Wednesday, September 7, 2011

Motion to Dismiss Void Judgment CCP 473 (d)

Sharon Stephens
Pro per
COUNTY OF SAN BERNARDINO                                                               
8303 North Haven Avenue
Rancho Cucamonga, CA  91730
CASE NO.:  MWV 903720


 CCP 473(d)
 TIME:    8:30  AM
 DATE:  September 23, 2011
 DEPT   7

                              TO ALL PARTIES AND ATTORNEYS OF RECORD
PLEASE TAKE NOTICE that on September 23, 2011, at 8:30 a.m. in the department 7, in the above Court located at 8303 North Haven Avenue, Rancho Cucamonga, California, 91730, Sharon Stephens (hereinafter “Stephens”) Petitioner and Defendant in this case will move and hereby moves for an order voiding and annulling all orders and judgments, including any contempt charges.
    Stephens has already argued that Judge Sabet did not have subject matter jurisdiction to enter any order or judgment in this case including the contempt proceedings therefore making them void. Judge Sabet ignored that, and all arguments of Stephens, therefore Stephens does not now waive anyclaim that Judge Sabet did not have subject matter jurisdiction but adds Judge Sabet committed fraud on the court by sitting on the case at all.
    San Bernardino County and its attorneys committed the first fraud upon the court by not disclosing that San Bernardino County was making payments payment to Judge Sabet. Judge Sabet joined in this fraud upon
the court by not disclosing such in violation of Code of Judicial Ethics Canon 3E(2). She further violated Canon 3E(1) and CCP Section 170.1(a)(6)(A) (iii) by not disqualifying herself. She also violated Canon 4D(1) by accepting San Bernardino County payments.
   During her tenure as a San Bernardino judge from January 11,1999 through April 11, 2011it is estimated that Judge Sabet received approximately $300,000 in payments from San Bernardino County.(EXHIBIT A)
    The San Bernardino County payments to judges were held to violate Article VI, section 19, of the California Constitution in the case of Sturgeon v. County of Los Angeles 167 Cal.App.4th 630 (2008), rev. denied 12/23/08. They were recognized as criminal in California Senate Bill SBx2-11, which gave retroactive immunity to “governmental entity and officers and employees of a governmental entity” including  judges from criminal prosecution, civil liability, and disciplinary action for receiving “judicial benefits” effective 5/21/09.
    The retroactive immunity did not extend to “fraud on the court” or the obstruction of justice of not disclosing the payments. Nor does it extend to judges presiding over cases in which the county who paid them was a party before the judges. After 5/21/09, no immunity existed for the payments.
   The second fraud on the court occurred when Judge Sabet, and the San Bernardino County Deputy District Attorney, Jack Liu conspired with Attorney Linda Hollenbeck, ignored the law of CCP 527.8 and unlawfully incarcerated Stephens in West Valley Detention Center on a void on the face Temporary Restraining Order, and ignored mandated Criminal Charging Affidavits against Deputy District Attorney, Jack Liu and Attorney, Linda Hollenbeck leaving them free of any charge of misconduct.
   The third fraud on the court occurred when Judge Sabet and San Bernardino County District Attorney, in conspiracy with Attorney Linda Hollenbeck prosecuted Stephens on a void on the face contempt order, and unlawfully incarcerated her in West Valley Detention Center.
   U.S. Supreme Court precedents hold that fraud upon the court vitiates the case; that all orders and judgments are regarded as nullities and void. SEE: U.S. v. Throckmorton, 98 U.S. 61,64,66(1878); Valley v. Northern Fire & Marine Ins. Co., 254 U.S. (1920))
                             MEMORANDUM OF POINTS AND AUTHORITIES


