Opening Brief Thomas v. Zelon - 8.31.17 PDF

Case: 17-55404, 08/31/2017, ID: 10566393, DktEntry: 9, Page 1 of 74
No. 17-55404
UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT
__________________________________________________
JEFFREY G. THOMAS,
Plaintiff-Appellant,
v.
LAURIE ZELON, DENNIS PERLUSS, HUGH JOHN GIBSON, HOPE

PARK LOFTS 2001-02910056 LLC, ROSARIO PERRY and NORMAN
SOLOMON
Defendants-Appellees.
__________________________________________________
On Appeal From the United States District Court

For The Central District of California, Los Angeles, California
Case No. 16-cv-06544 JAK-AJW,
The Honorable John A. Kronstadt
__________________________________________________________________
APPELLANT’S OPENING BRIEF
_____________________________________________________________
Jeffrey G Thomas, Esq.

201 Wilshire Blvd. Second Floor
Santa Monica, California 90401
Telephone: (310) 650-8326
In Propria Persona
i
CORPORATE DISCLOSURE AND

CERTIFICATE OF INTERESTED PARTIES
This statement is made pursuant to F. R. App. P. 26.1. Appellant is an
individual and not a corporation.
The State Bar Administration of California may have an interest in the
appeal because proceedings of the State Bar Court are suspended during the
appeal.
STATEMENT REGARDING ORAL ARGUMENT
The issue on appeal is controlled by precedent of this circuit court of
appeals, and especially Kougasian v. TMSL, Inc. (2003) 359 F. 3d 1136.
This court of appeals must reverse the central federal district court
summarily, and Appellees will forfeit the appeal. Live argument in the
courtroom is necessary if Appellees contradict the briefs.
To avoid the appearance of impropriety, the justices (or their spouses)
assigned to the panel for this appeal should not be past associates of the
California judiciary or its state bar association or administration.
i
TABLE OF CONTENTS
CORPORATE DISCLOSURE …………………………………………………. ii
TABLE OF CONTENTS ………………………………………………………. iii
TABLE OF AUTHORITIES …………………………………………………… v
I. INTRODUCTION …………………………………………………………… 1
II. STATEMENT OF JURISDICTION …………………………………………. 14
A. District Court Jurisdiction ..................................................................... 14
B. This Appellate Court ……...................................................................... 14
C. Final Order ............................................................................................. 15
D. Timeliness ............................................................................................. 15
E. Standard of Review …………………………………………………… 15
III. STATUTORY AND REGULATORY AUTHORITIES …………………… 15
IV. QUESTIONS PRESENTED ……………………………………………….. 17
V. STATEMENT OF THE CASE ....................................................................... 17
VI. SUMMARY OF ARGUMENT ..................................................................... 26
VII. ARGUMENT ................................................................................................ 28
A. THE ROOKER-FELDMAN AFFAIR APPLIES SOLELY TO DE FACTO
APPEALS FROM STATE COURT, AND THE DISMISSED COMPLAINT IS
NOT A DE FACTO APPEAL ………………………….……………………….. 28
ii
Appellant's Opening Brief – Thomas v. Zelon et al.
U.S. Ninth Circuit Court of Appeals #17-55404
B. THE ACTION IS A SUBSTANTIAL CONTINUATION OF THE
PROCEEDINGS IN THE STATE COURTS …………………………………… 43
C. APPELLANT WAS NOT A PARTY TO THE APPEAL IN THE STATE
COURT AND THE ACTION IS NOT SUBJECT TO ROOKER AND/OR
FELDMAN ……………………………………………………………………… 49
D. OTHER ISSUES …………………………………………………………….. 52
VIII. CONCLUSION …………………………………………………………… 54
CERTIFICATE OF WORD COUNT …………………………………………. post
STATEMENT OF RELATED CASES ……………………………………….. post
APPENDIX (Relevant passages from S. Rep. No. 104-366) …………………. post
iii
TABLE OF AUTHORITIES
DECISIONS
Agua Caliente Band of Cahuilla Indians v. Hardin

