10 un 2 13 14 15 16 1" 18 19 20 a 2 4 2s 26 a 28 MICHELLE L, RICE, SBN 235189 KORY & RICE, LLP’ 19300 Wilshire Blvd, Suite 200 [Beverly Hills, Califia 90212 Telephone: (310) 285-1630 Facsimile: (310) 278-7641 BERGMAN LAW GROUP 21600 Oxnard Steet, Suite 1060 ‘Woodland Hills, CA 91367 Telephone: (818) 999-9100 Facsimile: (818) 999-9184 | Attomeys for PLAINTIFFS LEONARD NORMAN COHEN; LEONARD COHEN INVESTMENTS, LLC SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES-CENTRAL DISTRICT "ASE NO.: BC338322 LATED CASE NO.: BCM1120 Delaware Limited Lisbility Company, ssigned tothe Hon. Robert L. Hess ep 24 Plainiti, y "LAINTIFFS' NOTICE OF MOTION AND jOTION FOR SANCTIONS AGAINST /KELLEY LYNCH, an individual; RICHARD A. [DEFENDANT KELLEY LYNCH PURSUANT] WESTIN, an individual; DOES I through 50, [TO CCP §1008(a) AND CCP $128.7; inclusive, EMORANDUM OF POINTS AND UTHORITIES IN SUPPORT Defendants HEREOF ‘TO THE COURT AND DEFENDANT AND MOVING PARTY IN PRO PER: PLEASE TAKE NOTICE that on Septcmber 3, 2015 at 8:30 aan. at the above referenced Court located at 111 North Hill Sweet, Los Angeles, California, 90012, before the Honorable Robert L. Hess, Judge of the Los Angeles Superior Cour, Plaintiffs Leonard Norman Cohen and Leonard Cohen Investments, LLC will move the Coust under California Code of Civil Procedure Sections 1008(4) and 128.7 for an order awarding Plaintiffs sanctions against Defendant Kelley Lynch in10 u 2 13 “4 1s 16 ” 18 19 20 a 25 6 a” ‘conneetion with Defendant's Motion For Terminating und Other Sanctions filed with the Court on March 17, 2015. Plaintiffs’ Motion for Sanctions is based on the grounds that Defendant’s Motion violates Cal. Code of Civ. Proc. §1008 and is legally and factually frivolous in violation of CCP §128.1(b)(2) and §128.7(6X3). Further, Defendant's Motion was filed for the improper purpose of harassment of Plaintiff and his attorneys in violation of CCP §128.7()(1) as evidenced by: i) the voluminous nature of the filing itself, totaling over 1,100 pages, which violates California Rules of [Court and contains considerable extraneous and salacious content meant to vexate and harass |Cohen; i) the intentional disclosure of Cohen's attorney-client privileged communications with his former and current attorneys as exhibits to her declaration fled in support of her motion; ii) the false imputation of criminal conduct to Cohen; iv) the false imputation of criminal and | unethical conduct to Cohen's current attomeys; and ) the wholly pre-extual use of the sham filing as a vehicle to continue her public campaign of harassment of Cohen as evidenced by her May 7, 2015 “press release” published on her Internet blog which repeats the false accusations of criminal conduct made in her motion and threatens future litigation against Cohen and his attorneys. For the violations of CCP §1008(d) and CCP §128.7(b, Plains will sek nonmonetary under CCP §128,7(4) to issue remedial directives to sanctions pursuant to the Court's author eter future misconduct. Plaintiffs will seek an order from this Cour fr the following relief: 1) to either prohibit Lynch from filing any further motions in this ease, Civil Case Number /BC 358522, or, in the alternative, require Lynch to seek leave to file from the Supervising Judge ofthe Los Angeles Superior Court before filing any further motions inthis case 2) to order Lynch to rewm Plait [documents to Plaintiffs’ counsel within 7 days of the dete of the Court’s order and to cet Gis? attomey-client privileged and confidential iting, under the penalty of perjury, that all of Plaintiffs’ atomey-clent privileged ond confidential documents heve been reumed to Plaintif* counsel, inhaling all hard copies and electronically stored versions of such documents in her possession. Lynch's failure to return Plainifs attorey-clicat privileged or other confidential documents to Plants’ counsel