Tuesday, December 18, 2007
FIGHTING A VOID ON THE FACE RESTRAINING ORDER
Judicial/Attorney/Government Collusion In "Void On The Face" Judgments
Quod initio vitiosum est non potest tractu temporis convaescere "That which is void from the beginning cannot become valid by lapse of time." Black's Law Dictionary, 6th Ed., page 1253.
After the incident with the drug family in Shadow Crest HOA I began to make many long and arduous trips to the Law Library to research and study the law that regulates homeowner associations. What I discovered was remarkable.
When I trusted a board member, Jill Reed and began to speak to her concerning HOA law, and the illegalities taking place, and questioned the corruption of the laws in Shadow Crest HOA she became quite obviously and outwardly concerned with losing her board position, and refused to speak with me again.
Reed took the information I relayed to her, to other board members, and I was quickly branded as a "malcontent", a "disgruntled homeowner" a "dissident" and even "crazy" by the association board members, and association attorneys. Jose Liceaga, Board Treasurer threatened me, stating “there will be an order to keep you out of our meetings.”
Within two weeks, Jill Reed filed for, and would be granted a restraining order against me based on the complaint that she "was afraid of what I was telling her," even though she was never specific in her request for an order of just what it was I was telling her.
The board members then quickly fabricated stories, and acting as witnesses for each other, went into court and were issued more void on the face restraining orders that did not meet the required law.
The Shadow Crest board then sided-up to the Cathedral City government officials, who needed to protect two of their misbehaving and unethical officers, and they joined forces.
These labels were quickly spread to the public and published in the local media, with much slander and lies, then passed onto my neighbors in letters and personal contact, and, I quickly learned that the judicial system, along with the elected state and federal officials were hesitant to do anything to stop such abuses.
More and more Homeowners in California HOAs are either being threatened with, or actually served with void on the face restraining orders in order to keep them out of board meetings, or, in retaliation for speaking out. Because homeowners are usually in court as pro pers and do not know the law the court almost always grants such void orders and they suffer the consequences.
I lost $100,00 in legal fees, my home and spent over a year in jail in trying to fight a void order brought against me by four police officers of The City of Cathedral City, the void order of my HOA board, an HOA management company, and Assemblywoman, Bonnie Garcia because I did not know the law until after the fact.
The Office of the Public Defender did nothing to defend me.
It is stunning to me how many judges and commissioners in Riverside County, CA issue Civil Restraining Orders [ CCP 527.6 and CCP 527.8] disregarding the required legislative statutory criteria that is well supported by case law.
Along with that, keep in mind that our elected city, county and state officials, who have provable ulterior motives in supporting homeowner associations, along with the courts who give a great deal of latitude to these private, non-profit corporations who are often run by ill-intentioned and the unregulated, and sometimes illegal conduct of "volunteer-elected" board members, who often openly violate the rules, and CC&R's -- which are legally binding contracts, backed up with case law -- but are ignored.
All too often, HOA board members, help to commit fraud on their fellow residents, and abuse and embezzle from them along with unethical attorneys who support, assist and profit from such conduct - including, but not limited to, the usually unlicensed, uneducated and unregulated HOA/CID management companies, specializing in HOA/CID operations.
I have been the victim of void on the face restraining orders by my homeowner association board members, a dishonest and unethical HOA management company, and The City of Cathedral City Police Department, Case: No. INC 043437, Riverside County Superior Court, Indio, CA. who only had the idea to protect Sergeant, Charles Robinson, and Captain, Kevin Connor, and other officers in the department from an investigation for slander against me, and to keep me from making valid complaints.
TAKE NOTE: Constitutionally protected activity, such as making police reports, or complaints of any type are excluded from the meaning of "course of conduct" with regards to a restraining order. Schraer v. Berkley Property Owners Ass'n, supra, 207 Cal. App. 3d 719.
"Civil Code of Procedure 537.6 was enacted to, supplement the existing law of Torts of 'invasion of privacy' and 'intentional infliction of emotional distress,' therefore a person must prove these two elements." Grant v. Clampett (1997 2nd Dist) 56 Cal App 4th 586, 65 Cal Rptr 2d 727
"There must be clear and convincing evidence of suffering great medical or psychological distress." Sheild vRubin (1991, 2nd Dist) 232 Cal App 3d 755, 283 Cal Rptr 533
"Great or irreparable harm must be proven." Nebel v Sulach (1999 4th Dist) 73 Cal App 4th 1363, 1369, 87 Cal Rptr 2d 3851
We can also seek guidance from the phrase "severe emotional distress" -- in the context of the tort of intentional infliction of emotional distress -- which has been interpreted to mean distress "'so severe that no reasonable [person] in a civilized society should be expected to endure it.'" (Fletcher v. Western National Life Ins. Co. (1970) 10 Cal.App.3d 376, 397, relying on comment to section 46 of the Restatement Second, of Torts.)
Such void on the face judgments lack jurisdiction and can legally be ignored as they neither bind, nor bar anyone."Obviously a judgment, though final and on the merits, has no binding force and is subject to collateral attack if it is wholly void for lack of jurisdiction of the subject matter or person, and perhaps for excess of jurisdiction, or where it is obtained by extrinsic fraud. [Citations.]" 7 Witkin, Cal. Procedure, supra, Judgment, § 286, p. 828.).