(9th Cir. 2000) 223 F.3d 1041 ……………………………………………………53
Allen v. De Bello (D. N.J. 2016) 2016 U. S. Dist. Lexis 55900, aff’d. (3d Cir. 2017)
861 F. 3d 453…………………………………………………………………..…. 53
Arthur v. JP Morgan Chase Bank, NA (11th Cir. 2014)

569 F. App'x. 669 …………………………………………………………………33
Barrow v. Hunton (1878) 99 U.S. (9 Otto) 80 [25 L. Ed. 407] …………. 34, 35, 45
Bauguess v. Paine (1978) 22 Cal. 3d 626 …………………………………. 11, 24
Bell v. Boise (9th Cir. 2013) 709 F. 3d 890 ………………………..… 36, 39, 43, 54
Bennett v. Yoshina (9th Cir. 1998) 140 F. 3d 1218, cert. den. (1999)
525 U.S. 1103 ……………………………………………………….…………… 50
Berger v. Board of Psychiatric Examiners (D.C.Cir. 1985)

521 F. 2d 1056 .….......................................................................................... 23, 38
Betz v. Pankow (1993) 16 Cal. App. 4th 931 …………………………………… 17
Bianchi v. Rylersdaam (9th Cir. 2003) 334 F. 3d 895, cert. den. (2004)
540 U. S. 1213 …………………………………………………………………… 35
Board of Directors, Rotary International v. Rotary Club of Duarte

(1987) 481 U. S. 537 ………………………………………………………… 38, 50
Canatella v. State of California (9th Cir. 2002) 304 F. 3d 843,

reh. en banc den. ………………………………………………………………… 52
Carr v. Kamins (2007) 151 Cal. App. 4th 929 ………………………………. 43, 44
Catz v. Chalker (6th Cir. 1998) 142 F. 3d 279, reh. den. ………………………… 42
i
Children A & B ex rel. Cooper v. Florida (N.D. Fla. 2004) 355 F.

Supp. 2d 1298, aff’d. 140 Fed. Appx. 845 (11th Cir. 2005)…….……………….. 51
Cooper v. Ramos (9th Cir. 2012) 704 F. 3d 772 ………………………… 31, 32, 43
Dale v. Moore (11th Cir. 1997) 121 F. 3d 624 ………………………………….. 15
Davis v. Bayless (5th Cir. 1995) 70 F. 3d 367 ……………………………….. 30, 48
District of Columbia Court of Appeals v. Feldman (1983)

460 U. S. 462 .……………………………. 1, 17, 24-31, 34–43, 45, 48, 50, 51, 53
Doran v. Salem Inn (1975) 422 U.S. 922 ……………………………………….. 51
Dubinka v. Judges of Superior court (9th Cir. 1994) ………..…………… 41, 42, 50
Ernst v. Child & Youth Services of Chester County (3d Cir. 1997)
108 F. 3d 486, cert. den. (1997) 522 U.S. 850 …………..……………………… 37
Exxon-Mobil Corp. v. Saudi Basic Industries Corp.

(2005) 544 U. S. 280 ………………………………………………………. 28 – 30
F. J. Hanshaw Enterprises, Inc. v. Emerald River Development

Co. (9th Cir. 2001) 244 F. 3d 1128 …………………………………………. 19, 40
Fieger v. Ferry (6th Cir. 2006) 471 F. 3d 637 ……………………………………. 36
Fontana Empire Center LLC v. City of Fontana (9th Cir. 2002)

307 F. 3d 987 ……………………………………………………………………. 39
Gaines v. Fuentes (1875) 92 U.S. [(2 Otto)] 10 [23 L. Ed. 524] …………………. 43
Great Western Mining & Mineral Co. v. Fox Rothschild LLP

(3d Cir. 2010) 615 F. 3d 159, cert. den. 563 U. S. 904 …..………………………. 36
Green v. City of Tucson (9th Cir. 2001) (en banc) 255 F. 3d 1086 ……………..50
Gross v. Weingarten (4th Cir. 2000) 217 F. 3d 208 …………………………… 47
ii
Groves v. Peterson (2002) 100 Cal. App. 4th 659 ……………………………… 43
Hoblock v. Albany County Board of Elections (2d Cir. 2005)

