PLAINTIFF’S NOTICE OF MOTION AND MOTION

February 5, 2023
  1. TEENA COLEBROOK

3940 South Broad Street, Suite 7258

San Luis Obispo, CA 93401

Phone: (310) 420-0508

Plaintiff in Pro Per

 

Attorneys for Defendants

TIMOTHY B. McGINITY and ALLEN MATKINS LECK

GAMBLE MALLORY & NATSIS LLP

 

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SAN LUIS OBISPO 

MS. TEENA COLEBROOK,

                                 Plaintiff,

     Vs.
TIMOTHY B. McGINITY and LAW FIRM OF ALLEN MATKINS LECK GAMBLE MALLORY & NATSIS LLP,

                               Defendants.

Case No.: 21CV-0123


PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR FREE COUNSEL; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION FOR FREE COUNSEL

Judge Tana L. Coates

Department 9

 

NOTICE TO TIMOTHY B. McGINITY and the LAW FIRM OF ALLEN MATKINS LECK GAMBLE MALLORY & NATSIS LLP, AND TO THE DEFENDANTS’ ATTORNEY(S) OF RECORD AND SPECIAL NOTICE TO THIS HONORABLE COURT:

NOTICE IS HEREBY GIVEN that on [ENTER DATE] or as soon thereafter as the matter may be heard, in Department 9 this court, located at 1050 Monterey Street, San Luis Obispo, CA 93408, Plaintiff, Ms. Teena Colebrook (hereinafter “Plaintiff”) will, and hereby does, move for an Order granting Plaintiff free court- appointed counsel.

This Motion is made on the grounds that Plaintiff proceeds in forma pauperis, and cannot therefore afford attorney fees. Also, Plaintiff’s case involves complex matters of law, which requires an Attorney’s skill to help protect Plaintiff’s rights.  

This Motion is based on this Notice, the attached Memorandum of Points and Authorities, the pleadings herein, and on such further oral and/or documentary evidence as may be presented or judicially noticed at the hearing of this Motion.

 

TABLE OF CONTENTS

INTRODUCTION 6

 

LEGAL ARGUMENT 6

 

  1. INDIGENT DEFENDANTS ARE ENTITLED TO FREE COUNSEL UNDER THE COMMON LAW 6

 

  1. PLAINTIFF IS ENTITLED TO COUNEL UNDER THE DUE PROCESS CLAUSE 7

 

III. PLAINTIFF IS ENTITLED TO COUNSEL UNDER THE EQUAL PROTECTION CLAUSE 7

 

  1. PLAINTIFF CANNOT PROTECT HER RIGHTS WITHOUT THE ASSISTANCE OF COUNSEL 8

 

  1. DENIAL OF COUNSEL TO INDIGENT CIVIL DEFENDANTS CANNOT BE JUSTIFIED BY THE NOMINAL BURDENS THIS RIGHT MIGHT IMPOSE ON THE COURTS OR THE LEGAL SYSTEM 9

 

CONCLUSION 10

 

CERTIFICATE OF SERVICE 11

 

TABLE OF AUTHORITIES

Cases

Antonio Independent School District v. Rodreguez (1973) 411 U.S. 1, 93 S.Ct.1278, 36 L.Ed.2d 16 7

Brotherhood of R.R.Trainmen v. Virginia (1964) 377 U.S. 1, 7, 84 S.Ct. 1113, 1117, 12 L.Ed.2d 89 7

Martin v. Superior Court, 176 Cal. at p. 294, 168 p. 135 5

Mendoza v. Small Claims Court, 49 Cal.2d at p. 673, 321 P.2d 9 6

Payne v. Superior Court, 17 Cal.3d at p. 919, 132 Cal.Rptr. 405, 533 P.2d 565 6

Payne v. Superior Court, supra, 17 Cal.3d at 919–922, 132 Cal.Rptr. 405, 533 P.2d 565 7

