staff - operate the
settlement program, according to watchdogs.
CALIFORNIA JUDICIAL
BRANCH
California Courts
Homepage
California Courts YouTube
Page
At the settlement conferences, judge pro tem attorneys

pressure divorcing couples to settle cases so they won't
use the trial court services, including law and motion
hearings, ordinarily required to resolve a contested
divorce.
Judicial Council
Commission on Judicial
Performance
Sacramento County Family
Court
In many cases, two lawyers - one acting as a temporary

judge - with social and professional ties team up against an
unrepresented pro per to compel one-sided settlement
terms. Accounts of coercive and deceptive tactics are
common.
3rd District Court of Appeal

State Bar of California
State Bar Court
In sworn testimony during his judicial misconduct

prosecution by the Commission on Judicial Performance,
Judge McBrien inadvertently revealed that an incredible 90
percent of cases assigned to his courtroom settled. "And so
I, frankly, have a very light calendar on law and motion
mornings," the judge added.
Sacramento County Bar

Association
The 2014 documentary film Divorce Corp exposed court

corruption throughout the United States and designated
Sacramento County as the worst-of-the-worst.
Under the quid pro quo agreement, in exchange for

reducing the workload of judges and court staff, as opportunities arise the temporary judge attorneys are provided
reciprocalkickbacks, gratuities, or emoluments when representing clients in court. The issuance and receipt of
the reciprocal benefits violates several state and federal criminal, and civillaws.
Local & National Family CourtFamily Law Sites & Blogs (may
be gender-specific)
ABA Family Law Blawg
Directory

Reciprocal benefits include the issuance ofdemonstrably illegal court orders that have ignored, and even
authorized criminal conduct by judge pro tem attorneys and their clients, including criminal child abduction.
In one case, a judge ordered the illegal arrest and assault of a disabled pro per to benefit the opposing, part-time
judge attorney. A court employee whistleblower leaked a courtroom security video of the incident. The judge pro
tem lawyer subsequently was caught on court reporter transcript defending the judge andlying about the arrest
and assault, portraying the disabled victim as being at fault.
The consistent, statistically impossible in-court success rate of judge pro tem attorneys has provided
themprominence, client referrals, wealth, and a substantial monopoly on the Sacramento County divorce and
family law business. Whistleblowers point out that this benefit of the alleged criminal organization also implicates
consumer protection andantitrust laws, including the CaliforniaUnfair Business Practices Act.
California Coalition for

Families and Children
California Protective
Parents Association
Center for Judicial
Excellence
Courageous Kids Network
Divorce & Family Law News
Divorce Corp
Divorced Girl Smiling
Racketeering Scheme Insulates Members from Government Oversight and

Accountability
Family Law Case Law from

FindLaw
Family Law Courts.com
Family Law Updates at
JDSupra Law News
Fathers 4 Justice
HuffPost Divorce
Leon Koziol.Com
Moving Past Divorce
News and Views Riverside
Superior Court
Weightier Matter
Total Pageviews
188145
Whistleblowers claim that Sacramento Family Court corruption results in the misuse of federal funds, deprives the public of the federally
protected right to honest government services, and deprives unrepresented, disabled, and financially disadvantaged court users of their
civil rights.
182
The quid pro quo arrangement also involves what whistleblowers assert is a reciprocal protection racket that
conceals the organization from discovery by law enforcement agencies and state oversight authorities, including
the Commission on Judicial Performance, responsible for judge misconduct, and the State Bar Association,
responsible for attorney accountability and discipline.
Case audits conducted by SFCN show that judge pro tem attorneys routinely violate state law, court rules, and
attorney ethics rules, but are never reported to the State Bar, or assessed fines, penalties or "sanctions" by fulltime judges as required by state law.
Pro pers who attempt to report judge pro tem attorney misconduct to the State Bar are told they need a court
order from a judge before a disciplinary investigation against an opposing attorney can take place. There are no
known instances where a judge issued such an order.
Court records leaked by whistleblowers also indicate that the under quid pro quo agreement, judges effectively
shield attorneys from criminal investigation and prosecution for alleged crimes, including witness intimidation,
childabduction,filing counterfeit documents, and violations of state and federal civil rights laws.
On the other hand, at the request of cartel attorneys, pro per litigants are routinely punished by judges with illegal
fines, draconian financial sanctions, and other types of punishment to discourage them from returning to
court, and to coerce them to accept settlement terms dictated by the opposing judge pro tem lawyers.
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2011 SACRAMENTO/MARIN
AUDITS
(2)
3rd DISTRICT
COA
(6)
AB
1102
(1)
AB 590
(1)
ABA JOURNAL
(1)
ABOVE THE
LAW
(1)
ADA
(11)
ADMINISTRATORS
(4)
AGGREGATED NEWS
(15)
AL SALMEN
(1)
AMERICAN BAR ASSOCIATION

(1)
ANALYSIS
(38)
FURILLO
(2)
ANDY
AOC
(1)

Attorneys provide judges reciprocal protection by not reporting the judicial misconduct, Code of Judicial Ethics
violations, and criminal conduct committed by full-time judge cartel members. And the lawyers do more.
To help conceal and ensure the continuity of the enterprise, on the rare occasion when full-time judges doface
investigation by the Commission on Judicial Performance, members of the cartel provide false, misleading, or
otherwise gratuitous character witness testimony and other forms of support for the offending judge. The
testimony and support is designed to, and does reduce or eliminate potential punishment by the CJP, ensuring
judge members remain on the bench.
APPEALS
(11)
ARCHIBALD
CUNNINGHAM
(1)
ARTHUR G.
SCOTLAND
(5)
ARTS &
CULTURE
DISCIPLINE
(4)
ATTORNEY
ATTORNEY
MISCONDUCT
(37)
ETHICS
(2)
ATTORNEYS
(11)
BAR
ASSOCIATION
(11)
BARACK
OBAMA
(1)
BARTHOLOMEW
and WASZNICKY
(3)
BUNMI
Racketeering Conduct of Court Clerks, Supervisors and the Family Law Facilitator
AWONIYI
The racketeering activity includes startling coordination, kickbacks, andpattern and practice misconductby court
clerks, supervisors, and theFamily Law Facilitatoroffice. Court clerks routinelyrefuse to filelegallysufficient
paperworkfor pro per parties, while at the same timefilinglegallyinsufficient, andeven counterfeitpaperwork which they arerequired by lawto reject for filing - for judge pro tem attorneys.
In some cases, judges and court clerks
work in tandem toprevent pro per
partiesfrom filing documentsat court
hearingsfor the benefit of judge pro
tems, deliberately creating an
incomplete and inaccurate trial court
record in the event the pro per files an
appeal.
Court records showthat clerks also
deliberately withhold and delay the
filing of time sensitive pro per
documents until after filing deadlines
have expired.
CALIFORNIA
(1)
CALIFORNIA
LAWYER
(1)
CALIFORNIANS AWARE
(1)
CAMILLE HEMMER
(3)
CANTIL-SAKAUYE
(7)
CARLSSON CASE
(12)
CECIL and CIANCI

