Professional Documents
Culture Documents
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case includes the excessive and knowing use of perjured statements, fabricated
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Plaintiffs, together with their legal counsel (specifically officers of the court
Robert Kory and Michelle Rice), have severely undermined the integrity of this
Court and caused substantial prejudice and harm to Kelley Lynch.
Dismissal is warranted where perjury and fraud upon the court is
systemic and designed to sabotage and enhance a case. Terminating sanctions,
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and other relief, would restore order and dignity to the judicial process. No
sanction short of dismissal is appropriate.
PROCEDURAL & FACTUAL
BACKGROUND
On August 15, 2005, Leonard Cohen filed the Summons and Complaint in
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Plaintiffs Complaint; contends that she was not served the Summons &
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Complaint; continues to maintain that this Court lacks jurisdiction over her
(including with respect to the denial of Defendants Motion to Vacate; and, has
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attached hereto and made a part hereof. See also Lynchs Case History
attached to her Motion to Vacate. Some of the tactics used against Lynch were
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Factual Allegations & Statements attached hereto and made a part hereof.
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Natural Wealth Real Estate, Inc., et al. v. Leonard Cohen, et al., Case No. Case
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1:05-cv-01233-LTB.
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Cohens ultimate goal was to crush and destroy Lynch; bring her to her
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allegations; seal her fate through the use of salacious, inflammatory slander;
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and, undermine her credibility as a witness in this and other matters. Exhibit
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- 2 Memorandum of Points & Authorities
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have continuously been introduced into this case. When a litigant's conduct
abuses the judicial process, the United States Supreme Court has recognized
dismissal of a lawsuit as the remedy within the inherent power of the court.
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Chambers v. NASCO, Inc. (1991) 501 U.S. 32. Exhibit 4: Declaration of Kelley
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10: Declaration of Dan Meade, all attached hereto and made a part hereof.
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LEGAL ARGUMENT
This Motion argues that Plaintiffs fraud on the court forms the basis for
dismissal with prejudice. Dismissal with prejudice has long been available as a
sanction against litigation misconduct.
COURTS INHERENT POWER & AUTHORITY
TO DISMISS ACTION
Courts have inherent equitable powers to dismiss actions or enter default
judgments for failure to prosecute, contempt of court, or abusive litigation
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practices. See Roadway Express, Inc. v. Piper, 447 U.S. 752, 764, 100 S.Ct.
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2455, 2463, 65 L.Ed.2d 488 (1980); Link v. Wabash R.R., 370 U.S. 626, 632, 82
- 3 Memorandum of Points & Authorities
S.Ct. 1386, 632, 8 L.Ed.2d 734 (1962); United States v. Moss-American, Inc., 78
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otherwise seeks to perpetrate a fraud on the court. See Link v. Wabash Railroad
Co. See also Aoude v. Mobil Oil Corp, 892 F.2d 1115, 1118 (1st Cir. 1989);
McDowell v. Seaboard Farms of Athens, Inc., 1996 WL 684140, 2-3 (M.D. Fla.
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1996) (cases cited therein); Sun World, Inc. v. Lizarazu Olivarria, 144 F.R.D.
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384, 389 (E.D. Cal. 1992) (holding that, when a litigant commits a fraud upon
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the court, the inherent powers of the court support the sanction of dismissal
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and entry of default judgment); Pope v. Federal Express Corp., 974 F.2d 982,
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984 (8 Cir. 1992) (dishonest conduct that threatens the integrity of the judicial
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Express Co., 102 F.R.D. 564, 56970 (S.D.N.Y. 1984); Cox v. Burke, 706 So.2d
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43, 47 (Fla. 5th DCA 1998); Kornblum v. Schneider, 609 So. 2d 138 (Fla. 4th
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DCA 1992); Figgie Intl, Inc. v. Alderman, 698 So. 2d 563, 56768 (Fla. 3d DCA
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1997); OVahey v. Miller, 644 So. 2d 550, 551 (holding that the ultimate
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conduct that skirts the legal obligations that bind all litigants and their
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attorneys to use the courts in a fair, honest, and open manner. The equitable
power also allows a court to vacate its own judgment upon proof that a fraud
has been perpetrated upon the court. Courts have inherent power to fashion
and impose appropriate sanctions for conduct that abuses the judicial process.