Serrano v. Priest (1976) 97 S.Ct. 2951, 53 L.Ed.2d 1079 (1977) 6

 

Statutes

Civ.Code, § 22.2. 6

Stats. 11 Hen. VII, c. 12 5

 

Other Authorities

Blackstone’s COMMENTARY ON LAW (1780) 5

Cappelletti and Gordley, Legal Aid:  Modern Themes And Variations, 24 Stan.L.Rev. [1971] 8

Ginsburg and Bruzelius,Professional Legal Assistance In Sweden, 11 Int’l and Comp.L.Q. 997, 1021 fn. 14 [1962] 8

Judgment of Oct. 8, 1937, Arrets du Tribunal Federal [ATF] 63 I 209 translated in O’Brien, Why Not Appointed Counsel In Civil Cases? The Swiss Approach, 28 Ohio State L.J. 1, 5–7 [1967] 8

Klauser and Riegert, Legal Assistance In The Federal Republic Of Germany, 20 Buffalo L.Rev. 583, 584–85 [1971]. 8

Schmertz, The Indigent Civil Plaintiff In The District Of Columbia:  Facts And Commentary, 27 Fed.B.J. 235, 243 (1967) 7

 

Constitutional Provisions

U.S. Constitution Amendment XI 6

 

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT

 

INTRODUCTION

 

On or about July 1, 2021, Plaintiff filed Plaintiff’s ex parte application to request discovery before hearing on Anti-slapp motion or, in the alternative, to allow limited discovery. Notably, Plaintiff sought timely discovery. On or about July 7, 2021, Defendant filed their opposition to Plaintiff’s ex parte application to request discovery before a hearing on Anti-slapp motion or, in the alternative, to allow limited discovery and Plaintiff filed a reply to Defendants opposition on July 9th,2021. Plaintiff was summarily denied her timely request that would allow her to prove aspects of her case leading her to believe she is being denied due process.

At this instance, Plaintiff seeks a court-appointed counsel to help protect Plaintiff’s rights and prosecute Plaintiff’s case from this point onwards.  Plaintiff has no formal training in law and may not be in a position to identify legal issues at stake in her case and protect her rights accordingly.  

LEGAL ARGUMENT

  • INDIGENT DEFENDANTS ARE ENTITLED TO FREE COUNSEL UNDER THE COMMON LAW

There has always been an inchoate right to counsel for indigent Defendants in California. The California Supreme Court held in Martin v. Superior Court, 176 Cal. at p. 294, 168 p. 135 held that indigent Californian litigants are subjected to the same in forma pauperis standard applied before 1850. The Court proceeded to cite a quote from Blackstone’s COMMENTARY ON LAW (1780), to wit, “And paupers are, by statute (Stats. 11 Hen. VII, c. 12), to have original writs and subpoenas gratis, and counsel and attorney assigned them without fee; and are excused from paying costs.” (Emphasis added). It is worth noting that since Martin, the California Supreme Court has not yet provided jurisprudence that directly contradicts the holding in Martin. 

In that regard, Plaintiff contends that this honorable court should apply the common law, which recognized the right of in forma pauperis litigants to have court-appointed counsel. Besides, the common law of England is still applicable in California by virtue of Civ.Code, § 22.2. 

  • PLAINTIFF IS ENTITLED TO COUNEL UNDER THE DUE PROCESS CLAUSE

The Sixth Amendment of the U.S. Constitution provides that “the accused shall enjoy the right to have the Assistance of Counsel for his defense.” U.S. Constitution Amendment XI.  A probe of the language used in the said provision, by necessary implication, shows that the right to counsel is not limited to Criminal cases alone. Accordingly, the California Supreme Court has construed due process to include the right to counsel in civil cases. The Court in Mendoza v. Small Claims Court, 49 Cal.2d at p. 673, 321 P.2d 9 held in that regard that: “ There can be little doubt but that in both civil and criminal cases the right to a hearing includes the right to appear by counsel, and that the arbitrary refusal of such right constitutes a deprivation of due process.”

