IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIASECOND APPELLATE DISTRICT

DIVISION _____

Appellate Case No.: ____________

RICHARD I. FINE, Petitioner,

v.

SUPERIOR COURT FOR THE COUNTY OF LOS ANGELES,SHERIFF OF LOS ANGELES COUNTY LEROY D. BACA,

Respondents.______________________________

Marina Strand Colony II Homeowner’s Association v. County of Los Angeles,Real Parties in Interest

Los Angeles Superior Court Case No. BS109420Hon. David P. Yaffe, Judge

______________________________

VERIFIED PETITION FOR WRIT OF HABEAS CORPUS ANDMEMORANDUM OF POINTS AND AUTHORITIES

______________________________

Richard I. Fine, Prisoner No. 1824367c/o Los Angeles County Men’s Central Jail

441 Bauchet StreetLos Angeles, CA 90012Petitioner, In Pro Per

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TABLE OF CONTENTS

Verified Petition for Writ of Habeas Corpus

I. Parties……………………………………………………………….. 1II. Jurisdiction………………………………………………………….. 2III. Purpose of Petition and Factual Background……………………….. 2Prayer …………………………………………………………………… 23

Memorandum of Points and Authorities

I. Requested Relief ………………………………………………….. 24II. Factual and Legal Background……………………………………. 24

A. Fraud Upon the Court From the Outset of the Marina Strand Case ………………………………… 24

B. The Admission Of Fraud Upon the Court And ObstructionOf Justice In The July 13, 2010 Minute Order …………… 27

C. Due Process Was Violated by Judge Yaffe “Judging His Own Actions” and Receiving LA County Payments When It Was a Party Before Him…………………..………. 29

D. Judge Yaffe’s Refusal to Set Fine Free…………….………. 32

III. Argument …………………………………………………………. 33A. The Writ Must Be Granted Because Judge Yaffe

Judged His Own Actions ………………………………….. 33B. The Writ Must be Granted Because “Coercive Confinement”

Did Not Exist And The Incarceration Was Unlawful and Penal From the Outset ………………………………… 34

C. Under the Farr Case and U.S. Supreme Court Precedent, the Incarceration Became Penal Immediately …………….. 34

D. The Writ Must be Granted Because The Actions of Judge Yaffe Are a Sham ……………………… 36

Conclusion ……..……………………………………………………….. 38

Certification of Word Count ………………………………………………….. 42

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TABLE OF AUTHORITIESCases

Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813 (1986)………………………………31Austin v. Smith, 312 F.2d 337, 343 (1962)…………………………………….7, 25BreakZone Billiards v. City of Torrance, 81 Cal.App.4th 1205 (2000)…………..15Caperton v. A. T. Massey Coal Co., Inc., 556 U.S. ___ (2009)……………...passimElliott v. Lessee of Piersol, 26 U.S. (1 Pet.) 328……………………………….6, 25Farr, In Re, 36 Cal.App.3d 577, 589 (1974)…...…………………………………..8William T. Farr, In Re, on Habeas Corpus, 64 Cal.App.3d 605 (1976)……….8, 34Jackson v. Indiana, 406 U.S. 715 (1972)………………………………9, 10, 35, 41Levine v. United States, 362 U.S. 610, 80 S.Ct. 1038 (1960)………………...27, 30McNeil v. Director, Patuxent Institution, 407 U.S. 245 (1972)…………..10, 35, 41Murchison, In re, 349 U.S. 133 (1955)……..…..……………………………passimOffutt v. United States, 348 U.S. 11, 75 S.Ct. 11 (1954)……………………...27, 30Old Wayne Life Assn. v. McDonough, 204 U.S. 8, 27 S.Ct. 236 ……………..6, 25Sturgeon v. County of Los Angeles, et al., Case No. BC 351286 …………...passimTumey v. Ohio, 273 U.S. 510 (1927)………………………………….…..26, 31, 40U.S. v. Throckmorton, 98 U.S. 61 (1878)………………………………….6, 25, 39Vallely v. Northern Fire & Marine Ins. Co., 254 U.S. 348 (1920)……...…6, 25, 39Ward v. Village of Monroeville, 409 U.S. 57 (1972)……..……………………….31

Statutes

California Code of Criminal Procedure § 1219(a)………………………………..18California Code of Civil Procedure § 170.1………………………………….passimCalifornia Code of Civil Procedure § 1218……………………………………….19California Code of Civil Procedure § 6127……………………………………….18California Senate Bill SBx2-11 …………………………………………12, 13, 14

Rules

Federal Rules of Civil Procedure Rule 60(b)(5)……………………………………7

Constitutional Provisions

Article VI, Section 19, of the California Constitution………………………...11, 13

Treatises

Wells, Res Adjudicata, Section 499…………………………………………….6, 25

CanonsCode of Judicial Ethics, Canons 2, 3B, 3E and 4D(1)……………………….passim

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Verified Petition for Writ of Habeas Corpus

I. Parties

Petitioner Richard I. Fine, Prisoner No. 1824367 (hereinafter referred to as

“Fine”), has been incarcerated in the Los Angeles County Jail since March 4, 2009

under a sentence of “coercive confinement” ordered in a Judgment and Order of

Contempt (hereinafter sometimes referred to as the “Judgment”) dated March 4,

2009 by Los Angeles Superior Court Judge David P. Yaffe (hereinafter referred to

as “Judge Yaffe”) in the case of Marina Strand Colony II Homeowners Association

v. County of Los Angeles, et al, LASC case no. BS109420 (sometimes “the Marina

Strand case”).

Fine was counsel to Marina Strand Colony II Homeowners Association in

the Marina Strand case until October 17, 2007, when the State Bar ordered him

inactive. The California Supreme Court did not affirm the order and did not order

Fine inactive. Subsequently, the State Bar recommended Fine’s disbarment and

the California Supreme Court denied review.

Fine filed a Federal civil rights lawsuit against the State Bar, the State Bar

Board of Governors and the State Bar Chief Trial Counsel based upon their

violations of his constitutional rights and fraud upon the court. The case (US DC

case no. 10-CV-0048) is presently pending in the U.S. District Court, Central

District of California.

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Fine’s incarceration was a direct result of his challenging Judge Yaffe’s

presiding over a case in which LA County was a party before him while he was

taking payments from LA County.

Respondent Superior Court for the County of Los Angeles (hereinafter the

“LA Superior Court”) is the court where Judge Yaffe sits.

Respondent LA County Sheriff Leroy D. Baca (hereinafter “Baca”) has

custody of Fine.

Real Parties in Interest are the parties in the Marina Strand case.

II. Jurisdiction

The Court has jurisdiction under both the California Constitution and the

U.S. Constitution to hear petitions for writs of habeas corpus.

III. Purpose of Petition and Factual Background

This Petition seeks an immediate writ of habeas corpus releasing Fine from

the “coercive confinement” in the LA County Jail, where he has been held for over

eighteen (18) months, since March 4, 2009.

Fine had filed all of his writs through the U.S. Supreme Court, and had filed

his Petition for Rehearing in the U.S. Supreme Court when Judge Yaffe issued a

July 13, 2010 Minute Order admitting to “fraud upon the court” and obstruction of

justice in both the Marina Strand case and the Federal court proceedings.

