Anda di halaman 1dari 50

Case: 09-56073 10/09/2009 Page: 1 of 50 ID: 7089801 DktEntry: 25

Ninth Circuit Case No. 09-56073

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT


________________________

RICHARD I. FINE
Petitioner and Appellant,

v.

SHERIFF OF LOS ANGELES COUNTY, ET AL., SUPERIOR COURT OF


CALIFORNIA, COUNTY OF LOS ANGELES; THE HON. DAVID P.
YAFEE, JUDGE OF THE SUPERIOR COURT OF CALIFORNIA,
COUNTY OF LOS ANGELES
Respondents and Appellees
__________________________

Appeal from the United States District Court, Central District of California,
Central Division, Case No. D.C. No. 2:09-cv–01914-JFW-CW
_________________________

ANSWERING BRIEF OF APPELLEES, SUPERIOR


COURT OF CALIFORNIA, COUNTY OF LOS ANGELES and
THE HON. DAVID P. YAFFE, JUDGE OF THE SUPERIOR
COURT OF CALIFORNIA, COUNTY OF LOS ANGELES
__________________________

Kevin M. McCormick – CASBN 115973


BENTON, ORR, DUVAL &BUCKINGHAM
39 North California Street
Post Office Box 1178
Ventura, California 93002
Telephone: (805) 648-5111; Facsimile (805) 648-3718

Attorneys for Respondents/Appellees,


SUPERIOR COURT OF CALIFORNIA,
COUNTY OF LOS ANGELES; THE HON. DAVID P. YAFFE,
JUDGE OF THE SUPERIOR COURT, COUNTY OF LOS ANGELES
Case: 09-56073 10/09/2009 Page: 2 of 50 ID: 7089801 DktEntry: 25

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

I.
STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II.
STATEMENT OF INTERESTED PARTIES
............................................................ 2

III.
STATEMENT OF ISSUES PRESENTED
............................................................ 3

IV.
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

V.
STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

A. Initiation of the Marina Strand Litigation


....................................................... 5

B. Motions to Dismiss the Marina Strand Litigation and Fine’s


Motion for Relief from Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

C. The Judgment Debtor Proceedings Re: Fine . . . . . . . . . . . . . . . . 12

D. Fine’s Trial for Contempt for Failure to Comply with Lawful


Court Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

VI.
STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

A. Confinement must be in violation of the United States


Constitution, or the laws or treaties of the United States to grant

i
Case: 09-56073 10/09/2009 Page: 3 of 50 ID: 7089801 DktEntry: 25

relief
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

B. Confinement must be shown to be in violation of clearly


established Federal law to justify relief under AEDPA . . . . . . . 17

C. The standard of review for recusals is whether the judge has


a direct, personal substantial pecuniary interest in the case
or there is an objective probability of bias. . . . . . . . . . . . . 20

D. Review is not available where the appellant failed to seek


state appellate review of the determination of the question
of disqualification as provided for in California Code of Civil
Procedure section 170.3(d). . . . . . . . . . . . . . . . . . . . . . . . . . 21

VII.
SUMMARY OF ARGUMENT
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

VIII.
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

A. JUDGE YAFFE DID NOT HAVE A DIRECT, PERSONAL,


SUBSTANTIAL, PECUNIARY INTEREST IN THE MARINA
STRAND LITIGATION AND, THEREFORE, WAS NOT
REQUIRED TO RECUSE HIMSELF . . . . . . . . . . . . . . . . . . . . . 23

B. THERE WERE NO CIRCUMSTANCES PRESENT IN THE


MARINA STRAND LITIGATION THAT WOULD
DEMONSTRATE A HIGH PROBABILITY OF ACTUAL BIAS
ON THE PART OF JUDGE YAFFE SUFFICIENT TO
REQUIRE HIM TO RECUSE HIMSELF
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

C. JUDGE YAFFE DID NOT DENY FINE’S DUE PROCESS


RIGHTS BY “JUDGING HIS OWN UNLAWFUL CRITICIZED

ii
Case: 09-56073 10/09/2009 Page: 4 of 50 ID: 7089801 DktEntry: 25

ACTIONS” AND, THEREFORE, WAS NOT REQUIRED TO


RECUSE HIMSELF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

D. JUDGE YAFFE WAS NOT “PERSONALLY EMBROILED”


WITH FINE IN THE MARINA STRAND LITIGATION AND,
THEREFORE, WAS NOT REQUIRED TO RECUSE HIMSELF 33

E. THE APPEAL SHOULD BE DISMISSED FOR THE FAILURE


TO SEEK STATE APPELLATE REVIEW OF THE
DETERMINATION OF THE QUESTION OF JUDGE YAFFE'S
DISQUALIFICATION AS PROVIDED FOR IN CALIFORNIA
CODE OF CIVIL PROCEDURE SECTION 170.3(D). . . . . . . . . 36

IX.
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

X.
STATEMENT OF RELATED CASES . . . . . . . . . . . . . . . . . . . . . . . . . . 38

XI.
CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

iii
Case: 09-56073 10/09/2009 Page: 5 of 50 ID: 7089801 DktEntry: 25

TABLE OF AUTHORITIES

UNITED STATES SUPREME COURT CASES PAGE

Bell v. Cone, (2002)


535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 . . . . . . . . . . . . . . . . . . 18, 19

Brecht v. Abrahamson, (1993)


507 U.S. 619, 637-638, 113 S.Ct. 1710, 123 L.Ed.2d 353 . . . . . . . . . . . . . . . . . . 17

Caperton v. A.T. Massey Coal Co., Inc., (2009)


___ U.S. ___, 129 S.Ct. 2252, 2255 173 L.Ed.2d 1208 . . . . . . . . . . . 20, 27, 29, 30

Early v. Packer, (2002)


537 U.S. 3, 8, 123 S.Ct. 362, 365, 154 L.Ed.2d 263 . . . . . . . . . . . . . . . . . . . 17, 18

Estelle v. McGuire, (1991)


502 U.S. 62, 68, 112 S.Ct. 475, 116 L.Ed.2d 385 . . . . . . . . . . . . . . . . . . . . . . . . 16

FTC v. Cement Institute, (1948)


333 U.S. 683 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

In re Murchison, (1955)
349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 32

Kotteakos v. United States, (1946)


328 U.S. 750, 764, 66 S.Ct. 1239, 90 L.Ed.1557 . . . . . . . . . . . . . . . . . . . . . . . . . 17

Lockyer v. Andrade, (2003)


538 U.S. 63, 64, 123 S.Ct. 1166, 1172, 155 L.Ed.2d 144 . . . . . . . . . . . . . . . . . . 18

Mayberry v. Pennsylvania, (1977)


400 U.S. 455, 464, 91 S.Ct. 499, 27 L.Ed.2d 532 . . . . . . . . . . . . . . . . . . . . . . . . 35

Mullaney v. Wilbur, (1975)


421 U.S. 684, 691, 95 S.Ct. 1881, 44 L.Ed.2d 508 . . . . . . . . . . . . . . . . . . . . . . . 17

iv
Case: 09-56073 10/09/2009 Page: 6 of 50 ID: 7089801 DktEntry: 25

Offutt v. United States of America, (1954)


348 U.S. 11, 75 S.Ct. 11, 99 L.Ed. 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 34

Rose v. Lundy, (1982)


455 U.S. 509, 102 S.Ct. 1198, 1201-02, 71 L.Ed.2d 379. . . . . . . . . . . . . . . . . . . 21

Tumey v. Ohio, (1927)


273 U.S. 510, 523, 47 S.Ct. 437, 71 L.Ed. 749 . . . . . . . . . . . . . . . . . . . . . . . 20, 27

Williams v. Taylor, (2000)


529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 . . . . . . . . . . . . . . . . . . . 17, 19

Withrow v. Larkin, (1975)


421 U.S. 35, 47, 95 S.Ct. 1456, 43 L.Ed.2d 712 . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Woodford v. Visciotti, (2002)


537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279 . . . . . . . . . . . . . . . . . . . . . . . . . 19

Y1st v. Nunnemaker, (1991)


501 U.S. 797, 803-804, 111 S.Ct. 2590, 115 L.Ed.2d 706 . . . . . . . . . . . . . . . . . . 19

NINTH CIRCUIT COURT OF APPEALS CASES

Alcala v. Woodford, (9th Cir. 2003)


334 F.3d 862, 868 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Bonin v. Calderone, (9th Cir. 1996)


77 F.3d 1155, 1161 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Chia v. Cambra, (9th Cir. 2004)


360 F.3d, 997, 1002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Little v. Kern County Superior Court, (9th Cir. 2002)


