UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
C.A. No. 15-55191
ONEWEST BANK N.A., FKA OneWest Bank, FSB, et al.
MOTION TO RECONSIDER APPEAL
Appeal from the Judgment of the United States District Court for
Central District of California, Los Angeles
(Honorable Philip S. Gutierrez)
TEENA COLEBROOK3940 S.
San Luis Obispo, CA 93401
Appellant in Pro Per
INTRODUCTION AND PROCEDURAL BACKGROUND.. 4
1. THE CASE MINUTE ORDER IN THE TRIAL COURT LACKED A SIGNATURE AS REQUIRED UNDER LAW. 6
2. THE COURT ABUSED APPELLANT’S DUE PROCESS RIGHTS WHEN IT FAILED TO ALLOW APPELLANT FAIR HEARING. 6
3. A DENIAL OF APPELLANT’S MOTION WOULD AMOUNT TO AN ABUSE OF DISCRETION, AND A DENIAL OF APPELLANT’S ACCESS TO JUSTICE. 8
TABLE OF AUTHORITIES
Earle v McVeigh, 91 US 503, 23 L Ed 398……………………………………………… 6
Earle v. McVeigh, 91 US 503, 23 L Ed 398…………………………………………….. 6
Klugh v. U.S., D.C.S.C., 610 F.Supp. 892, 901………………………………………… 6
Kode v. Carlson, 596 F.3d 608, 612 (9th Cir. 2010)………………………………….. 7
McCollough v. Johnson, Rodenburg & Lauinger, LLC, 637 F.3d 939, 953 (9th Cir. 2011) 7
People v. Greene, 71 Cal. 100 [16 Pac. 197, 5 Am. St. Rep. 448]………………… 6
Prather vLoyd, 86 Idaho 45, 382 P2d 910………………………………………………. 6
Rabkin v. Oregon Health Scis. Univ., 350 F.3d 967, 977 (9th Cir. 2003)………. 7
Renaud v. Abbott, 116 US 277, 29 L Ed 629, 6 S Ct 1194………………………….. 6
Ninth Circuit Rule 27…………………………………………………………………………. 4
Rule 27 of the Federal Rules of Appellate Procedure………………………………… 4
Rule 58(b)(1) of the Federal Rules of Civil Procedure………………………………. 5
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 Court. On or about August 10, 2015, this Court specifically Circuit Judges Hawkins, Wardlaw and Hurwitz affirmed the order of Judges Farris and Friedland and Judge Gutierrezs’ Trial Court Order and dismissed Appellant’s Appeal on the grounds that the questions raised in the Appeal are so insubstantial to require any further argument a statement that is sarcastic, humiliating and disdainful and violates the Judicial Canons of Ethics. This Order again lacks a Judges signature and fails to fulfil the requirements of FRCP 58, it is inconceivable that a Judge would fail to take the time to sign their orders otherwise it could be inferred that anyone could have written and filed the order which would be a travesty.
It is worth noting that Appellant was never allowed to speak as the Judge Gutierrez cancelled all hearings and always ruled on the papers without allowing any appearance or argument at all.
SUMMARY OF ARGUMENT
- The Trail Court Judge Philip Gutierrez and Appellate Judge’s Farris and Friedland failed to sign their Orders and/or Judgments as required under law.
- The Court acted in dishonor and abused Appellant’s due process rights when it failed to allow Appellant a fair hearing.
- A denial of Appellant’s Motion would amount to a further abuse of discretion, and a denial of Appellant’s access to justice.
- The Judges’ actions and/or inactions were in direct violation of the Codes of Judicial Conduct.
- The Judges failed to consider the pro se standard of Appellant.
- There is no time limit for Appealing a void judgment.
1. 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 Judge, However, it did not bear any signature, therefore the Case Minute Order fails to amount to a final Order because of the said inefficiency.
In that regard, the Appellate Court acted in Dishonor and 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.
2. 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 all hearing sessions the day before they were scheduled, and determined the case solely on the documents filed. For the Appellant’s right to a fair hearing to be met, this Court should now act in honor and grant Appellant’s Motion herein and grant Appellant an opportunity to be heard and to speak.