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The July 13, 2010 Minute Order stated that a March 18, 2008 Order was

nonexistent, and that Judge Yaffe never intended to decide whether Fine had

standing to disqualify him, Judge Yaffe, in the Marina Strand case. These

statements showed Judge Yaffe’s fraud upon the court and obstruction of justice,

as did his reliance upon the nonexistent March 18, 2008 Order in his March 27,

2008 Order Striking Notice of Disqualification, and as basis for not removing

himself from the Marina Strand case after he was automatically disqualified by not

having responded to Fine’s March 25, 2008 CCP Section 170.3 Verified Statement

of Disqualification.

The July 13, 2007 Minute Order stated, in relevant part:

“It has been brought to the Court’s attention that its Order Striking Notice of Disqualification dated and filed March 27, 2008, refers to an earlier March 18, 2008 draft order that was not filed . . . .”

“The Court did not intend to make any finding as to whether Mr. Fine had standing to file a Verified Statement of Disqualification pursuant to Code of Civil Procedure Section 170.3.”

A true and correct copy of the July 13, 2007 Minute Order marked as Exhibit “1”

is attached hereto and incorporated herein as if set forth in full.

Judge Yaffe had relied upon the March 18, 2008 Order to Strike Fine’s

February 19, 2008 Motion to Disqualify all LA Superior Court judges who had

received money from LA County in the Marina Strand case.

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The Declaration of Richard I. Fine in Support of the Motion to Disqualify

stated, at paragraphs 12 and 13:

12. In the instant case Los Angeles County is a party. The Court [Judge Yaffe] has not disclosed if it is presently receiving money from LA County.

13. In the case of Sturgeon v. County of Los Angeles, et al., Case No. BC 351286, in which plaintiff brought suit to enjoin LA County from making payments to LA Superior Court judges, the case was transferred out of the jurisdiction of the LA Court.

The July 13, 2010 Minute Order showed that Judge Yaffe knew at all times

that he could not strike the February 19, 2008 Motion as a CCP Section 170.3

Verified Statement of Disqualification as to him because he had not disclosed any

LA County payments to him, nor had LA County disclosed such. He also knew

that precedent existed to disqualify all LA Superior Court judges who were

receiving such payments.

In the July 13, 2010 Minute Order, Judge Yaffe stated that he struck the

February 19, 2008 Motion in a March 20, 2008 Minute Order. However, such

Minute Order was never served on anyone. The Notice of Ruling of the March 20,

2008 hearing, served by Joshua L. Rosen, counsel for Del Rey Shores Joint

Venture and Del Rey Shores Joint Venture North, Real Parties in Interest in the

Marina Strand case (hereinafter collectively referred to as “Del Rey Shores”) did

not refer to a March 20, 2008 Minute Order, nor was such attached. It stated that

4

Judge Yaffe struck the February 19, 2008 Motion as a CCP Section 170.3 Verified

Statement of Disqualification.

On March 25, 2008, Fine filed a Notice of Disqualification of Judge Yaffe.

This Notice stated that such striking was illegal as it would have had to have been

done within ten (10) days of February 19, 2008 if Judge Yaffe considered the

February.19, 2008 Motion to be personal to him. But Judge Yaffe’s only response

was the March 27, 2008 Order, which referred to the nonexistent March 18, 2008

Order. And the March 27, 2008 Order was never served on any person and did not

have a certificate of service.

At the March 20, 2008 hearing, which was the first hearing in the Marina

Strand case that Fine attended, Judge Yaffe, for the first time, admitted to

receiving payments from LA County.

As stated above, Fine then filed a CCP Section 170.3 Verified Statement of

Disqualification, to which Judge Yaffe did not respond. His failure to respond

resulted in his automatic disqualification ten (10) days later under CCP Section

170.3(c)(4). Judge Yaffe was given a copy of the Notice of Disqualification at the

April 10, 2008 hearing. The Notice of Disqualification was filed by the Clerk on

April 11, 2008.

The new July 13, 2010 Minute Order, when viewed in context within the

series of events from the start of the Marina Strand case on June 14, 2007, and the

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failure of LA County and Judge Yaffe to disclose the LA County payments at the

outset of the case, through the concealment of the payments and the false April 18,

2008 Order, its concealment until July 13, 2010, and the circumstances under

which it was written (over two years after the fact, and then only when compelled

to respond to the exceedingly strong evidence against him submitted in Fine’s

Federal case (USDC case no. 09-CV-01914), showed fraud upon the court and

obstruction of justice by LA County, its attorneys, and Judge Yaffe.

The U.S. Supreme Court 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 98 U.S. at 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.

6

Austin v. Smith, 312 F.2d 337, 343 (1962), looking at F.R.C.P. Rule 60(b)

(5), holds:

“… if the underlying judgment is void, the judgment based upon it is also void.”

The concealment of the LA County payments to Judge Yaffe also was a

violation of due process. The U.S. Supreme Court stated in the case of Caperton v.

A. T. Massey Coal Co., Inc., 556 U.S. ___ (2009), at Slip Opinion page 7, citing

Tumey v. Ohio, 273 U.S. 510, 532 (1927):

“Every procedure which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the State and the accused, denies the latter due process of law.”

The Supreme Court continued at Slip Opinion page 16 in relevant part:

“Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when—without the consent of the other parties—a man chooses the judge in his own cause.”

The LA County payments to Judge Yaffe, the concealment thereof, the false

March 18, 2008 Order, the concealment thereof, and the actions of Judge Yaffe

consisting of fraud upon the court and obstruction of justice as finally admitted in

the July 13, 2010 Minute Order showed the Caperton statement to be true.

The “coercive confinement” was ordered by Judge Yaffe to occur while Fine

was in the process of seeking writs of habeas corpus to overturn Judge Yaffe’s

March 4, 2009 Judgment and Order of Contempt on the underlying issue of

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whether Judge Yaffe should have recused himself from the underlying Marina

Strand case, for having accepted payments from LA County, a party to the case.

Neither LA County nor he had disclosed such. Judge Yaffe subsequently made

orders in favor of LA County and Del Rey Shores, the County’s co-applicant for an

Environmental Impact Report (“EIR”).

The writs also included the issue of whether Judge Yaffe should have

recused himself from the ancillary contempt proceeding in which “he judged his

own actions.”

The “coercive confinement” was only ordered to “coerce” Fine to answer

questions about his assets. It was established from the outset that “there was no

substantial likelihood that such contempt order would serve its coercive purpose

[and] the commitment would become punitive in nature and subject to the statutory

limitation.” See In Re Farr, 36 Cal.App.3d 577, 589 (1974), cited in In Re William

T. Farr on Habeas Corpus, 64 Cal.App.3d 605, 611-612 (1976). Justice William

O. Douglas had issued a stay of execution of sentence while the writ of habeas

corpus was proceeding. In Re William T. Farr, 64 Cal.App.3d at 611.

On June 18, 2010, Judge Yaffe issued a Minute Order in which he admitted

that Fine had informed him that Fine was not going to answer any questions. Such

Minute Order was not served until July 13, 2010. A true and correct copy of such

8

Minute Order, marked as Exhibit “2”, is attached hereto and incorporated herein as

if set forth in full.

In such June 18, 2010 Minute Order, Judge Yaffe admitted that Fine had

filed a May 17, 2010 Motion for a “Farr Hearing,” which Judge Yaffe refused to

hold. The Motion was actually filed on May 21, 2010. A true and correct copy of

the Motion, marked as Exhibit “3”, is attached hereto and incorporated herein as if

set forth in full.