within 7 days of the date of the Cours order or the false eeetfication by Lynch that all etomey-clent Notive of Motion2 23 4 25 27 28 privileged or confidential documents have been returned to Plaintiffs may subject Lynch to being held in contempt of Cour. 3) to prohibit Lynch fiom further dissemination or publication of Plaintiffs’ attorney-client privileged and confidential documents to thitd parties, including publication of Plaintiffs’ attorney-client privileged and other confidential documents on Lynch's personal web blog located at upstsiverdeepbook blogspot.com, or anywhere else on the Internet 4) Because Lynch has obteined Court services in bad faith for the purposes of harassment of Plaintits, Plaintiffs will algo move this Court to revoke the August 9, 2013 Order on Court Fee ‘Waiver pursuant to its authority under California Government Code $8631 and §68636(9. Plaintiffs’ Motion for Sanctions is based upon the attached Memorandum of Points and Authorities in support ofthe motion and the exhibits attached thereto; the entire Cour file in this matter, and upon such evidence as may be introduced atthe hearing. DATED: May*¥ 2015 Respectfully submitted, ATTORNEY FOR PLAINTIFFS Notice of Motion" 2 B 4 15 6 18 19 20 4 Bo 26 ” 8 ‘TABLE OF CONTENTS, INTRODUCTION AND SUMMARY OF ARGUMENT ....csscveesutesetneeal i. LYNCH’S 2015 MOTION VIOLATES CcP §1008, ‘A, Lynch's 2015 Motion Seeks the Same Relief as 2013 Motion [Vacating the Default Judgment] and Does Not Meet Statutory Requirements of CCP §1008,......mn2 B. CCP §1008(d) Provides for Sanctions under CCP §128.7... IL LYNCH’S 2015 MOTION IS LEGALLY AND FACTUALLY FRIVOLOUS AND WAS FILED SOLELY FOR THE PURPOSES OF VEXATION AND HARASSMENT OF PLAINTIFF AND HIS ATTORNEYS... . ‘A. Legal Standards for Sanetions under CCP §128.7, 3 BB. Lynch's ‘Fraud on the Court’ Claim asa Basis for Equitable Relief From the Default Judgment is Legally Frivolous. 3 . Lynch's 2015 Motion is Factually Frivol0us.....vse eae) Lane's 2015 Motion Was Fed Solely to Verate and Haas Phi and His Attomeys. 7 IV. SANCTIONS UNDER CCP §128.7 ARE NECESSARY TO DETER REPETITIVE FRIVOLOUS AND HARASSING FILINGS... 12 4 CCR 4128.71) Allows he Cot Cit an Appropriate Sanction o Deter Repeated Misconduct. B, The Court May Also Enjoin Future Frivolous and Harassing Filings Through Its Satay Ahr sue “Nononetary Dreier” ax Sanctions under cP §128.7(8), C. Lymeh Has Obtained Court Services in Bad Faith. occ ssesssentnnenenenl™ 3 Vv. CONCLUSION. wal [PLAINTIES' MOTION FOR SANCTIONS AGAINST DEFENDANT KELLEY LYNCH PURSUANT TO GCP 410418 1247n 2 4 25 26 a7 28 TABLE OF AUTHORITIES California State Cases Cedars-Sinai Medieal Center v. Superior Court, 18 Cal. 4" 1 Cal, 1998). Conn v. Superior Court of Los Angeles County, 196 Cal. App. 3d 774 (Cal. Ct. App. 2" 1987). CS. WO, 230 Cal. App. 423 (Cal. Ct. App. 22014). Day v. Collingwood, 144 Cal, App. " 1116 (Cal. Ct. App. 4" 2006). Garcia v, Hejmadl, '58 Cal, App. * 674 (Cal. Ct. App. * 1997). Gauilleminw. Stein, 104 Cal. App. 4 156 (Cal. Ct, App. 3"'2002).. Hammel!» Britton, 19 Cal. 24 72 (Cal. 1941) Hopkins & Carley v. Gens, 200 Cal. App. 4" 1401 (Cal. Ct App. 6" 2011). in Re Margarita D, ‘72.Cal. App. 4 1288 (Cal. Ct. App. 4* 1995). In Re Marriage of Falcone & Fyke, 164 Cal. App. 4 814 (Cal. Ct. App. 6" 2008). Levy y Blum, 92 Cal. App. 4625 (Cal. Ct. App. S* 2001), Ly, Majestic Industry Hills LEC, T7T Cal, App. 4 585 (Cal. Ct. App. 2" 2009) Musaelian v. Adams, 45 Cal, 48512 (Cal. 2008), Olmstead v. Arthur J. Gallagher & Co., '32.Cal, 4th 804 (Cal, 2004). Peake v. Underwood, 227 Cal. App. 4 428 (Cal. Ct App. 42014) Page Number(s) 1 FF" MOTION FOR SANCTIONS AGAAST DEFENDANT KELLEY LYNCH PURSUANT TO CC 10K 040128710 n n 13 4 18 16 1" 18 19 20 a n 2B 4 2s 26 20 28 TABLE OF AUTHORITIES California State Cases Page Number(s ‘Sporn v. Home Depot USA, Ine 126 Cal. App. 4 1294 (Cal. Ct. App. 4" 2008), Steven M. Garber & Associates v. Eskandarian, 150 Cal. App. 4 813 (Cal. Ct. App. 2™ 2007). Taylor v. Varga, 37 Cal. App. 4" 750 (Cal. CL App. 2" 1995), Wallis v. PHL Associates, In., 168 Cal. App. 4" 882 (Cal. Ct. App. 3" 2008). United States Court of Appeals, Ninth Circuit Business Guides, In. v, Chromatie Communications Enterprises, In, 892 F.2d 802 (9 Cir. 1989), Ringgold-Lockhart v. County of LA. 1761 F.3d 1057 (9" Cir, 2014) Warren. Guelker, 29 F.3d 1386 (9" Cis. 1994), United States District Courts, Californ California Sportfishing Protection Alliance v. Callaway, 2013 WI. 4482849, 2013 US. Dist. LEXIS 118097 (E.D. Cal. 2013). ‘Quintero v. Fresno Unified School District, 2013 WL 1832681, 2013 U.S. District LEXIS 62580 (E.D, Cal, 2013) tutes California Code of Civil Procedure $128.5. gu287. $128.10) §128.7(b)(1). §128.7(b)2). 5,14 3.9 34,5575 13, 4 45 27 a PLAINTIFFS’ MOTION FOR SANCTIONS AGAINST DEFENIANT KELLEY LYNCH PURSUANT TO CCP #10) 282n 2 B 1“ 15 16 ” 18 19 a n 23 u as 6 ca ‘TABLE OF AUTHORITIES Statutes Number(s $128.706)0). esceetnnennnaninnsinnnniesninmnnnnnninnnninnd $12BIBooresesnne a oe 2.1315 $128.70... ; 3 1008. Ce 3 $1086)... 3 $1008¢). estnnntinnnnnnnnnnn 2 California Bvidence Code $647, $9S2aannennee evenness 8 California Government Code §68631 215 §68634(0)... 1s 968636(0. 21s Califomia Penal Code S180. . sesenennnntnnnnnene un California Rules of Court BANO@)snsstnnsnieninnnnnnanns - 6 an. 3.11130). 31113@... [PLAINTIIS MOTION FOR SANCTIONS AGAINST DEFENDANT KELLEY LYNCHPURSUANT TD GOP (10) 1287” 18 19 20 a n 23 24 2s 26 2 ‘TABLE OF AUTHORITIES Federal Rules of Civil Procedure FED.R.CIV.. 11 Page Number(s 4810 1" n 8 “4 18 16 "7 18 19 20 a 2 2s 6 a 2% ‘MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION AND SUMMARY OF ARGUMENT Lynch waited nearly seven and a half years (May 2006 ~ August 2013) to move to set aside the May 15, 2006 Default Juigment (“Default Judgment"). During that peiod, Lynch ignored the Default Judgment and instead undertook her mul-year couse of harassment of Cohen and his attorneys. See Plaintiffs’ Opp. to 2013 Motion to Vacate, Edelman Decl. (12, 20. Her harassment of Cohen continued unabated until she was arrested in March 2012 and then convicted in juy wil for violating Cohen’s Permanent Protective Order in April 2012. (People v. Lynch Los Angeles Superior Court, Case No. 2CA04539), Following a 6-month incarceration (March 2012-September 2012), Lynch filed an appeal lof her conviction. 2015 Motion, Lynch Decl $4. Shorly ater losing her criminal appeal in May 2013, Lynch's next order of business was to seek to set aside the $7,341,345 Default Judgment, Lynch was granted an Order on Court Fee Waiver fee inthis matter on August 9, 2013. Exh. 1. That same day, Lynch fled in forma pauperis & Motion to Vacate and/or Modify the Default Judgment Entered May 15, 2006 on the grounds of extrinsic fraud with regard to the alleged lack of service of the summons and complaint. (“2013 Motion”). Lynch's 2013 Motion was heard on January 17, 2014 and denied with prejudice. Minute Order, Jan. 17, 2014. The Court found Lynch’s 2013 Motion “not even cotorably meritorious” Jand that Lynch had not shown thet she was enitled to equitable relief. Certified Hearing Transcript, p. 18, lines 18-19 ("Transcript"), The Cour also cite! numerous “procedural issues” and deficiencies with regard to her fling Lynch now files « Motion for Terminating Sanctions (C2015 Motion”) that seeks the same equitable relief and regurgitates essentially the same arguments and presents the same facts as the 2013 Motion. Inthe 2015 Motion, Lynch not only The Court observed that Lynch fled to atach a Proof of Service to her moving papers (Transcript 3, lines 83; hat Lynch ha failed toile a Proposed Answer to her Metin Transcript, p. 7 ies 23-25) that her 2-page motion exceeded the 15 page