(2)
CEO
(4)
CHARLOTTE
KEELEY
(19)
CHILD
ABDUCTION
(3)
CHILD
CUSTODY
(23)
CHILD
SUPPORT
(4)
CHRISTINA
ARCURI
(5)
CHRISTINA
VOLKERS
(7)
CIVICS
(1)
CIVIL LIABILITY
(1)
CIVIL
RIGHTS
(6)
CJA
(3)
CJE
(2)
In this case, a court clerk illegally "unfiled" a notice of appeal filed by an indigent,
disabled pro per litigant. Click here for details.
Alleged RICO Racketeering Enterprise Evidence
Court reform and accountability advocates assert that the local family law bar- through the Family Law
ExecutiveCommitteeor FLEC - continues to control for the financial gain of members virtually all aspects of court
operations, and have catalogued documented examples of judge pro tem attorney preferential treatment and
bias against unrepresented litigants and"outsider" attorneys,including:
Judge pro tem attorneys Charlotte

Keeley, Richard Sokol, Elaine Van
Beveren and Dianne Fetzer are each
accused of unethical conduct in the
problem cases included in the movie.
The infamous Carlsson case,
featuring judge pro tem attorney
Charlotte Keeley and Judge Peter
McBrien is the central case profiled in
the documentary, with Sacramento
(1)
JUDICIAL CONDUCT HANDBOOK
Family Law Facilitatorstaff provide pro per litigantswith false informationdesigned to concealstate law
violationsby court clerks and supervisors. Judges regularly provide attorneys withlegal advice and "bench
tips."When pro pers ask facilitator staff for similar information, they are told that facilitator employees are
prohibited from giving legal advice.
Divorce Corp, a documentary film that

"exposes the corrupt and collusive
industry of family law in the United
States" was released in major U.S.
cities on January 10, 2014. After a
nationwide search for the most
egregious examples of family court
corruption, the movie's production
team ultimately included fourcases
from Sacramento County in the film,
more than any other jurisdiction.
(23)
ATTORNEY
(4)
ATTORNEY
CJEO
CJP
(21)
(1)
ClientTickler
(2)
CNN
(1)
CODE
OF
JUDICIAL
ETHICS
(12)
CODE OF
SILENCE
(2)
COLLEEN
MCDONAGH
(3)
COLOR OF
LAW
SERIES
(11)
(11)
CONSTITUTIONAL
RIGHTS
(3)
CONTEMPT
(5)
CORRUPTION
(1)
COURT
CONDITIONS
(2)
COURT
EMPLOYEE
(1)
COURT EMPLOYEE
CODE OF ETHICS
(1)
COURT
POLICIES
(1)
COURT RULES
(4)
COURTS
(1)
CPG FAMILY LAW
(1)
CRIMINAL CONDUCT
(13)
CRIMINAL LAW
(3)
CRONYISM
(2)
DAVID
KAZZIE
(4)
DEMOTION
(1)
RICHARDS
(1)
DIANE
WASZNICKY
(2)
DISQUALIFICATION
(2)
DENISE
DIVORCE
(7)
DIVORCE
ATTORNEY
(5)
DIVORCE
CORP
(17)
DIVORCE
LAWYER
(5)
DOCUMENTS
(17)
DONALD TENN
(3)
DONNA
GARY
(2)
DSM-301.7
(1)
EDITORIAL
(1)
EDWARD
FREIDBERG
(2)
EFF
(2)
EFFICIENCY
IN
GOVERNMENT
ELAINE VAN
BEVEREN
(13)
ELECTIONS
(1)
AWARD
(1)
EMILY
GALLUP
(3)
EMPLOYEE CODE OF ETHICS
(4)
EMPLOYEE
MISCONDUCT
(19)
EQUAL
PROTECTION
(2)
County portrayed as theGround

Zeroof family court corruption and
collusion in the U.S. Click here for our
complete coverage of Divorce Corp.
Divorce Corp, chronicling Sacramento Superior Court corruption,

is available on Netflix.
(2)
EX PARTE
(1)
F4J
(4)
FAMILY COURT
(9)
FAMILY
Judge Thadd Blizzard issued a rubber-stamped, kickback order in November, 2013 for judge pro tem
attorney Richard Sokol authorizing an illegal out-of-state move away and child abduction by Sokol's
client, April Berger. The opposing counsel is an "outsider" attorney from San Francisco who was
dumbfounded by the order. Click here for our exclusive report, which includes the complete court
reporter transcript from the hearing. Click here for our earlier report on the unethical practice of
"hometowning" and the prejudicial treatment of outsider attorneys.
Whistleblower leaked court records indicate that Sacramento Bar Association Family Law
Executive Committee officer and judge pro tem attorney Paula Salinger engaged in obstruction of
justice crimes against an indigent, unrepresented domestic violence victim. The victim was a witness in
a criminal contempt case against a Salinger client. The circumstances surrounding the obstruction of
justice incident also infer collusion between Salinger and controversial Judge Matthew J. Gary. For
our complete investigative report,click here.
Two "standing orders" still in effect after being issued by Judge Roland Candee in 2006 override a
California Rule of Court prohibiting temporary judges from serving in family law cases where one party
is self-represented and the other party is represented by an attorney or is an attorney. The orders were
renewed by Presiding Judge Laurie M. Earl in February, 2013.Click here for details.
Sacramento Family Court judges ignore state conflict of interest laws requiring them to disclose to
opposing parties when a judge pro tem working as a private attorney represents a client in family
court. Click here for our exclusive investigative report. Click here for a list of other conflict of interest
posts.
Family court policies and procedures, including local court rules, are dictated by the SCBA Family Law
Executive Committeefor the financial benefit of private sector attorneys, and often disadvantage the
70 percent of court users without lawyers, according to family court watchdogs and whistleblowers.
For example, in sworn testimony by Judge Peter McBrien before the Commission on Judicial
Performance,McBrien described seeking and obtaining permission from FLEC to change a local rule.
Click here and here.
COURT
COURT
AUDITS
(1)
FAMILY
CONDITIONS
(2)
FAMILY COURT
MEDIA COVERAGE
(1)
FAMILY COURT PROCEDURE
(1)
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(2)
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(9)
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(4)
FATHERS FOR JUSTICE