    Moving Party Stephens Petitioner and former Defendant in this case seeks an order voiding and annulling all orders and judgments in this case, and all contempt proceedings.
     As stated in the case of Sturgeon v. County of Los Angeles 167Cal.App.4th 630 (2008), rev. denied 12/23/08, Counties began making payments to State Superior Court judges in the late 1980s. The Sturgeon case held that these payments violated Article VI, Section 19, of the California Constitution.
     A letter from Roger M. Whitby written November 10, 1988 was produced in the appellate phase of the Sturgeon case.
    Such letter showed that (1) only the State Legislature could “prescribe” the “compensation” of judges, under Article VI, Section 19, of the California Constitution; (2) “compensation” encompassed fringe benefits, according to two California Attorney General opinions; (3) the Legislature’s duty was not delegable to any other body, according to California case law; (4) Superior Court judges are State Constitutional Officers; and (5) The Board of Supervisors has claimed to have found that in order to attract and retain qualified judges to serve in this County it is necessary
and appropriate to provide them with benefits and a flexible benefit plan contribution – in addition to their State salary, State benefits, and State retirement. It appears the sole purpose of these payments was only  be to influence the judges to rule in favor of San Bernardino County, which was often a party before the judges accepting
the money.

    Code of Ethics Canon 4(D)(1) prohibits judges from entering into
financial dealings that:
                 (a) may reasonably be perceived to exploit the
judge’s judicial position, or
                 (b) involve the judge in frequent transactions or
continuing business relationships with…persons likely to appear
before the court in
 which the judge serves.

     CCP 170.1 (a)(6)(A)(iii) mandated such judges disqualification.

      Such Section states:

                     A judge shall be disqualified if any one or more of the following is true:
                     [ ] A person aware of the facts might reasonably entertain a doubt that
                     the judge would be able to be impartial.

                     Canon 3E(2) requires a judge to: disclose on the record information that
 reasonably relevant to the question of disqualification under
                     Code of
 Civil Procedure section 170.1, even if the judge believes there
                     is no
 actual basis for disqualification.

                      Canon 3E(1) requires the judge to “disqualify”
                      himself or herself in any
                      proceeding in which disqualification is required by law.

    Any judge who received any San Bernardino County benefits was bound to disclose such and disqualify him or her self.
    If the judge does not disclose and disqualify themselves they can be facing bribery charges.
    After the Sturgeon decision, the legislature enacted Senate BillSBx2-11which recognized that the County payments to judges were criminal. Senate Bill SBx2-11 gave retroactive immunity, effective 5/21/09, from criminal prosecution, civil liability and disciplinary action to a “governmental entity, officer, or employee of a governmental entity.” The retroactive immunity did not extend to the judge’s actions presiding over cases in which the county who paid them was a party. Nor, did it extend to county payments received after 5/21/09.
     At all times, judges who accepted “bribes” from an interested party were biased. The U.S. Supreme Court has ruled and has reaffirmed the principle that “justice must satisfy the  appearance of justice,” Levine v. United States 362 U.S. 610, 616, 80 S.Ct. 1038 (1960) citing Offutt v.  United States, 348 U.S. 11, 14, 75 S.Ct. 11, 13 (1954).
Therefore, a judge receiving a bribe from an interested party
 over which he is presiding does not give the appearance of justice.
    Further, the judge receiving the payment may be prosecuted for violating the intangible right to honest services under Federal Law 18 U.S.C. section 1346. The U.S. Supreme Court held under Skilling v.United States 561 (Decided 6/24/2010), Slip Options pages 48-49, that section 1346, encompasses bribery and kickbacks.
      A.   For more than a year the San Bernardino County Office of
District Attorney and the court, particularly Judge Sabet has
persecuted Stephens on a void on the face restraining order. Stephens
has been in and out of false arrests and unlawful incarcerations, and
has been drug back and forth to court like a rag doll, all the while
being homeless and living in her car because of a retaliatory eviction
by Logan Property Management Attorney, Linda Hollenbeck, essentially
for complaining about lack of fire safety and criminal behavior on her
senior apartment complex.
      When Stephens fought the bogus eviction, Attorney Hollenbeck
filed two sham Workplace Violence Restraining Orders, CCP 527.8. One
was promptly and properly dismissed for not meeting the required
statutory or case law to issue the order. The second slipped by and
went into court where it was challenged as void in a 402 Hearing.
         Judge Sabet sat through the entire 402 Hearing brought to
challenge this void on the face.
Workplace Violence Restraining Order under CCP 527.8, after admitting,
at the start to “not
knowing the law of void judgments.” There were “complex legal issues;”
she ought to have
recused herself right there, or, taken the time to research the law.
Instead she went on to retry
the case which openly violated legal procedure of deciding a void
judgment challenge. From the
beginning the TRO was void on the face for not meeting the criteria
for violence. A TRO is also
void after 14 days.