In the June 18, 2010 Minute Order, Judge Yaffe requested other parties in

the case to provide information about Fine’s assets and serve Fine by personal

service or by fax. This did not occur. Del Rey Shores was the only party who

responded. It did not serve Fine by personal service nor by fax. Fine filed a

Declaration Showing No Service, and further informed Judge Yaffe that Fine

would not be answering any questions due to Judge Yaffe’s admission of fraud

upon the court and obstruction of justice. A true and correct copy of Fine’s

Declaration, filed August 20, 2010, is attached hereto marked as Exhibit “4” and

incorporated herein as if set forth in full.

On August 23, 2010, Judge Yaffe filed a Minute Order in which he refused

to set Fine free. He did not give any legal reason for such decision. A true and

correct copy of such Minute Order is attached hereto as Exhibit “5” and

incorporated herein as if set forth in full.

9

Such decision violated the U.S. Supreme Court decisions of Jackson v.

Indiana, 406 U.S. 715 (1972) and McNeil v. Director, Patuxent Institution, 407

U.S. 245 (1972). These decisions hold that confinement beyond the time that bears

a reasonable relationship to the purpose for which the person is committed is a

denial of due process. A reasonable relationship was interpreted in the Jackson

and McNeil cases to mean “penal” confinement. In California, “penal”

confinement for contempt of court is five (5) days under CCP Section 1218.

Fine has been incarcerated for over eighteen (18) months.

At all times, Judge Yaffe knew that the March 4, 2009 Judgment and Order

of Contempt and sentence of “coercive confinement” were an unlawful

imprisonment and a penal imprisonment, as shown in the Demand to Free Fine and

other relief filed January 27, 2010. Judge Yaffe’s sole excuse for not recusing

himself at the outset of the Marina Strand case was “Mr. Fine knew that all judges

of this court received compensation from the County of Los Angeles on June 14,

2007, when he filed the underlying case BS190420 on behalf of the petitioner

Marina Strand Colony II Homeowners Association.” (Judgment and Order of

Contempt, page 13, lines 18-21.)

10

The judgment ignored: (1) the fact that LA County, its attorneys and Judge

Yaffe concealed the payments until March.20, 2008, when Judge Yaffe admitted to

them under questioning by Fine in court; and (2) that Judge Yaffe should have

disqualified himself under CCP § 170.1(a)(6)(A)(iii) - “a judge shall be

disqualified … for any reason a person aware of the facts might reasonably

entertain a doubt that the judge would be able to remain impartial”; and (3) that

under the Code of Judicial Ethics, Canons 2, 3B, 3E and 4D(1), Judge Yaffe was

required to “avoid impropriety and the appearance of impropriety in all of the

judge’s activities” (Canon 2), to “dispose of matters fairly and in accordance with

the law” (Canon 3B(7) and (8)), “to disqualify himself in any proceeding in which

disqualification is required by law” (Canon 3E(1)), “to disclose on the record

information that is reasonably relevant to the question of disqualification under

Code of Civil Procedure § 170.1, even if the judge believes that there is no actual

basis for disqualification” (Canon 3E(2)), and “to not engage in financial and

business 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 lawyers or other persons likely to appear before the

court on which he serves.” (Canon 4D (1)(a) and (b)).

On March 4, 2009, Judge Yaffe knew that he had violated CCP Section

170.1(a)(6)(A)(iii) and Code of Judicial Ethics Canons 2, 3B, 3E, and 4D(1) and

11

should have recused himself in the underlying Marina Strand case from the outset,

and from the ancillary contempt proceedings, based upon his taking payments from

LA County, a party to the case.

Judge Yaffe also knew that the LA County payments 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. Judge

Yaffe further knew that such payments were criminal in that Senate Bill SBx2-11,

enacted February 20, 2009 in response to the Sturgeon decision, gave retroactive

immunity effective May.21, 2009 from criminal prosecution, civil liability and

disciplinary action to governmental entities and officers and employees of

governmental entities as follows:

“[N]ot withstanding any other law, no governmental entity, or officer or employee of a governmental entity, shall incur any liability or be subject to any prosecution or disciplinary action because of benefits provided to a judge under the official action of a governmental entity prior to the effective date of this act on the grounds that those benefits were not authorized under the law.”

Senate Bill SBx2-11 further stated, in relevant part, that:

“Judges of a court whose judges received supplemental judicial benefits provided by the County or the Court or both, as of July 1, 2008 shall continue to receive supplemental benefits from the County or Court then paying the benefits on the same terms and conditions as were in effect on that date.”

….

“Nothing in this act will require the Judicial Council to increase funding to a court for the purpose of paying judicial benefits or

12

obligate the state or the Judicial Council to pay for the benefits previously provided by the County, City and County, or the Court.”

Senate Bill SBx2-11 had a 180-day termination provision for counties to

notify the Administrative Office of the Courts and the impacted judges if the

benefits were terminated during their “current term while the judge continued to

serve as a judge in that court or, at the election of the county when that judge

leaves office.”

This provision would not be applicable to LA County as LA County funded

the judge’s payments as part of the annual budget process. Thus the “terms and

conditions as were in effect on that date [July 1, 2008]” would have expired by

July 1, 2009. The payments were voluntary by LA County and Senate Bill SBx2-

11, by its language, did not, and could not, create a compulsory obligation upon

County taxpayers to pay compensation to non-County, state-employed judges.

Such an act would be misappropriation of funds, an obstruction of justice

and a bribe. Even the voluntary payment consists of such criminal acts. That is

the reason for the retroactive immunity linked to the effective date of Senate Bill

SBx2-11 (5/21/09) linked to payments existing on July 1, 2008, which was the last

annual budget for counties prior to the Sturgeon decision. The “continuation” of

the payments by Senate Bill SBx2-11 violates Article VI, Section 19, of the

California Constitution because the Legislature is not “prescribing compensation

for the judges”, it is only extending immunity to an unconstitutional and criminal

13

county payment scheme until the end of the current county fiscal term. By its

terms, Senate Bill SBx2-11 prohibits the state from making the payments.

The Sturgeon decision held, in the last four paragraphs, that the 1997

Lockyer-Insenberg Trial Court Funding Act did not “prescribe” county payments

to the judges as the county payments were voluntary and the counties could pay

benefits to some people and not others. Senate Bill SBx2-11, by linking the

“continued” payments to the old July 1, 2008 payments, suffers the same

deficiency. The County is not required to make the payments if it was not required

to make the payments in 2008.

The LA County budget for FY 2009-2010 shows that the payments are

based upon Lockyer-Insenberg in the “Trial Court Operation” section of the

budget. This alone shows the current payments to be illegal.

The issue of the continued payments is presently being litigated in the Court

of Appeal in Sturgeon.

Further, under the California State Constitution, the Legislature cannot

authorize the payments by the counties for work already performed. Thus, even if

the judges were county employees, or contractors, Senate Bill SBx2-11 would be

unconstitutional as to authorizing compensation as of July1, 2008.

The Reporter’s Transcript of the March 4, 2009 hearing shows that Judge

Yaffe was aware of the Sturgeon case and Senate Bill SBx2-11, and knew of both

14

the unconstitutionality and criminality of the LA County payments to him. (See

Reporter’s Transcript, March 4, 2009, page 7, line 10, to page 8, line 4, and page

16, line 18, to page 15, line 3.)

During the contempt proceeding, Judge Yaffe testified on December 22,

2008 that: (1) he received the LA County payments; (2) he did not disclose such on

his Form 700 Statement of Economic Interests; (3) he did not have an employment

contract or arrangement for providing services to LA County; (4) he did not put the

LA County payments into his campaign fund; and (5) could not remember any case

that he decided against LA County in the last three years. Judge Yaffe also acted

as the judge in the contempt proceeding, “judging his own actions.” (See In Re

Murchison, 349 U.S. 133, 136 (1955).)