422 F. 3d 77 …………………………………………………………….. 30, 31, 51
Holliday Amusement Co. of Charleston, Inc. v. State of South Carolina

(4th Cir. 2005) 401 F. 3d 534, cert. den. 546 U. S. 822 ……………………........ 50
Housing Rights Center v. Sterling (C.D. Cal. 2004)

404 F. Supp. 2d 1179 ..…………………………………………………………… 40
Illinois Central Railroad Co. v. Guy (5th Cir. 2012)

682 F. 3d 381 …………………………………………………………………… 36
In re Fair Wage Law (2009) 176 Cal. App. 4th 279 …………………………… 49
In Re Marriage of Flaherty (1982) 31 Cal. 3d 637 …………………………… 10, 22
Iqbal v. Patel (7th Cir. 2015) 780 F. 3d 728 ………………………………… 39, 40
Johnson v. DeGrandy (1994) 512 U. S. 997 ……………………………………. 53
Johnson v. Pushpin Holdings, LLC (7th Cir. 2014) 748 F. 3d 769 ……………… 39
Johnson v. Rodriques (10th Cir. 2000) 226 F. 3d 1103,

reh. en banc den. 2005 U.S. App. Lexis 25438 …………….……………..…….. 42
Johnson v. Waters (1884) 111 U.S. 640 [4 S. Ct. 619] ………………………….. 46
Karsjens v. Piper (8th Cir. 2017) 845 F. 3d 394, rehg. en banc den.
cert. filed 5/19/2017 …………………………………..…………………………. 36
Kimes v. Stone (9th Cir. 1996) 84 F. 3d 1121 …………………………………… 48
Knupfler v. Lindblade (In re Dyer, 9th Cir. 2003) 322 F. 3d 1178 …………… 18, 40
Kougasian v. TMSL, Inc. (9th Cir. 2004) 359 F. 3d 1136 ………………. 12, 35, 44
iii
Lakin v. Watkins Associated Industries (1993) 6 Cal. 4th 644 ……………… 8, 9, 10
Lance v. Dennis (per curiam 2006) 546 U.S. 459 ……………………….……….50
Lee v. West Coast Life Insurance Co. (2012) 688 F. 3d 1004 ………………… 4, 6
Long v. Shore Bank Development Corp. (7th Cir. 1999) 182 F. 3d 548 ………… 30
Los Angeles County Bar Association v. Eu (9th Cir. 1992) 979 F. 2d 697 ……… 53
Maldonado v. Harris (9th Cir. 2004) 370 F. 3d 945, cert. den. sub nom.
Kempton v. Maldonado (2005) 544 U. S. 968 ….………………………………. 36
Manufactured Home Communities Inc. v. City of San Jose

(9th Cir. 2005) 420 F. 3d 1022 …………………………………………… 15, 30, 35
Marsh v. Mountain Zephyr (1995) 43 Cal. App. 4th 289 ………………………. 50
Marshall v. Grant (E.D. N.Y. 2007) 521 F. Supp. 2d 240 ………………………. 45
Marshall v. Holmes (1891) 141 U.S. 589 ………………………………………… 46
McKay v. Pfeil (9th Cir. 1987) 827 F. 2d 540 …………………………… 45, 47, 48
Moccio v. N.Y. State Office of Court Admin. (2d Cir. 1996) 95 F. 3d 195 ……. 29
Mo’s Express LLC v. Sopkin (10th Cir. 2006) 441 F. 3d 1229 …………………. 50
Mothershed v. Justices of Supreme Court (9th Cir. 2005)

410 F. 3d 602 .………………………………………………………………........ 42
Nesses v. Shepard (7th Cir. 1995) 68 F. 3d 1003 …………………………….. 34, 35
Noel v. Hall (9th Cir. 2003) 341 F. 3d 1148 ……………………………………. 29
Pajaro Valley Water Management Agency v. McGrath