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judgments, is necessary to the integrity of the courts, for tampering with the
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administration of justice in [this] manner ... involves far more than an injury to
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safeguard the public. Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S.
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238, 64 S.Ct. 997, 88 L.Ed. 1250 (1944). See also Universal Oil Products Co. v.
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Root Refining Co., 328 U.S. 575, 580, 66 S.Ct. 1176, 1179, 90 L.Ed. 1447
(1946).
The integrity of the litigation process depends on truthful disclosure of
facts. Dismissal with prejudice has long been available as the ultimate civil
sanction against litigation misconduct. A system that depends on an
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why this kind of conduct must be discouraged in the strongest possible way.
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Cox v. Burke. The need for the orderly administration of justice does not permit
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The California Supreme Court has recognized that California courts have
inherent powers, independent of statute, derived from two distinct sources: the
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courts equitable power derived from the historic power of equity courts and
supervisory or administrative powers which all courts possess to enable them
to carry out their duties. Bauguess v. Paine (1978) 22 Cal. 3d 626, 635 [150
Cal.Rptr. 461, 586 P.2d 942]. Such power is part of the inherent power of the
superior court (and of courts generally) to control litigation before it, to prevent
abuse of its process, and to create a remedy for a wrong even in the absence of
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specific statutory remedies. Western Steel & Ship Repair, Inc. v. RMI, Inc.
(1986) 176 Cal. App. 3d 1108, 1116-1117 [222 Cal.Rptr. 556].
The Peat, Marwick Court, in a highly relevant California decision on the
inherent authority of courts, affirmed that judges are empowered to act when a
party seeks to take unfair advantage of the integrity of the judicial system.
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This decision directly addressed the fact that a courts inherent powers include
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the fair and efficient administration of justice. Peat, Marwick, Mitchell & Co. v.
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tactics, and, clearly qualifies as a willful deceit that has irreparably harmed
Lynch and the integrity of the Court itself. Sanctions should be imposed to
redress the misconduct that severely undermines the integrity of the judicial
system.
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courts and justice. The concept of fraud upon the court correctly challenges a
court as that term has been defined by the 9th Circuit is an unconscionable
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decision. England v. Doyle, 281 F.2d 304, 309 (9th Cir. 1960).
A party who is guilty of fraud or misconduct, in the prosecution or
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very institution it has subverted to achieve his or her ends. Carter v. Carter, 88
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So.2d 153, 157 (Fla. 1956). Thus, egregious and irreparable misconduct should
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result in the case being dismissed with prejudice. The power of a court to
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grant such relief not only deters improper actions by a party, but offers the
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available sanctions.
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The inherent power allows a court to vacate its own judgment upon proof
that fraud has been perpetrated upon the court. See Hazel-Atlas Glass
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Co. v. Hartford-Empire Co; Universal Oil Products Co. v. Root Refining Co. It is
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power to set aside a judgment obtained through fraud practiced upon the court.
McKeever v. Superior Court, 85 Cal.App. 381 [259 P. 373]; McGuinness v.
Superior Court, 196 Cal. 222 [237 P. 42, 45, 40 A.L.R. 1110]. There can be no
question as to the inherent power of the court to set aside the final decree if
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obtained by fraud. Miller v. Miller, 26 Cal. 2d 119, 121 [156 P.2d 931].