During the contempt proceeding, LA County Counsel Annual Litigation

Cost Management Reports for the fiscal years 2005-2006 and 2006-2007 showed

that no one won a case against LA County when the case was decided by a LA

Superior Court judge. The fiscal year 2008-2009 Annual Report shows one case

decided against LA County by a LA Superior Court judge.

It was also shown during the contempt proceeding that the LA County Board

of Supervisors’ March 15, 2007 vote approving the EIR by a 4-0 vote was illegal

because people related to the Epstein Family Trust (who were the local managing

partner of Del Rey Shores) had contributed over $500 to LA Supervisors

15

Antonovich and Knabe within twelve months of the vote. This action made their

votes illegal under The Political Reform Act and the case of BreakZone Billiards v.

City of Torrance, 81 Cal.App.4th 1205 (2000). The failure to disclose this by LA

County, its attorneys, Del Rey Shores and its attorneys at the outset of the Marina

Strand case was a fraud upon the court.

Further, it was shown during the contempt proceeding that the Del Rey

Shores development project did not confer a financial benefit to LA County, which

was a requirement under the EIR. Given this knowledge, Judge Yaffe still did not

grant the writ and strike the EIR. The failure to do such further showed that the

LA County payments to LA Superior Court judges, in particular Judge Yaffe, were

bribes.

Against this background, Judge Yaffe knew on March 4, 2009, before he

sentenced Fine to “coercive confinement,” that such sentence was “unlawful

imprisonment” and was only being made to coerce Fine to drop his petitions for

writs of habeas corpus, which Fine was not going to abandon. Fine told Judge

Yaffe that he would answer the questions if he lost all the petitions and appeals.

Thus, there was no reason for the “coercive confinement” during the writ process

other than to coerce Fine to abandon the writs. Fine stated, at Reporter’s

Transcript, March 4, 2009, page 10, lines 5-17, as follows:

Mr. Fine: “Okay. So basically, going back to where we are at such time as to my rights of appeal through a writ of habeas corpus is

16

exhausted and I lose, then I would answer the questions. Until such time that those rights are not exhausted, I am not answering questions. So we’re in an interim procedure here, Your Honor, and if you want to try to throw me in jail during the interim procedure, you may be doing another illegal act. You know, that is your position. You’ve already done illegal acts. If you want to continue down that road, that is a position that obviously you have taken before and may wish to continue taking, but higher courts may come down on you.”

Fine summarized the position at Reporter’s Transcript, March 4, 2009, page

23, line 3, in relevant part:

“… [W]e are now dealing with the law of the State of California, which said that the acts that you have done are illegal. They gave you immunity for it. You cannot be prosecuted criminally in the State of California for your acts. You … cannot be held civilly liable in the State of California for your acts. You cannot be punished by the Commission on Judicial Performance in the State of California for your acts.”

“On the other hand, in the Federal system it’s another story. There, under 18 United States Code Section 1346, you can be held liable for the violations of the implied or intangible right to honest services. You are still subject to Federal criminal prosecution and are still subject to Federal liability.”

…

“I respectfully suggest to you that if you’re thinking of any type of a sentence and - - which you are indicating here, I suggest that you may want to delay the actual serving of that sentence until such time as we end up finishing off all of the writs because of the fact that what does happen is that even though you may have immunities under State laws, you don’t have immunities under Federal law for any type of false imprisonment or anything else on this particular order…”

17

Knowing that Fine would not answer questions about his assets until the full

writ procedure was finished, Judge Yaffe still incarcerated Fine in the LA County

Jail on March 4, 2009.

Subsequent thereto, during the writ procedure, the LA Superior Court and

Judge Yaffe did not oppose Fine’s Petition for Writ of Habeas Corpus in the U.S.

District Court, did not oppose two Motions to set Fine free and a Motion for

Reconsideration, a Motion to Grant the Writ Based Upon the Opening Brief and a

Writ of Mandate to Order a Writ of Habeas Corpus to Set Fine Free in the Ninth

Circuit.

The LA Superior Court and Judge David P. Yaffe’s Answering Brief, filed

in the Ninth Circuit in the habeas corpus action, stated at page 3, line 15, to page 4,

line 1, “the [contempt] proceedings culminated in a finding of both civil and

criminal contempt. Coercive civil confinement pursuant to California Code of

Criminal Procedure, Section 1219(a) was imposed.” At Footnote 4, the brief stated

that the basis of the finding of civil contempt was “Fine’s failure to answer

questions and produce documents at the judgment debtor hearing. . . .” The

March.4, 2009 Judgment and Order of Contempt did not have any criminal charge

in it. It did contain CCP § 6127, which is civil, to which Judge Yaffe stated at

Reporter’s Transcript, March 4, 2009, page 9, lines 20-26, that no court order was

violated on the charge of practicing law without a license. A criminal charge under

18

CCP § 6126 was in the Order to Show Cause re Contempt, but such charge was not

in the Judgment.

The result is that the “criminal contempt” could only relate to the

incarceration of Fine as being “penal,” and recognized as such by the LA Superior

Court and Judge Yaffe. Their Answering Brief stated at page 15, lines 16-18:

“no criminal contempt was imposed against Fine for unlawfully practicing law or for holding himself out as entitled to practice law, and accordingly, that issue is not pertinent to the issue certified for appeal.”

This statement conclusively demonstrated that the incarceration was penal.

Under CCP § 1218, penal incarceration is limited to five (5) days.

Fine should have been released on March 9, 2009.

On January 27, 2010, Fine filed a Demand for Release. The Clerk in

Department 86, Judge Yaffe’s courtroom at the LA Superior Court, gave the

personal/courtesy copy for Judge Yaffe back to Fine’s filing assistant, Fred Sottile,

stating that she only needed one document and refused to keep a copy for Judge

Yaffe after it had been given to her for him. (See Declaration of John Fred Sottile,

attached hereto, marked as Exhibit “6” and incorporated herein as if set forth in

full.)

On February 3, 2010, Judge Yaffe filed a Response to the Demand. (See

Demand and Response, attached hereto, collectively marked as Exhibit “7” and

incorporated herein as if set forth in full).

19

In essence, the Response struck that part of the Demand referring to Fine’s

Declaration as repetitive, arguing that Judge Yaffe had not been served and that no

proof existed that the “coercive confinement” of nearly twelve months was penal

from the outset, was not working, that there was no substantive likelihood that the

contempt order would serve its coercive purpose, and that the commitment had not

become penal in nature and subject to the statutory limitations.

All of these latter arguments were based upon the premise that the writ

proceedings were still proceeding. No explanation was given to link this premise

to the conclusion that no proof was given to substantiate the Demand.

The Response did not address the fact that Judge Yaffe was deciding his

own actions in violation of due process as set forth in In Re Murchison, 349 U.S.

133, 136 (1955), cited in Caperton v. A.T. Massey Coal Co. Inc., et al., 556 U.S.

__, (2009), decided June 8, 2009, Slip Opinion page 10.

On March 24, 2010, Fine filed a Declaration to be Set Free. A true and

correct copy, marked as Exhibit “8”, is attached hereto and incorporated herein as

if set forth in full.

