Photo: Judge Judith Hayes
Judge Judith Hayes:
“SO I'M NOT GIVING YOU PERMISSION TO PUT ANYTHING ON [YOUR BLOG].”
Below is my petition for writ, filed yesterday in the California Court of Appeal regarding
this case. The most amazing passages are quotes from my San Diego Superior Court judge, Judith F. Hayes. She really, really worries about the families of the lawyers at
Stutz Artiano Shinoff & Holtz. At the same time she clearly believes that it's wrong to mention the families harmed by these lawyers. What's her reasoning? She won't say, but her purpose is clearly to silence all criticism of public entity lawyers.
PETITION FOR WRIT OF REVIEW AND/OR PROHIBITION OR OTHER EXTRAORDINARY RELIEF
I. INTRODUCTION
This Petition regards a May 30, 2012 minute order adding $5000 contempt sanctions to a March 10, 2010 OSC Contempt order, for which Appellant had already paid $3000 sanctions.
The original $3000 sanctions were based on the December 11, 2009 Permanent Injunction, which was ruled unconstitutional by the Court of Appeal on Aug. 5, 2011 and the April 6, 2009 Permanent Injunction, which is exceedingly vague and has been interpreted in an unconstitutional manner by the trial court.
A. STATEMENT OF URGENCY
Petitioner asks for a stay of all sanctions while this petition is being heard by the Court of Appeal in order to prevent further violation of Defendant’s Constitutional Rights. On August 5, 2011 the Court of Appeal (Exhibit 60) (I PA 1021-1042) overturned the “exceedingly broad” December 11, 2009 permanent injunction (Exhibit 48b) (I PA pages 2a-b) by the trial judge in this case.
Despite that Court of Appeal ruling, the trial court has continued to try to restrict Defendant’s speech in an unconstitutional manner. The trial court’s goal is exactly the same as it was before the Aug. 5, 2011 ruling: to prevent Defendant from mentioning Plaintiff’s name by any means or media, but the court is now relying on the April 6, 2009 injunction (Exhibit 48a) (I PA pages 1a-b), rather than the December 11, 2009 injunction, to achieve this goal.
The trial judge’s actions in this case, summed up in her statement,
“SO I'M NOT GIVING YOU PERMISSION TO PUT ANYTHING ON” (Exhibit 90) (III PA 1511 line 19), are clearly unconstitutional.
The trial court stated on June 21, 2012 (Exhibit 90) (III PA 1509 lines 4-19):
THE COURT
…
THE ONLY WAY TO COMPEL YOUR -- YOUR FOLLOWING OF THE COURT'S ORDER IS TO IMPOSE SANCTIONS.
SANCTIONS ARE BEING IMPOSED IN A WAY THAT GOES STEP BY STEP. EACH SANCTION IS MORE SEVERE THAN THE PREVIOUS SANCTION UNTIL YOU DECIDE TO COMPLY WITH THE COURT ORDER AND THE INJUNCTION THAT YOU AGREED TO.
AND I DON'T KNOW WHY YOU INSIST ON DOING THIS. BUT AS LONG AS YOU DO, THEN THE COURT WILL HAVE NO OPTION BUT TO GO FORWARD WITH THESE SANCTIONS UNTIL YOU DECIDE NOT TO DAMAGE THAT LAW FIRM ANYMORE. AND THAT'S -- THAT'S WHERE WE ARE.
THERE'S NO REASON TO STAY AN ENFORCEMENT OF THE SANCTIONS, AND SO THE MOTION IS DENIED.
At the same hearing the court stated that it would not say whether the statements “Daniel Shinoff trains school attorneys” and “Daniel Shinoff plans legal tactics against parents” are violations of thd injunction. Yet these statements angered the judge so much on October 30, 2009 (see Plaintiff’s first Motion to Strike Defendant’s Answer in Appendix for case D057190--Exhibits 38-46 III AA 480-796 case D057190), that she issued an order that Defendant could never, by any means or method, mention Plaintiff’s name (Exhibit 48b) (I PA pages 2a-b).
The following is from the court reporter’s transcript of the June 21, 2012 ex parte hearing requesting a stay of sanctions (Exhibit 90) (III PA 1504-1512).
MS. LARKINS:
SO YOU ARE SAYING THAT TRAINING--DANIEL SHINOFF TRAINS SCHOOL ATTORNEYS IS A VIOLATION OF THE INJUNCTION?
THE COURT:
WHAT I'M SAYING IS THAT I WILL NOT GO WITH YOU WORD BY WORD THROUGH WHAT YOU WANT TO DO, BECAUSE I BELIEVE IT IS PART OF YOUR PLAN TO CIRCUMVENT THE COURT ORDER.