To constitute fraud on the court, the alleged misconduct must harm the
integrity of the judicial process. Alexander v. Robertson, 882 F.2d 421, 424
(9th Cir.1989). Fraud upon the court should embrace only that species of fraud
which does or attempts to, defile the court itself, or is a fraud perpetrated by
officers of the court so that the judicial machinery cannot perform in the usual
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manner its impartial task of adjudging cases that are presented for
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Intermagnetics America, Inc.), 926 F.2d 912, 916 (9th Cir.1991) (quoting 7
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James Wm. Moore et al., Moore's Federal Practice 60.33, at 515 (2d ed.
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1978)). Fraud upon the court includes both attempts to subvert the integrity of
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7 J. Moore & J. Lucas, Moore's Federal Practice p 60.33, at 515 (2d ed. 1978)
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[hereinafter Moore], quoted in Alexander v. Robertson, 882 F.2d 421, 424 (9th
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Cir.1989).
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more value in the administration of justice, than those which were designed to
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prevent repeated litigation between the same parties in regard to the same
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suit, there was in fact no adversary trial or decision of the issue in the case.
Where the unsuccessful party has been prevented from exhibiting fully his case,
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represent a party and connives at his defeat; or where the attorney regularly
employed corruptly sells out his client's interest to the other side,these, and
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similar cases which show that there has never been a real contest in the trial or
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hearing of the case, are reasons for which a new suit may be sustained to set
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aside and annul the former judgment or decree, and open the case for a new
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and a fair hearing. See U.S. v. Throckmorton. Relief has also been granted, on
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the ground that, by some fraud practiced directly upon the party seeking relief
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against the judgment or decree, that party has been prevented from presenting
all of his case to the court.
There is no statute of limitations for bringing a fraud on the court claim.
As the 7th Circuit Court of Appeals explained: a decision produced by fraud on
the court is not in essence a decision at all and never becomes final. Kenner v.
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Commissioner of Internal Revenue Service, 387 F.2d 689, 691 (7th Cir. 1968).
Due to the irreparable prejudice accruing to Defendant by reason of the
misconduct, interference with the Court's adjudicatory function, the public
interest in the integrity of the judicial system, dismissal is warranted.
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- 9 Memorandum of Points & Authorities
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TERMINATING SANCTIONS
Defendant seeks sanctions for litigation abuses and misconduct.
Plaintiffs conduct warrants dismissal sanctions under the Courts inherent
equitable power. California courts retain flexibility to exercise historic inherent
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Engineers, Inc. v. Electric Engineering Co., 158 F.3d 1051, 1057 (9th Cir. 1998).
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made it impossible for the district court to conduct a trial with any
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there is a pattern of disregard for Court orders and deceptive litigation tactics
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redress for grossly improper litigation behavior. Federal courts, and their state
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Park, 163 F.3d 124, 135 (2d Cir. 1998). When the offending party has engaged
in truly willful or bad faith egregious litigation practices, the Supreme Court
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Cal.App.4th 736, held that a trial court has inherent power to impose a
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action when a party has willfully deceived the court and engaged in conduct
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In Hazel-Atlas Glass Co. v. Hartford Empire Co., the U.S. Supreme Court
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explained that the inquiry as to whether a judgment should be set aside for
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fraud upon the court focused on whether the alleged fraud harmed the integrity
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manner indisputably shown here involves far more than an injury to a single
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diligence of litigants. The public welfare demands that the agencies of public
justice be not so impotent that they must always be mute and helpless victims
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short of dismissal inadequate to preserve the fairness of the trial, the trial court
has the inherent power to dismiss the action. Such an exercise of inherent
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F.2d 915, 917) concluded that the appellants elaborate scheme involving
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perjury clearly qualifies as a willful deceit of the court and noted that it
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infected all of the pretrial procedures and interfered egregiously with the
courts administration of justice. The Court sanctioned Heidenthal not merely
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to punish him, but to enable the court to proceed to hear and decide the case
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Heidenthal.