As shown above, this was followed by the May 21, 2010 Motion for a Farr

Hearing, the June 18, 2010 Minute Order (served on July 13, 2010), the July 13,

2010 Minute Order, the August 20, 2010 Declaration, and the August 23, 2010

Minute Order.

20

In summary, LA County and its attorneys and Judge Yaffe committed fraud

upon the court at the outset of the Marina Strand case on June 14, 2007 by not

disclosing the LA County payments to Judge Yaffe.

Judge Yaffe violated CCP Section 170.1(a)(6)(A)(iii) at the outset of the

Marina Strand case on June 14, 2007 by not disqualifying himself. He also

violated Code of Judicial Ethics Canon 4D(1) – by taking money from LA County;

Canon 3E(2) – by not disclosing such on the record; and Canon 3E(1) – by not

disqualifying himself.

LA County, its attorneys, Del Rey Shores and its attorneys committed fraud

upon the court at the outset of the Marina Strand case on June 14, 2007 by not

disclosing that the LA Supervisors’ vote on the EIR was illegal and that the EIR

was not certified.

Judge Yaffe violated due process by presiding over a case in which he had

received illegal payments/bribes from a party appearing before him without the

consent of the other parties and by judging his own actions, amongst other things.

Judge Yaffe violated due process by incarcerating Fine while knowing that

the incarceration did not have any reasonable relationship to the purpose for which

Fine was committed from the outset on March 4, 2009, while the writ process was

proceeding, and further after July 13, 2010 when Judge Yaffe admitted to fraud

21

upon the court and obstruction of justice. At all times, Judge Yaffe knew the

incarceration was “penal.”

Fine filed a Complaint against Judge Yaffe with the Commission on Judicial

Performance. Subsequent thereto, Judge Yaffe issued the July 13, 2010 Minute

Order in which he admitted to having committed fraud upon the court and

obstruction of justice.

Judge Yaffe further announced his resignation from office effective

November 2, 2010, with his last day on the bench to be October 2, 2010.

Fine filed a “Notice That All Orders and Judgments in the Marina Strand

Case are Void Based Upon Judge Yaffe’s Admission of “Fraud Upon the Court”

and Obstruction of Justice in the July 13, 2010 Minute Order of the Court,” on

August 4, 2010.

On September 3, 2010, Fine filed complaints with the U.S. Attorney

General, the U.S. Attorney for the Central District of California, the California

Attorney General and the District Attorney for LA County seeking a grand jury

investigation and indictments of Judge Yaffe and others for obstruction of justice,

violations of the intangible right to honest services – 18 U.S.C. Section 1346 – and

other federal and state crimes related to the payment of money from counties,

particularly LA County, to state and federal judges presiding over cases in which

they are a party or in which they have an interest, amongst other violations.

22

Prayer

Wherefore Petitioner prays

1. The Court grant habeas corpus relief forthwith or, in the alternative, order

Respondents to show cause why habeas corpus relief should not be granted;

2. For attorney’s fees and costs of suit herein, and

3. For such other relief as the Court deems fair and just.

Dated: September 9, 2010 Respectfully submitted,

By: __________________Richard I. Fine,In Pro Per

Verification

I, Richard I. Fine, state: I am the Petitioner herein. I have read the

aforementioned Verified Petition for Writ of Habeas Corpus and know the contents

thereof to be true to my own knowledge except those statements made on

information and belief. I declare under penalty of perjury under the laws of the

State of California that the foregoing is true and correct.

Executed September 9, 2010 at Los Angeles, California.

_____________________________Richard I. Fine

23

Memorandum of Points and Authorities

I. Requested Relief

Petitioner (hereinafter “Fine”) requests that this Court issue a writ of habeas

corpus freeing him from the LA County Jail, where he is being incarcerated under

a sentence of “coercive confinement” pursuant to a Judgment and Order of

Contempt (the “Judgment”) since March 4, 2009, including an order voiding and

annulling all orders and judgments in the case of Marina Strand Colony II

Homeowners Association v. County of Los Angeles, LASC case no. BS109420

(the “Marina Strand case”) and the contempt proceeding.

II. Factual and Legal Background

A. Fraud Upon the Court From the Outset of the Marina Strand Case

As shown in the Verified Petition, from the outset of the Marina Strand case

in June 14, 2007: (1) LA County, its attorneys and Judge Yaffe committed fraud

upon the court by not disclosing the LA County payments to Judge Yaffe; (2)

Judge Yaffe violated: (a) CCP Section 170.1(a)(6)(A)(iii) – by not disqualifying

himself; (b) Code of Judicial Ethics Canon 4D(1) – by taking money from LA

County; (c) Canon 3E(2) by not disclosing such on the record; (d) Canon 3E(1) by

not disqualifying himself; and (e) LA County, its attorneys, real parties in interest –

Del Rey Shores Joint Venture and Del Rey Shores Joint Ventures North (“Del Rey

Shores”) and its attorneys committed fraud upon the court by not disclosing that

24

the LA County Board of Supervisors’ vote approving the co-application of LA

County and Del Rey Shores for an Environmental Impact Report (EIR) was illegal

and the LA County certification was illegal.

Fraud upon the court vitiates the entire Marina Strand case. All orders and

judgments of Judge Yaffe are regarded as nullities and are void. (See U.S. v.

Throckmorton, 98 U.S. 61, 64, 66 (1878); Vallely v. Northern Fire and Marine Ins.

Co., 254 U.S. 348, 353-354 (1920); Austin v. Smith, 312 F.2d 337, 343 (1962) – “if

the underlying judgment is void, the judgment based upon it is void.”).

The U.S. Supreme Court stated in U.S. v. Throckmorton at 98 U.S. at 64:

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

The Court continued at 98 U.S. at 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:

“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.”

25

This concealment also denied due process to Fine. The U.S. Supreme Court

stated in Caperton v. A. T. Massey Coal Co., Inc., 556 U.S. ___ (2009), Slip

Opinion page 7, citing to Tumey v. Ohio, 273 U.S. 510, 532 (1927):

“Every procedure which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the State and the accused, denies the latter due process of law.”

The Supreme Court further stated in Caperton at Slip Opinion page 16 in

relevant part:

“Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when—without the consent of the other parties—a man chooses the judge in his own cause.”

LA County, its attorneys and Judge Yaffe committed “fraud upon the court”

and obstruction of justice by not disclosing the LA County payments to Judge

Yaffe from the outset of the Marina Strand case until March 20, 2008 when Judge

Yaffe admitted to such under questioning by Fine at the March 20, 2008 hearing.

This was the first hearing at which Fine appeared.

The LA County payments to Judge Yaffe amounted to approximately

$500,00.00 from 1987, when Judge Yaffe became a LA Superior Court judge,

through the present. On December 22, 2008, Judge Yaffe testified in the contempt

proceeding that he could not remember a case in the last three years that he decided

against LA County. This indicated that the LA County payments were bribes.

26

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.

B. The Admission of Fraud Upon the Court and Obstruction of Justice in the July 13, 2010 Minute Order

On July 13, 2010, three years and one month after the June 14, 2007 filing of

the Marina Stand case, Judge Yaffe admitted in a Minute Order:

“It has been brought to the Court’s attention that its Order striking Notice of Disqualification dated and filed March 27, 2008, refers to an earlier March 18, 2008 draft order that was not filed . . . .”

“The Court did not intend to make any finding as to whether Mr. Fine had standing to file a Verified Statement of Disqualification pursuant to Code of Civil Procedure Section 170.3.”

