Anda di halaman 1dari 14

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF LOS ANGELES

Mathilde Notaro

Plaintiff

vs.

Alisa Spitzberg

Defendant

Case No.

SS016746

MOTION TO SET ASIDE VOID ORDER

Violation of Due Process,: Procurement by Fraud, and Perjury Under California Code Of Civil Procedure Section 473(d) And UNDER RULE 60 (A) (b) 3 AND 4, AND ARTICLE 6 (1)AND (2)

TO THE U.S. CONSTITUTION ARTICLES OF AGREEMENT AND CONFEDERATION THUS DECLARING TO BE NULL AND VOID THE COURT ORDER GRANTED BY THIS COURT ON MAY 28th 2008 THAT IS VOID AB-INITIO AS IS THE TRO GRANTED ON MAY 5th LEADING TO THE PERMANENT CLETS RESTRAINING ORDER .

I.

HISTORY OF THE CASE

On May 1st, 2008 an ex parte declaration appears to have been filed by plaintiff, Mathilde Notaro or her attorney, but not made known to the appellant. On May 4th, there is evidence that a Civil Case Cover sheet addendum is filed and then on May 5, 2008 there is evidence that another ex parte document is filed and this date is referenced by Judge Rosenberg as the date in which Notaro came to the court and filed the temporary order. In the transcript (CT pg, 4 lines 16 -18 and CR 1.2). The other two dates are not mentioned and the clerk makes mention in the appellate record that both the petition for injunction order- harassment and an order to show cause and TRO CLETS is filed by the respondents attorney on the 5th of May not by Notaro as the judge says, in his seeming desire to refresh the memory of Notaro. On May 27th 2008, the appellant filed her answer with the court. On May 28th 2008 a hearing was held in Department A of the Santa Monica Courthouse, where Judge Rosenberg signed his name to a three year CLETS restraining order restraining Alisa Spitzberg from Mathilde Notaro, Christopher Fairbanks, Tom Sharpe, and Kjell Bjorgen. The appellant does not know any of these people. And, since the hearing she has found out for a fact that Tom Sharpe not only doesnt live with Notaro at her address but never lived with her (See Exhibit 1 pgs ) and she is also aware that Christopher Fairbanks does not live with Notaro and did not live with Notaro and the time of the hearing ( show Notaro to investigator and her mention of Chris Fairbanks pg ) No information has been discovered or sought about Kjell Bjorgen at this time as Spitzberg does see the necessity. At the hearing in the court minutes it says that all parties are present but since Alison Sievers filed the TRO and appears to have signed it she is a party and she was not present and Judge Rosenberg seems to not only not notice this absence that requires a substitution of attorney but seems to fill in for Ms. Seivers ands to remind Notaro of dates and events that are not even mentioned in the pleadings.Spitzbergs answer was never referenced in the court transcript and when Spitzberg inquired about this, Have you read my answer, this judge replies only I have it. The only person familiar to the appellant is Stephanie Willen and her name was included but crossed out for reasons unknown but that suggest that Notaro was given Carte Blanche and that Spitzbergs 1st Amendendment rights,2nd amendment rights, 5 amendment rights and fourteenth amendment rights were not being consider by the trier of fact.. The defendants witness, Lauren Spitzberg, signed in as a witness, but was soundlessly removed by a bailiff before she

could testify. No reasons were given and though she signed in and was removed, the minute order doesnt reflect her presence or removal. Nor does the minute order make clear that Henya Spitzberg was a material witness and wasnt there for her daughter but to testify to material facts. The defendant never even imagined the bailiff could just remove her other material witness , so she was unable to preserve this fact for the appellate record as her witness was removed in such a way that with Alisa Spitzbergs back to her witnesses, she could not see or know much less question the removal. It was done soundlessly and with no indication as to what would precipitate it. Spitzberg and her un-removed witness were treated with mockery and disdain by the judge. The court transcript (CT pg 1-36) and the apparent disinterest of the judge in the appellants answer (CR-19-44) resulted in an erroneous result and unjust result.

