UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
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C.A. No. 15-55191
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TEENA COLEBROOK,
Plaintiff- Appellant,
v.
ONEWEST BANK N.A., FKA OneWest Bank, FSB, et al.
Defendants- Appellees.
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MOTION TO RECONSIDER APPEAL
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Appeal from the Judgment of the United States District Court for
Central District of California, Los Angeles
2.14−cv−06866−PSG- AGR
(Honorable Philip S. Gutierrez)
________________________________________________________________
TEENA COLEBROOK3940 S.
Broad St#7258
San Luis Obispo, CA 93401
310-420-0508
tc4gold@gmai1.com
Appellant in Pro Per
Pursuant to Rule 27 of the Federal Rules of Appellate Procedure and the Ninth Circuit Rule 27, Plaintiff- Appellant, Teena Colebrook, Pro Se, hereby moves the United States Court Of Appeals for the Ninth Circuit (9th Circuit) to reconsider its ruling which dismissed Appellant’s Appeal, which Order was filed on or about August 10, 2015 [a copy is attached as Exhibit 1].
INTRODUCTION AND PROCEDURAL BACKGROUND
On or about August 5, 2014, Appellant filed a Complaint against the Appellees at the United States District Court for Central District of California, Los Angeles.
On or about January 15, 2015, the Court dismissed Appellant’s Complaint without leave to amend on the grounds that the Complaint failed to state a claim as a matter of law and that the claims are barred by res judicata [a copy is attached as Exhibit 2]. The Order dismissing Appellant’s Complaint was unsigned.
Appellant appealed the District Court’s decision at this Honorable Court. On or about August 10, 2015, this Honorable Court affirmed the District Court’s Order and dismissed Appellant’s Appeal on the grounds that the questions raised in the Appeal are so insubstantial to require any further argument.
It is worth noting that Appellant was never allowed to speak as the Honorable Judge cancelled all hearings and always ruled on the papers without allowing any argument at all.
SUMMARY OF ARGUMENT
- The Honorable Judge’s failed to sign the Order and/or Judgment as required under law.
- The Court abused Appellant’s due process rights when it failed to allow Appellant fair hearing.
- A denial of Appellant’s Motion would amount to an abuse of discretion, and a denial of Appellant’s access to justice.
ARGUMENTS
- THE CASE MINUTE ORDER IN THE TRIAL COURT LACKED A SIGNATURE AS REQUIRED UNDER LAW.
The Trial Court’s Order was not a substantially appealable “final” judgment because it lacked a signature. According to Rule 58(b)(1) of the Federal Rules of Civil Procedure, the clerk must, “without awaiting the court’s direction, promptly prepare, sign, and enter the judgment when the Court denies all relief.” (Emphasis added). It follows; since the Case Minute Order dismissed Appellant’s Complaint in its entirety, it was expected to bear a signature of the Court. However, it did not have a signature. The Case Minute Order therefore fails to amount to a final Order because of the said inefficiency.
In that regard, this Honorable Court abused its discretion when it failed to consider the said inefficiency, and proceeded to uphold the District Court’s decision and to dismiss Appellant’s appeal.
-
THE COURT ABUSED APPELLANT’S DUE PROCESS RIGHTS WHEN IT FAILED TO ALLOW APPELLANT FAIR HEARING.
Judgment is a “void judgment” if court that rendered judgment acted in a manner inconsistent with due process. Klugh v. U.S., D.C.S.C., 610 F.Supp. 892, 901. “A judgment which is void upon its face, and which requires only an inspection of the judgment roll to demonstrate its wants of vitality is a dead limb upon the judicial tree, which should be lopped off, if the power to do so exists.” People v. Greene, 71 Cal. 100 [16 Pac. 197, 5 Am. St. Rep. 448].
The validity of a judgment may be affected by a failure to give the constitutionally required due process notice and an opportunity to be heard. Earle v. McVeigh, 91 US 503, 23 L Ed 398. See also Restatements, Judgments 4(b). Prather vLoyd, 86 Idaho 45, 382 P2d 910. It follows; every person is entitled to an opportunity to be heard in a court of law upon every question involving his rights or interests, before he is affected by any judicial decision on the question. Earle v McVeigh, 91 US 503, 23 L Ed 398.
It is a fundamental doctrine of law that a party to be affected by a personal judgment must have his day in court, and an opportunity to be heard. Renaud v. Abbott, 116 US 277, 29 L Ed 629, 6 S Ct 1194.
The judgment that dismissed Appellant’s case is void because Appellant’s constitutionally protected rights were violated. Notably, Appellant was denied an opportunity to be heard when the Judge called off hearing sessions, and determined the case solely on the documents filed. For the Appellant’s right to a fair hearing to be met, this Honorable Court should grant Appellant’s Motion herein and grant Appellant an opportunity to be heard.
- A DENIAL OF APPELLANT’S MOTION WOULD AMOUNT TO AN ABUSE OF DISCRETION, AND A DENIAL OF APPELLANT’S ACCESS TO JUSTICE.
“An abuse of discretion is a plain error, discretion exercised to an end not justified by the evidence, a judgment that is clearly against the logic and effect of the facts as are found.” Rabkin v. Oregon Health Scis. Univ., 350 F.3d 967, 977 (9th Cir. 2003) (quotation and citation omitted). A reviewing court should only reverse for abuse of discretion where it is “convinced firmly that the reviewed decision lies beyond the pale of reasonable justification under the circumstances.” McCollough v. Johnson, Rodenburg & Lauinger, LLC, 637 F.3d 939, 953 (9th Cir. 2011) (quotation and citation omitted). So long as the law was properly applied, a decision that “falls within a broad range of permissible conclusions” is not an abuse of discretion. Kode v. Carlson, 596 F.3d 608, 612 (9th Cir. 2010).
In the instant case, the Court abused its discretion when it failed to consider the visible inefficiency in the Trial Court’s Order, which lacked a Signature from the Court. Besides, the Court abused its discretion when it failed to grant Appellant his due process and fair hearing rights.
CONCLUSION
For the foregoing reasons, Appellant is entitled to a reconsideration of her case. Accordingly, the Appellant prays that for the interest of justice and fairness, this Honorable Court reverses its previous ruling filed on August 10, 2015 and enter judgment for Appellant. Lastly, Appellant also requests such other and further relief as is just.
Respectfully Submitted,
Dated: _____________
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CERTIFICATE OF SERVICE
I hereby certify that on _____________, I sent the foregoing to the Parties herein to their respective addresses.
Dated: _____________
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________________________ TEENA COLEBROOK3940 S. Broad St#7258 San Luis Obispo, CA 93401 310-420-0508 tc4gold@gmai1.com Appellant in Pro Per. |
ADDENDUM
Exhibit 1
Order Dismissing Appellant’s Appeal. (Attached).
Exhibit 2
District Court’s Order Dismissing Appellant’s Complaint. (Attached).
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