On June 14, 2010, Judge Yaffe, LA County, its attorneys, Del Rey Shores

and its attorneys committed fraud upon the court by not disclosing the LA County

payments to Judge Yaffe and the illegality of the LA Supervisors’ vote for the EIR

and the illegal LA County EIR certification, at the outset of the Marina Strand case

on June 14, 2007.

Nine months later, on March 18, 2008, Judge Yaffe purportedly “strikes”

Fine’s February 19, 2008 Motion to Disqualify all LA Superior Court judges

receiving money from LA County on the grounds that Fine did not have standing

27

to file a Verified Statement of Disqualification pursuant to Code of Civil Procedure

Section 170.3, amongst other reasons.

Two and one quarter years later, Judge Yaffe admits on July 13, 2010 that

the March 18, 2010 Order did not exist. It was a “draft order that was not filed.”

From March 18, 2008 to July 13, 2010, Judge Yaffe: (1) refused to leave the

Marina Strand case after he was disqualified when he did not respond to Fine’s

March 25, 2008 CCP Section 170.3 Verified Statement of Disqualification; (2)

entered an illegal judgment on April 15, 2008 ordering Fine to pay attorney’s fees

to Del Rey Shores; (3) entered an illegal Order to Show Cause Re Contempt

against Fine on November 3, 2008; (4) illegally presided over a contempt

proceeding against Fine which commenced on December 22, 2008; (5) entered an

illegal Judgment and Order of Contempt against Fine on March 4, 2009 ordering

Fine to be incarcerated in “coercive confinement” in the LA County jail until Fine

answered questions about his assets; (6) refused to provide Fine a “Farr Hearing”

to release Fine from jail; and (7) committed fraud and obstruction of justice upon

the LA Superior Court, the U.S. District Court, the Ninth Circuit, and the U.S.

Supreme Court by concealing and refusing to disclose the fact the March 18, 2008

Order did not exist, and that he and LA County and its attorneys had concealed the

LA County payments to him at the outset of the Marina Strand case.

28

C. Due Process Was Violated by Judge Yaffe “Judging His Own Actions” and Receiving LA County Payments When It Was a Party Before Him

As shown in the Verified Petition, the underlying issue in the case was

whether the criminal payments from LA County to the LA Superior Court judges

mandated the recusal of the judge under due process when LA County was a party

before the judge.

An element of the issue was whether a judge who had taken such payments

could judge his own actions in a contempt proceeding.

U.S. Supreme Court cases have held that the answers to both questions were

that a violation of due process occurred.

In In Re Murchison, 349 U.S. 133, 136 (1955), cited in Caperton, supra, Slip

Opinion page 10, the Court recited the general rule that “no man can be a judge in

his own case,” adding that “no man is permitted to try cases where he has an

interest in the outcome.”

Under Murchison, supra, it was a denial of due process for Judge Yaffe to

preside over the contempt proceedings in the Marina Strand case. In the contempt

proceeding, Judge Yaffe was deciding his own actions of taking payments from

LA County, not recusing himself and making orders in favor of LA County and its

co-applicant for an EIR, Del Rey Shores.

29

In the underlying Marina Strand case, it was a violation of due process for

Judge Yaffe to preside over the case because the LA County payments were

illegal, criminal and, particularly, “bribes.” The LA County payments were held to

be a violation of Article VI, Section 19, of the California Constitution in Sturgeon

v. County of Los Angeles, 167 Cal.App.4th 630 (2008) rev. denied (12/23/08).

Subsequently, Senate Bill SBx2-11, enacted February 20, 2009, effective May 21,

2009, acknowledged county payments to judges to be criminal by giving them

immunity from criminal prosecution, civil liability and disciplinary action

“because of benefits provided to a judge under the official action of a

governmental entity on the grounds that those benefits were not authorized by

law.” The crimes included misappropriation of funds, obstruction of justice and

bribery. The retroactive immunity did not extend to the obstruction of justice of

presiding over a case in which a County had made a payment to the judge. It was

limited on its face to the making and receiving of payments.

The receipt of criminal payments from a party is a violation of due process.

Again, 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.

30

The amount of payment to Judge Yaffe, which was $46,366.00 per year,

which was approximately 27% of Judge Yaffe’s $178,800.00 annual state salary

(and totals some $500,000.00 to date), had a “significant and disproportional

influence” “coupled with the temporal relationship” between the time of the

payments and the Marina Strand case, which was concurrent, to “offer a possible

temptation to the average … judge to … lead him not to hold the balance nice,

clear and true.” Caperton, supra, Slip Opinion page 16, citing to Aetna Life Ins.

Co. v. Lavoie, 475 U.S. 813, 825 (1986), quoting Ward v. Village of Monroeville,

409 U.S. 57, 60 (1972), in turn quoting Tumey v. Ohio, 273 U.S. 510, 532 (1927).

Further, the Court in Caperton stated at Slip Opinion page 16:

“Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when—without the consent of the other parties—a man chooses the judge in his own cause.”

This occurred in the Marina Strand case and all other cases where LA

County paid the LA Superior Court Judges.

In the Marina Strand case and the contempt proceeding, Judge Yaffe

rejected all of the Supreme Court precedents which mandated his recusal. Judge

Yaffe argued that Fine should have disqualified him at the outset of the Marina

Strand case, instead of nine months later. He avoided to state that he and LA

County and its attorneys had concealed the fact that Judge Yaffe was receiving

payments from LA County before the case began and during those nine months.

31

Additionally, Fine left as counsel after four months while Judge Yaffe still

concealed the payments. However, even after Fine disqualified him on March 25,

2008, Judge Yaffe still refused to leave the case and judged his own actions in the

subsequent contempt proceeding.

After violating due process in the contempt proceeding, Judge Yaffe ordered

Fine to be incarcerated while the writ process proceeded on the issue of whether

Judge Yaffe should have recused himself.

D. Judge Yaffe’s Refusal to Set Fine Free

Faced with a Motion that Fine be set free on the grounds that the

incarceration was not “coercive” but “punitive” from the outset, Judge Yaffe again

judged his own actions, in violation of Murchison, supra, and denied due process.

Additionally, he was precluded from deciding the Motion because he was a

witness to the facts and thus was disqualified from deciding the Motion under CCP

§ 170.1. Yet, on August 23, 2010, Judge Yaffe refused to set Fine free, without

having set the Motion or having had a “Farr Hearing.”

As shown in the Petition, Judge Yaffe knew that the incarceration would not

“coerce” Fine to answer questions about his assets, as Fine was determined to

complete the writ process on the issue of recusal which superseded the contempt

judgment. Judge Yaffe knew that if Fine prevailed, Fine would never have to

answer questions. Judge Yaffe knew that incarceration was an unlawful

32

imprisonment and “penal” from the outset as it was not serving any purpose other

than to punish Fine for challenging Judge Yaffe for taking criminal LA County

payments and bribes.

Judge Yaffe further knew that he did not have subject matter jurisdiction in

the Marina Strand case due to the fraud upon the court of LA County and its

attorneys and himself of concealing the LA County payments to him.

He also knew from the contempt proceeding of the fraud upon the court of

LA County, its attorneys, Del Rey Shores and its attorneys of concealing the

illegality of the LA County Supervisors’ vote approving the EIR and the illegality

of the LA County certification of the EIR.

Finally, he knew of his own fraud upon the court and obstruction of justice

by concealing the nonexistence of the March 18, 2008 Order.