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- 12 Memorandum of Points & Authorities
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false testimony concerning a material matter with the willful intent to provide
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memory. United States v. Dunnigan, 507 U.S. 87, 94 (1993). All perjured
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relevant testimony is at war with justice, since it may produce a judgment not
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Plaintiffs, together with officers of the court Robert Kory and Michelle
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Court, and submitting fraudulent financial and accounting data to the Court
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(which was referred to, with respect to Lynchs Motion to Vacate, in Robert
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statement, under oath, of any material matter which the witness knows to be
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were material and used to affect the outcome of the proceedings and most
certainly had the probability of influencing the outcome. In Ex Parte Davis,
(1921) 52 Cal.App. 631 the Court held that: The matter sworn to need not be
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thereto, or otherwise.
Perjury is a criminal offense and an affront to the judicial system.
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undermines the integrity of the judicial system. In the instant matter, Plaintiffs
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970, 978-79 (1999). This doctrine arises from long-standing legal principles
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rooted in fairness. As the U.S. Supreme Court noted regarding the unclean
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hands doctrine, This maxim is far more than a mere banality. It is a selfimposed ordinance that closes the doors of a court of equity to one tainted with
inequitableness or bad faith relative to the matter in which he seeks relief. That
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The clean hands doctrine allows courts to refuse relief to any plaintiff
who has acted inequitably. Judicial integrity, justice, and the public interest
form the basis for the doctrine. The defense of unclean hands arises from the
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maxim, He who comes into equity must come with clean hands. Blain v.
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Doctors Co. (1990) 222 Cal.App.3d 1048, 1059. The doctrine demands that a
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plaintiff act fairly in the matter for which he seeks a remedy. He must come
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into court with clean hands, and keep them clean, or he will be denied relief,
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regardless of the merits of his claim. Precision Co. v. Automotive Co; Hall v.
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advantage of his own wrong. (Civ. Code. 3517.) He who comes into equity
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must come with clean hands. See Wilson v. S.L. Rey, Inc. (1993) 17 Cal.
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App.4th 234, 244; Kendall-Jackson Winery, Ltd v. Superior Court. The doctrine
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promotes justice and prevents a wrongdoer from enjoying the fruits of his
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(1933) 290 U.S. 240, 245. See also London v. Marco, 229 P.2d 401, 402 (Cal.
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2005 WL 1332102, at *3 (Cal. Ct. App. June 6, 2005) (finding that presenting
false testimony in a court proceeding goes to the core of the unclean hands
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doctrine).
Under the unclean hands doctrine, a party is barred from relief if he
has engaged in any unconscientious conduct directly related to the transaction
or matter before the court. Burton v. Sosinsky (1988) 203 Cal. App. 3d 562,
573 [250 Cal.Rptr. 33]; California Satellite Systems, Inc. v. Nichols (1985) 170
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the clean hands doctrine and is applicable to both equitable and legal
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damages claims. Buchanan Home & Auto Supply Co v Firestone Tire & Rubber
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Co., 544 F.Supp. 242, 244-245 (D SC, 1981). See also Mas v Coca-Cola Co., 163
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Plaintiffs have come before this Court with unclean hands. They have
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advantage of Dependent due to the fact that she has been self-represented
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since the Complaint in this matter was filed. The Court should not aid or
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reward Plaintiffs for their egregious misconduct. Cohens very presence before
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this Court is the result of his own wrongful conduct, retaliation, fraud, and
inequity.