294 F.3d 1075, 1082 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Peltier v. Wright, (9th Cir. 1993)

v
Case: 09-56073 10/09/2009 Page: 7 of 50 ID: 7089801 DktEntry: 25

15 F.3d 860, 862 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Schackleford v. Hubbard, (9th Cir. 2000)


234 F.3d 1072, 1079 fn. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Taylor v. Maddox, (9th Cir. 2004)


366 F.3d 992, 999 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

United States v. Hernandez, (9th Cir. 1997)


109 F.3d 1450, 1454 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

CALIFORNIA SUPREME COURT CASES

People v. Hull (1991)


1 Cal.4th 266, 272-273 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

CALIFORNIA STATE CASES

Fine v. Superior Court, (2002)


97 Cal.App.4th 651 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

In re Steven O. (1991)
229 Cal.App.3d 46 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Sturgeon v. County of Los Angeles, (2008)


167 Cal.App.4th 630, 84 Cal.Rptr.3d 242 . . . . . . . . . . . . . . . . . . . . . . . . . 24-26, 29

FEDERAL STATUTES, RULES AND REGULATIONS

28 U.S.C. § 2254. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 11, 16, 21

Circuit Rule 28-2.6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Circuit Rule 32-1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

vi
Case: 09-56073 10/09/2009 Page: 8 of 50 ID: 7089801 DktEntry: 25

F.R.A.P., Rule 22. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

F.R.A.P., Rule 32(a)(7)(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

CALIFORNIA STATE ACTS, STATUTES, RULES AND REGULATIONS

California Code of Civil Procedure, section 170.3 . . . . . . . . . . . . . . 11, 21, 23, 36

California Code of Civil Procedure, section 170.4 . . . . . . . . . . . . . . . . . . . . 36, 37

California Code of Civil Procedure, section 170.6 . . . . . . . . . . . . . . . . . . . . . . . 11

California Code of Civil Procedure, section 473. . . . . . . . . . . . . . . . . . . . . . . . . 32

California Code of Civil Procedure, section 473(b) . . . . . . . . . . . . . . . . . 1, 3, 6-8

California Code of Civil Procedure, section 526a . . . . . . . . . . . . . . . . . . . . . . . 24

California Code of Civil Procedure, section 1008 . . . . . . . . . . . . . . . . . . . . . . . . 14

California Code of Civil Procedure, section 1211 . . . . . . . . . . . . . . . . . . . . . . . . 14

California Code of Civil Procedure, section 1219(a) . . . . . . . . . . . . . . . . . . . 1, 2, 4

California Government Code, section 68220-68222 . . . . . . . . . . . . . . . . . . . . . . 25

California Government Code, section 77000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

California Public Resources Code, section 21000, et seq. . . . . . . . . . . . . . . . . . . 6

California Public Resources Code, section 21167.4(a) . . . . . . . . . . . . . . . . . . . 6, 7

vii
Case: 09-56073 10/09/2009 Page: 9 of 50 ID: 7089801 DktEntry: 25

INTRODUCTION

Richard I. Fine was ordered to pay fees and costs to Del Rey Shores Joint

Venture, pursuant to the mandates of California Code of Civil Procedure section

473(b). At multiple debtor’s examination sessions to collect on the fees, he refused

to answer questions and provide information, despite being ordered to by the

Superior Court Commissioner. After multiple opportunities to comply, he was

tried for contempt, and found guilty of civil contempt of court. He was ordered to

the custody of the Sheriff of Los Angeles, until such time as he answered the

questions and provided the information. Instead of complying with the order, he

filed a writ of habeas corpus with the District Court. It was properly denied. This

appeal has followed, with the only issue certified one of whether the trial judge

should have recused himself. There were and are no grounds for recusal, and the

order of the District Court should be affirmed.

I.

STATEMENT OF JURISDICTION

This appeal is taken after the district court denied Appellant’s petition for writ

of habeas corpus from a state court order and judgment finding Appellant in contempt

and imposing a coercive civil confinement pursuant to California Code of Civil

1
Case: 09-56073 10/09/2009 Page: 10 of 50 ID: 7089801 DktEntry: 25

Procedure, section 1219(a).1 A challenge to the legality of the civil contempt order

is properly brought before the federal district court by way of a petition for habeas

corpus relief. See 28 U.S.C. § 2254. Upon denial of the petition for a writ of habeas

corpus by the district court and Appellant’s subsequent application, this Court issued

a Certificate of Appealability pursuant to F.R.A.P., Rule 22. The certificate specified

that the only issue is whether “the trial judge should have recused himself”.2

II.

STATEMENT OF INTERESTED PARTIES

The interested parties to this appeal are appellant in pro se, Richard I. Fine

(hereinafter “Fine”); appellee, Lee Baca, Sheriff of the County of Los Angeles, State

of California (hereinafter “Sheriff”) and Lawrence, Beach, Allen & Choi, PC, by

Aaron M. Fontana, attorneys for appellee Sheriff; appellee, the Superior Court of

California, County of Los Angeles (hereinafter the “Superior Court”), appellee, the

Honorable David P. Yaffe, Judge of the Superior Court of California, County of Los

1
Although Appellant has continually characterized his confinement as
resulting from a finding of criminal contempt, the basis of the Order and Judgment
of Contempt and the Remand/Removal Order is for coercive civil confinement
pursuant to California Code of Civil Procedure, section 1219(a), not a criminal
contempt. (See Supplemental Excerpts of Records on Appeal, hereinafter “SER,”
p. 0223.)
2
Although the “trial judge” is not named in the certificate, it has been
assumed to be a reference to Judge Yaffe.

2
Case: 09-56073 10/09/2009 Page: 11 of 50 ID: 7089801 DktEntry: 25

Angeles (hereinafter “Judge Yaffe”) and Benton, Orr, Duval & Buckingham, by

Kevin M. McCormick, attorneys for the Superior Court and Judge Yaffe.

III.

STATEMENT OF ISSUES PRESENTED

On July 20, 2009, this Court issued its order specifying a single issue on appeal

as follows:

“Appellant is granted a certificate of appealability on the issue of whether the

trial judge should have recused himself.”

No grounds exist for the recusal of Judge Yaffe, so the District Court order

should stand.

IV.

STATEMENT OF THE CASE

This matter concerns repeated, concerted and frivolous tactics by a now state-

court-disbarred attorney to avoid satisfying a valid judgment awarding attorney’s fees

and costs.3 The proceedings culminated in a finding of both civil and criminal

3
It should be noted at the outset that the award of attorneys fees and costs in
the underlying matter (pursuant to California Code of Civil Procedure, section
473(b)) is mandatory upon granting of relief. Further, the award here was
ultimately in favor of the real party in interest, Del Rey Shores Joint Venture and
Del Rey Shores Joint Venture North (hereinafter “Del Rey”), not defendant,
County of Los Angeles. (Although the underlying order awarded costs and fees to
County of Los Angeles, the County did not seek recovery of such fees and costs.)

3
Case: 09-56073 10/09/2009 Page: 12 of 50 ID: 7089801 DktEntry: 25

contempt. Coercive civil confinement pursuant to California Code of Civil

Procedure, section 1219(a) was imposed.4 Fine is still in custody, from which he

would be freed should he agree to answer questions on his assets and provide

documents ordered to satisfy the debt to the third-party, non-governmental judgment

creditor.

Fine has a longstanding history of challenging judicial officers who receive, or

have received, local judicial benefits - but only when the particular judicial officer

rules adversely to Fine or his clients. When Fine prevailed in matters before judicial

officers who received such benefits, he remained silent on the issue. Fine was

ultimately disbarred by the California Supreme Court for this repetitive and improper

Del Rey does not, and never has paid local judicial benefits to Superior Court
judges, the fundamental argument upon which Fine avers that Judge Yaffe was
biased in awarding the monetary sanctions against Fine in the underlying matter.

4
California Code of Civil Procedure, section 1219(a) provides in relevant
part: “...when the contempt consists of the omission to perform an act which is yet
in the power of the person to perform, he or she may be imprisoned until he or she
has performed it, and in that case the act shall be specified in the warrant of
commitment.” The basis of the finding of the civil contempt was not related to
Fine’s challenges based upon the payment of local judicial benefits, but to Fine’s
failure to answer questions and produce documents at the judgment debtor hearing
conducted by Commissioner Gross relating to the award of fees and costs to Del
Rey. Fine still holds the “keys to his cell,” by answering the questions and
producing the documents regarding his financial condition, as ordered by
Commissioner Gross.