Spitzberg was never served with the order and no proof of its service is in the record. Sometime in late 2008, the court of appeals informed Spitzberg that there was no original final order found in the files and some pages of Spitzbergsare missing as well. To say that the Defense rested is misleading as it is clear from the transcript that the defendant had no say in when or how they rested.

On June 23rd 2008, Spitzberg filed her notice of appeal and on August 5th 2008 she filed her notice designating record on appeal. On August 13, 2008, Spitzberg filed a defamation claim against Notaro. A summons was served on Notaro on August 15th, 2008. Sometime in late August of 2008, Spitzberg was informed by summons that she was in contempt of this void order . At arraignment on September 25th 2009, Spitzberg was informed that Notaro was now claiming that Spitzberg had spoken to a friend of hers and by doing so had somehow violated the order. The Detective, John Gregozek, was a member of an Elite Threat Management Unit ,and the fact that he was assigned this case is very unusual. It is also unusual that he would serve the TRO and file the TRO and yet not include any of his presumed Investigation into the record. The fact that this unit does not deal with matters like this and yet they were driving across town on several occasions is just the smallest indicator that they were not acting within their capacity. The fact that they were not including these e-mails or information theyd been told by the Spitzbergs is a classic example of a failure to investigate and an unholy alliance with the law firm of Lavely and Singer. This unit repeatedly told Spitzberg that this wasnt a murder and they therefore were not interested in talking to the many witnesses that could be interviewed to attest to Spitzbergs version Notaro was lying about everything.

Yet, this same unit cost the taxpayers a fortune, very possibly much more than a murder case, by March 23rd 2010 and thereafter.

An investigator for the Public defender interviewed witnesses and the attached documents will show that Notaro and her witnesses perpetrated a fraud on this court. Though it is well held that a Void order is void in any court and at any time if one should take the position that new evidence must be available than the court should make note of pg 19, 20, and 21 on Exhibit 1 . This information was made available to Spitzberg in May of 2010 and therefore is well within the 6 months rule if this court should think that applicable.

On June 10, 2009 Spitzberg submitted her opening brief to the appellate court.

While Spitzberg was being maliciously prosecuted, the requisite Briefs, Response Brief and reply brief were all filed and the matter was scheduled for an oral hearing on November 16th of 2009. On November 4th with no legal basis and only in an attempt to circumvent the legal channels, the Threat Management Unit of the LAPD came to arrest Spitzberg at her home. There was no legal basis to do so and Spitzberg was forced to hire an attorney to assist her with this vindictive prosecution. 5 or more search warrants were excuted in the process of this vindictive prosecution and each and every one of them lacked the slighest shred of probable cause. On November 4th 2009 over 20 members of this Elite Threat Managment Unit kept Spitzbergs 71 year old mother outside her home as they seized all the computer, hard drives, cameras, modems, library cards, legal documetns from the home. Nothing of any value was discovered and no charges were brought after two month search of these items by a Man named, Alex Aka Same Moreno- who's curriculam vitae includes stints for Homeland Security , The FBI, The CIA. His resume is two pages long of wasted tax payer money, and general gross absurdness.

This vindictive prosecution produced many incriminating documents(against the prosecution) that will be produced upon the courts request but which might confuse the extrinsic and intrinsic fraud perpetrated by Notaro and her witnessess on May 1st, 4th 5th and May 28th 2008.

Without any legal basis, Spitzberg was jailed and denied bail for thirty days, as a means of coercive confinement. Suddenly, on December 2nd and before a hearing could be called to establish if Spitzberg was competent or incompetent to stand trial the whole matter was dropped and Spitzberg was released on 800 dollars bond. There was no legal basis for the competency ploy, the month long incarceration, the setting of bail, or the amount of bail now given after Spitzberg had been on her own recognizance for the last year and a half. This was strictly retaliation for Spitzbergs insistence on a fair trial. There is ample evidence to show that Allison

Seivers of the law firm Lavely and Singer, Detectives John Gregozek, Jim Hoffman, Martha Defoe, Lopez, and Jeffrey Dunn arrested Spitzberg as a means to retaliate for the Internal Affairs complaint her mother had instigated and in which she had become involved. Both Lopez and Jeff Dunn have made unambiguous statements to indicate that this was revenge for their victims daring to file a highly meritorious complaint. This unit never investigated. This unit ultimately ended up costing the city of Los Angles a fortune with thier malicous and ultimately unsuccessful attempt to stop the Spitzbergs from seeking legal recourse for this succession of harrasments.