III. Argument

A. The Writ Must Be Granted Because Judge Yaffe Judged His Own Actions.

Judge Yaffe judged his own actions by denying Fine’s freedom. The

incarceration was unlawful from the outset because the answering of questions,

which was the purpose of the incarceration, was unrelated to the issue of whether

Judge Yaffe should have recused himself.

By imposing the sentence while knowing that the writ process was

proceeding and that Fine was not going to answer any questions during such

33

process, Judge Yaffe was not acting to coerce Fine to answer questions. He was

incarcerating Fine to stop him from pursuing his right to habeas corpus relief and

he was acting to punish Fine for challenging Judge Yaffe’s taking of the criminal

LA County payments.

By refusing to free Fine himself, rather than giving it to another judge as he

was required to do under CCP § 170.1, Judge Yaffe violated due process. (See

Murchison, supra.)

B. The Writ Must be Granted Because “Coercive Confinement” Did Not Exist and the Incarceration was Unlawful and Penal from the Outset.

As shown in the Petition, Judge Yaffe knew that “coercive confinement” to

answer questions would not work from the outset. Further, as shown in the LA

Superior Court and Judge Yaffe’s Answering Brief, it was admitted that the

incarceration was “criminal,” i.e., penal. As such, the incarceration was not only

unlawful, but could only last for five days under CCP § 1218. It has now lasted for

over eighteen (18) months.

C. Under the Farr Case and U.S. Supreme Court Precedent, the Incarceration Became Penal Immediately.

Under the case of In Re Farr, 36 Cal.App.3d 577, 584 (1974), cited in In Re

William T. Farr on Habeas Corpus, 64 Cal.App.3d 605, 611-612 (1976) – “once it

was established that there was no substantial likelihood that such contempt order

34

would serve its coercive purpose, the commitment would become punitive in

nature and thus subject to the statutory limitation.”

As of March 4, 2009, as shown in the Petition, Judge Yaffe knew that Fine

was not going to answer any questions unless he lost all the writ proceedings. Fine

told him so. Fine also suggested that the sentence be delayed until after the writ

proceedings were completed. Judge Yaffe refused. At such time, Judge Yaffe

knew that there was no substantial likelihood that the contempt order would serve

its coercive purpose and, as of March 4, 2009, the commitment became punitive in

nature and subject to the statutory five-day limitation. Fine should have been

released on March 9, 2009 at the latest.

U.S. Supreme Court precedents hold that confinement beyond the time that

bears a reasonable relationship to the purpose for which the person is committed is

a denial of due process. (See Jackson v. Indiana, 406 U.S. 715 (1972) and McNeil

v. Director, Patuxent Institution, 407 U.S. 245 (1972)).

A reasonable relationship was interpreted in the Jackson and McNeil cases to

mean “penal” confinement under state law. In California, “penal” confinement for

contempt of court is five (5) days under CCP Section 1218.

Fine has been incarcerated for over eighteen (18) months.

35

D. The Writ Must be Granted Because the Actions of Judge Yaffe are a Sham.

In his Response to the January 27, 2010 Demand, Judge Yaffe claimed he

did not receive a service copy. However, the attached Declaration of John Fred

Sottile showed that a service copy was hand-delivered to Judge Yaffe’s clerk, who

then returned it and refused to take it, stating that she would only accept the

original. It was clear that Judge Yaffe would have known this.

In the same Response, Judge Yaffe struck as repetitive that part of the

Demand which showed that he was recused under the U.S. Supreme Court cases.

This was another example of Judge Yaffe’s refusal to adhere to the U.S. Supreme

Court’s precedents. He has taken the position that cases like Murchison, supra, do

not apply to him. He evidently is also of the opinion that CCP § 170.1 and the

Code of Judicial Ethics do not apply to him.

Judge Yaffe, in again judging his own actions as he did in the contempt

proceeding, concluded that there is no proof that his Judgment would not serve its

coercive purpose when he was told it would not on March 4, 2009 and, eleven and

a half months later, Fine still had not answered questions, was still incarcerated,

and the writ process was still proceeding.

Judge Yaffe’s argument in his Response that Fine should wait until after the

writ process was over and then tell Judge Yaffe if Fine was willing to answer

questions showed that Judge Yaffe’s true intent on March 4, 2009 was not to

36

“coerce” Fine to answer questions through the incarceration, but to punish Fine for

challenging Judge Yaffe for taking criminal payments from LA County, not

disclosing such, and presiding over LA County cases and deciding in favor of LA

County. In short, violating due process.

On May 21, 2010, when the Supreme Court process was nearing a

conclusion, Fine again moved for a “Farr Hearing.” Judge Yaffe refused to hear

the Motion. He even refused to set it on calendar after the Motion was filed and

the fees paid.

On July 13, 2010, Judge Yaffe served his June 18, 2010 Minute Order

requesting other parties in the case to search for Fine’s assets and file declarations

and serve them personally or by fax.

The only party to respond was Del Rey Shores, who did not serve Fine

personally or by fax. Fine filed a Declaration Showing No Service by anyone.

Judge Yaffe responded by Minute Order, including a copy of the Del Rey

Shores Declaration. Fine filed an August 20, 2010 Declaration stating he would

not answer any questions, and the reasons therefore, such reasons being the fraud

upon the court and obstruction of justice, amongst others.

On August 23, 2010, Judge Yaffe, without having had a hearing and by

judging his own actions, refused to set Fine free. He did not give any legal reason.

37

Conclusion

LA County payments to state-employed trial court judges have been

occurring since the late 1980s, according to the Sturgeon decision.

LA County and the LA Superior Court have known that these payments

were illegal since at least November 10, 1988, as shown by a letter from Roger W.

Whitby, Senior Assistant, LA County Counsel, approved by DeWitt W. Clinton,

LA County Counsel, to Frank S. Zolin, County Clerk / Executive Officer, LA

Superior Court, dated November 10, 1988. The letter was produced by LA County

in the appellate phase of the Sturgeon case.

The LA County payments to the state court trial judges in the LA Superior

Court over the 23-year time period of 1987 through the present is estimated to be

approximately $300 million. This number is based upon the $127,250,000 paid

from 1999-2006. As shown in documents in the Sturgeon case, the approximate

$90 million paid from 2006 to 2010, and the approximate $100 million paid from

1987 to 2006.

All of the payments were illegal. Based upon the fact that only two cases

were decided against LA County by LA Superior Court judges from fiscal year

2005-2006 to 2007-2008, these payments may also be bribes. In fiscal year 2008-

2009, one case was decided against LA County by a LA Superior Court judge.

38

From 1987 through the present, Judge Yaffe received approximately

$500,000.00 in payments from LA County. According to his December 22, 2008

testimony in the contempt proceeding, he could not remember any case in the last

three years that he decided against LA County.

Judge Yaffe, LA County and its attorneys committed fraud upon the court by

concealing the LA County payments to Judge Yaffe at the outset of the Marina

Strand case.

Judge Yaffe violated CCP Section 170.1(a)(6)(A)(iii) by not disqualifying

himself at the outset of the Marina Strand case. He violated Code of Judicial

Ethics Canon 4D(1) – by taking payments from LA County; 3E(2) – by not

disclosing such payments on the record; and 3E(1) – by not disqualifying himself

at the outset of the case.

LA County, its attorneys, Del Rey Shores and its attorneys committed fraud

upon the court by concealing the illegality of the LA County Supervisors’ vote

approving the EIR and the illegality of the certification of the EIR by LA County at

the outset of the Marina Strand case.