Void on the face judgments "never die" in the State of California, and CCP 473 and 473a has no direct reference to void judgments: Because the order of dismissal was void on its face, it can be set aside at any time after its entry, and the six-month time limitation in section CCP 473 for relief from improper orders, which is relied on by defendant in this appeal, is not applicable here. Reid v. Balter (1993) 14 Cal.App.4th 1186, 1194
Although it has been held, by analogy to CCP section 473a, that such motions should be made within one year from the date the judgment sought to be set aside was rendered this time limitation does not apply where the judgment is based on a fraudulent return. Washko v. Stewart, 44 Cal. App. 2d 311, 317,318 [112 Pd 306]; Richert v. Benson Lbr. Co., 139 Cal. App. 671, 674-676 [34 P.2d 840]
CCP Section 473 permits a trial court, on noticed motion, to set aside void judgments and orders. Courts also possess inherent power to grant such relief. Reid v. Balter (1993) 14 Cal.App.4th 1186, 1194.
"It is well settled that a judgment or order which is void on its face, and which requires only an inspection of the judgment-roll or record to show its invalidity, may be set aside on motion, at any time after its entry, by the court which rendered the judgment or made the order. [Citations.]' [Citations.]" (Ibid; accord Plotitsa v. Superior Court (1983) 140 Cal.App.3d 755, 761
An APPEAL will NOT prevent the court from at any time lopping off what has been termed a dead limb on the judicial tree -- a void order." MacMillan Petroleum Corp. v. Griffin (1950) 99 Cal. App. 2d 523, 533 [222 P.2d 69]; accord: People v. West Coast Shows, Inc. (1970) 10 Cal. App. 3d 462, 467 [89 Cal. Rptr. 290]; Svistunoff v. Svistunoff (1952) 108 Cal. App. 2d 638, 641-642 [239 P.2d 650]; and see: 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 7, pp. 4024-4025.)
Motions to vacate void judgments may be made at any time after judgment. County of Ventura v. Tillett, supra, 133 Cal. App. 3d 105, 110.
Unpublished case regarding a void on the face retraining order: CALIFORNIA HIGHWAY PATROL v PAMELA J. SORGES, Case No BAC 004498 (filed in Riverside County Superior Court, Riverside Branch) The court ignored the law of CCP 527.6, in regard to "Plaintiffs have no standing to a petition for Injunction under C.C.P. Section 527.6 in that it is not a natural person…" as presented by SORGES' attorneys, BLANKENSHIP & ASSOCIATES, in Defendant's Reply to Opposition of Plaintiffs, CHP, On this seemingly ignoring of the law by James Cox, SOGRES filed for an appeal, in which The Appellant Court decided: "Under CCP 527.6, government agencies are not individuals, and cannot bring a TRO against a citizen, and officers cannot object to a person wanting them to do their job. Code of Civil Procedure Sec. 533 .
In any action, the court may on notice modify or dissolve an injunction or temporary restraining order upon a showing that there has been a material change in the facts upon which the injunction or temporary restraining order was granted, that the law upon which the injunction or temporary restraining order was granted has changed, or that the ends of justice would be served by the modification or dissolution of the injunction or temporary restraining order.
A plaintiff's invalid restraining order, if used as a restraining order for the entire government agency, such as Cathedral City Police Department, may only be a ruse to try and escape the directive of statue, in CCP 527.6, which is only for protection of individual rights of a natural person .
Government agencies may not have a TRO or Restraining Order against a citizen. Under CCP 527.6, government agencies are not individuals, and cannot bring a TRO against a citizen, and police officers in particular cannot object to a person wanting them to do their job. Diamond View, Ltd. V. Herz (1986) 180. Cal. App.3d 612,618-619, 225 Cal. Rptr. 651,655
Under Federal law, which is applicable to all states, the U.S. Supreme Court stated that if a court is "without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void; and form no bar to a recovery sought, even prior to a reversal in opposition to them. They constitute no justification; and all persons concerned in executing such judgments or sentences, are considered, in law, as trespassers." Elliot v. Piersol, 1 Pet. 328, 340, 26 U.S. 328, 340 (1828)
When judges act when they do not have jurisdiction to act, or they enforce a void order (an order issued by a judge without jurisdiction), they become trespassers of the law,and are engaged in treason The Court in Yates v. Village of Hoffman Estates, Illinois, 209 F.Supp. 757 (N.D. Ill. 1962) held that "not every action by a judge is in exercise of his judicial function. ... it is not a judicial function for a judge to commit an intentional tort even though the tort occurs in the courthouse."
When a judge does not follow the law, i.e., they are a trespasser of the law, the judge loses subject-matter jurisdiction and the judges orders are void, of no legal force or effect. The U.S. Supreme Court, in Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 1687 (1974) stated that "when a state officer acts under a state law in a manner violative of the Federal Constitution, he "comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct. The State has no power to impart to him any immunity from responsibility to the supreme authority of the United States." [Emphasis supplied in original].
Whenever a judge acts where he/she does not have jurisdiction to act, the judge is engaged in an act or acts of treason. U.S. v. Will, 449 U.S. 200, 216, 101 S.Ct. 471, 66 L.Ed.2d 392, 406 (1980 ); Cohens v. Virginia, 19 U.S. (6 Wheat) 264, 404, 5 L.Ed 257 (1821)
Any judge or attorney who does not report a judge for treason as required by law may themselves be guilty of misprision of treason, 18 U.S.C. Section 2382.
To be continued...