4
Case: 09-56073 10/09/2009 Page: 13 of 50 ID: 7089801 DktEntry: 25

conduct. (SER 0174-0209.)

The protracted factual and procedural history of the subject state court matter

is set forth in detail below.5

V.

STATEMENT OF FACTS

This appeal arises from the March 4, 2009, Superior Court Order and Judgment

of Contempt entered against Fine in the underlying state court civil matter of Marina

Strand Colony II, Homeowners Association, petitioner v. County of Los Angeles,

respondent; Del Rey Shores Joint Venture, et al, real party in interest, Superior Court

of California, County of Los Angeles, Case No. BS 109420 (hereinafter “Marina

Strand Litigation”). (SER 0224.)

The March 4, 2009 Order and Judgment of Contempt was the culmination of

numerous prior hearings and orders as described below:

A. Initiation of the Marina Strand Litigation

On June 14, 2007, the Marina Strand Litigation was commenced by Fine on

behalf of a homeowners association by the filing of a petition for a writ of mandate

alleging noncompliance with the California Environmental Quality Act (hereinafter

5
The following procedural history regarding the underlying state court
proceedings is taken, in part, from the Report and Recommendation filed in the
United States District Court, Case No. CV 09-1914 JFW(CW). (SER 0224-0248.)

5
Case: 09-56073 10/09/2009 Page: 14 of 50 ID: 7089801 DktEntry: 25

“CEQA”), California Public Resources Code, section 21000, et seq. (SER 0224,

0248.) The case was assigned to Judge Yaffe. Notwithstanding his prior knowledge

of the receipt of local judicial benefits by Judge Yaffe, and other judicial officers of

the Superior Court, County of Los Angeles, Fine took no action to challenge Judge

Yaffe or any other similarly situated judicial officer at the time of the initial

assignment.6

In connection with the filing of that petition, Fine, on behalf of his clients, was

statutorily required to request a hearing within ninety days from the date of the filing

of the petition regarding the alleged noncompliance. California Public Resources

Code, section 21167.4(a). Fine failed to do so. (SER 0224, 0248.)

B. Motions to Dismiss the Marina Strand Litigation and Fine’s Motion

for Relief from Default

As a result of Fine’s failure to request a hearing, on or before September 13,

2007, both the County of Los Angeles and Del Rey moved to dismiss the petition for

6
Quite the contrary; Fine’s first purported challenge to Judge Yaffe was
filed on February 19, 2008, eight months after Fine initiated the Marina Strand
Litigation and after Judge Yaffe had awarded costs and fees against Fine pursuant
to California Code of Civil Procedure, section 473(b) based upon Fine’s attorney
affidavit of fault. (SER 0039-0076.) As a general practice, Fine would not
challenge a judicial officer until that judicial officer ruled adversely to either Fine
or his clients. (SER 0201.)

6
Case: 09-56073 10/09/2009 Page: 15 of 50 ID: 7089801 DktEntry: 25

failure to comply with California Public Resources Code, section 21167.4(a).7 (SER

0214, 0222.)

On October 10, 2007, and in response to those motions, Fine moved for relief

from dismissal pursuant to California Code of Civil Procedure, section 473(b), based

upon his attorney affidavit of fault. (SER 0001-0011.) In that affidavit, Fine declared,

under penalty of perjury, that the failure to timely request the hearing was due to his

excusable neglect. (SER 0002, 0004, 0009-0010.)

On October 12, 2007, the California State Bar Court issued its Order

recommending that Fine be disbarred for repetitive misconduct in other matters and

placing him on involuntary inactive enrollment.8 (SER 0214.) The order of

involuntary inactive enrollment became effective on October 17, 2007. (SER 0207.)

As a result of the October 12, 2007 Order, and an ex parte application of Marina

7
California Public Resources Code, section 21167.4(a) provides in relevant
part “In any action or proceeding alleging noncompliance with this division, the
petitioner shall request a hearing within 90 days from the date of filing of the
petition or shall be subject to dismissal on the court’s own motion or on the motion
of any party interest in the action or proceeding.”
8
The conduct which resulted in Fine’s ultimate disbarment by the
California State Bar Court is substantially similar to the conduct presented by this
matter. A significant portion of the basis was the filing of repeated notices of
disqualification on the issue of compensation of judges. (SER 0174, 0181-0188.)

7
Case: 09-56073 10/09/2009 Page: 16 of 50 ID: 7089801 DktEntry: 25

Strand,9 Judge Yaffe continued the hearing on both the motions to dismiss and for

relief from dismissal to January 8, 2008 to allow Marina Strand to obtain new counsel.

(SER 0012-0019, 0020-0021.)

On January 8, 2008, Judge Yaffe presided over the hearing on the motions to

dismiss/for relief from dismissal. Judge Yaffe granted the motions to dismiss, but

then contemporaneously granted Fine’s motion for relief based upon his affidavit of

attorney fault. In granting Fine’s motion for relief, Judge Yaffe also ordered Fine to

pay the fees and costs of both the County of Los Angeles and Del Rey as required by

California Code of Civil Procedure, section 473(b).10 (SER 0022-0026.) Judge Yaffe

further ordered both the County of Los Angeles and Del Rey to file memoranda of

costs within ten days and for Fine to either pay or move to tax costs within thirty days.

Notice of Ruling was served on the County of Los Angeles, Del Rey and Fine by mail

on or about January 23, 2008. (SER 0022-0026.)

On February 8, 2008, Del Rey filed its memorandum of fees and costs. (SER

9
Marina Strand sought ex parte relief to continue all pending hearings to
allow Marina Strand to seek new counsel to replace the now inactive Fine. (SER
0012-0019.)
10
California Code of Civil Procedure, section 473(b) provides in relevant
part, “[t]he court shall, whenever relief is granted based on an attorney’s affidavit
of fault, direct the attorney to pay reasonable compensatory legal fees and costs to
opposing counsel or parties.” (Emphasis added.)

8
Case: 09-56073 10/09/2009 Page: 17 of 50 ID: 7089801 DktEntry: 25

0035-0038.) The County did not file a memorandum of fees and costs and did not

further pursue recovery of fees and costs as contemplated by Judge Yaffe’s January

8, 2008 order.

On February 19, 2008, for the first time in the proceeding, Fine filed a

document wherein he attempted to disqualify Judge Yaffe and all judges of the

Superior Court of California, County of Los Angeles, based upon the allegation that

these judicial officers received “illegal” benefits from the County of Los Angeles.11

(SER 0039-0076.)

On February 19, 2008 and March 20, 2008, respectively, Fine filed motions to

tax costs regarding the memorandum of costs filed by Del Rey. On March 20, 2008,

Judge Yaffe continued the hearing of the first motion to tax costs to April 10, 2008,

the date set for hearing the second motion to tax costs filed by Fine. (SER 0077-

0078.)

Upon receipt of a verified statement of disqualification filed pursuant to section

170.3(c)(1), the judge against whom it is filed has four options: the judge may (1)

recuse and request another judge to hear the matter (Code of Civil Procedure

11
As noted, Fine does not raise the issue of bias based upon the payment of
local judicial benefits until after a judicial officer rules against him or his client.
Obviously, Fine did not question Judge Yaffe’s objectivity in allowing him to rule
on the motion for relief from default, since Fine was granted the relief he sought.

9
Case: 09-56073 10/09/2009 Page: 18 of 50 ID: 7089801 DktEntry: 25

§170.3(a)(1), (c)(2)); (2) file a verified answer to the statement of disqualification and

have the determination of the question of disqualification referred to another judicial

officer (Code of Civil Procedure §170.3(c)(3)); (3) strike a statement of

disqualification which is untimely or demonstrates on its face no legal grounds for

disqualification (Code of Civil Procedure §170.4(b)); or (4) strike a repetitive

statement of disqualification that is not based upon new facts. Code of Civil

Procedure §170.4(c)(3).

On March 20, 2008, Judge Yaffe ordered the disqualification stricken on the

following grounds:

1) Fine did not give adequate notice.

2) The disqualification was not filed by a party or attorney for a party

(since Fine had been placed on involuntary inactive status by the

California State Bar at this time).

3) The challenge was made to the entire Superior Court of California,

County of Los Angeles bench (not just Judge Yaffe).

4) The disqualification was untimely.

5) The disqualification disclosed no legal ground for disqualification

on it face. (SER 0077-0082.).