                 "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. Other
Courts my also may do the
                   same. [Citations.]' [Citations.]" (Ibid; accord
Plotitsa v. Superior Court (1983)
                   140 Cal.App.3d 755, 761
      Judge Sabet exceeded her jurisdiction, and therefore committed
fraud upon the court. At the

 end of several hours of false, subrogated perjured testimony she then
asked the attorneys to

present points and authorities so she could decide the case. They had none!

                  Fraud upon the court" has been defined by the 7th
Circuit Court of Appeals
                   to "embrace that species of fraud which does, or
attempts to, defile the court
                   itself, or is a fraud perpetrated by officers of
the court [Judges are officers of
                   the court] so that the judicial machinery can not
perform in the usual manner
                   its impartial task of adjudging cases that are
presented for adjudication."
                   Kennerv. C.I.R., 387 F.3d 689 (1968); 7 Moore's
Federal Practice,2d ed.,
                   p. 512, 60.23.

                The 7th Circuit further stated "a decision produced
by fraud upon the court
                  is not in essence a decision at all, and never
becomes final."
                  The judgment is void.

       On May 26, 2010 Judge Sabet had to dismiss this void on the
face restraining order because someone informed her case was void.
Then, in what can only be called a mean-spirited, retaliatory move she
ignored the law of CCP 527,8, and at the insistence of Deputy District
Attorney, Jack Liu and Attorney Linda Hollenbeck, and with a sneer on
her lips,  gave an order to incarcerate Stephens, on the antecedent,
void on the face temporary restraining order (“TRO”) in the case, and
set Bail at $150,000 (Excessive Bail: Stack v. Boyle 342 U.S. (1951)
the U.S. Supreme Court: A judge or justice may be censured for
"setting 'grossly excessive' bail and [thus] showing a 'severe
attitude' toward witnesses and litigants," as the Michigan Supreme
Court did to a trial judge recently: Debra Cassens Weiss, writes,
"Judge Censured for Excessive Bail, Severe Attitude", (ABA Journal,
February 8, 2008).

                Whenever a judge acts where he/she does not have
[subject matter] 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.

     On January 11, 2011 Judge Sabet again unlawfully incarcerates
(“Stephens” ) for 50

 days in West Valley Detention for having Attorney Linda Hollenbeck
served with a

 Notice of Intent to sue, claiming it is a violation of the void on
the face probation that she

had set.

               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.).