(1)
FEDERAL LAW
(2)
FEDERAL
LAWSUITS
(2)
FEE WAIVERS
(2)
FERRIS CASE
(9)
FIRST
AMENDMENT
(2)
FIRST
AMENDMENT COALITION
(2)
FLEC
(28)
FOIA
(2)
FOX
(1)
FREDRICK COHEN
(4)
GANGNAM STYLE
(1)
GARY E.
RANSOM
(1)
GARY
M.
APPELBLATT
(2)
GEORGE
NICHOLSON
(1)
GERALD UELMEN
(1)
GREGORY DWYER
(1)
HAL
BARTHOLOMEW
(1)
HATCHET
DEATH
(1)
HAZART SANKER
(2)
HONEST SERVICES
(4)
INDIGENT
(1)
INFIGHTING
(1)
J.
STRONG
(2)
JACQUELINE
ESTON
(2)
JAIME R.
ROMAN
(10)
JAMES
BROSNAHAN
(2)
JAMES
M. MIZE
(21)
JEFFREY
In November, 2012 Sacramento

Family Court Judge Jaime R.
Romanissued a rubber-stamped,
kickback orderdeclaring a family
court party a vexatious litigant and
ordering him to pay $2,500 to the
opposing attorney, both without
holding the court hearing required by
law. The opposing attorney who
requested the orders is Judge Pro
Tem Charlotte Keeley. The
blatantly illegal orders resulted in
both an unnecessary state court
appeal and federal litigation,
wasting scarce judicial resources
and costing taxpayers significant
sums.Click here for our exclusive
coverage of the case.
Judge Matthew Gary used an
unlawful fee waiver hearing to both
obstruct an appeal of his own orders
and help a client of judgepro tem
attorney Paula Salinger avoid
paying spousal support. Click here
for our investigative report.
EUGENE L. BALONON
(1)
EVIDENTIARY OBJECTIONS
POSNER
(6)
(1)
JERRY
JERRY BROWN
GUTHRIE
(1)
JESSICA HERNANDEZ
(8)
JODY PATEL
(1)
JOE SORGE
(2)
JOHN E.B. MYERS
(1)
JOSEPH
SORGE
(1)
JOYCE KENNARD
(1)
JOYCE TERHAAR
(1)
JRC
(1)
JUDGE
(1)
JUDGE
TEM
(51)
SALARIES
(1)
JUDICIAL
PRO
JUDGE
JUDGES
(10)
CONDUCT HANDBOOK
(1)
JUDICIAL
COUNCIL
(6)
JUDICIAL
MISCONDUCT
(72)
JUDY HOLZER
Divorce attorney Charlotte Keeley (R) and her client Katina Rapton of
Mel Rapton Honda leave a court hearing. Keeley reportedly has billed
Rapton more than $1 million in connection with a child custody dispute.
An unrepresented, disabled 52-year-old single mother was made homeless by an illegal child support
order issued by Judge Matthew Gary for SCBA Family Law Section attorney Tim Zeff, the partner of
temporary judge Scott Buchanan. The rubber-stamped, kickback child supportorder, and other
proceedings in the case were so outrageous that the pro per is now represented on appeal by a team
of attorneys led by legendary trial attorney James Brosnahan of global law firm Morrison & Foerster.
For our exclusive, ongoing reports on the case, click here.
Judge pro tem attorneys Richard Sokol and Elaine Van Beverenhelped conceal judge misconduct
and failed to comply with Canon 3D(1) of the Code of Judicial Ethics when they were eyewitnesses to
HERSHER
(1)
JULIE SETZER
(7)
KICKBACKS
(33)
KIDS FOR CASH