This unit, The Threat Management Unit of The LAPD, used tax payer money to assure thier own base ambitions. They can in no way justify anything they have done in this case, and soon after Spitzberg wouldn't submit to their scam the did so with malice and a jaw dropping indifference to the laws of this land.

A malicious prosection of Spitzberg then continued until March 23rd 2010 when the Hon. H. Randolph Moore dismissed all the charges with prejudice against the prosecution.

Allison Sievers, filed these lies with the knowledge that they were lies, and that she did not tender important and very available information adverse to her clients claims as mandated by the canons of the State Bar and the ABA . Spitzberg implores the court to sanction Ms. Allison Sievers as her misconduct led to a costly and malicious criminal prosecution The transcript of that "trial" will show this to be the case and the discovery given by the city attorney will show her unusual and dishonest involvement in this matter.

Ms. Seivers was privy to the exculpatory evidence at the time she received the appellate record and brief and she was well aware of Notaros credibility problem as early as May 2008 as she chose not to file the police and investigative reports that this Threat Management Unit, according to later evidence, had at their disposal. She also has repeatedly lied to the tribunal and has done so

II.

POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO SET ASIDE JUDGMENT;

The defendants denial of due process and the fact that this order was procured by intrinsic and extrinsic fraud makes this judgment null and void because, it is in conflict with the supreme Law of the land; and that Honorable Judge Gerald Rosenberg erred in his decision on May 28th 2008 to grant an order without allowing due process to the defendant and not making any perceivable attempt to recognize the perjury and fraud that was even evident on the day of the hearing, it is in conflict with the supreme Law of the land, wherefore is void Ab-Initio ; and that Honorable Judge Gerald Rosenberg, pursuant to California Civil code 473(d) and the Federal Rules of Civil Procedure rule 60 made the mistake of issuing an order conflicting with the supreme Law of the land, therefore, the May 28th 2008 order is void ab-initio; and that Wherefore the TRO granted after an illegal ex parte hearing on May 1, 2008 and the 3 year CLETS restraining order are void Ab-Initio , because it is in conflict with the supreme Law of the land; and that The U.S. Supreme Court stated this principle of law, Courts are constituted by authority, and they cannot go beyond that power delegated to them. If they act beyond that authority, and certainly in contravention of it, their judgments and orders are regarded as nullities. They are not void able, but simply void, AND THIS IS EVEN PRIOR TO REVERSAL. [Emphasis added]. Vallely v. Northern Fire and Marine Ins. Co., 254 U.S. 348, 41 S. Ct. 116 (1920). See also Old Wayne Mut. I. Assoc. v. McDonough, 204 U.S. 8, 27 S.Ct. 236 (1907); Williamson v. Berry, 8 How. 495, 540, 12 L. Ed, 1170, 1189, (1850); Rose v. Himely, 4 Cranch 241, 269, 2 L.Ed. 608, 617 (1808); and that There is a misconception by some attorneys and judges that only a judge may declare an order void, but this is not the law: (1) there is no statute nor case law that supports this position, and (2) should there be any case law that allegedly supported this argument, that case would be directly contrary to the law established by the U.S. Supreme Court in Vallely v. Northern Fire & Marine Ins. Co., 254 U.S. 348, 41 S. Ct. 116 (1920) as well as other state courts, e.g. by the Illinois Supreme Court in People v. Miller. Supra. A party may have a court vacate a void order, but the void order is still void Ab-Initio, whether vacated or not; a piece of paper does not determine whether an order is void, it just memorializes it, makes it legally binding and voids out all previous orders returning the case to the date prior to action leading to void Ab-Initio. While a