      B. San Bernardino County and Its Attorneys’ Fraud Upon The Court

      San Bernardino County nor its attorneys have never disclosed to
this day that San Bernardino County has made payments to Judge Sabet.
     Judge Sabet is a native born Iranian who came to the United
States in 1970 because there was no room for her in the university
there. Judge Sabet feels becoming a judge may be related to genetic
predisposition. Her grandfather was a justice of the Iran Supreme
Court and two cousins also served as judges at a time when a codified
system of justice, was based on code rather than case law, [stare
decisis], an inquisitorial system, such as exists in France. The
judge serves not only as judge but as prosecutor, jury, and arbiter.
The Islamic legal system of Sharia (Islamic law) and Fiqh (Islamic
jurisprudence) has always been an influence in the Iranian law system,
where the  judge holds absolute power, there is no stare decisis, and
laws allow circumstantial evidence to be used in deciding a case
"under the rubric of `the judge's reasoning."
     Stephens has been witness to Judge Sabet practicing this sort of
“law” in the court room.
     In Judge Sabet’s biography, written in February 2006 she had
served on the county bench for 12 years, and prior to that served in
the San Bernardino County District Attorneys’ Office. From
    January 11,1999 through April 11, 2011 it is estimated that Judge
Sabet received approximately more than $300,000 in payments from San
Bernardino County.
     Judge Sabat has never disclosed any of these county payments to
those appearing before her. Stephens  is putting her on official
notice that she is reporting Judge Sabet to The Fair Political
Practices Commission for violating the Political Reform Act's
requirement that she disclose this County income on her Form 700, Her
actions were improper. There is a criminal doctrine of law that if you
receive money you are not entitled to, and you keep it -- that is
considered theft.
   We have Judge Sabet along with a group of members of the judiciary
that have effectively engaged in what is called a RICO scheme which is
a Racketeer Influenced Corrupt Practices Act scheme. And the basis of
the scheme is that you have the illegal payments. You have them taking
place time and time again. You have the judges obstructing justice.
That is a RICO scheme.
   The entire judiciary system in California is susceptible to this
scheme and the 38 million people of California are victims of this
    Ninety percent of the judges in California received illegal
payments and that goes all the way up to five out of the seven
California Supreme Court justices received those illegal payments. So
the system is rife with obstruction.
     When a judge is receiving payments from the county and one of
the parties appearing before him is represented by the county the
judge MUST disclose these payments to everybody in the courtroom.
     It became an extrinsic fraud when Judge Sabet did not disclose
the payments she received
 from the county and it prevented Stephens from getting due process
and a fair trial and that’s
extrinsic fraud and actually deprives the court of jurisdiction. And
when there is no jurisdiction
anything that Judge Sabet did in this case is void.
    Judge Sabet, and all judges has a responsibility under the Code
of Judicial Ethics Rule 3E, 3E 1 and 2. to disclose these payments.
The responsibility existed to not even accept the payments under the
Code of Judicial Ethics 4D 1. And the responsibility exists for the
judges to tell other judges about these illegal payments and that is
under the federal statute the misprision of felony, 18 U.S.C. Section
4 which makes it a federal crime for someone who knows of a crime
being committed to not tell a judge about such crime; that is a
federal crime.
    And state court judges are bound to follow federal law and that’s
under Article 6 Clause 2 of the United States Constitution.
   The United States – U.S. Attorney or Attorney General, Eric
Himpton Holder can prosecute

 these people;

    Judge Sabet ought to be in jail.


    The U.S. Supreme Court, which the Superior Court is bound to
follow, stated in U.S. v.

Throckmorton, 98 U.S. 61, 64 (1878):

                 “There is no question of the general doctrine that
fraud vitiates
                    the most solemn contracts, documents, and even judgments.”

       The Court continued at page 66:
                   “Fraud vitiates everything, and a judgment equally
with a contract . . .”
                   (citing Wells, Res Adjudicata, Section 499).

     The U.S. Supreme Court further stated in  Vallely v. Northern
Fire & Marine Ins. Co.,
      254 U.S. 348, 353-354 (1920):

                    “Courts are constituted by authority, and they
cannot [act] beyond the
                     power delegated to them.  If they act beyond
that authority, and
                     certainly in contravention of it, their
judgments and orders are
                     regarded as nullities.  They are not voidable,
but simply void, and this
                     even prior to reversal.”  Elliott v. Lessee of
Piersol, 26 U.S. (1 Pet.)
                     328, 340; Old Wayne Life Assn. v. McDonough, 204
U.S. 8, 27 S.Ct. 236

    The District of Columbia Court of Appeals, in Austin v. Smith,
312 F.2d 337, 343 (1962), in

    light of F.R.C.P. Rule 60(b)(5), held:
                    “…if the underlying judgment is void, the
judgment based upon it is also
                       void. “

                    “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].

      Judge Shaela S. Sabet no longer has immunity from a lawsuit against her.

      There is undeniable proof that Judge Sabet violated her
responsibility to give  due process and a fair trial to Stephens, and
in  making judgments she had no authority to make the judgments and
orders that caused Stephens a great deal of hurt and harm. Stephens
has standing to disqualify her, and to have all of her judgments
dismissed as void.
       This obstruction of justice must not be allowed to continue.
It has already destroyed
 the integrity of the California judicial system.  Unless it is
stopped now, it will destroy what little
 remains of the California judicial system.  A report from the
Administrative Office of the Courts
 shows that 90% of the judges receive County payments. Unlawfully
incarcerating people such as Stephens and others  has resulted in
arousing the anger of many. Calls for prosecution of the judges and
the supervisors have begun and will not stop until this problem is
resolved and the judicial system is reformed.
       It is time for the Superior Court to obey the law and void and
annul all the orders and

 judgments in the case and in all contempt proceeding.