(2)
LAURIE
M. EARL
(10)
LAW LIBRARY
SCHOOL
(5)
(1)
LAW
LAWYER
(1)
LAWYERS
(7)
LEGAL AID ASSOCIATION of

CALIFORNIA
(1)
LEGISLATURE
(1)
LEON KOZIOL
(1)
LINCOLN
(1)
LISTS
(4)
LOLLIE ROBERTS
(5)
LOUIS MAURO
(1)
LUAN
CASE
(4)
MALPRACTICE
(4)
MARTIN HOSHINO
(2)
MARY
MOLINARO
(1)
MATTHEW
HERNANDEZ
(7)
MATTHEW J. GARY
an unlawful contempt of court and resisting arrest incident in Department 121. Both Sokol and Van
Beveren failed to report the misconduct of Judge Matthew Gary as required by state law.Van
Beveren isan officer of the SCBA Family Law Executive Committee.Click here for our exclusive
report...
...Four years later, Sokol and Van Beveren in open court disseminated demonstrably false and
misleading information about the unlawful contempt of court and resisting arrest incident. The
apparent objective of the judge pro tem attorneys was to discredit the victim of Gary's misconduct,
trivialize the incident, and cover up their own misconduct in failing to report the judge. For our follow-up
reports, click here. In 2014, a video of the illegal arrest and assault was leaked by a government
whistleblower. Click here for details.Watch the exclusive Sacramento Family Court News video
below:
(34)
MCGEORGE
SOL
(2)
MEDIA
(1)
MICHAEL T. GARCIA
(1)
MIKE NEWDOW
(5)
NANCY GRACE
(1)
NANCY
PERKOVICH
(4)
NEW YORK
NEWS
(32)
NEWS EXCLUSIVE
(24)
NEWS YOU CAN USE
TIMES
(2)
(3)
News10
(1)
NO CONTACT
ORDERS
(10)
OPEN
GOVERNMENT
(2)
OPINION
(12)
PARENTAL
PAULA
ALIENATION
(1)
SALINGER
(15)
PERJURY
(1)
PETER
J. McBRIEN
(26)
PHILLIP HERNANDEZ
(3)
PRESIDING JUDGE
(2)
PRO
PERS
(18)
PROTEST
(9)
PSY
(1)
PUBLIC RECORDS
(1)
RACKETEERING
(2)
RAOUL M.
THORBOURNE
(1)
RAPTONKARRES
(12)
RECOGNITION/AWARDS
(4)
REVISIONISM SERIES
(2)
RICHARD SOKOL
(12)
RICO
(2)
ROBERT HIGHT
(14)
ROBERT O'HAIR
(8)
ROBERT SAUNDERS
(22)
ROLAND
In 2008controversial family courtJudge Peter J. McBriendeprived a family court litigant of a fair trial
in a case where the winning party was represented by judge protemattorney Charlotte Keeley. In a
scathing, published opinion, the 3rd District Court of Appealreversed in full and ordered a new
trial. 6th District Court of Appeal Presiding Justice Conrad Rushing characterized McBrien's
conduct in thecase as a "judicial reign of terror."McBrien subsequently was disciplined by the
Commission on Judicial Performance for multiple acts of misconduct in 2009.Click here to read the
court of appeal decision. Click here to read the disciplinary decision issued by the CJP.
Judge pro tem attorneysCamille Hemmer,Robert O'Hair,Jerry GuthrieandRussell Carlsoneach
testified in support ofJudge Peter J. McBrienwhen thecontroversialjudge was facing removal from
the bench by theCommission on Judicial Performancein 2009.As a sworn temporary judges aware
of McBrien's misconduct, each wasrequired byCanon 3D(1)of theCode of Judicial Ethicsto take or
initiate appropriate corrective action to address McBrien's misconduct. Instead, each testified as a
character witnessin supportof the judge. In theCJP'sfinal disciplinary decision allowing McBrien to
remain on the bench, theCJPreferred specifically to the testimony as a mitigating factor that reduced
McBrien's punishment.Click here. Court records indicate thatJudge McBrienhas not disclosed the
potentialconflict of interestto opposing attorneys and litigants in subsequent appearances by the
attorneys in cases before the judge.Click hereforSFCNcoverage of conflict issues.
Judge pro temattorneysTerri Newman,CamilleHemmer,Diane WasznickyandDonna
Reedwereinvolved in a proposedscheme to rig a recall electionofcontroversialJudgePeter J.
ROBIE
(1)
RUSSELL CARLSON
(4)
RUSSELL L. HOM
(1)
RYDER
SALMEN
(2)
S. HINMAN
(3)
SACRAMENTO BEE
(4)
SACRAMENTO
COUNTY
SUPERIOR
COURT
(2)
SACRAMENTO
FAMILY
COURT
(14)
SACRAMENTO
SUPERIOR COURT
(13)
SANCTIONS
(2)
SANTA
CLARA
LAW SCHOOL
(1)
SARAH ANN
STEPHENS
(1)
SATIRE
(11)
SCBA
(22)
SCHWARZENEGGER
(1)
SCOTT
BUCHANAN
(5)
SCOTT
KENDALL
(1)
SCSD
(1)
SEATON
CASE
(1)
SELF-HELP
(1)
SETTLEMENT CONFERENCE
(2)
SFCN READERSHIP DATA
(4)
SHARON A. LUERAS
(10)
SHARON HUDDLE
(6)
SO YOU WANT TO GO TO
LAW
SCHOOL
(4)
SOCIOECONOMIC BIAS
(5)
STATE AUDITOR
(6)
STATE BAR
(5)
STEPHEN
WAGNER
McBrienin 2008. The plan involved helping McBrien defeat the recall by electing him "Judge of the
Year" before the November election.Click herefor theSacramento News and Reviewreport.
Judge pro tem attorney
Robert J. O'Hair testified
as a character witness for
controversial Judge Peter
J. McBrien at the judge's
second CJP disciplinary
proceeding in 2009.Paula
Salinger, an attorney at
O'Hair's firm,Woodruff,
O'Hair Posner &
L. CANDEE
(1)
RON BURGUNDY
(1)
RONALD
(2)
STEUART
STEVE
WHITE
(2)
STEVEN GEVERCER
LEAVENWORTH
(1)
STEVEN
(1)
SPIELBERG
(1)
SUNDAY FUNNIES
(15)
SUNSHINE WEEK
(2)
SUPERIOR COURT
(2)
SUPREME COURT
(3)
TAMI
BOGERT
(1)
TAXPAYERS
(1)
TERRY FRANCKE
(1)
BLIZZARD
(5)
THADD
THADDEUS
STEVENS
(1)
THE RUTTER GROUP
(1)
THOMAS M. CECIL
(4)
Salingerwas later granted

a waiver of the
requirements to become
ajudge pro tem. A family
court watchdog asserts
the waiver was payback for
O'Hair's testimony for
McBrien.Click hereto
read our exclusive
investigative report.
THOMAS WOODRUFF
(5)
TIMOTHY ZEFF
(6)
TOMMY
ULF
LEE
JONES
(1)
CARLSSON
(7)
UNITED
NATIONS
(1)
UPDATE
(2)
VANCE W. RAYE
(3)
VEXATIOUS LITIGANT
(3)
VICTORIA HENLEY
(1)
VICTORY
Court records show that Judge Jaime Roman (L) and Judge Matthew Gary
routinely issued demonstrably illegal court orders for the benefit oflocal
attorneyswho also work as part-time judges in family court. Both judges
have been reassigned out of the family courthouse.
In cases where one party is

unrepresented, family court
clerks and judges permit judge pro tem attorneys to file declarations which violate mandatory state
court rule formatting requirements. The declarations- on blank paper and without line numbers - make
it impossible for the pro per to make lawful written evidentiary objections to false and inadmissible
evidence. Click here for our report documenting multiple state court rule violations in a motion filed
bySCBA Family Law Section officer and temporary judgePaula Salinger. To view the pro per
responsive declaration objecting to the illegal filing click here, and click here for the pro per points &
authorities.
Family court clerks and judges allow judge pro tem attorneys to file a fabricated "Notice of Entry of
Findings and Order After Hearing" in place of a mandatory Judicial Council Notice of Entry of
Judgment FL-190 form. The fake form omits critical appeal rights notifications and other information
included in the mandatory form. Click here for our exclusive report.
Sacramento Family Court temporaryjudgeandfamily law lawyerGary Appelblatt was charged with
13-criminal counts including sexual battery and penetration with a foreign object. The victims were
clients and potential clients of the attorney.The judge pro tem ultimately pleaded no contest to fourof
the original 13-counts, including sexual battery, and was sentenced to 18-months in prison. Court
administrators concealed from the public that Appelblatt held the Office of Temporary Judge.Click
hereto read our report.
Judge pro tem and SCBA Family Law Section attorneyScott Kendall was disbarred from the practice
of law on Nov. 24, 2011. Kendall was disbarred for acts of moral turpitude, advising a client to violate
the law, failing to perform legal services competently, and failing to keep clients informed, including not
telling a client about a wage garnishment order and then withdrawing from the same case without
notifying the client or obtaining court permission. Court administrators concealed from the public that
Kendall held the Office of Temporary Judge.Click here to view our report.
Judge pro tem attorneys Nancy Perkovich and Jacqueline Estonin 2008 helped Donna Gary - the
wife of Judge Matthew J. Gary - promote and market ClientTickler, a client management software
program for attorneys. The judge reportedly has never disclosed the conflict of interest as required by
the Code of Judicial Ethics. Click here for our exclusive report on the controversy.
In February, 2013 the website of family law firm Bartholomew & Wasznicky cut off the public from the
only online access to The Family Law Counselor, a monthly newsletter published by the Sacramento
Bar Association Family Law Section. Lawyers at the firm include judge pro tem attorneys Hal
Bartholomew, Diane Wasznicky and Mary Molinaro. As SFCN has reported, articles in the
newsletter often reflect an unusual, collusive relationship between SCBA attorneys and court
administrators and judges.Click here for our report.
Family court reform