This was a reasoned, and legally sufficient response to the notice. Fine was

10
Case: 09-56073 10/09/2009 Page: 19 of 50 ID: 7089801 DktEntry: 25

advised by Judge Yaffe that if he wished to seek review of the order striking the

disqualification motion, he must do so by way of writ to the California Court of

Appeal within ten days of the order, otherwise he would waive his right to do so.12

(SER 0169-0170.) He failed to file such a challenge. Under California law, that was

his exclusive remedy.

Notwithstanding Judge Yaffe’s advisement as to writ relief, on March 25, 2008,

Fine filed an additional Notice of Disqualification for Cause against Judge Yaffe. The

Notice of Disqualification for Cause was based solely on the receipt of local judicial

benefits by the judicial officers of the Superior Court of California, County of Los

Angeles. (SER 0083-0167) On March 28, 2008, Judge Yaffe issued a final order

striking both the February 19, and March 25, 2008 notices. (SER 0168-0173.) Fine

did not take the exclusive remedy for this set forth in California Code of Civil

Procedure 170.3 of a writ of mandate.

On April 10, 2008, the hearing on Fine’s motion to tax costs went forward.

Fine refused to participate, arguing that Judge Yaffe had been disqualified and had no

12
The California Supreme Court has held that both the determination of a
California Code of Civil Procedure, section 170.3 statement of disqualification for
cause and a California Code of Civil Procedure, section 170.6 peremptory
challenge are governed by California Code of Civil Procedure, section 170.3,
subdivision (d), which provides that a petition for writ of mandate is the exclusive
means of appellate review of those determinations. People v. Hull (1991) 1 Cal.4th
266, 272-273.

11
Case: 09-56073 10/09/2009 Page: 20 of 50 ID: 7089801 DktEntry: 25

jurisdiction to act. As a result, Judge Yaffe ordered the two motions to tax costs off

calendar.13 (SER 0215.) On April 11, 2008, Fine filed a third notice of

disqualification against Judge Yaffe; however, a copy was not properly served on

Judge Yaffe. (SER 0215.) On June 16, 2008, Fine filed a memorandum of costs on

behalf of Marina Strand Colony HOA, notwithstanding his having been placed in

involuntary inactive status by the State Bar of California. (SER 0215.)

C. The Judgment Debtor Proceedings Re: Fine

On April 15, 2008, Judge Yaffe made an order awarding Del Rey the sum of

$46,329.01 in compensatory attorneys fees and costs against Fine. (SER 0215.) On

May 27, 2008, Fine was served with an Order Requiring Appearance (ORAP) to

appear on June 18, 2008, before Superior Court Commissioner Murray Gross for a

judgment debtor examination. Fine was also served with a Subpoena Duces Tecum

requiring him to produce various documents at the judgment debtor examination.

(SER 0215.)

On June 18, 2008, Fine filed objections to both the examination and the

subpoena. Commissioner Gross overruled all of Fine's objections and ordered the

judgment debtor examination to proceed and for Fine to produce the documents called

13
Fine’s two motions to tax costs related to the memorandum of costs filed
by Del Rey. (SER 0214.)

12
Case: 09-56073 10/09/2009 Page: 21 of 50 ID: 7089801 DktEntry: 25

for in the subpoena. (SER 0215.) Fine was sworn, but he refused to answer any

questions other than stating his name, that he had been served with the Order to

Appear and the subpoena, that he would not produce any of the subpoenaed

documents in response to the subpoena, and that he had not obtained a stay of

execution of the April 15, 2008, Order either from the Superior Court or from an

appellate court. (SER 0215.)

Commissioner Gross determined the questions that Fine refused to answer were

proper, again overruled Fines objections, and ordered Fine to answer the questions and

produce the subpoenaed documents. Fine continued to object and refused to answer

any questions. Commissioner Gross found that he had the authority to rule on the

objections and ordered the examination to go forward. Fine was ordered to return on

August 25, 2008 for the completion of the judgment debtor examination. (SER 0215-

0216.)

On August 25, 2008, Fine appeared, but again refused to answer any questions

or produce any of the subpoenaed documents and refused to comply with

Commissioner Gross’ orders to answer the questions and produce documents pursuant

to the subpoena. Commissioner Gross continued the judgment debtor examination to

December 29, 2008. (SER 0216.)

13
Case: 09-56073 10/09/2009 Page: 22 of 50 ID: 7089801 DktEntry: 25

On December 29, 2008, Fine again refused to answer any questions, produce

any of the subpoenaed documents or comply with Commissioner Gross’ further orders

to answer the questions and produce the subpoenaed documents. Fine continued his

refusals and Commissioner Gross continued the hearing to March 16, 2009. (SER

0216-0217.) At no time did Fine ever file a notice of disqualification as to

Commissioner Gross.

D. Fine’s Trial for Contempt for Failure to Comply with Lawful Court

Orders

On November 3, 2008, Del Rey filed an application for an Order to Show Cause

re Contempt (OSC), pursuant to California Code of Civil Procedure, section 1211,

which was granted. (SER 0211.) The OSC set forth 16 specific charges of contempt,

which were grouped into five categories for the purposes of trial. (SER 0213.) 14

Fine was advised of his right to counsel, which he waived, and of his right

against self incrimination, which he asserted. (SER 0213.) Trial of the contempt

14
The charges are listed as follows: Charge 1: Failing to answer questions
and produce documents at the Judgment Debtor Examination despite valid service
of a subpoena and being lawfully ordered to do so by Commissioner Gross; Charge
2: Attacking the integrity of the court in general and the State Bar; Charge 3:
Making repeated motions for reconsideration in violation of California Code of
Civil Procedure, section 1008; Charge 4: Practicing law, and/or holding himself
out as entitled to practice law in the State of California when he was not entitled to
practice law in the State of California; and Charge 5: Lying about his status with
the State Bar in pleadings filed in court and in oral arguments before the court.

14
Case: 09-56073 10/09/2009 Page: 23 of 50 ID: 7089801 DktEntry: 25

proceeding was held on December 22, 24, 26, and 30, 2008, and on January 8, 12, and

22, 2009. (SER 0213.)

Following the trial Judge Yaffe found Fine not guilty with respect to charges

2, 3, and 5, relating to attacking the integrity of the court and the State Bar, making

repeated motions for reconsideration, and lying about his status with the State Bar.

(SER 0220A-0221.) Judge Yaffe found Fine guilty of charges 1 and 4: willful

disobedience of Commissioner Gross' June 18, 2008, August 25, 2008, October 15,

2008, and December 29, 2008, orders to answer questions and produce documents at

the Judgment Debtor examination; and that Fine unlawfully practiced law and held

himself out as entitled to practice law. (SER 0220A-0221.)

Judge Yaffe pronounced sentence on March 4, 2009 and Fine was thereafter

remanded to the custody of the Sheriff. To this day, he can obtain his release by

agreeing to answer questions about his financial affairs, and providing documentation.

No criminal confinement was imposed against Fine for unlawfully practicing

law or for holding himself out as entitled to practice law, and accordingly, that issue

is not pertinent to the issue certified for appeal.

VI.

15
Case: 09-56073 10/09/2009 Page: 24 of 50 ID: 7089801 DktEntry: 25

STANDARD OF REVIEW

The standard of review of an order denying a Petition for Writ of Habeas

Corpus, pursuant to 28 U.S.C. §2254, is de novo. Alcala v. Woodford, 334 F.3d 862,

868 (9th Cir. 2003). The review of the order is also subject to the provisions of the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).15

A. Confinement must be in violation of the United States Constitution,

or the laws or treaties of the United States to grant relief.

A federal court may entertain a habeas petition on behalf of person in state

custody only when the petitioner’s claim is based upon a violation of the Constitution,

laws or treaties of the United States. 28 U.S.C. § 2254(a); Estelle v. McGuire, 502

U.S. 62, 68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). A petitioner is not entitled to

habeas relief based upon state court error in interpreting statutes or applying state law.

Estelle v. McGuire, 502 U.S. at 67-68; Bonin v. Calderone, 77 F.3d 1155, 1161 (9th

Cir. 1996). If a state law issue must be decided by the federal court in order to decide

15
Under the AEDPA, a federal court may not grant habeas relief on any
claim adjudicated on its merits in state court, unless that adjudication “(1) resulted
in a decision that was contrary to, or involved an unreasonable application of
clearly established Federal law, as determined by the Supreme Court of the United
States; or (2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d)(as amended by the AEDPA). Moreover, a state
court factual determination must be presumed to be correct unless rebutted by clear
and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1) (as amended).