YOU DON'T REALLY WANT TO KNOW FROM THE COURT WHAT THE COURT IS SAYING ABOUT A WORD OR TWO WORDS BECAUSE YOU INTEND TO GO FORWARD, AS I SEE IT, AND PUT THE SAME DEFAMATORY MATERIAL ON THAT WEBSITE THAT YOU'VE MAINTAINED ALL ALONG. AND THAT'S NOT GOING TO HAPPEN.
SO I'M NOT GOING TO ANSWER YOUR SPECIFIC QUESTION ABOUT A WORD.
"TRAINED ATTORNEYS," OF COURSE IS NOT DEFAMATORY ON ITS FACE, AND IT'S NOT DEFAMATORY WHEN STANDING ALONE, BUT IN CONTEXT -- AND THE CONTEXT IN WHICH YOU EMPLOY IT, IT MAY WELL BE.
SO I'M NOT GIVING YOU PERMISSION TO PUT ANYTHING ON. (Exhibit 90) (III PA 1511 lines 2-19)
The trial judge said that the statement Daniel Shinoff trains school attorneys “may well be” defamatory. Apparently the judge is not sure, but she’s not giving Defendant permission to put anything (anything!) on her website. How can the judge not be sure? The statement “Daniel Shinoff trains school attorneys” has been discussed in this case for about three years.
If the judge doesn’t know whether it’s a violation of the April 6, 2009 injunction, how can Petitioner know?
Contrary to what the judge says, Petitioner does want to know, and has a right to know, what she is allowed to say. How could she possibly guess that “Daniel Shinoff trains school attorneys” could be a violation of the injunction?
The judge explained further on June 21, 2012:
THE COURT:
WE'RE GOING TO LOOK AT THIS IN TOTO AND SEE WHAT THE WEBSITE SAYS, WHETHER OR NOT IT'S DEFAMATORY TO THE LAW FIRM. AND IF IT IS, OR IF IT VIOLATES THE TERMS OF THE INJUNCTION THAT YOU AGREED TO, THEN I'LL DO WHAT HAS TO BE DONE TO ENFORCE THE INJUNCTION. (Exhibit 90) (III PA 1511 lines 20-25)
The April 6, 2009 injunction and its enforcement have deprived Defendant, and will deprive Defendant more severely in the future, of property without due process of law; the threat of jail has been used
The trial court clearly plans sanctions in the future to force Defendant to erase every mention of Plaintiff on her website. [Stutz Artiano Shinoff & Holtz] has requested that [Maura Larkins] be sanctioned with severe financial penalties and five days in jail. The threat of jail would appear to be the reason that the court mentioned the case
In re Liu in its OSC Contempt rulings...
In re Liu is a case in which a Defendant spent eleven days in jail pursuant to CCP 1218 before the Court of Appeal ordered him released, and
ordered sanctions returned to him. Why would the court consider this case pertinent to
Stutz v. Larkins?
In re Liu would seem to be more supportive of [Maura Larkins'] position, since the Defendant was being jailed...[for non-compliance]with an order that he was unable to comply with. Since his children were in Formosa (Taiwan!), the Defendant in his jail cell had no power to return them to California.
Likewise, the Defendant in the instant case is unable to comply with an injunction when the judge refuses to clarify it. It has done Defendant no good in this case when she erased statement after statement, because no statement can pass muster. Defendant has finally given up trying to please Plaintiff and the court, and has followed her own conscience regarding fulfilling her agreement of April 6, 2009.
At the June 21, 2012 ex parte hearing there were two bailiffs standing next to Defendant’s table during most of her hearing.
INSTEAD OF RIGHTING A WRONG AFTER THE AUG. 5, 2011 COURT OF APPEAL DECISION, THE TRIAL COURT HAS INCREASED THE AMOUNT OF SANCTIONS BASED ON THE MARCH 10, 2010 OSC MOTION
For the trial court to add to the sanctions based on the March 10, 2010 OSC after the Court of Appeal has ruled the underlying injunction unconstitution is inexplicable.
As the injunction has been interpreted by Plaintiff and Judge Hayes, its purpose is NOT to ban certain words which would be defamatory if untrue (as Defendant was led to believe), but rather to ban Defendant from reporting public entity law firm Plaintiff’s actions. Defendant is banned by the court’s interpretation of the injunction from reporting any actions of Plaintiff, even actions self-reported by Plaintiff to the media, if plaintiff and the court claim that those actions are unethical or illegal (!!!!!!).
THE PURPOSE OF THE $5000 SANCTION
The court stated clearly during the OSC hearing on March 5, 2010 that the purpose of the $3000 sanction was to force defendant to remove all mention of Plaintiff from her website before the Court of Appeal could rule on the matter. It appears that this is also the purpose of the additional $5000 sanction based on that same OSC, except that now the trial court is circumventing a ruling of the Court of Appeal rather than preempting it.