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The judgment is void to the extent it provides relief which a court under
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rendered without jurisdiction in the court, or without notice to the party. Scott
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For the past 10 years, Leonard Cohen and his representatives have
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steadfastly refused to provide Lynch with IRS required form 1099 for the year
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2004, corporate tax documents for the years 2004 and 2005, rescind K-1s
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and state tax returns), she requires to have a complete and proper accounting
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prepared. Cohen has included income on his expense ledger. This tax
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information is required for Lynchs 2004 and 2005 federal and state tax
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returns. At the March 12, 2012 hearing, Cohen falsely testified that Lynch
failed to file her tax returns. Leonard Cohen, and his legal representatives,
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have knowingly and willfully refused to provide Lynch with the required
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information and are obstructing justice with respect to Lynchs ability to file
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these returns. Lynch would like clarification of the issues raised in Exhibit 11,
Clarification of Ambiguities in Default Judgment, attached hereto and made a
part hereof. That would include clarifying whether or not the judgment is
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(4th Dist., Div. One 1991) 235 Cal. App.3d 1199, 1220. A clerical mistake
what was actually agreed to and ordered in open court. The mistake may be
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that of the lawyer who was asked to draft the court order. The judgment should
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accurately express what was done in court and what the judge had called for. It
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is the understanding of the court and not that of the parties that is the
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The Court had the authority to correct the ambiguous language where no such
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and no such conclusions were intended by the Court. The issue in that case
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involved the clerical correction of an ambiguous provision and over which the
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U.S. 285, 293 (1963). Leonard Cohens argument, with respect to Lynchs
request for IRS filing and reporting requirements, essentially concludes that a
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state judgment negates Cohens tax obligations to Lynch and those of the
corporate entities themselves.
Since the United States is a government of delegated powers, none of
which may be exercised throughout the Nation by any one state, it is necessary
for uniformity that the laws of the United States be dominant over those of any
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principle. Article VI. A corollary to this principle is that the activities of the
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federal government are free from regulation by any state. No other adjustment
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specific area (See Hancock v. Train, 426 U.S. 167, 178-79 (1976)), it would
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seem self-evident that a state or local municipal courts judgment does not
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Based on the foregoing, Kelley Lynch respectfully requests that the Court
sustain the Motion, impose terminating and other sanctions upon Plaintiffs and
their counsel (Robert Kory and Michelle Rice), and grant such other or further
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relief as the Court may deem just and appropriate. That would include, but is
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not limited to, in the alternative, permitting Lynch to be heard on the actual
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merits of the case, referring this matter to the local prosecutor for perjury
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charges and the state disciplinary board. Additionally, Lynch asks this Court to
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Lynch asks the Court to overturn and invalidate the settlement agreement
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entered into by Cohen and former co-defendant, Richard Westin, and order
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__________________________________
Kelley Lynch
In Propria Persona
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- 20 Memorandum of Points & Authorities
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MOTION EXHIBITS
Case No. BC338322
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- 21 Memorandum of Points & Authorities
EXHIBIT 1
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EXHIBIT 2
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EXHIBIT 3
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EXHIBIT 4
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- 25 Memorandum of Points & Authorities
EXHIBIT 5
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- 26 Memorandum of Points & Authorities
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EXHIBIT 6
DECLARATION OF
JOHN RUTGER PENICK
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- 27 Memorandum of Points & Authorities
EXHIBIT 7
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- 28 Memorandum of Points & Authorities
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EXHIBIT 8
DECLARATION OF CLEA SURKHANG
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- 29 Memorandum of Points & Authorities
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EXHIBIT 9
DECLARATION OF PALDEN RONGE
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- 30 Memorandum of Points & Authorities
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EXHIBIT 10
DECLARATION OF
DANIEL J. MEADE
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- 31 Memorandum of Points & Authorities
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EXHIBIT 11
CLARIFICATION OF AMBIGUITIES
IN DEFAULT JUDGMENT
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- 32 Memorandum of Points & Authorities
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CERTIFICATE OF SERVICE
I, Paulette Brandt, certify as follows:
1. At the time of service I was over 18 years of age and not a party to this
action.
2. My residence address is: 1754 N. Van Ness Avenue, Los Angeles,
California 90028.
3. The electronic service address from which I served the documents is
paulettebrandt8@gmail.com.
4. On March 13, 2015, I served the following documents:
NOTICE OF MOTION
FOR TERMINATING SANCTIONS
MEMORANDUM OF POINTS & AUTHORITIES
DECLARATIONS & EXHIBITS
5. I served the documents on the person below, as follows:
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____________________________________
Paulette Brandt
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- 33 Memorandum of Points & Authorities