16
Case: 09-56073 10/09/2009 Page: 25 of 50 ID: 7089801 DktEntry: 25

the federal habeas claim, the state’s own construction of that law is binding on the

federal court. Peltier v. Wright, 15 F.3d 860, 862 (9th Cir. 1993), citing Mullaney v.

Wilbur, 421 U.S. 684, 691, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975).

Finally, habeas relief is available only when the the violation in question “had

substantial and injurious effect or influence” in determining the the result in the

matter. Brecht v. Abrahamson, 507 U.S. 619, 637-638, 113 S.Ct. 1710, 123 L.Ed.2d

353 (1993); Kotteakos v. United States, 328 U.S. 750, 764, 66 S.Ct. 1239, 90

L.Ed.1557 (1946).

B. Confinement must be shown to be in violation of clearly established

Federal law to justify relief under AEDPA

The standard of “clearly established Federal law” set forth in § 2254(d)(1)

refers to the actual holdings of Supreme Court decisions “as of the time of the relevant

state court decision.” Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146

L.Ed.2d 389 (2000). A state court is not required to set forth the controlling Supreme

Court cases in denying habeas relief “so long as neither the reasoning nor the result

of the state-court decision contradicts them.” Early v. Packer, 537 U.S. 3, 8, 123 S.Ct.

362, 365, 154 L.Ed.2d 263 (2002) (per curiam).16

16
A federal habeas court is not required to “adopt any one methodology” in
determining “whether a state court decision is contrary to, or involved an
unreasonable application of, clearly established Federal law.” Lockyer v. Andrade,

17
Case: 09-56073 10/09/2009 Page: 26 of 50 ID: 7089801 DktEntry: 25

A state court decision is “contrary to clearly established federal law” if the

decision either applies a rule that contradicts governing Supreme Court law, or reaches

a result different from which the Supreme Court reached on “materially

indistinguishable” facts. Early v. Packer, supra, 537 S.Ct. at 8; Bell v. Cone, 535 U.S.

685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002); Williams v Taylor, supra, 529 U.S.

at 405-406.

State court decisions which are not “contrary to” Supreme Court law may only

be set aside on federal habeas review “if they are not merely erroneous, but ‘an

unreasonable application’ of clearly established federal law, or are based on ‘an

unreasonable determination of the facts.’” Early v. Packer, supra, 537 U.S. at 11

(citing 28 U.S.C. § 2254(d)). (Emphasis in original.) 17

A state court decision involves an “unreasonable application” of clearly

established federal law if the decision correctly identifies the governing legal rule, but

538 U.S. 63, 64, 123 S.Ct. 1166, 1172, 155 L.Ed.2d 144 (2003). Although a
particular decision may be both “contrary to” and “an unreasonable application of”
controlling law, the phrases have independent meanings. Williams v. Taylor,
supra, 529 U.S. at 391, 413.
17
A federal habeas court may not grant a petition simply because a state
court’s application of governing law was incorrect or erroneous, the petitioner
must establish that the state court’s application of clearly established federal law
was objectively unreasonable. Chia v. Cambra, 360 F.3d, 997, 1002 (9th Cir. 2004)
(quoting Lockyer v. Andrade, supra, 583 U.S. at 75, 123 S.Ct. 1166). See also
Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004).

18
Case: 09-56073 10/09/2009 Page: 27 of 50 ID: 7089801 DktEntry: 25

unreasonably applies it to the facts of a particular case. Williams v. Taylor, supra, 529

U.S. at 406-410, 413; Woodford v. Visciotti, 537 U.S. 19, 24, 123 S.Ct. 357, 154

L.Ed.2d 279 (2002) (per curriam). A federal habeas court may only reject a state court

decision as an “unreasonable application” if the state court’s application of Supreme

Court precedent was “objectively unreasonable.” Id.; Woodford v. Visciotti, supra,

537 S.Ct. at 25; Bell v. Cone, supra, 535 U.S. at 699; Williams v. Taylor, supra, 529

U.S. at 413.

In reviewing a state court adjudication, a federal habeas court looks to the last

reasoned state decision as the basis for the state court’s final judgment. Schackleford

v. Hubbard, 234 F.3d 1072, 1079 fn. 2 (9th Cir. 2000), citing Y1st v. Nunnemaker, 501

U.S. 797, 803-804, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991). Thus, a federal court

may “look through” a summary denial by a state supreme court to a reasoned lower

court decision to find the basis for the the final judgment. Id.

19
Case: 09-56073 10/09/2009 Page: 28 of 50 ID: 7089801 DktEntry: 25

C. The standard of review for recusals is whether the judge has a

direct, personal substantial pecuniary interest in the case or there is

an objective probability of bias.

With respect to recusals, the United States Supreme Court has found that the

Due Process Clause incorporated the common-law rule requiring recusal when a judge

has “a direct, personal, substantial, pecuniary interest” in a case. Tumey v. Ohio, 273

U.S. 510, 523, 47 S.Ct. 437, 71 L.Ed. 749 (1927). The Supreme Court has also

identified additional instances which, as an objective matter, require recusal where

“the probability of actual bias on the part of the judge or decisionmaker is too high to

be constitutionally tolerable,” Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 43

L.Ed.2d 712 (1975). “The objective standards implementing the Due Process Clause

do not require proof of actual bias.” Caperton v. A.T. Massey Coal Co., Inc. ___ U.S.

___, 129 S.Ct. 2252, 2255 173 L.Ed.2d 1208 (2009).

The ultimate question is whether, “under a realistic appraisal of psychological

tendencies and human weakness,” the interest “poses such a risk of actual bias or

prejudgment that the practice must be forbidden if the guarantee of due process is to

be adequately implemented.” Withrow, supra, 421 U.S., at 47, 95 S.Ct. 1456.

20
Case: 09-56073 10/09/2009 Page: 29 of 50 ID: 7089801 DktEntry: 25

D. Review is not available where the appellant failed to seek state

appellate review of the determination of the question of

disqualification as provided for in California Code of Civil Procedure

section 170.3(d).

Federal law requires exhaustion of all state remedies. 28 U.S.C. s 2254(b)-(c)

(1976); Rose v. Lundy, (1982), 455 U.S. 509, 102 S.Ct. 1198, 1201-02, 71 L.Ed.2d

379.

The determination of the question of the disqualification, whether by strike

order by the challenged judge or by decision by the judge to whom the matter is

referred after the filing of a verified answer is a timely writ from the appropriate court

of appeal filed and served within 10 days after service of written notice of entry of the

court's order determining the question of disqualification. Code of Civil Procedure

§170.3(d). Accordingly, a determination of the question of disqualification for which

review is not sought within 10 days is final and not subject to further review. In re

Steven O. (1991) 229 Cal.App.3d 46.

Appellant Fine is well aware of these requirements, as he has filed many

statements of disqualification in many different proceedings, and has sought appellate

review thereof. See Fine v. Superior Court (2002) 97 Cal.App.4th 651. Moreover,

in each of Judge Yaffe's orders striking his statements of disqualification, Mr. Fine

21
Case: 09-56073 10/09/2009 Page: 30 of 50 ID: 7089801 DktEntry: 25

was specifically advised of this.18

VII.

SUMMARY OF ARGUMENT

A. Judge Yaffe did not have a direct, personal, substantial, pecuniary

interest in the Marina Strand Litigation and, therefore, was not required

to recuse himself;

B. There were no circumstances present in the Marina Strand Litigation

that would demonstrate a high probability of actual bias on the part of

Judge Yaffe sufficient to require him to recuse himself;

C. Judge Yaffe did not deny Fine’s due process rights by “judging his own

18
In both Judge Yaffe's order of March 18, 2008, striking a February 19,
2008, pleading that Mr. Fine claimed was a verified statement of disqualification,
and in a subsequent order striking Mr. Fine's pleading entitled "Notice of
Disqualification," Judge Yaffe reminded Mr. Fine that the determinations of the
question of disqualification "is not an appealable order and may be reviewed only
by a writ of mandate from the Court of Appeal sought within 10 days of notice to
the parties of the decision. Code of Civil Procedure §170.3(d)." As that order
further noted:
"Mr. Fine did not timely file such a writ in the Court of Appeal. Accordingly, the
court's March 18, 2008, order determining the question of disqualification is final.
Mr. Fine's March 25, 2008, Notice of Disqualification is incorrect and stricken."
(SER 170) No petition for writ of mandate was filed as to this order either, and it is
similarly final. Given these clear advisements, and Mr. Fine's knowledge of these
provisions, the failure to pursue them can only be viewed as intentional or
negligent.