Plaintiff contends that this honorable Court’s denial of Plaintiff’s motion would amount to a denial of Plaintiff’s due process rights. Notably, as a litigant proceeding in forma pauperis, Plaintiff cannot afford to hire an attorney for her case. 

  • PLAINTIFF IS ENTITLED TO COUNSEL UNDER THE EQUAL PROTECTION CLAUSE

Courts in California have used the equal protection clause to hold that indigent litigants are entitled to court-appointed counsel. In Serrano v. Priest (1976) 97 S.Ct. 2951, 53 L.Ed.2d 1079 (1977) held that poverty can be a consideration in protecting the interests of indigents.  And that to the state must justify the denial of counsel to an indigent litigant by a compelling state interest. See Payne v. Superior Court, 17 Cal.3d at p. 919, 132 Cal.Rptr. 405, 533 P.2d 565. It follows; the right to counsel is a constitutional right as aforesaid, this right is of fundamental interest and should not be denied unless there is a compelling reason. A right is fundamental if it is “explicitly or implicitly” guaranteed in the constitution. See Antonio Independent School District v. Rodreguez (1973) 411 U.S. 1, 93 S.Ct.1278, 36 L.Ed.2d 16.

Plaintiff contends that by applying the Equal Protection clause, denying Plaintiff access to court-appointed counsel would mean Plaintiff, and other indigent litigants, would be excluded from accessing justice. Plaintiff also avers that there is no compelling reason to deny Plaintiff counsel. In Payne, the California Supreme Court already has considered and rejected nearly every conceivable claim the state might muster to assert a compelling interest in depriving indigents of free counsel. Payne v. Superior Court, supra, 17 Cal.3d at 919–922, 132 Cal.Rptr. 405, 533 P.2d 565.   Accordingly, failing to appoint free counsel for indigent civil litigants also deprives them of their rights under the equal protection clause.

  • PLAINTIFF CANNOT PROTECT HER RIGHTS WITHOUT THE ASSISTANCE OF COUNSEL

The U.S. Supreme Court held that “Laymen cannot be expected to know how to protect their rights when dealing with practiced and carefully counseled adversaries․” Brotherhood of R.R.Trainmen v. Virginia (1964) 377 U.S. 1, 7, 84 S.Ct. 1113, 1117, 12 L.Ed.2d 89. It is doubtless that unrepresented litigants rarely prevail in the same types of civil proceedings where those with lawyers often do. See, for example, Schmertz, The Indigent Civil Plaintiff In The District Of Columbia:  Facts And Commentary, 27 Fed.B.J. 235, 243 (1967), (reporting a comparative study of pro per and represented civil litigants where the pro per litigants were so confounded by the procedural complexities that they proved nine times less likely to achieve a settlement, never succeeded in compelling discovery and in no case managed to reach a trial on the merits.)

Plaintiff’s case involves Plaintiff’s allegations against accomplished attorneys, who have been in the legal practice for many years and gained experience thereof including personal relationships with some judges as in Mr. McGinity’s hiring of Judge Rice’s (The Judge in Plaintiff’s Torrance case) daughter to babysit his young son. Therefore, Plaintiff believes she cannot successfully prosecute her case against the Defendants because she lacks the requisite legal training to identify all the legal issues at stake in her case. Furthermore, it is evident from the denial of Plaintiffs timely discovery request that Plaintiff will not be able to fully defend her rights successfully without the assistance of court-appointed counsel.   