(2005) 128 Cal. App. 4th 1093 …………………………………………………… 43
Parkview Associates Partnership v. City of Lebanon (3d Cir. 2000)
iv
225 F. 3d 321 ……………………………………………………………………. 37
Payne v. Rader (2008) 167 Cal. App. 4th 1569 ………………………… 8, 9, 10, 18
Pennzoil Co. v. Texaco, Inc. (1987) 487 U. S. 1 ………………………………… 31
People v. Hernandez (2009) 172 Cal. App. 4th 715 ……………………………… 49
Peterson Novelties, Inc. v. City of Berkley (6th Cir. 2002)

305 F. 3d 386 …………………………………………………………….. 31, 37, 43
Powers v. City of Richmond (1995) 10 Cal. 4th 85 …………………………. 11, 19
Pulliam v. Allen (1984) 466 U. S. 522 ……………………………… 53, Addendum
Quern v. Jordan (1979) 440 U. S. 332 …………………………………………… 53
Reusser v. Wachovia Bank N. A. (9th Cir. 2008) 525 F. 3d 855 ………………… 48
Rochin v. Johnson Manufacturing Co. (1998)

67 Cal. App. 4th 1228, rev. den. 1999 Cal. Lexis 1222 .……………………..….. 43
Rooker v. Fidelity Trust (1923)

263 U. S. 413 ……………………………... 1, 17, 24-31, 34–43, 45, 48, 50, 51, 53
Ryan v. Rosenfeld (2017) 3 Cal. 5th 124 ………………………………………… 9
Scripsamerica Inc. v. Ironridge Global LLC (C.D. Cal. 2014)

56 F. Supp. 3d 1121 ……………………………………………………………… 40
Sexton v. Superior Court (1997) 58 Cal. App. 4th 1403 ……………………… 9, 10
Shaw v. Hughes Aircraft Co. (2000) 83 Cal. App. 4th 1336,

rev. den. 2001 Cal. Lexis 251 ………………………………………….……… 5, 50
Skinner v. Switzer (2011) 562 U. S. 521 …………………………………….. 30, 51
Sklar v. Commissioner (9th Cir. 2002) 282 F. 3d 610 ……………………………. 15
v
Sole Energy Co. v. Hodges (2005) 128 Cal. App. 4th 199 ……………………….. 18
Southern California Edison Co. v. Lynch (9th Cir. 2002)

307 F. 3d 794 [2002 U. S. App. Lexis 19802] ………………………………….. 50
Sun Valley Foods Co. v. Detroit Marine Terminals, Inc.

(6th Cir. 1986) 801 F. 2d 186 ……………………………………..……………… 47
Svistunoff v. Svistunoff (1952) 108 Cal. App. 2d 638, reh. den., rev. den. .…….. 18
Todd v. Weltman, Weinbert & Reis Co. (6th Cir. 2006) 434 F. 3d 432,
rehg. den., cert. den. 549 U. S. 886 ……………………………………………… 37
Toledo Scale Co. v. Computing Scale Co. (1923) 261 U. S. 399 ………………. 44
United States v. Bajakajian (1998) 524 U. S. 321 ………………………………. 41
United States v. Beggerly (1998) 524 U.S. 38 ………………………………….. 47
United States v. Dicter (11th Cir. 1999) 198 F. 3d 1284,

cert. den. 531 U. S. 828 ………..………………………………………………… 37
United States v. Lane (1986) 474 U. S. 438 ……………………………………… 38
United States v. Levesque (1st Cir. 2008) 546 F. 3d 78 …………………………. 41
United States v. Ritchie (6th Cir. 1994) 15 F.3d 592, reh. en banc den. ……….. 28
United States v. Shepherd (5th Cir. 1994) 23 F. 3d 923 ………………………… 48
United States v. Sprecher (S.D.N.Y. 1992) 783 F. Supp. 133 …………… 13, 21, 54
United States v. Throckmorton (1878) 98 U.S. 61 ……………………………….. 46
Vlandis v. Kline (1973) 412 U.S. 441 ……………………………………………. 23
Wells Fargo & Co. v. Taylor (1920) 254 U. S. 175 ……………………………… 47
Williams v. BASF Catalysts LLC (3d Cir. 2014) 765 F. 3d 306 …………… 32, 45
vi
Willis v. Government Accountability Office (Fed. Cir. 2006)