lit Transerip p.3, ines 17-18) and that Lynch hed not bahered to sig er delration, tsrby rendering iin the Cou’ etiation "wots." (Tansrp p.3, ines 23-25). Additonal, he Court also ound ha lyn 66-pge "Case Histor” war impermissible the eto that was incorporate by relrence sd her Memorandum in support of ee retin Trane, 3, ies 1921). Pir Pint” Motion For Santon Again Defendant Kelley Lynch Pursuant to CCP 9§ 1008(4) an 128710 u 2 13 rr 16 uv 18 1” 0 2 n 23 4 25 26 a7 28 Violates California Rules of Cour, but also impermissibly discloses in the public record Cohen's stiomey-lient privileged and other confidential docoments as exhibits to her declaration. As demonstrated moe fll in Plains’ Opposition, Lynch's 2015 Motion violates Califia Code of Civil Procedure (“CCP”) §1008, is utterly devoid of legal and factual merit, and as such, is sanctionable under CCP §128.7(0x2) and CCP §128.7(8)). In violation of CCP $128.78, the purpose of Lynch’s 2015 Motion is not to assert any arguably legitimate legal right, but rather to circumvent Protective Orders to prevent Lynch’s harassment of Cohen and to attempt to destroy [Cohen's attorney-client privilege with his former and current attomeys by publishing Cohen's | aomey client privileged communications inthe public reord in furtherance of her planned future litigation egeinst Cohen. Lynch refuses to accept the finality ofan adverse judgment and defies the authority ofthe Cour. In order to deter future repeated misconduct, Plaintiffs respectfilly request thatthe Court impose noamonetay sanctions under CCP §128,7() in the form of the Couns directives: 1) to bar Lynch from fling any farther motions in Civil Case No, BC 338322 or require Lynch to seek leave to file from the Supervising Judge of the Los Angeles Superior Court before filing any further motions in this mater; 2) to return all of Cohen's attorney-client privileged and other confidential documents stil inher possession; and 3) enjoin Lynch's further dissemination and publication of Cohen's privileyed and confidential documents. Funker, as is clear from her two successive frivolous filings, Lynch has obiained court services in bad faith in violation of Califomia Government Code §68636(9. Under the Cour’s statutory authority pursuant to [Government Code §68631, Plaintfs also request thatthe Court revoke the August 9, 2013 Order on Court Fee Waiver in this mater to deter future frivolous and harassing filings Il, LYNCH’S 2015 MOTION VIOLATES CCF §1008 ‘A. Lynch's 2015 Motion Seeks the Same Relief as 2013 Motion [Vacating the Default ‘Jadgment] and Does Not Meet the Statutory Requirements of CCP §1008. Having been unsuccessful in her first attempt to vacate the Default Judgment on the rounds of “extrinsic fraud” due to the alleged lack of service of the summons and complaint, [Lynch is attempting a “second bite at the apple” by filing a second, successive motion for Plinffs' Motion For Sanctions Against Defendant Kelly Lynch Pursuant to CCP §§ 1008(4) and 128.7,equitable reli from the Default Judgment, Lynch's 2015 Motion violates CCP §1008, which is the sole authority allowing a party to seek reconsideration ofan order or to renew a previously denied motion, CCP §1008(¢). Specifically, section 1008(e) provides in pertinent part “No pplication o reconsider any order or forthe renewal of previous motion may be considered by ary judge or court unless made according otis section” CCP §1008(). Lynch's declaration filed in support of her 2015 Motion doesnot meet the requirements in [CCP §1008(4) for renewed motions. Section 1008(8) provides in relevant past “A party who ication for an order whi orginally made an ap spplication forthe same order upon new of diferent fats [or] crcumstances..n which eas i shall be shown by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or diferent fcts,eireumsiances, or law are claimed 1 be