  • DENIAL OF COUNSEL TO INDIGENT CIVIL DEFENDANTS CANNOT BE JUSTIFIED BY THE NOMINAL BURDENS THIS RIGHT MIGHT IMPOSE ON THE COURTS OR THE LEGAL SYSTEM

Fears about “intolerable burdens” on the legal system cannot justify ignoring the common law or constitutional rights to counsel in civil cases. The legal entitlement to free counsel has been held in most western democracies.  Poor people in England, for instance, have held this right since 1495. The right has existed in Germany since it became a nation in 1871, and in most of the constituent German states since the fifteenth and sixteenth centuries. (Klauser and Riegert, Legal Assistance In The Federal Republic Of Germany, 20 Buffalo L.Rev. 583, 584–85 [1971].)   The French legal system has managed to survive with a statutory right to counsel since 1851, Sweden since 1919 and Italy’s constitutional right dates to 1923.  (Cappelletti and Gordley, Legal Aid:  Modern Themes And Variations, 24 Stan.L.Rev. [1971];  Ginsburg and Bruzelius,Professional Legal Assistance In Sweden, 11 Int’l and Comp.L.Q. 997, 1021 fn. 14 [1962].)   In 1937, the Swiss Supreme Court construed the “equality before the law” clause of that nation’s constitution to mandate appointment of free counsel for indigents in all civil cases where “the trial demands knowledge of the law.”  (Judgment of Oct. 8, 1937, Arrets du Tribunal Federal [ATF] 63 I 209 translated in O’Brien, Why Not Appointed Counsel In Civil Cases? The Swiss Approach, 28 Ohio State L.J. 1, 5–7 [1967].)  It follows, none of these nations has experienced a breakdown of its legal system since instituting a right to counsel. Nor has any found it necessary to retreat from this commitment to equal justice for poor people. 

Indeed the trend in the aforementioned nations consistently has been in the direction of expanding and perfecting the right to counsel, not toward contracting it. (Cappelletti and Gordley, supra. ) Thus there is ample historical precedent that shows a right to counsel in civil cases can be implemented without overburdening the courts or the legal profession. Plaintiff contends that even if recognizing a right to counsel imposed substantial burdens on the California legal system, that would not justify the courts in denying free counsel to indigent Californian litigants. 

CONCLUSION

In light of the foregoing, Plaintiff states that this is the opportunity for this Honorable Court to develop jurisprudence on the issue of the right of indigent litigants to court-appointed attorneys. As a resort of justice, this Honorable Court should uphold the dictates of the Constitution and protect the rights of all individuals that are subject to its authority. Accordingly, it would be against the interest of justice to deny Plaintiff’s prayers herein. In that regard, Plaintiff requests that this honorable court grant Plaintiff and Order for Court appointed Counsel.

 

DATED: w

Respectfully submitted,

 

                                                                                                

                         Signature

____________________

 

  1. TEENA COLEBROOK

3940 South Broad Street, Suite 7258

San Luis Obispo, CA 93401

Phone: (310) 420-0508

In Pro Per

 

CERTIFICATE OF SERVICE

 

I hereby certify that on [ENTER DATE], copies of the foregoing document have been sent to all the Defendants in the following address:

    

ALLEN MATKINS LECK GAMBLE

MALLORY & NATSIS LLP

JEFFREY R. PATTERSON (BAR NO. 126148)

MATTHEW J. MARINO (BAR NO. 214440)

One America Plaza

600 West Broadway, 27th Floor

San Diego, California 92101-0903

Phone: (619) 233-1155

Fax: (619) 233-1158

E-Mail: jpatterson@allenmatkins.com

mmarino@allenmatkins.com

   

                                  Signature

____________________

 

  1. TEENA COLEBROOK

3940 South Broad Street, Suite 7258

San Luis Obispo, CA 93401

Phone: (310) 420-0508

In Pro Per


At Legal writing experts, we would be happy to assist in preparing any legal document you need. We are international lawyers and attorneys with significant experience in legal drafting, Commercial-Corporate practice and consulting. In the last few years, we have successfully undertaken similar assignments for clients from different jurisdictions. If given this opportunity, we will be able to prepare the legal document within the shortest time possible.