advocates assert that judge
pro tem attorneys obtain
favorable court rulings on
disputed issues at a
statistically improbable
rate. The collusion
between full-time judges
and judge pro tem
OUTREACH
CHURCH
(1)
VL-
CLASS-ACTION
(1)
WALL STREET
JOURNAL
(1)
WASTE
(1)
WATCHDOGS
(19)
WHISTLEBLOWER
PROTECTION
ACT
(2)
WHISTLEBLOWERS
(11)
WHITE HOUSE
(1)
WOODRUFF
O'HAIR POSNER and
SALINGER
(11)
XAPURI B.
VILLAPUDUA
(3)
YOLO
COUNTY
(1)
YOUTUBE
(7)
attorneys constitutes
unfair, fraudulent, and
unlawful business
practices, all of which are
prohibited under California
unfair competition laws,
including Business and
Professions Code
17200, reform advocates
claim.
Sacramento Superior Court Judge James Mizetestified as a characterwitness in

support of controversial Judge Peter McBrien when McBrien was facing removal
from the bench by the state Commission on Judicial Performance.
Unfair competition and the collusion between judges and judge pro tem attorneys ultimately results in
unnecessary appeals burdening the appellate court system, and other, related litigation that wastes
public funds, exposes taxpayers to civil liability, and squanders scarce court resources.
Watchdogs point out that the court operates what amounts to a two-track system of justice. One for
judge pro tem attorneys and another for unrepresented, financially disadvantaged litigants and
"outsider attorneys." Two-track systems are prohibited by the Code of Judicial Ethics, according to
the Commission on Judicial Performance and the California Judicial Conduct Handbook, the gold
standard reference on judge misconduct.Click here for articles about the preferential treatment given
judge pro tem attorneys. Click here for examples of how pro pers are treated.
After representing a client in Sacramento Family Court, San Francisco attorney Stephen R. Gianelli
wrote "this is a 'juice court' in which outside counsel have little chance of prevailing...[the] court has now
abandoned even a pretense of being fair to outside counsel." Click here to read Gianelli's complete,
scathing account.
The Sacramento County Bar Association Family Law Section is led by an "Executive Committee"
("FLEC") of judge pro tem attorneys composed ofChair Russell Carlson, Vice Chair Elaine Van
Beveren, Treasurer Fredrick Cohen and Secretary Paula Salinger. Three of the four have been
involved in legal malpractice litigation, violations of the Code of Judicial Ethics, or as a defendant in
federal civil rights litigation. Click here to read SFCN profiles of the Executive Committee members.
Click here for otherarticles about FLEC.
Judge pro tem attorneys are by law required to take or initiate corrective action if they learn that
another judge has violated any provision of the Code of Judicial Ethics, or if a lawyer has violated any
provision of the California Rules of Professional Conduct. Family court watchdogs assert that
temporary judges regularly observe unethical and unlawful conduct by family court judges and attorneys
but have never taken or initiated appropriate corrective action, a violation of the judge pro tem oath of
office. To view the applicable Code of Judicial Ethics Canons,Click here. For a Judicial Council
directive about the obligation to address judicial misconduct, a critical self-policing component of the
Code of Judicial Ethics, click here.
For information about the role of temporary judges in

family court,click here.For officialSacramento County
Superior Courtinformation about theTemporary Judge
Program click here.
Using public records law, Sacramento Family Court

News obtained the list of private practice attorneys
who also act as judge pro tems in Sacramento Family
Law Court. Each lawyer on the list below is currently a
temporary judge, or was a temporary judge in 2009,
2010, 2011, 2012 or 2013.SFCN cross-checked each
name on the Sacramento Countyjudge pro tem list
withCalifornia State Bar Data. The first name in each
listing is the name that appears on the Sacramento
County judge pro tem list, the second name, the State
Bar Number (SBN), and business address are derived
from the officialState Bar data for each attorney. The
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23 March 2013
SUBJECTS AND POSTS
Tani Cantil-Sakauye Defendant & Jaime R. Roman Implicated in Federal

Class Action Lawsuit for Misuse of Vexatious Litigant Law
JUDICIAL MISCONDUCT
(72)
Controversial Order for Judge Pro Tem Attorney

Charlotte Keeley by Judge Jaime Roman Challenged
in Federal Class Action Lawsuit
ATTORNEY MISCONDUCT
(37)
Taxpayers Face Financial Liability
JUDGE PRO TEM

(51)
MATTHEW J. GARY
(34)
KICKBACKS
(33)
FLEC
(28)
PETER J. McBRIEN
(26)
ARTS & CULTURE
(23)
CHILD CUSTODY
(23)
ROBERT SAUNDERS
(22)
SCBA
(22)
CJP
(21)
JAMES M. MIZE
(21)
CHARLOTTE KEELEY
(19)
Supreme Court Chief Justice Tani Cantil-Sakauye is named as a defendant in this federal court litigation stemming from a vexatious
litigant court order issued by Sacramento Family Court Judge Jaime Roman for Judge Pro Tem Charlotte Keeley.
EMPLOYEE MISCONDUCT
(19)
WATCHDOGS
(19)
SACRAMENTO FAMILY COURT NEWS EXCLUSIVE

A November, 2012court order designating a Sacramento Family Courtparty as a vexatious litigant is being
challenged in a landmark federal class action lawsuit filed yesterday in United States District Court in San
Francisco. The controversial order was issued by family court Judge Jaime Roman at the request of temporary
judge and veteran family law attorneyCharlotte Keeley in a case with a long-running child custody dispute
between Andrew Karres andMel Rapton Honda heiress Katina Rapton.
PRO PERS
(18)
The order blacklisted [pdf] Karres as a vexatious litigant [pdf] and raised eyebrows in the legal community
because Roman issued the ruling without providing Karres the court hearing required under state law and the due
process provisions of the state and federal Constitutions.
ROBERT HIGHT
(14)
The vexatious litigant designation severely restricts a litigants access to the courts by requiring them to get preapproval from a presiding judge before they are permitted to file pleadings in any court in the state.Sacramento
Family Court News in Nov. 2012 reported exclusively on Judge Roman's unorthodox order, which also is
pending review by the Third District Court of Appeal in Sacramento. Taxpayers likely will now get two substantial
CARLSSON CASE
(12)
DIVORCE CORP
(17)
DOCUMENTS
(17)
PAULA SALINGER
(15)
SACRAMENTO SUPERIOR
COURT
(13)
RAPTON-KARRES
(12)
APPEALS
(11)
bills in connection with the Keeley-Roman ruling.
The state court appeal will cost the public between $8,500 and $25,500, according to recent appellate court
decisions. The public cost of defending the federal case could be significantly higher. For several years, court
watchdogs and whistleblowers have asserted that full-time judges give preferential treatment to judge pro tem
attorneys. They charge that the Rapton-Karres case is one of several cases emblematic of judge-attorney
cronyism and its effects, including the unnecessary use of scarce court resources and the financial burden on
taxpayers.
COLOR OF LAW SERIES
(11)
(11)
SATIRE
(11)
WHISTLEBLOWERS
(11)
To continue reading, click Read more >>below:
WOODRUFF O'HAIR
POSNER and SALINGER
(11)
Named as defendants in the federal class action lawsuit are