shown.” CCP §1008(bycmphasis added), Lynch fils to show what “new or different fats, was refused...may make @ subsequent circumstances, or law” have arisen in the fourteen months since the 2013 Motion. Lynch also provides no explanation forthe failure to produce the evidence she seeks to introduce in her new declaration or bring her “fraud on the Court” argument in her 2013 Motion, The fects that Lynch socks to introduce in her declaration, consisting of Lynch's own declared “personal knowledge”, were obviously always within her possession, so they are, by definition, not “new.” Garcia v, Himadi, $8 Cal. App. 4" 674,690 (Cal. Ct. App. 1* 1997). B. CCP §1008(d) provides for Sanctions under CCP §128.7 ‘A renewed motion that docs not meet the statutory requirements of CCP §1008 will be denied and may be punished as a contempt and with sanctions pursuant to section 128.7. CCP '§1008(d); Taylor v. Vargs, 37 Cal. App. 4" 750, 761 (Cal. Ct, App. 2° 1995)(sanctions awarded for violation of section 1008 for duplicative motion o vacate default. Section 1008 was amended in 198 to substitute Setion 1287 fr Section 1285 in subdivision d2 re apization of Ca. Code Civ Proc. 51285 and 1287 does not pend on whther te abuses esrb in Ene nu 10 (at Sn), at, Seto 287 spon rtm nse pn fo oer Panury |, 1995, and any ober pleating, writen note, robe sir paper edn that mater. hd, CCP $128.70), ten Psi" Complain was fed August 13,2005, the operative sanctions att in § 1008) was Sein 128.7 -3- lit’ Motion For Sanctions Against Defendut Kaley Lynch Pursuant to OCP $§ 1008) ad 128.710 un 2 1B 4 15 16 " 18 19 20 a n 2B 24 2s 26 Fo I, LYNCH’S 2015 MOTION IS LEGALLY AND FACTUALLY FRIVOLOUS AND WAS FILED SOLELY FOR THE PURPOSES OF VEXATION AND HARASSMENT OF PLAINTIFF AND HIS ATTORNEYS A. Legal Standards for Sanctions under CCP §128.7 Seotion 128.7 authorizes tral courts to impose sanctions to check abuses in the fling of v.Adams, 45 Cal. 4 pleadings, petitions, written notices of motions or similar papers. Mus 512, 518 fn 2 (Cal. 2009), Code of Civ. Proc. §128.7 requires that an altomey or unrepresented lnarty in a civil action sign all pleadings, petitions, notice of motions and other similar papers. |CCP §128.7(a) (emphasis supplied.) The signature indicates the attomey or unrepresented party certifies that the paper is not being presented for an improper purpose; that legal contentions are yarranted by law or nonftivolous argument for extension, modification or reversal of existing law the allegations and factual contentions have evidentiary support; and denials of factual contentions are warranted by the evidence, CCP §128.7(b); Day v. Collingwood, 144 Cal, App. 41116, 1126 (Cal. Ct. App. 4" 2006); Levy v. Blum, 92 Cal. App. 4" 625, 636 (Cal. Ct. App. 5" 2001), Section 128.7 was adopted to apply Federal Rule of Civil Procedure 11 as amended in } 1993 to cases brought after January 1, 1995. Guillemin v, Stein, 104 Cal. App. 4" 156, 167 (Cal. CL App. 3% 2002), Because of this intent and the fact that the wording of CCP §128.7 subdivisions (2) and (@), is almost identical to FRCP 11(bX2) and (6), federal case law construing Rule 11 is persuasive authority with regard to the mesning of CCP §128,7. Guillemin, 104 Cal. App. 4 at p. 167; See also Musaclian v, Adams, 197 Cal. App. 4" 1251, 1257 (Cal. C. JApp. 1" 2011). Under both Code Civ. Proc. §128.7 and FRCP 11, there are three types of submitted papers that warrant sanctions: (1) factually frivolous (not well-grounded in fact); (2) egally fivolous (not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law); and (3) papers interposed for an improper purpose. Gaillemin, 104 Cal. App. 4" at 167. ‘A motion that is frivolous and/or interposed for improper purposes is sanctionable conduct under Section 128.7. See, eg, Liv. Majestic Industry Hills LLC, 177 Cal. App. 4® 585, 589 (Cal. [cx, App. 2" 2009)trial