22
Case: 09-56073 10/09/2009 Page: 31 of 50 ID: 7089801 DktEntry: 25

unlawful criticized actions” in the Marina Strand Litigation and,

therefore, he was not required to recuse himself; and

D. Judge Yaffe was not “personally embroiled” with Fine in the Marina

Strand Litigation and, therefore, was not required to recuse himself.

E. The Appeal should be dismissed for the failure to seek state appellate

review of the determination of the question of Judge Yaffe's

disqualification as provided for in California Code of Civil Procedure

section 170.3(d).

The district court's decision should be affirmed in its entirety.

VIII.

ARGUMENT

A. JUDGE YAFFE DID NOT HAVE A DIRECT, PERSONAL,


SUBSTANTIAL, PECUNIARY INTEREST IN THE MARINA
STRAND LITIGATION AND, THEREFORE, WAS NOT
REQUIRED TO RECUSE HIMSELF

There was no actual direct, personal, substantial pecuniary interest that Judge

Yaffe had in the Marina Strand Litigation.

Fine again contends that the receipt of local judicial benefits constituted a

direct, personal, substantial, pecuniary interest in the outcome of the Marina Strand

Litigation. (Appellant’s Opening Brief, hereinafter “AOB,” 1-3, 27-32, 34-37.) This

23
Case: 09-56073 10/09/2009 Page: 32 of 50 ID: 7089801 DktEntry: 25

argument has no basis in fact or law, as noted above.

The providing of local judicial benefits was initially statutorily authorized by

the Lockyer-Isenberg Trial Court Funding Act of 1997, California Government Code,

section 77000, et seq. Subsequently, it was determined by the California Court of

Appeal in the case of Sturgeon v. County of Los Angeles, 167 Cal.App.4th 630, 84

Cal.Rptr.3d 242, rev. denied, (2008), that the payment of local judicial benefits by the

County of Los Angeles to judicial officers of the Superior Court of California, County

of Los Angeles was technically unconstitutional. However, the California Court of

Appeal emphasized that:

• The payment of local judicial benefits by the County of Los Angeles was

unconstitutional only because the duty to set compensation for state

judicial officers was a non-delegable duty imposed upon the state

legislature;

• Local judicial benefits were statutorily authorized by the Lockyer-

Isenberg Trial Court Funding Act of 1997, California Government Code,

section 77000, et seq.; and

• The argument that the payment of local judicial benefits represented an

unconstitutional gift of public funds under the California Constitution or

represented a waste of public funds pursuant to California Code of Civil

24
Case: 09-56073 10/09/2009 Page: 33 of 50 ID: 7089801 DktEntry: 25

Procedure, section 526a was without merit. Id. at 635, 642-630.

Effective May 21, 2009, and subsequent to the Sturgeon decision, the California

legislature enacted Senate Bill 11 which explicitly extended existing county-provided

benefits for judges, establishing standards, and specifically providing as follows:

“Notwithstanding any other law, no governmental entity, or officer or

employee of a governmental entity, shall incur any liability or be subject

to prosecution or disciplinary action because of benefits provided to a

judge under the official action of a governmental entity prior to the

effective date of this act on the ground that those benefits were not

authorized under the law.” See 2009 Cal. Legis. Serv., 2nd Ex. Sess.,

Chap. 9 (S.B. 11).19

By so doing, the California legislature ratified the payment of those benefits.

Although the Court of Appeal in Sturgeon, supra, found that there were "valid reasons

the county provides its judges with generous employment benefits beyond the

employment benefits provided by the state," a "defect ... in the method by which those

benefits have been provided" made them unconstitutional. (Id. at 657). The Appellate

Court did not find the benefits unauthorized. To the contrary, the Court of Appeal in

19
Senate Bill 11 has now been codified as California Government Code,
sections 68220-68222.

25
Case: 09-56073 10/09/2009 Page: 34 of 50 ID: 7089801 DktEntry: 25

Sturgeon observed that the Lockyer-Isenberg Trial Court Funding Act of 1997

authorized the provision of local benefits: "In sum, Lockyer-Isenberg does not

prevent payment of judicial benefits beyond the compensation set by the Legislature

but, under any fair reading of the act, authorizes them." Id. at 637-39.

In February, 2009, just 2 months following the denial of review of the Sturgeon case

by the California Supreme Court, the Legislature did exactly what the Sturgeon court

said it must do. In response to this direction from the Court, the Legislature enacted

SBX2 11. Following the passage of SBX2 11, and on remand from the Court of

Appeal, Justice Richmond appointed by the California Chief Justice to preside at the

Sturgeon case granted summary judgement in the attached order dated July 27, 2009,

finding the county provided local judicial benefits both lawful and constitutional.

The fact that the benefits were paid to the judicial officers in no way establishes

that judicial officers, such as Judge Yaffe, have a direct, personal, substantial,

pecuniary interest in the outcome of any case involving the County of Los Angeles.

Whether pre- or post-Sturgeon, the payment of the benefits did not depend on whether

the County of Los Angeles was victorious in the litigation or lost. The benefits were

paid in either event. Neither the Sturgeon court, or any other legal authority, has

suggested that judges who receive the additional benefits at issue committed any

impropriety or exhibited the reality or appearance of bias set forth in the decision of

26
Case: 09-56073 10/09/2009 Page: 35 of 50 ID: 7089801 DktEntry: 25

Tumey v. Ohio, supra and its progeny.

Moreover, Fine’s contention that the receipt of local judicial benefits is

somehow linked to the ultimate finding of contempt against him is misguided, at best.

The basis for the finding of contempt had nothing to do with the County of Los

Angeles. Fine’s failure to comply with a court order to answer questions and produce

documents at the hearing brought by a non-governmental judgment creditor is what

caused him to be confined.

B. THERE WERE NO CIRCUMSTANCES PRESENT IN THE


MARINA STRAND LITIGATION THAT WOULD
DEMONSTRATE A HIGH PROBABILITY OF ACTUAL BIAS
ON THE PART OF JUDGE YAFFE SUFFICIENT TO REQUIRE
HIM TO RECUSE HIMSELF

Even where there is no actual bias, the objective probability of bias can be so

high that a judicial officer should recuse himself or herself. This is based upon

human nature, and the needs of society to have a judicial system above reproach.

In Caperton v. A.T. Massey Coal Co., Inc., supra, the United States Supreme

Court dealt with an extreme example. In that case, a judicial election campaign

contribution resulted in an objectively verifiable appearance (if not the actuality) of

judicial bias. At issue was a $3 million dollar contribution made by a state court

litigant to the election campaign of a practicing attorney in an effort to elect that

individual to a seat on the West Virginia Supreme Court. The state court litigant knew

27
Case: 09-56073 10/09/2009 Page: 36 of 50 ID: 7089801 DktEntry: 25

that it would seek review of a $50 million trial court verdict rendered against it. The

litigant made the contribution for the purpose of substantially increasing the chances

of the recipient of the contribution being elected to that reviewing court. Ultimately,

though by a narrow margin, the challenger was elected to the West Virginia Supreme

Court. Notwithstanding challenges by the victorious state court litigant for

disqualification, the motions were denied and the newly elected jurist presided over

the appeal of the $50 million verdict, ultimately voting with the majority to reverse

the judgment entered against the party that had made the $3 million election campaign

contribution.

In reviewing the fact of the campaign contribution, the amount the contribution

bore in relation to all other contributions made for the benefit of the challenger, and

the entire campaign budget of the incumbent justice, the Supreme Court found that the

$3 million contribution was so disproportionate so as to objectively establish that the

newly elected justice was likely to be biased and should have recused himself from

the matter. The Supreme Court formulated the test for bias in that circumstance as

follows:

“The inquiry is an objective one. The Court asks not whether the judge

is actually, subjectively biased, but whether the average judge is his

position is ‘likely’ to be neutral, or whether there is an unconstitutional

28
Case: 09-56073 10/09/2009 Page: 37 of 50 ID: 7089801 DktEntry: 25

‘potential for bias.’” Id. at 129 S.Ct. 2262.

As set forth hereinabove, in the decision in Sturgeon v. County of Los Angeles,

supra, the California Court of Appeal held that the payment of local judicial benefits

by the County of Los Angeles to judicial officers of the Superior Court of California,

County of Los Angeles was not unconstitutional per se. (See, infra.) The majority

in Caperton made it clear that its holding was very narrow and limited to the unique

facts presented in that case, which it said "are extreme by any measure," and limited

the application of the decision by stating that "'most matters relating to judicial

disqualification [do] not rise to a constitutional level,'" and that "'matters of kinship,

personal bias, state policy, remoteness of interest, would seem generally to be matters

merely of legislative discretion.'"Caperton, supra, at 2259, quoting first from FTC v.