California Supreme Court Chief Justice and Judicial
Council Chair Tani Gorre Cantil-Sakauye and Steven Jahr,
the Administrative Director of the Administrative Office of
the Courts.
JAIME R. ROMAN
(10)
LAURIE M. EARL
(10)
In addition to Karres, the plaintiffs include eight other family

court parties from throughout the state. All have been
blacklisted as vexatious litigants in their respective courts.
"Plaintiffs, who are parents in on-going custody disputes,
bring this class action against Chief Justice CantilSakauye and the Judicial Council in the hope of
overturning California's Vexatious Litigant Statute
(VLS) as it applies to family law litigants, particularly
parents caught in protracted custody battles. The
Plaintiffs challenge the constitutionality of the VLS as it
is applied in the context of family law custody
proceedings. The Plaintiffs assert that the VLS on its
face and as applied infringes on their fundamental
custody rights," reads the introduction section of the
complaint.
NO CONTACT ORDERS
(10)
SHARON A. LUERAS
(10)
FERRIS CASE
(9)
JESSICA HERNANDEZ
(8)
ROBERT O'HAIR
(8)
CANTIL-SAKAUYE
(7)
JULIE SETZER
(7)
Justice Cantil-Sakauye is a former Sacramento
County Superior Court Judge.
Click here to read the complete lawsuit filed March 22. Sacramento Family Court News will provide continuing
coverage of the case.
MATTHEW HERNANDEZ
(7)
YOUTUBE
(7)
3rd DISTRICT COA
(6)
CIVIL RIGHTS
(6)
Related articles and posts:
CHRISTINA ARCURI
(5)
Click herefor our complete coverage

of the Rapton-Karres case.
CONTEMPT
(5)
Click herefor our reporting on Judge

Jaime R. Roman.
Click herefor coverage of judicial
misconduct.
MIKE NEWDOW
(5)
Click herefor our special Judge Pro

Tem Page.
THADD BLIZZARD
(5)
Posted by
PR Brown
at
8:19 PM
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CHARLOTTE KEELEY,
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FEDERAL LAWSUITS,
JAIME R. ROMAN,
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NEWS EXCLUSIVE,
RAPTON-KARRES,
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Location:
US District Court Clerk Northern District Of California, 450 Golden Gate Avenue #36060, San Francisco, CA 94102,
MALPRACTICE
(4)
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THOMAS M. CECIL
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(3)
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17 April 2013
SUBJECTS AND POSTS
Hon. Jaime R. Roman Misconduct: Rewrites California Vexatious Litigant

Law for Judge Pro Tem Divorce Lawyer Charlotte Keeley
JUDICIAL MISCONDUCT
(72)
Judge Jaime Roman Misstates Law, Uses Overruled

Case to Justify Vexatious Litigant and Other Orders
Without Court Hearing
ATTORNEY MISCONDUCT
(37)
News Analysis & Opinion by PelicanBriefed
MATTHEW J. GARY
(34)
KICKBACKS
(33)
FLEC
(28)
The Sacramento Family Court Newsanalysis

teamhas been working overtime scrutinizingand
trying to make sense of a controversial20-page
statement of decision issued on Nov. 14 of last year
by Supervising Family Court Judge Jaime R.
Roman. Click here for our initial report from 2012.
PETER J. McBRIEN
(26)
ARTS & CULTURE
(23)
CHILD CUSTODY
(23)
ROBERT SAUNDERS
(22)
Roman's decision is now being challenged in both the

Third District Court of Appeal, and in a federal
class action lawsuit filed March 22 in U.S. District
Court in San Francisco. It is certain that taxpayers
will get a substantial bill for each case.
SCBA
(22)
CJP
(21)
JAMES M. MIZE
(21)
Court watchdogs contend Roman's order exemplifies

the overt lawlessness that occurs weekly in family
court, and the preferential treatment that full-time
judges provide for-profit attorneys who also serve as
temporary judges.
The unprecedented ruling - which was made-to-order

for Judge Pro Tem attorney Charlotte Keeley rewrites California vexatious litigant law and
procedure. Watchdogs hold Judge Roman
responsible for putting taxpayers on the financial hook
for the costs of yet another unnecessary appeal from
family court, and the federal litigation.
JUDGE PRO TEM