court awarded sanctions to defendant pursuant to CCP §128.7 on the Plaintiffs" Motion For Sanctions Against Defendant Kelly Lynch Pursuant to CCP §§ 1008( end 128.710 u 2 13 4 1s 16 " 18 19 20 a n 23 4 25 26 a 28 {round that Li's motion to vacete was frivolous.); Hopkins & Carley v. Gens, 200 Cal. App. 4 1401 (Cal. Ct. App. 62011), Sanctions under 128.7 and Rule 11 have also been imposed upon in propria persona litigants who file frivolous motions forthe sole purposes of harassment, See, €., /In Re Marriage of Falcone & Eyke, 164 Cal. App. 4" 814, 830 (Cal. Ct. App. 6% 2008)(Section 128.7 monetary sanctions against in propria persona wife for her motions against former husband that were “reckless, baseless and frivolous”); Quintero v, Fresno Unified Schoo! Distict, 2013, WL 1832681, 2013 U.S. Dist. LEXIS 62580 (E.D. Cal. 2013). Lynch asserts in her 2015 Motion that “[Piaintiffs] have taken advantage of Dependent Isic, Defendant] du to the fact that she has been self-represented since the Complaint in this ‘matter was fled.” 2015 Motion, Memo., p. 12. Lynch should be held to the same standards as an stiomey litigant. Section 128.7, by its terms, applies to propria persona litigants as well as sttomeys. CCP §128.7(b),(c); In Re Marriage of Falcone & Fyke, 164 Cal. App. 4 814, 826 (Cal Ct. App. 6" 2008). Federal Rule 11 has also been held to apply to partes proceeding in propria persona, Warren v. Guelker, 29 F.3d 1386, 1390 (9! Cir. 1994). Lynch is not a litigant without any background or experience in the law.? Lynch told the Court in the January 17, 2014 hearing that she had undertaken the legal research and drafted her 2013 Motion. Transcript, p. 18, lines 27-28; p. 19, lines 1-3. In response, the Court found that there was “no excuse” for the numerous defecs in her 2013 Motion, Transeriptp. 19, lines 46. B. Lyneh’s ‘Fraud on the Court? Claim asa Basis for Equitable Relief From the Default Judgment is Legally Frivolous Whether an action is frivolous is governed by an objective standard: any reasonable attorney would agree itis totally and completely without merit. Levy v, Blum, 92 Cal. App. 4” 625, 635 (Cal. Ct. App. S" 2001); Guilemin, 104 Cal. App. 4 at 167 (Section 128.7 requires only that the conduct be “objectively unreasonable” to be sanctionable) Lynch worked four years asa egal astnt to New York atamsy Marin Macht, Cohen's fermer story ad manager, Lynch Desk, 2. Lynch alo deslares tha ee has worked Taw ims varius pats of de cut)” ah tok temporary poston witha poalga group in Santa Moni In 2010 when she was vsing be son. Lyneh Dec ins $21; $11 Ese Pant" Motion For Stetons Agsist Defends iy Lyne Pursuant to CCP $§ 1008) and 128710 " 2 13 4 18 16 7 18 19 20 un n 23 24 25 26 a 28 Lynch's “fraud upon the Court” clsim as a basis for equitable relief from the Default Judgment is totally and completely without merit and therefore legally fivolous because Lynch assert claims of intinsic fraud, Lynch's own cited case authority, decided under California law and procedure, demonstrates that after the time to appeal has expired, that equitable relief will only be granted upon a showing of extrinsic, nt inns, fraud. 2015 Motion, pp 5-7 and cases ited therein; Plaintiffs" Opp. to 2015 Motion, Section II! (A)(B). Fundamentally and fatally, Lynch does not demonstrate how any ofthe alleged misconduct on the pat of Plaintiff and his attorneys, operated to deprive her of presenting her claims or defense in the original action. In Re ‘Margarita D., 72 Cal. App. 4" 1288, 1294 (Cal. Ct. App. 4" 1999) trinsie fraud is one party's preventing the other ftom having his day in cour.”), All of the alleged acts involve issues that go to the merits of the underlying action and are therefore intrinsic. Hammell v. Britton, 19 Cal. 24 72, 82 (Cal. 1941). Perjury, concealment, falsification or suppression of evidence, and fraud occurring