Judge may issue orders to control his court, he has no lawful authority to issue any order which violates the Supreme Law of the Land; and that Pursuant to the Vallely court decision, a void order does not have to be reversed by any court to be a void order. Courts have also held that, since a void order is not a final order, but is in effect no order at all, it cannot even be appealed. Courts have held that a void decision is not in essence a decision at all, and never becomes final. Consistent with this holding, in 1991, the U.S. Supreme Court stated that, Since such jurisdictional defect deprives not only the initial court but also the appellate court of its power over the case or controversy, to permit the appellate court to ignore it. [Would be an] unlawful action by the appellate court itself. Freytag v. Commissioner, 501 U.S. 868 (1991); Miller, supra. Following the same principle, it would be an unlawful action for a court to rely on an order issued by a judge who did not have subject-matter jurisdiction and therefore the order he issued was Void Ab-Initio. The lack of jurisdiction to enter an order under any of these circumstances renders the order a complete nullity and it may be "impeached directly or collaterally by all persons, anywhere, at any time, or in any manner." Barnes v. Am. Fertilizer Co., 144 Va. 692, 705, 130 S.E. 902, 906 (1925). A judgment obtained by extrinsic or collateral fraud is Also void Ab-Initio. Rook v. Rook, 233 Va. 92, 95, 353 S.E.2d 756, 758 (1987). THAT THE JUDGE WAS WITHOUT JURISDICTION OR VIOLATED A PERSONS DUE PROCESS RIGHTS, or where fraud was involved in the attempted procurement of jurisdiction, is sufficient for an order to be void. Potenz Corp. v. Petrozzini, 170 Ill. App. 3d 617, 525 N.E. 2d 173, 175 (1988). In instances herein, the law has stated that the orders are void Ab-Initio and not voidable because they are already void actions taken by a court which are in error. An order is void Ab-Initio if entered by a court if the character of the order is such that the court had no power to render it, or if the mode of procedure used by the court was one that the court could "not lawfully adopt." Evans v. Smyth-Wythe Airport Comm'n, 255 Va. 69, 73, 495 S.E.2d 825, 828 (1998)(quoting Anthony v. Kasey, 83 Va. 338, 340, 5 S.E. 176, 177 (1887)). Due Process is a requirement of the U.S. Constitution. Violation of the United States Constitution by a judge deprives that person from acting as a judge under the law. He/She is acting as a private person, and not in the capacity of being a judge (and, therefore, has no jurisdiction). That The United States Supreme Court, in Twining v. New Jersery, 211 U.S. 78, 29 S.Ct. 14, 24, (1908), stated that Due Process requires that the court which assumes to determine the rights of parties shall have jurisdiction.; citing Old Wayne Mut. Life Assoc. V. McDonough, 204 U. S. 8, 27 S. Ct. 236 (1907); Scott v McNeal, 154 U.S. 34, 14, S. Ct. 1108 (1894); Pennoyer v. Neff, 95 U.S. 714, 733 (1877). This principle of law was stated by the U.S. Supreme Court as Courts are constituted by authority and they cannot go beyond that power delegated to them. If they act beyond that authority, and certainly in contravention of it, their judgments and orders are regarded as

nullities. They are not voidable, but simply VOID, AND THIS IS EVEN PRIOR TO REVERSAL. [Emphasis added]. Vallely v. Northern Fire and Marine Ins. Co., 254 U.S. 348, 41 S. Ct. 116 (1920). See also Old Wayne Mut. I. Assoc. v. McDonough, 204 U.S. 8, 27 S.Ct. 236 (1907); Williamson v. Berry, 8 How. 495, 540, 12 L. Ed, 1170, 1189, (1850); Rose v. Himely, 4 Cranch 241, 269, 2 L.Ed. 608, 617 (1808).