(51)
CHARLOTTE KEELEY
(19)
EMPLOYEE MISCONDUCT
(19)
WATCHDOGS
(19)
PRO PERS
(18)
Judge Jaime R. Roman denied a family courtlitigant the right
to a court hearing and oraltestimony - fundamental components
of the right to dueprocess of law.
DIVORCE CORP
(17)
DOCUMENTS
(17)
PAULA SALINGER
(15)
In another pointless appeal caused by judicial misconduct,Judge Matthew J. Gary unsuccessfully attempted a
similar rewrite of putative spouse law and in 2011 was reversed in full by the Third District Court of Appeal. Our
analysis indicates that Judge Roman's order likely is headed for the same fate.
ROBERT HIGHT
(14)
To continue reading, click Read more >> below:
CARLSSON CASE
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Off-the-Rails at Conjunction Junction
SACRAMENTO SUPERIOR
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RAPTON-KARRES
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APPEALS
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COLOR OF LAW SERIES
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WOODRUFF O'HAIR
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JAIME R. ROMAN
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NO CONTACT ORDERS
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FERRIS CASE
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JESSICA HERNANDEZ
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ROBERT O'HAIR
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CANTIL-SAKAUYE
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The confusing legal rationale of Judge Roman's 20-page decision is constructed from a series of allegedly
consistent conjunctions conjoining components of the Family Code, Code of Civil Procedure, and court rules.
For example, Roman writes at page six:
"Sacramento Superior Court Rule 14.02(C), consistent with Code of Civil Procedure
section 2009, in conjunction with Family Code section 210.." and
"Code of Civil Procedure section 1008(a), inconjunctionwith Family Code section 210..."
at page eight, and
"California Code of Civil Procedure section 2009 in conjunction with Family Code section
210...California Rules of Court rule 3.1306(a), in conjunction with California Rules of
Court, rule 5.21...See Family Code section 217(c); California Rules of Court, rule
3.1306(b), in conjunction with rule 5.21 and rule 5.119," at page 19.
Judge Roman's statute and court rule references, and calculated omission of contrary authority suggest an intent to
cherry-pick law - including law not applicable to a vexatious litigant proceeding - to reach a predetermined result for
the benefit of Judge Pro Tem attorney Charlotte Keeley. In our first report on the decision, veteran court
watchdog Robert Saundersastutely observed that the judge used reverse engineering. "In other words, he
knew how he wanted to rule and from there worked backwards to try and justify an unjustifiable ruling," Saunders
said in 2012.
Saunders' analysis appears to be substantially accurate, according to the family and civil law reference books
used by judges, attorneys and Sacramento Family Court News. The logically inferred intent of Roman's risible,
convoluted conjunctions is to enable himself to designate a family court party a vexatious litigantandissue a
$2,500 sanctions assessment and 13 additional orders against the same party - all without a court hearing and oral
argument. ButJudge Roman is off-the-rails at conjunction junction.
JULIE SETZER
(7)
MATTHEW HERNANDEZ
(7)
YOUTUBE
(7)
3rd DISTRICT COA
(6)
CIVIL RIGHTS
(6)
CHRISTINA ARCURI
(5)
CONTEMPT
(5)
MIKE NEWDOW
(5)
THADD BLIZZARD
(5)
(4)
LUAN CASE
(4)
MALPRACTICE
(4)
THOMAS M. CECIL
(4)
CHILD ABDUCTION
(3)
VANCE W. RAYE
(3)
California Practice Guide:Civil Procedure Before Trial, the gold standard civil law reference work used by
judges and attorneys, indicates that Judge Roman attempted to create the illusion that his order was grounded
inlegitimatelaw by misstating and misapplying Code of Civil Procedure 2009,Family Code 210, and217,
andCalifornia Rules of Court rules 3.1306 and 5.21.The perplexing rationale Roman cobbled together from
parts of each is preempted and effectivelynullified by the vexatious litigant statute and decisional law,
according to the Guide.
Court watchdogs and whistleblowerscharge that Judge Roman's prejudgment, unlawfully vacated hearing and
erroneous statement of decision are more examples of Chris Volkers, Julie Setzer and other
courtadministratorsfailing to adequatelytrain, supervise, and discipline family court judges. They point out that
Judge Roman, the supervising family law, probate and ADA judge has limited family court experience, and often
confuses civil law with family law. At the end of her own two-year stint in family court, Judge Sharon Lueras
confessed to the family law bar that, at the beginning of her family court assignment, she knew nothing about
VEXATIOUS LITIGANT
(3)
RACKETEERING
(2)
WE SUPPORT
Electronic Frontier
Foundation
Californians Aware
family law. The consequences of inadequate training andsupervisioncan be tragic. Unrepresented litigant
Jessica Hernandez blames Lueras for the death of her son at the hands of her ex-husband. Click here for our
coverage of the Hernandez case.
The Disappearing Hearing
LAW BLOGS WE LIKE

Family Law Professor Blog
Law Librarian Blog
As we reported in our original coverage, Judge

Roman unilaterally cancelled a family court
hearing calendared for Nov. 14, 2012. The
hearing was scheduled for the purpose of
arguing and resolving 15 disputed issues in the
case Katina Rapton vs Andrew Karres.
Law Professor Blogs

Thurman Arnold Family
Law Blog
Kafkaesq
On the day of the hearing, the parties and

attorneys arrived at the courtroom and were told
by the judge that the hearing was vacated and
would not take place. A dumbfounded Sharon
Huddle, the attorney for Karres, had the judge
repeat the statement a second time while being
recorded by a court reporter.Click here to read
the court reporter's transcript, obtained
exclusively by Sacramento Family Court
News.
At the end of the non-hearing, Judge Roman

scrawled out a minute order that read only
"VACATED: COURT STATEMENT OF
DECISION." The day before the hearing,
Roman wrote, signed, filed, and mailed to the
attorneys a 20-page statement of decision
resolving all issues.
Above the Law

The Divorce Artist
LEGAL NEWS &

INFORMATION
California Lawyer Magazine
Courthouse News Service
Metropolitan News
Enterprise
California Official Case Law
Divorce attorney Charlotte Keeley (R) with her client Katina Rapton of
Mel RaptonHonda. The lawyer works as a part-time judge in the
family law courthouse and has a close relationship with several
judges, according to court watchdogs. Keeley reportedly has billed
Rapton more than $1 million in connection with a child custody dispute.
Virtually all of the rulings were in favor of

Rapton and against Karres. Rapton, the Mel
Rapton Honda heiress is represented by
veteran family law attorney and temporary judge Charlotte Keeley. The orders requested by Keeley and granted
by Roman included designating Karres a vexatious litigant, and ordering the financially disadvantaged litigant to
pay Keeley $2,500 in sanctions. The vexatious litigant designation severely restricts Karres' access to every court
in California by requiring him to get pre-approval from a presiding judge before he can file anything, anywhere in
the state.
Conjunction Malfunction
The relationship between family law, civil law and the court rules applicable to each can be confusing. But the family
law procedure manual used by judges and attorneys, California Practice Guide: Family Law neatly sorts it all
out in just two pages, which,apparently, is news to Judge Roman who clumsily cut, conjoined, and pasted
conflicting laws and rules to justify his vexatious litigant order.
An assessment of the legality of Roman's order blacklisting Andrew Karres as a vexatious litigantbegins with the
law itself.California's vexatious litigant law is codified at Code of Civil Procedure391-391.8. Wikipedia
explains how the law works at this link. The law was intended to limit frivolous litigation by unrepresented, pro per
parties in civil courts. When a judge issues an order designating a self-represented litigant as a vexatious litigant,
the Constitutional rights of access to the courts, due process of law, equal protection of law and the right to
petition the government for redress are severely restricted. Due to the harsh consequences of the vexatious
litigant label, California law requires full due process before the order can be issued, including notice and a court
hearing where written or oral evidence is presented. The notice and hearing requirements of the vexatious litigant
statute are difficult to misconstrue:
"At the hearing upon the motion the court shall consider any evidence, written or oral, by
witnesses or affidavit, as may be material to the ground of the motion," reads the law at section
391.2.
At 391.3, the vexatious litigant law specifies, twice, that a decision is made "after hearing the evidence on the
motion." The California Practice Guide for civil law recites the procedure for a vexatious litigant determination,
including the required court hearing. Based on the 2002 appellate court caseBravo v. Ismaj,"[a] party may not be
declared to be a 'vexatious litigant' without a noticed motion and hearing which includes the right to oral argument
and the presentation of evidence," according to the Guide.
Google Scholar-Includes
Unpublished Case Law
California Statutes
CALIFORNIA JUDICIAL
BRANCH
California Courts
Homepage
California Courts YouTube
Page
Judicial Council
Commission on Judicial
Performance
Sacramento County Family
Court
3rd District Court of Appeal
State Bar of California
State Bar Court
Sacramento County Bar
Association
Local & National Family CourtFamily Law Sites & Blogs (may
be gender-specific)
ABA Family Law Blawg
Directory
Since the 2002 Bravo case, at least 20

other published and unpublished
appellate court decisions have relied on
and mirrored the controlling holding in
Bravo, including these two cases from
2009 and 2012.
California Coalition for