3. 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, specifically Judges Farris and Friedland abused its discretion when it failed to consider the visible inefficiency in the Trial Court’s Order, which lacked the Judges signature as required by FRCP 58. Besides, the Court also abused its discretion when it failed to grant Appellant her due process and fair hearing rights and when it extorted a filing fee and denied appellant her already granted informa pauperis status. Judges Farris and Friedland also violated the Judicial Cannons of Ethics by making the uncalled for sarcastic, humiliating, disdainful and rude comment “we find this appeal is frivolous” and “…the district court order may be summarily affirmed even if appellant pays the fees” There is nothing about attempting to protect one’s property from a massive fraud scheme and a person’s rights under the constitution that is frivolous.
THE JUDGES’ ACTIONS AND/OR INACTIONS WERE IN VIOLATION OF THE CODES OF JUDICIAL CONDUCT.
According to the Code of Judicial Conduct, a judge must “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary” and to avoid conduct that would make an objective, reasonable observer question the judge’s impartiality even if the judge is not actually biased. See ABA Code of Judicial Conduct, Canon 2(A) (1972). Further, Canon 3 provides that a Judge Should Perform the Duties of His Office Impartially and Diligently. Id. Canon 3 (1972). Canon 1 also states in that regard that “[a] judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.” Canon 1 (1972). It follows; Judges are subjected to a high level of ethical principles and standards.
“`A judge . . . should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.’ . . . The judge should be the exemplar of dignity and impartiality. United States v. Crux, 455 F.2d 184, 185 (2d Cir.), cert. denied, 406 U.S. 918, 92 S.Ct. 1769, 32 L.Ed.2d 117 (1972).” Swenson v. Dittner, 183 Conn. 289, 297, 439 A.2d 334 (1981).
“Trial before `an unbiased judge’ is essential to due process.” See Johnson v. Mississippi, 403 U.S. 212, 216, 91 S.Ct. 1778, 1780, 29 L.Ed.2d 423, 427 (1971) (per curiam); Brown v. Vance, 637 F.2d 272, 281 (5th Cir. 1981) (“[D]ue process guarantee[s] . . . a fair trial before an impartial judge”); (“A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. “).
It is worth noting that “[a] lawsuit is not a game, where the party with the cleverest lawyer prevails regardless of the merits,” 3333. Garnet v. Blanchard, 111 Cal. Rptr. 2d 439, 445 (California 4th District Court of Appeal 2001).
In the instant case, the Judges acted improperly and violated the ethical requirements under the law. Notably, Judge Gutierrez denied Appellant a chance to be heard, by cancelling all hearing sessions and refusing to allow Appellant chance to speak and Judges Farris & Friedland further denied Appellant a chance to be heard and speak by denying her appeal and unfairly extorting a filing fee. It was unprofessional and improper for the Clerk to file Judges Orders without bothering to ensure they are signed by the Judge. This betrays public confidence in the neutrality and fairness of the proceeding.
- THE JUDGES FAILED TO CONSIDER THE PRO SE STANDARD OF APPELLANT.
“People appearing pro se and without legal training are the ones least able to defend themselves against rude, intimidating, or incompetent judges”. Judicial intemperance was found in a judge’s treatment of an unrepresented mother in a family court case beginning with his refusal to continue a hearing to allow her to obtain counsel even. In re O’Dea, 622 A.2d 507, 516 (Vermont 1993). See also Canon 3B(4), American Bar Association Model Code of Judicial Conduct (1990). All states and the code of conduct for federal judges have a similar provision. In the Matter of Hammermaster, 985 P.2d 924, 936 (Washington 1999).
The Canon of Judicial Conduct further provides that a judge “shall require” patient, dignified and courteous conduct by “lawyers, and of staff, court officials and others subject to the judge’s direction and control”, which obliges a judge “to exercise reasonable direction and control over the conduct of those persons subject to the judge’s direction and control”. See Canon 3B (4), American Bar Association Model Code of Judicial Conduct (1990). Accordingly, that provision places an affirmative obligation on a judge both to set an example of courtesy toward self-represented litigants for others to follow and to ensure that court staff receives the training and supervision necessary to help them in the often difficult task of providing patient service to self-represented litigants.
A judge is required to treat self-represented litigants with the same patience, dignity, and courtesy mandated for everyone with whom the judge deals in an official capacity. Further, Judges should not make comments or use a tone and manner that are rude, intimidating, harsh, threatening, angry, sarcastic, discouraging, belittling, humiliating, or disdainful. They should not interrupt self-represented litigants unless necessary to control proceedings or prevent discourtesy. Notably, they should explain every step to pro se litigants so that the litigants may understand whatever is going on. See Grubbs v. State, 265 N.E.2d 40, 43-44.