B. WHY STAY AND WRIT RELIEF SHOULD BE GRANTED
Defendant is not able to comply with the court’s vague orders
Instead of allowing a jury trial for damages to which defendant is entitled in this case, Judge Judith Hayes has for over three years designed a series of ever-expanding permanent injunctions, each one more unconstitutional than the last. The judge’s stated purpose was to prevent defendant from having to pay damages. The actual purpose seems to be to shut down defendant’s website in violation of the First Amendment. The judge made it clear from the beginning that all she wanted was to shut down Defendant’s website, and she never wanted to impoverish Defendant. The judge seems sincerely reluctant to impoverish Defendant, but feels she must do so in order to achieve her over-arching purpose of silencing Defendant’s speech about public entity lawyers.
C. HARM TO PETITIONER AND THE PUBLIC
THE APRIL 6, 2009 INJUNCTION, AS INTERPRETED BY PLAINTIFF AND THE COURT, IS CAUSING AND WILL CAUSE IRREPARABLE HARM TO DEFENDANT AND THE PUBLIC
The goal of the sanctions is to force Defendant to erase every mention of Plaintiff on her websites, and never mention Plaintiff’s name again, by any means or method. The trial court has even refused to give permission to Defendant to call the police or other authorities to report a crime committed by Plaintiff, to complain to the Bar Association, or to seek legal counsel in this case. All these actions are banned by the injunction.
I do not have enough income to pay the sanctions ordered by the court, or to pay interest and principal on an additional credit card debt of that amount. Being forced to go into debt to pay the $5000, or being punished for not paying, would cause me irreparable harm. The previous $3000.00 in sanctions based on the same OSC is still owed by me to my credit union.
An extraordinary writ is necessary to prevent irreparable harm to petitioner and the public. A temporary stay followed by a determination of the constitutionality of the permanent injunction is urgently needed in this case.
Damage will occur to petitioner and the public without an immediate stay of all sanctions and a determination of the constitutionality of the three permanent injunctions. Petitioner is harmed by her loss of freedom of speech. Also, the time lost by petitioner during months of work erasing all mention of Plaintiff from her websites could never be regained and serves no purpose other than to harm petitioner and the public. The inability to mention Plaintiff or any of its attorneys would be extremely damaging to petitioner’s website, which focuses on public entities and their lawyers. The public’s loss of its access to information during this time would be a suspension of its constitutional rights and would be harmful to all who need this information at this time. Even a temporary disappearance of information about Plaintiff can cause the web address to fall in the ratings on Internet search engines, making it unavailable to those seeking information about Plaintiff. Finally, threatened financial damage and loss of freedom would be harmful to petitioner...
UPDATE: ON JUNE 29, 2012 THE COURT OF APPEAL DENIED MY PETITION TO STAY SANCTIONS. IN AN EFFORT TO RESOLVE THE PROBLEM OF SANCTIONS BEYOND MY ABILITY TO AFFORD, I SENT THE FOLLOWING LETTER TO STUTZ LAW FIRM ON JULY 2, 2012:Dear Mr. Holtz, Mr. Shinoff, Mr. Artiano and other Stutz lawyers involved in this case:
I am pleased that you have expressed an interest in being ethical in your actions. I would like to bring to your attention that your Motion regarding the court's OSC re Contempt that was decided on March 10, 2012 did not mention any statement of mine that was a violation of the April 6, 2009 injunction. Both you and the court were relying on the December 11, 2009 injunction to justify a finding of contempt against me. Since the December 11, 2009 injunction was found to be unconstitutional on Aug. 5, 2011 by the Court of Appeal, the $3000 in sanctions ordered against me was also unconstitutional. I ask you, in the name of basic honesty as well as legal ethics, to return the $3000 to me.
I am not able to afford all the sanctions against me, particularly the recent $5000 sanction.
But if you return the $3000 to me, then I can pay you $3000 of the new sanction. This could be done on paper, with no actual cash transfer.
The new sanction is strange since it is based on the April 6, 2009 injunction, yet the judge has refused to clarify her interpretation of that injunction, and has not permitted me to respond to allegations.
Also, the judge has not stated whether she believes it is a violation of the injunction to publish public records, and she hasn't stated whether she believes that visitors to my blog are also restrained by the April 6, 2009 injunction.
Judge Hayes says she can not even decide whether I have violated the injunction by stating, "Daniel Shinoff trains education attorneys." Yet this was one of the statements that caused her to become so angry that she banned me from mentioning your names at all, even to call the police or other authorities, or to seek legal counsel.
Clearly, this case is in a state of confusion. I would hope that you would not try to profit by taking advantage of the court's confusion. I expect the outcome of this case to be determined by law, as I trust you do. You would not want to silence me by bankrupting me, would you? If I had lots of money, I'd be happy to hand over as much as Judith Hayes desired, but I am struggling financially. I could sell a vehicle to come up with cash. But I would like to request that I be allowed to pay off the remaining $2000 sanction at a monthly rate, with 10% interest.
Would that be amendable to you?
Sincerely,
Maura Larkins