Cement Institute (1948) 333 U.S. 683, 702; and second from Tumey v. Ohio (1927)

273 U.S. 510, 523. The issue here relates to state policy (compensation of Judges)

established and mandated by the State Legislature. As stated by the majority in

Caperton such "matters relating to judicial disqualification [do] not rise to a

constitutional level," as such "matters of ... state policy ... would seem generally

matters of legislative discretion."

Based upon the holdings of the Caperton and Sturgeon decisions, and the

29
Case: 09-56073 10/09/2009 Page: 38 of 50 ID: 7089801 DktEntry: 25

subsequent enactment of California Senate Bill 11,20 it is clear that Fine’s contention

that Judge Yaffe’s receipt of local judicial benefits as creating an objective probability

of actual bias is without either factual or legal support.21 The character of the benefits

(which are paid regardless of the decisions of the judge) do not bear any similarity to

the facts or magnitude of the Caperton decision. It bears repeating the magistrate

judge’s observation:

“On Petitioner’s logic, one might as well argue that all state judges

should be precluded from hearing cases involving the states, and that all

federal judges should be precluded from hearing cases involving the

federal government.” (SER 0311, fn. 10.)

The focus must be returned to the basic facts of this case. The confinement for

contempt was for failure to answer questions and produce documents in a debtor’s

exam between Fine and a non-governmental judgment creditor. The debt was a

statutorily required obligation of the California law, and was owed by Fine to a non-

governmental creditor. No money was awarded to the County of Los Angeles, or the

20
Answering Brief, pp. 17-19, supra.
21
As stated, the payment of local judicial benefits was, and is, statutorily
authorized, only the delegation of the duty by the state legislature to the County of
Los Angeles being found unconstitutional. These benefits in no way rise to the
level of the $3 million dollar election campaign contribution present in the
Caperton decision

30
Case: 09-56073 10/09/2009 Page: 39 of 50 ID: 7089801 DktEntry: 25

State of California, or any other governmental entity. Thus, the pay received by Judge

Yaffe for his services as a judge bore no rational nexus to the matters before him.

Fine has failed to establish any “extrajudicial source” for Judge Yaffe’s alleged

bias, or “demonstrate such a deep-seated favoritism” on the part of Judge Yaffe so “as

to make fair judgment impossible.” United States v. Hernandez, 109 F.3d 1450, 1454

(9th Cir. 1997) (per curiam).

C. JUDGE YAFFE DID NOT DENY FINE’S DUE PROCESS RIGHTS


BY “JUDGING HIS OWN UNLAWFUL CRITICIZED ACTIONS”
AND, THEREFORE, WAS NOT REQUIRED TO RECUSE
HIMSELF

Fine contends that based upon the foregoing, Judge Yaffe, by denying Fine’s

repeated motions to disqualify him, judged his own unlawful actions. (AOB 33, 38.)

Fine cites In re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 (1955), as

supporting his contention that Judge Yaffe judged his own unlawful actions by

accepting local judicial benefits and then denying Fine’s repeated motions for

disqualification. (AOB 38.) This is not a pertinent case to the facts here. First, the

holding of In re Murchison arose in the criminal contempt context, not a civil coercive

contempt. Second, the judge had previously determined whether criminal charges

should be brought against an individual and then proceeded to try and convict that

individual. In finding that the judge should have not presided over the second

31
Case: 09-56073 10/09/2009 Page: 40 of 50 ID: 7089801 DktEntry: 25

proceeding, the Supreme Court held “no man can be a judge in his own case,” and “no

man is permitted to try cases where he has an interest in the outcome.” Id. at 136.

Fine erroneously claims the Sturgeon decision supports his characterization of

the payment of local judicial benefits as “unconstitutional,” “illegal,” and “criminal,”

thereby automatically disqualifying any judicial officer from presiding over matters

where the entity paying such benefits is a party. (AOB 1-2.) This is simply not true.

The California Court of Appeal specifically found the the benefits themselves were

not unconstitutional, only that the state legislature had a non-delegable duty to

prescribe a state wide procedure for the provision of such benefits, which has since

been implemented.

Fine cannot cite to any action (other than receipt of his pay and benefits) on the

part of Judge Yaffe that would support his contention that Judge Yaffe “judged his

own unlawful and criticized actions” in the Marina Strand Litigation. Judge Yaffe

did award mandatory fees and costs against Fine as a result of Fine’s seeking, and

obtaining, relief from dismissal pursuant to California Code of Civil Procedure,

section 473. However, Judge Yaffe did not preside over the judgment debtor hearing

itself, nor did Judge Yaffe preside over the disbarment proceedings which resulted in

Fine being placed on the involuntary inactive roll.

Therefore, Judge Yaffe was not constitutionally mandated to recuse himself

32
Case: 09-56073 10/09/2009 Page: 41 of 50 ID: 7089801 DktEntry: 25

from the contempt trial or, for that matter, the Marina Strand Litigation.

D. JUDGE YAFFE WAS NOT “PERSONALLY EMBROILED”


WITH FINE IN THE MARINA STRAND LITIGATION AND,
THEREFORE, WAS NOT REQUIRED TO RECUSE HIMSELF

Fine contends that as a result of the multiple attempts to disqualify Judge Yaffe,

Judge Yaffe has become “personally embroiled” with Fine. (AOB 33.)

In Offutt v. United States of America, 348 U.S. 11, 75 S.Ct. 11, 99 L.Ed. 11

(1954) the United State Supreme Court considered a matter in which the trial on a

criminal matter involved constant difficult exchanges between counsel and the Judge.

The same judge who heard the trial found the attorney in contempt. In overruling his

conviction, the court observed:

“The question with which we are concerned is not the reprehensibility of

petitioner's conduct and the consequences which he should suffer. Our

concern is with the fair administration of justice. The record discloses

not a rare flareup, not a show of evanescent irritation-a modicum of

quick temper that must be allowed even judges. The record is persuasive

that instead of representing the impersonal authority of law, the trial

judge permitted himself to become personally embroiled with the

petitioner. There was an intermittently continuous wrangle on an

unedifying level between the two. For one reason or another the judge

33
Case: 09-56073 10/09/2009 Page: 42 of 50 ID: 7089801 DktEntry: 25

failed to impose his moral authority upon the proceedings. His behavior

precluded that atmosphere of austerity which should especially dominate

a criminal trial and which is indispensable for an appropriate sense of

responsibility on the part of court, counsel and jury.” Id. at 17.

Fine’s contention that Judge Yaffe was “personally embroiled” is unfounded.

The ultimate finding of contempt which resulted in Fine’s civil coercive confinement

resulted from Fine’s continued refusal to answer lawful questions (and produce

documents in response to a valid subpoena) during a judgment debtor examination

before Superior Court Commissioner Gross.

Fine claims that he has personally attacked Judge Yaffe’s integrity by arguing

that Judge Yaffe took “illegal, criminal” payments from the County of Los Angeles

(AOB 27-29; 38-39). Fine did what he has done repeatedly to all Los Angeles

Superior Court judicial officers who have ruled against him or his clients in cases

where the County of Los Angeles is a party: accuse the judicial officer of bias based

upon the receipt of local judicial benefits.

There were no personal attacks by Fine against Judge Yaffe that would rise to

the level that objectively demonstrated “personal embroilment,” that would constitute

“cruel slander,” or personal stings.” Little v. Kern County Superior Court, 294 F.3d

1075, 1082 (9th Cir. 2002); see also Mayberry v. Pennsylvania, 400 U.S. 455, 464, 91

34
Case: 09-56073 10/09/2009 Page: 43 of 50 ID: 7089801 DktEntry: 25

S.Ct. 499, 27 L.Ed.2d 532 (1977) (“where the contempt charged has in it the element

of personal criticism or attack upon the judge,” a judge must ask another jurist to try

the contempt in his place).22 Moreover, the charged contumacious conduct had

nothing to do with Fine’s allegations leveled against Judge Yaffe: The finding of

contempt that resulted in the coercive civil confinement arose solely from Fine’s

refusal to answer questions and produce documents during the judgment debtor

examination conducted by another judicial officer, Commissioner Gross.23

A review of the record shows that Judge Yaffe conducted himself

professionally and with appropriate judicial demeanor. The original notice of

disqualification was considered and overruled on solid legal grounds (and were never

properly appealed). During the eight days of trial on the contempt matter and in

rendering his decision, the Judge was respectful, reasonable and logical in his conduct

of the proceedings, his analysis and his judgment. Fine had his “day in court” on an

eminently fair basis, and has been lawfully found guilty of contempt of court.