According to California Civil Code of Procedue 473(d)

(d) The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may,on motion of either party after notice to the other party, set aside any void judgment or order.

A void order may be challenged in any court, at any time, and even by third parties. A void order has no legal force or effect. As one court stated, a void order is equivalent to a blank piece of paper While a Judge may issue orders to control his court, he has no lawful authority to issue any order which violates the Supreme Law of the Land. The First Amendment to the U.S. Constitution states that all entities have the mandatory right of an adequate, complete, effective, fair, full meaningful and timely That the United States Supreme Court has clearly, and repeatedly, held that any judge who acts without jurisdiction is engaged in an act of treason. U.S. v. Will, 449 U.S. 200, 216, 101, S. Ct. 471, 66 L.Ed. 2d 392, 406 (1980): Cohens v. Virginia, 19 U.S. (6 Wheat) 264, 404, 5 L.Ed 257 (1821); and that access to the court. The Fourteenth Amendment and the fifth amendement to the U.S. Constitution provides guarantees Due Process and Equal Protection to all. No state shall 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. United States Constitutional Amendment XIV

1.

Spitzberg hereby moves this Court to set aside the judgment entered on May 28,2008 and

2. Obtain from a law enforcement investigators or any personnel all available information not made available to the defendant and therefore not included as an attachment, any information obtained from criminal background checks of any suspected perpetrator, Obtain any law enforcement investigator's investigation, including information obtained

3. .Any other information the evaluator or investigator believes would be helpful to the court in determining what is in the best interests of justice.

Alisa Spitzberg could testify and describe what happened, Henya and Lauren Spitzberg would be allowed to testify as to what they observed, and any other corroborative testimony would be presented by competent witnesses such as Sam Consuegra, Thom Sharpe, Christopher Fairbanks, Julius Quinn Roberts, Leslie Spann, Heidi Feigin, Mark Flanagan, Officers Baden and Montalvo, Detectives Gregozek, Defoe and Hoffman of the LAPD threat management unit, through admissible evidence. Then, the person accused would present admissible evidence to refute the charge through any means guaranteed by the due process clause etc.. The court would then assess credibility, make the inferences appropriate under the circumstances, and then render findings of fact. No one would question the validity or appropriateness of that fact-finding process.

Furthermore, In no judicial context would any plaintiff be encouraged to to opine (transcript pg. see exhibit ) as to whether or not she felt that after April 29th 2008 Spitzberg had harassed her on the internet. If Notaro has proof let her present it. According to this (Show May 6th 2008) Gregozek had driven to Lavely and Singer to get it) why was it not included. If Notaro can explain why Heidi Feigin is lying to the investigator and if Sam Consuegra and Julius Quinn Roberts et al were lying or why she cant keep her story straight nor can her witnesses than Spitzberg would welcome a real hearing in which this all can be litigated according to the law.

The ultimately void and very destructive conclusion reached by the Court in this case was the result of many factors but for the sake of this motion , Alisa Spitzberg, will permit the court to conclude that it has been defrauded submits the declaration of Lauren Spitzberg, Henya Spitzberg, and the sworn affidavits of Sam Consuegra and Julius Quinn Roberts and the verbatim statements of Notaro and her witnesses in official documents. Therefore, the Court did not have credible, reliable evidence before it when it reached the decision as set forth in Order After Hearing filed on May 28th 2008 and because the the Court did not have the power to accept it as evidence. The fallacious decision arrived at by the Appellate judges is also void. It is void because such a decision was rendered on a void order but more so it is very sinister that the judges decided this when Spitzberg was denied an oral hearing due to Spitzbergs coercive confinement. This court should sanction those who have used that as a bad faith tactic and who now point to that opinion as gospel. Alisa Spitzberg request that the court order a retraction of

this unpublished opinion and an investigation as to how and why it was posted on November 19th, 2009 when Spitzberg was without recourse. The criminal trial that was allowed to proceed despite all evidence to suggest that a dismissal was long overdue was a non trial in that Spitzberg was not allowed to collaterally attack the validity of the restraining order due the trial courts fallacious opinion that this Apellate decision was of any merit. It was not. And, unfamiliarity with the law cost the city and the Spitzberg a fortune.