Also, Judges should avoid creating the appearance of bias in favor of attorneys or represented parties. Respectful demeanor toward all participants in court proceedings is the primary method of ensuring self-represented litigants do not experience or perceive bias.
Finally, Judges should liberally construe pleadings filed by pro se litigants. It follows; once a pro se litigant has done everything possible to bring his action, he should not be penalized by strict rules which might otherwise apply if he were represented by counsel. Judges should therefore overlook, in the interest of justice and the speedy adjudication of claims, minor errors in the adherence to court rules and procedures. See Hughes v. Rowe, 449 U.S. 5, 9-10 (1980); Haines v. Kerner, 404 U.S. 519, 520, (1972); GJR Investments, Inc. v. County of Escambia, 132 F.3d 1359, 1368 (1 1th Circuit 1998).
With specific regard to a dismissal of a pro se litigant’s case, the United States Court of Appeals for the 9th Circuit in Noll v. Carlson held that a trial judge abused his discretion by dismissing a self-represented prisoner’s second amended complaint without leave to amend where his previous amendments were “without the benefit”. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Circuit 1991). This means that a trial judge has the duty to draft a few sentences explaining the deficiencies in a self-represented litigant’s allegations to help ensure that the litigant can use the opportunity to amend effectively without simply repeating previous errors.
In the instant action, Judge Guttierez never allowed Appellant to speak, he cancelled all hearings the day before they were scheduled and determined the case without giving Appellant chance to orally argue her case and he also failed his required duty of drafting a few sentences explaining the deficiencies in this Pro Se litigant’s allegations to help ensure that the litigant can use the opportunity to amend effectively without simply repeating previous errors. Judge Guttierez showed clear bias to the Banks Counsel especially when he reversed Appellants valid default judgements in the case.
It follows; that this Court should now act in Honor and grant Appellant’s requests herein, thereby correcting egregious violations of the Judicial Cannons of ethics and failure to apply the law to ALL the facts of the case.
- THERE IS NO TIME LIMIT FOR APPEALING A VOID JUDGMENT
A void judgment may be attacked at any time by a person whose rights are affected. See El-Kareh v. Texas Alcoholic Beverage Comm’n, 874 S.W.2d 192,194 (Tex. App.—Houston [14th Dist.] 1994, no writ). A void judgment is a nullity from the beginning, and is attended by none of the consequences of a valid judgment. It is entitled to no respect whatsoever because it does not affect, impair, or create legal rights. Ex parte Seidel, 39 S.W.3d 221, 225 (Tex. Crim. App. 2001), Ex parte Spaulding, 687 S.W.2d at 745. It follows; therefore, there is no time limit for appealing a void judgment. See also Evans v. C. Woods, Inc., No. 12-99-00153-CV, 1999 WL 787399, at *1 (Tex. App.—Tyler Aug. 30, 1999, no pet. h.).
In the instant case, both Judge Gutierrez and Judges Farris & Friedland Order(s) lacked any signatures in violation of FRCP 58. Therefore the orders/judgments were void on their face in that regard. Klugh, 610 F.Supp. 892, 901. Appellant is therefore entitled to appeal the Judgments at any time because they had no effect and were void ab initio. El-Kareh, 874 S.W.2d 192,194.
For the foregoing reasons, Appellant is entitled to a reconsideration of her case. The court now has an opportunity to correct and rectify the violations of the judicial canons of ethics and case rulings regarding pro se litigants. Accordingly, Appellant respectfully requests that in the interest of justice and fairness, this Court acts in Honor and 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.
|________________________ TEENA COLEBROOK 3940 S. Broad St#7258 San Luis Obispo, CA 93401 310-420-0508 firstname.lastname@example.org Appellant in Pro Per.|
CERTIFICATE OF SERVICE
I hereby certify that on _____________, I sent the foregoing to the Parties herein to their respective addresses.
|________________________ TEENA COLEBROOK 3940 S. Broad St#7258 San Luis Obispo, CA 93401 310-420-0508 email@example.com Appellant in Pro Per.|
Order Dismissing Appellant’s Appeal. (Attached).
The court now has an opportunity to correct and rectify the violations of the judicial cannons of ethics and case rulings regarding pro se litigants.
District Court’s Order Dismissing Appellant’s Complaint. (Attached).
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