Families and Children
California Protective
Parents Association
Center for Judicial
Excellence
In a single paragraph and four footnotes

at page 19 of his 20-page statement of
decision, Judge Roman provides his
rationale for issuing the vexatious litigant
order without a hearing. The judge
recites sections of the Code of Civil
Procedure, Family Code, and court
rules that he claims, when conjoined,
authorize him to "vacate the hearing in
this matter..."
Courageous Kids Network

Divorce & Family Law News
Divorce Corp
Divorced Girl Smiling
Family Law Case Law from
FindLaw
Notably absent from the justification is

any reference to the Bravo line of cases,
Judge Jaime R. Roman conjoined statutory law, court rulesand overruled
the notice and hearing requirements of
decisionallawtorewrite vexatious litigantprocedurein California.
the vexatious litigant statute, and the
instruction of the California Practice Guides, all of which contradictRoman's justification for denying Karres a
hearing with oral argument and the presentation of evidence. Roman does cite to a single case law reference,
Reifler v. Superior Court, a 1974 case which was effectively overruled by the Legislature as of January 1,
2011, and which in any event has no legitimate connection to the procedure for declaring a litigant vexatious.
Judge Roman gives his reasons for blacklisting Karres statewide as a vexatious litigant at pages 15-18 of his 20page statement of decision. Absent from the ruling is the boilerplate recital that "The Court has considered the
moving and responding papers, the evidence and argument presented at the hearing, and the files herein,"
which appears on page one of this vexatious litigant order from a family court case in Santa Clara County.
Judge Roman's unlawful order declaring Karres a vexatious litigant is now the subject of both a costly appeal and
federal civil rights litigation against Judicial Branch officials. The appeal and federal case will cost the parties
and taxpayers significant sums. The current cost to taxpayers for a single appeal is between $8,500 and $25,000,
according to recent appellate court decisions. Ironically, vexatious litigants are routinely accused of, and punished
for wasting scarce appellate court resources with frivolous litigation.
"Other appellate parties, many of whom wait years for a resolution of bona fide disputes, are
prejudiced by the useless diversion of this court's attention. [Citation.] In the same vein, the appellate
system and the taxpayers are damaged by what amounts to a waste of this court's time and
resources," reads a line of cases from 1988 to 2012, beginning with Finnie v. Town of Tiburon.
Family Law Courts.com

Family Law Updates at
JDSupra Law News
Fathers 4 Justice
HuffPost Divorce
Leon Koziol.Com
Moving Past Divorce
News and Views Riverside
Superior Court
Weightier Matter
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The same should be said about the unnecessary appeal and federal litigation against the government compelled by
Judge Roman's order.
Related articles:
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Click here for our reporting on Judge Jaime R. Roman.
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11/05/2013

UNITED STATES COURT OF APPEALS

CALIFORNIA CHIEF JUSTICE CANTIL-SAKAUYE, et al.,

STATEMENT OF ISSUES PRESENTED FOR EVIEW8

PERTINENT LEGAL PROVISIONS. 10

STATEMENT OF THE CASE. 11

B. District Courts Use of Rational Basis Review Predicated on

2. The Distinction Between Loss of Custody and Termination of

C. Child Custody Cases Are Inherently Different From Civil Cases40

D. Heightened Level of Scrutiny Is Required Given The Infringement of

2. Wolfe v. George, Selecting the Appropriate Level of Scrutiny.. 45

a. Due Process Clause. 48

E. District Court Deference To Wolfes Rational Basis Review

2. No Compelling Interest Justifying Due Process Violations In

Berger v. City of Seattle, 569 F.3d 1029 (9th Cir. 2009).31

Cogswell v. City of Seattle, F.3d 809 (9th Cir.2003)...34

Pierce v. Society of Sisters, (1925) 268 U.S. 51036

Troxel v. Granville, 530 U.S. 57 (2000),36, 40, 49

United States v. Kras, 409 U.S. 434, (1973)..45, 46, 47

Wolfe v. Strankham 391 F.3d 358 (9th Cir. 2004).2

Yoder v. Wisconsin 406 U.S. 205 (1972)..38

Shalant v. Girardi (2011) 51 Cal. 4th 1164.. .2, 3, 25, 38, 47

CCP 391.7.1, 15, 22

Evid. Code 604 26

Family Code 3040.. 52

FEDERAL RULES OF CIVIL PROCEDURE

1st Amendment9, 12, 13

Cal. Const. Art. I, 3(a) 10

Cal. Const. Art. I, 10.9

Cal. Const. Art. I, 11..4

Cal. Const. Art. I, sec 7(b)..10

have been declared vexatious under the California Vexatious Litigant

Statute. These parents were declared vexatious during litigation in their

on-going and protracted custody disputes. After being declared vexatious

on motions by the attorney for the other parent/ex-spouse, the vexatious

In any event, before a vexatious parent is granted the right to file or

dispute. 4 Unlike vexatious parents, a represented parent has immediate

The California Supreme Court in Shalant ruled, supra, at 1167: We agree

instant case, one self-represented parent, Adil Hiramenk, was denied

the VLS has been narrowly drawn by courts to survive constitutional

Page: 10 of 62 (10 of 270)

on a constitutional challenge brought by vexatious parents embroiled in

material distinctions between civil litigants and parents in custody disputes.

First, these Class Members/parents, unlike your garden-variety vexatious

civil litigant, are enmeshed in litigation touching on their fundamental

In their complaint, the Class Members were quite emphatic in calling

Appellants Opening Brief-4

Page: 11 of 62 (11 of 270)

Attorney General, in the Defendants Motion to Dismiss Plaintiffs

Circuit in Wolfe v. George rejected the same constitutional challenges that

likewise appropriate in this case. (*ER 15 pg. 8/15-18, ER pg. 179).

Page: 12 of 62 (12 of 270)

court erred in failing to apply heightened scrutiny review in determining

West v. Atkins, 487 U.S. 42, 48.

Page: 13 of 62 (13 of 270)

that he found that rational basis review applied, relying on Wolfe v.

litigants. 10 (ER 2, pg. 3/16-17; ER 6).

In their complaint, Plaintiffs provided pleadings that showed that trial

Page: 14 of 62 (14 of 270)

The district court had subject matter jurisdiction under 28 U.S.C.

1331 because Appellant/Plaintiffs have brought claims arising under federal

1. Whether the application of the VLS to parents embroiled in custody disputes

of their custody cases?

Appellants Opening Brief-8

Page: 15 of 62 (15 of 270)

and are thus unrepresented?