B. IN CONSTRUING STATUTES WE MUST DETERMINE AND EFFECTUATE LEGISLATIVE INTENT

The evaluation must comport to the requirements of the statute. If it doesn't, it cannot be accepted. The Court acted in excess of its jurisdiction by accepting the hearsay and hunches of Notaro and the now available and clearly deceptive testimony of her Witnesses. Therefore, the motion to set aside the judgment should be granted.

III.

CONCLUSION

Based upon the above, Spitzberg respectfully requests that the Court set aside the Judgment entered on May 28th 2008 or in the alternative, Spitzberg moves this Court for a full evidentiary hearing for the purpose of arriving at a judgment that furthers Justice . Similarly, any other Court or entity insisting to uphold such an illegal order would be in violation of the US Constitution and therefore all officers of the court now involved with prosecuting this void order will be at risk for such censure , and may be subsequently arrested for these violations of law. Since a public servant must serve the law, and it was broken by the public servants in this case, they are acting as trespassers of the law, and

3. Grounds for this request are:

a. Fraud- see attached- Exhibit 1

b. Perjury-see attached- Exhibit 2

c. Lack of notice see docket of appeals court and show incarceration while appeals was decided without benefit of an oral hearing and without benefit of being able to delay it. See attached Exhibit 3

d. Denial of due process. See attached Exhibit 4

4. I have complied with the time limits for filing this request to set aside. In May of 2010, I was given access to the investigator reports that show the level of fraud and perjury on behalf of Mathilde Notaro, Stephanie Willen, Kevin Seccia, Brian Whitaker, and Michael Griffee and the new statements made by Whitaker, Notaro, Willen, and Griffee. The investigator reports and the precluded police reports (That were available to Notaro and her attorney at the time of the hearing) show that fraud and perjury and the denial of due process to the defendant make this order Void Ab- Initio. The defendant also request judicial notice that Allison Sievers, the attorney on record, knowingly and willfully gave in fraudulent affidavits to this court and purposely left out any evidence that was averse to Notaro. That evidence was plentiful and readily available to Sievers on May 28.2008, the date of the hearing.

My request is brought within 6 months after the date I discovered or reasonably should have discovered the fraud though void Ab- Initio is not subject to such time limitations.

In Late February of 2008, I was given access to the discovery in the criminal matter that Notary brought by further malice and fraud.

Request brought within 6 months after the date I discovered or reasonably should have discovered the perjury, court request brought within 6 months of the date: Though the order is

void Ab-Initio and can be challenged at any time the extent of the fraud and perjury was only known to Spitzberg in late February of 2008.

5. FACTS IN SUPPORT of relief requested are: ( See attached) Notaro and all her witnesses lied to the court and the perjury of Notaro and Griffee was flagrant but apparently unnoticed by the court. The perjury of the others only becomes provable when in possession of the investigator reports (And, see attached)

a. Notaros attorney did not include adverse information that would have or at least should have altered the course of that hearing. Notaros police report, affidavit, court testimony and statement to the investigator all observed in their entirety will show that Notaro et al have perjured themselves. Tom Sharpe does not live nor has he ever lived with the plaintiff nor has Christopher Fairbanks.

b. Notaros witnesses can be shown to have perjured themselves in light of recent discoveries.

c. Griffee it can be seen in lying right there in the hearing and this judge doesnt appear concerned.

6. Contained in the attached declaration are the investigators reports, the police reports, the hearing testimony and a comparison thereof.

I certify under penalty of perjury that the foregoing is true and correct. (28 U.S.C. 1746)

Dated: July 6,2009- Judge Gerald Rosenberg would not hear it and put on record that the Appeals court is the last word.

UPDATED- June 14, 2010 with even more evidence of intrinsic and extrinsic fraud.

Alisa Spitzberg

By: Alisa Spitzberg

Signing Attorney