22
Commissioner Gross conducted the judgment debtor examination, not
Judge Yaffe. Fine did not challenge Commissioner Gross’s objectivity in terms of
presiding over the examination except his generic claim that all judges who receive
local judicial benefits are automatically disqualified from cases wherein the County
of Los Angeles is a party.
23
The finding of criminal contempt arose from a finding of the California
State Bar Court recommending that Fine be disbarred and his ultimate disbarment,
a proceeding that Judge Yaffe had no involvement in whatsoever.

35
Case: 09-56073 10/09/2009 Page: 44 of 50 ID: 7089801 DktEntry: 25

In sum, Fine’s contention that Judge Yaffe was so personally embroiled with

Fine that Judge Yaffe was constitutionally required to recuse himself from the

contempt proceedings, let alone the Marina Strand Litigation, has no merit.

E. THE APPEAL SHOULD BE DISMISSED FOR THE FAILURE TO


SEEK STATE APPELLATE REVIEW OF THE
DETERMINATION OF THE QUESTION OF JUDGE YAFFE'S
DISQUALIFICATION AS PROVIDED FOR IN CALIFORNIA
CODE OF CIVIL PROCEDURE SECTION 170.3(D).

In California, a party seeking the disqualification of a judge for cause is

required to "file with the clerk a written verified statement objecting to the hearing or

trial before the judge and setting forth the facts constituting the grounds for

disqualification." California Code of Civil Procedure section 170.3(c)(1).

Upon receipt of a verified statement of disqualification filed pursuant to section

170.3(c)(1), the judge against whom it is filed has four options: the judge may (1)

recuse and request another judge to hear the matter (Code of Civil Procedure

§170.3(a)(1), (c)(2)); (2) file a verified answer to the statement of disqualification and

have the determination of the question of disqualification referred to another judicial

officer (Code of Civil Procedure §170.3(c)(3)); (3) strike a statement of

disqualification which is untimely or demonstrates on its face no legal grounds for

disqualification (California Code of Civil Procedure §170.4(b)); or (4) strike a

repetitive statement of disqualification that is not based upon new facts. Code of Civil

36
Case: 09-56073 10/09/2009 Page: 45 of 50 ID: 7089801 DktEntry: 25

Procedure §170.4(c)(3).

Accordingly, the appeal should be dismissed for failure to pursue the state

remedy that was available to Mr. Fine and concerning which he was well aware.

IX.

CONCLUSION

Fine was found to be in civil contempt for the simple reason that he failed to

comply with lawful court orders requiring him to answer questions and produce

document at a judgment debtor hearing presided over by Superior Court

Commissioner Gross.

Judge Yaffe did not have a direct, personal, substantial, pecuniary interest in

the outcome of the Marina Strand Litigation; there were no circumstances present in

the Marina Strand Litigation that would demonstrate the probability of actual bias on

the part of Judge Yaffe; Judge Yaffe did not deny Fine’s due process rights by

“judging his own unlawful criticized actions” in the Marina Strand Litigation; and

Judge Yaffe was not “personally embroiled” with Fine in the Marina Strand

Litigation. The substance of Fine’s charges of “illegal pay” have long been laid to

rest in multiple state court proceedings.

Based upon the foregoing, it is respectfully submitted that Judge Yaffe was not

37
Case: 09-56073 10/09/2009 Page: 46 of 50 ID: 7089801 DktEntry: 25

constitutionally required to recuse himself from presiding over the contempt

proceeding that ultimately resulted in Fine’s coercive civil confinement, or the Marina

Strand Litigation itself.

As a result, it is respectfully submitted that the District Court’s Order and

Judgment adopting the conclusions and recommendations of the Magistrate Judge be

affirmed in its entirety.

X.

STATEMENT OF RELATED CASES

Appellees, the Superior Court of California, County of Los Angeles and Judge

Yaffe are unaware of any related cases within the meaning of Circuit Rule 28-2.6.

Dated: October 7 , 2009 BENTON, ORR, DUVAL & BUCKINGHAM

By s/
Kevin M. McCormick
Attorneys for Appellees, The Superior Court
of California, County of Los Angeles and the
Honorable David P. Yaffe, Judge of the
Superior Court of California, County of Los
Angeles

38
Case: 09-56073 10/09/2009 Page: 47 of 50 ID: 7089801 DktEntry: 25

XI.

CERTIFICATE OF COMPLIANCE

I certify under F.R.A.P., Rule 32(a)(7)(c) and Circuit Rule 32-1, that this Answering

Brief is proportionately spaced, has a type face of 14 points, and contains 8770 words

according to the word processing system on which it was prepared. The words

counted are those in the Answering Brief, pages 1-39.

Dated: October 7 , 2009 BENTON, ORR, DUVAL & BUCKINGHAM

By s/
Kevin M. McCormick
Attorneys for Appellees, The Superior Court
of California, County of Los Angeles and the
Honorable David P. Yaffe, Judge of the
Superior Court of California, County of Los
Angeles

39
Case: 09-56073 10/09/2009 Page: 48 of 50 ID: 7089801 DktEntry: 25

PROOF OF SERVICE

STATE OF CALIFORNIA, COUNTY OF VENTURA

I am employed in the County of Ventura, State of California. I am over the age


of 18 and not a party to the within action. My business address is 39 N. California
Street, Ventura, CA 93001.

On October 7 , 2009, I served the foregoing document(s) described as:


ANSWERING BRIEF OF APPELLEES, SUPERIOR COURT OF
CALIFORNIA, COUNTY OF LOS ANGELES and THE HONORABLE DAVID
P. YAFFE, JUDGE OF THE SUPERIOR COURT OF CALIFORNIA,
COUNTY OF LOS ANGELES on the interested parties in this action by placing
____ an original XX a copy thereof enclosed in a sealed envelope addressed as
follows:

SEE ATTACHED SERVICE LIST

XXX (BY FIRST CLASS MAIL) ___(BY EXPRESS MAIL) I caused


such envelope with postage thereon fully prepared to be placed in the United States
mail at Ventura, California. I am “readily familiar” with the firm’s practice of
collection and processing correspondence for mailing. It is deposited with the U.S.
Postal Service on that same day in the ordinary course of business. I am aware that
on motion of the party served, service is presumed invalid if postal cancellation date
or postage meter date is more than one day after date of deposit for mailing in
affidavit.

_____ (BY FACSIMILE TRANSMISSION) On this date, I transmitted from a


facsimile transmission in Ventura, California, whose telephone number is (805) 648-
7218 the above named document was transmitted to the interested parties herein
whose facsimile transmission telephone numbers are included in the attached Service
List. The above-described transmission was reported as complete without error by a
transmission report issued by the facsimile transmission machine upon which the said
transmission was made immediately following the transmission. A true and correct
copy of the said transmission report is attached hereto and incorporated herein by this
reference.

/////
Case: 09-56073 10/09/2009 Page: 49 of 50 ID: 7089801 DktEntry: 25

_____ (BY OVERNIGHT CARRIER) I placed the above-named document in an


envelope or package designated by [Golden State Overnight Carrier/UPS/Federal
Express/other carrier] (“express service carrier”) addressed to the parties listed on
the service list herein, and caused such envelope with delivery fees paid or provided
for to be deposited in a box maintained by the express service carrier. I am “readily
familiar” with the firm’s practice of collection and processing of correspondence and
other documents for delivery by the express service carrier. It is deposited in a box
maintained by the express service carrier on that same day in the ordinary course of
business.

_____ (BY PERSONAL SERVICE) I delivered such envelope by hand to the office
of the addressee.

_____ (State) I declare under penalty of perjury under the laws of the State of
California that the foregoing is true and correct.

XX (Federal) I declare that I am employed in the office of a member of the bar


of this court at whose direction the service was made. I declare
under penalty of perjury that the foregoing is true and correct.

Executed on October 7 , 2009, at Ventura, California

s/
Jacqueline D. Mora
Case: 09-56073 10/09/2009 Page: 50 of 50 ID: 7089801 DktEntry: 25

SERVICE LIST

Petitioner - Appellant, Pro Se


Richard I. Fine:

Richard I. Fine,
Prisoner I.D. #1824367
c/o Men’s Central Jail
441 Bauchet Street
Los Angeles, CA 90012

Attorney for Sheriff Lee Baca


Aaron Fontana
Lawrence, Beach, Allen & Choi
100 West Broadway, Suite 1200
Glendale, CA 91210