during the course of the proceeding have all been held to be intrinsic, not extrinsic, fraud. See Cedars-Sinai Medical Center v, Superior Court, 18 Cal. 4" 1, 10 (Cal. 1998). As such, the alleged acts of misconduct, falsely imputed to Plaintiff and his attorneys, do not form a basis for equitable relief from the Default Judgment. ‘Without including such request for relief in her Notice of Motion in violation of California Rules of Court 3.1!10(a), Lynch also seeks an order “that the Court will provide Defendant Kelley [Lynch with a clarification of the ambiguities in the May 15, 2006 Default Judgment” 2015 Motion, Proposed Order, No. 4, Vol. IV. Lynch's argument that the Default Judgment contains “clerical errors” and is “ambiguous” is legally frivolous and is made in bad faith. See Plaitiffs? [Opp. To 2015 Motion, Section IV(A)(B). Lynch's roquest for “clarification” is nothing more than a transparent attempt to argue the merits ofthe underlying case, Procedurally and substantively, Lynch is precluded from advancing affirmative defenses | er unclean hands argument) advancing any contentions on the merits, or objecting to Plaintiffs! evidence to support the Default Judgment. Steven M, Garber & Associates v. Eskandarian, 150 Cal, App. 4” 813, 823-824 (Cal. Ct. App. 2° 2007); See also Sporn v. Home Depot USA, Ine., Paint’ Motion For Stetions Against Defendant Kelley Lynch Pursuant to CCP 8§ 1008(4 nd 128.710 " 2 13 4 18 6 18 » 2» 4 2 23 4 2s 26 u 28 126 Cal. App. 4 1294, 1302-1303 (defaulted defendant lacks standing to complain of type of evidence offered in the prove-up.) C. Lynch’s Motion is Fuctually Frivolous Lynch significantly reprises her argument advanced in her 2013 Motion that she was not served the summons and complaint and that the allegedly false proof of service is evidence of extrinsic fraud, Lynch altempts to present additional declarations from her housemate, Paulette [Brandt, and her son, Rutger Penick, as well as from her mother, Joan Lynch, and three of her long time friends (Ronge, Meade and Surkhang). All of these additional declarations purport to o additional “facts” surrounding service ofthe summons and complaint, but ultimately fal Because * Opp. to 2015 Motion, Section II (B)(3)(). What is more, even if the declarations were properly signed, they the signatures on the additional declarations appear tobe fraudulent. See Pi are not sufficient to overcome Plaintiffs’ prima facie evidence of valid service. See Plains’ Opp. to 2013 Motion, Sestion V(A); Cal. Evid. Code §647, Lynch's claim of “fraudulent mispresentations” in Plaintiffs" Complaint is also factually frivolous. 2015 Motion, Exh. 3. A “judgment by default is said to ‘confess’ the material facts alleged by the Plaintiff, ie. the Defendant’ fuilure to answer as the same effect as an express admission ofthe matters well pleaded in the complain.” Garber, 150 Cal. App. 4° at §23, Thus, the allegations in Plaintiffs? Complaint are deemed admitted by Lynch and bar her factual contentions contained in Exhibit 3, Procedurally the entry of default and the Default Judgment bar Lynch from advancing any contentions on the merits. Id. D. Lymeh’s 2015 Motion Was Filed Solely to Vexate and Harass Plaintiff and Fis Attorneys: Lynch's 2015 Motion is being prosecuted for the improper purpose of harassment in violation of CCP §128.7(b\1). Notable atthe outset is that Lynch only first sought to vacate the Default Judgment in August 2013, net iy @ year and a half after her eriminal coavieton in April 2012 for violating Cohen's Permanent Protective Order. People v. Lynch, Los Angeles Superior JCourt, Case No, 2CA04539, Since Cohen's Permanent Protective Order prevents Lynch from harassing Cohen or having any direct contact with him, Lynch hus sought to cireumvent the 1. Plats’ Motion Ror Sanctions Agunst Defendant Kelly Lynch Pursuant to CCP §§1008() and 128.7