The frauds upon the court vitiated the Marina Strand case and voided and

annulled all judgments and orders of Judge Yaffe, including those of the contempt

proceeding, even before reversal, under U.S. Supreme Court precedents of

Throckmorton, supra, and Vallely, supra.

39

The LA County payments to Judge Yaffe violated due process under the

Supreme Court precedents of Caperton, supra, citing Tumey, supra.

Judge Yaffe’s presiding over the contempt proceeding violated due process

of a “judge judging his own actions”, as set forth in the U.S. Supreme Court case

of Caperton, supra, citing Murchison, supra.

Judge Yaffe’s admission in the July 13, 2010 Minute Order that the

March.18, 2008 Order was a draft order that was not filed showed his fraud upon

the court, and obstruction of justice. He concealed this information from the LA

Superior Court, the U.S. District Court, the Ninth Circuit, and the U.S. Supreme

Court for 2¼ years. He did not disclose such until after the Petition for Certiorari

was denied by the U.S. Supreme Court.

Judge Yaffe ordered Fine incarcerated under a “coercive confinement” on

March 4, 2009, knowing that he had committed fraud upon the court and had

obstructed justice. He knew that he did not have subject matter jurisdiction in the

Marina Strand case, that he could not preside over the contempt proceeding, and

that he should have recused himself in each of the proceedings. Judge Yaffe

further knew on March 4, 2009 that incarceration of Fine would not serve the

purpose of the contempt order as he did not have jurisdiction to act and that Fine

was not going to answer any questions during the writ proceedings.

40

Judge Yaffe violated due process as set forth in the U.S. Supreme Court case

of Jackson, supra, and McNeil, supra, by keeping Fine imprisoned beyond five

days. He also violated due process by denying Fine a “Farr Hearing” and by

refusing to set Fine free and not transferring the case to another judge to determine

the issue of setting Fine free.

In summary, there has not been one relevant Supreme Court precedent that

Judge Yaffe has not violated.

Judge Yaffe’s resignation from office in the midst of charges of obstruction

of justice is a parallel to Richard Nixon, who resigned the Presidency for having

obstructed justice in the Watergate investigation.

The California judicial system has been broken for over twenty years due to

the illegal county payments to 90% of the state’s judges. Judge Yaffe’s resignation

demonstrated that the system can be restored and the errant judges removed.

The next step is for the Court to obey U.S. Supreme Court precedents and

grant the writ, including issuing an order that all judgments and orders in the

Marina Strand case and the contempt proceeding are void and annulled.

Dated: September 9, 2010 Respectfully submitted,

By: __________________Richard I. Fine,In Pro Per

41

CERTIFICATION (CRC Rule 8.504(d))

I hereby certify that the foregoing Petition and Memorandum of

Authorities contain 9,771 words, according to the word count system of Word

2002, including the title page.

Dated: September _____, 2010 By: ___________________John Fred Sottile

42

Declaration of John Fred Sottile

I, John Fred Sottile, declare:

The following facts are within my personal knowledge and, if called to

testify, I could and would competently testify thereto as follows:

1. On January 27, 2010, I went to the filing window at the courthouse at

111 N. Hill Street in Los Angeles. The document that I was there to file on behalf

of Richard I. Fine included a Proof of Service that had six names on it, including

Judge David P. Yaffe, who was to receive a courtesy copy. When I handed the

filing to the clerk, I was informed that it had to be filed directly with Judge Yaffe’s

clerk in Dept. 86.

2. I took the elevator up to his courtroom, where I met his clerk and a

person in uniform whom I assume was a bailiff. The bailiff read the first three or

four pages of the document out loud to the clerk, who told her to accept and

conform the copies. The bailiff conformed four copies and handed me three back.

I, now having too many extra copies, offered the woman an extra copy, one for a

file and one for the judge. She said “No, one would be fine.” I said, again, “I have

plenty of extra copies, are you sure?” She said again, “No, one will be fine.” I

then said, “Well at least take the original.” She told me that it was not important to

have the original. I said, “Well, if it doesn’t matter, do me a favor and take the

original.” She took it and just turned her back on me and went back to work.

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3. Considering that I had handed a copy and offered an extra copy to

Judge Yaffe’s people in his very courtroom, I saw no need to also mail a copy.

4. I can’t imagine how an attempt at personal service such as this could

be construed as not being served. I still have conformed copies in my possession

to prove that I was there.

5. Judge Yaffe’s response could only have been made with his having a

copy.

I declare under penalty of perjury that the foregoing is true and correct under

the laws of the State of California.

Executed this ____ day of September, 2010, at Rancho Dominguez,

California.

By: ___________________ John Fred Sottile

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PROOF OF SERVICE

STATE OF CALIFORNIA,COUNTY OF LOS ANGELES

I am Fred Sottile. My address is 2601 E. Victoria Street, # 108, Rancho

Dominguez, CA 90220. I am over the age of eighteen years and am not a party

to the above-entitled action.

On September _____, 2010, I served the foregoing document described as

VERIFIED PETITION FOR WRIT OF HABEAS CORPUS,

MEMORANDUM OF POINTS AND AUTHORITIES AND DECLARATION

OF JOHN FRED SOTTILE on interested parties in this action by depositing a

true copy thereof, which was enclosed in a sealed envelope, with postage fully

prepaid, in the United States Mail, addressed as follows:

See attached list of Interested Parties and Their Counsel

I certify and declare, under penalty of perjury under the laws of the United

States of America and the State of California, that the foregoing is true and

correct.

Executed on this _____ day of September, 2010, at Rancho Dominguez,

California.

_______________________________FRED SOTTILE

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Interested Parties & Their Counsel of Record

Party: Los Angeles Superior Court Interested Party: Los Angeles CountyInterested Party: Judge David P. Yaffe Counsel: Elaine M. LemkeCounsel: Kevin M. McCormick Principal Deputy County CounselBENTON, ORR, DUVAL & BUCKINGHAM L.A. COUNTY COUNSEL OFFICE39 N. California Street 500 West Temple StreetP.O. Box 1178 Los Angeles, CA 90012-2713Ventura, CA 93002

Party: Sheriff Leroy D. Baca Interested Party: Judge David P. YaffeCounsel: Aaron Mitchell Fontana L.A. COUNTY SUPERIOR COURTCounsel: Paul B. Beach 111 North Hill Street, Dept. 86LAWRENCE BEACH ALLEN & CHOI, PC Los Angeles, CA 90012100 West Broadway, Ste. 1200Glendale, CA 91210-1219

Interested Party: Del Rey Shores Dev’t. Interested Party: Del Rey Shores Dev’t.Counsel: Joshua Lee Rosen Counsel: R.J. ComerJOSHUA L ROSEN LAW OFFICES ARMBRUSTER & GOLDSMITH, LLP5905 Sherbourne Drive 10940 Wilshire Blvd., Ste. 2100Los Angeles , CA 90056 Los Angeles, CA 90024

Interested Party: CA Atty Gen’l Interested Party: Marina Strand HomeownersEdmund G. Brown, Jr. Counsel: Rose M. ZoiaAttorney General of California 50 Old Courthouse Square, Ste.401CALIFORNIA DEPARTMENT OF JUSTICE Santa Rosa, CA 95404455 Golden Gate Avenue, Ste. 1100San Francisco, CA 94102

Petitioner: Richard I. Fine, In Pro PerPrisoner No. 1824367c/o Los Angeles County Men’s Central Jail441 Bauchet StreetLos Angeles, CA 90012

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