448 F. 3d 1341, cert. den. (2007) 549 U. S. 1206 ………………………….…… 49
Wood v. Orange County (11th Cir. 1983) 715 F.2d 1543,

cert. denied (1984) 467 U.S. 1210 ………………………..……………………… 30
STATUTES
18 U.S.C. §371 ………………………………………………12, 20, 30, 31, 45, 50
26 U.S.C. §501(c)(3) …………………………………………………………….. 10
28 U.S.C. §636 ………………………………………………………………….. 26
28 U.S.C. §1257 …………………………………………………………………. 28
28 U.S.C. § 1291 …................................................................................................ 14
28 U.S.C. § 1331 ….................................................................................................14
42 U.S.C. § 1983 …………………………………………………… 14, Addendum
42 U.S.C. § 1988 ……………………………………………………… Addendum
Amendment One of the U. S. Constitution ………………………………….. 27, 38
Amendment Five of the U. S. Constitution …………………………………..19, 24
Amendment Eight of the U. S. Constitution …………………………………….. 41
Amendment Eleven of the U. S. Constitution ………………………………….… 24
Amendment Fourteen of the U. S. Constitution ……………………………… 43, 47
Business and Professions Code §17200 ……………………………………….… 24
Cal. Civ. Code. §47(b) ……….……………………………………………………48
vii
Cal. Code Civ. Proc. §128.7 ……………………………………………………… 14
Cal. Code Civ. Proc. §425.16 ……………………………………………………. 33
Cal. Code Civ. Proc. §473(b) …………………………………………………13, 14
Cal. Code Civ. Proc. §906 …..…………………………………………………… 7
Cal. Code Civ. Proc. §907 ……………………………………10, 11, 15, 18, 32, 49
Cal. Code Civ. Proc. §909 ……………………………………………………11, 32
Cal. Code Civ. Proc. §1034 ……………………………………………… 27, 32, 42
Corporations Code §5913 ………………………………………………………. 20
Corporations Code §12261 ……………………………………………………… 3
The Federal Courts Improvement Act of 1996,

Pub. L. No. 104-317, 110 Stat. 3487 ……………………………………………. 53
COURT RULES
F.R.Civ. P. 72 ……………………………………………………………………. 26
F. R. Crim. Pro. 8 ………………………………………………………………… 40
F. R. Crim. Pro. 14 ………………………………………………………………. 40
Cal. Rule of Court 8.264 …………………………………………………….. 16, 27
Cal. Rule of Court 8.500 …………………………………………………….. 16, 41
Cal. Rule of Court 8.500(c) …………………………………………... 23, 27, 39, 42
SECONDARY SOURCES
Sen. Rep. No. 104-366 ……………………………………………… 53, Addendum
viii
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
JEFFREY G. THOMAS,
Case No. 17-55404
Plaintiff - Appellant,
D.C. No. 2:16-cv-06544 (Central
vs. Southern District of California)
LALAURIE ZELON ET AL.., APPELLANT'S OPENING BRIEF
et al.
Defendants - Appellees.
I. INTRODUCTION
Rosario Perry (“Perry”), Hugh John Gibson (“Gibson”), Norman Solomon
(“Solomon”) and Hope Park Lofts 2001-02910056 LLC (“HPL”) are designated
the “Conspiring Appellees.” Laurie Zelon and Dennis Perluss are described as the
“Judicial Appellees” herein.
The Magistrate Judge Andrew Wistrich filed his Report &
Recommendations (“R & R”) with the clerk of the district court in response to the
Defendants’ several motions to dismiss the Complaint, and manually served it on
the Appellant, on February 3, 2017. The R & R recommended dismissal of the
action based on the so-called Rooker-Feldman “matter” (a/k/a the “RF affair” or
“cutoff” or “detour”). District of Columbia Court of Appeals v. Feldman (1983)
1
460 U. S. 462; Rooker v. Fidelity Trust (1923) 263 U. S. 413. The R & R reasoned
that the Appellant’s Complaint directly attacked a state court judgment and was as
a de facto appeal therefrom. Objections, ER 168 - 169; R & R, ER at 203 - 07.
The R & R twice incorrectly identified Appellant as the person who brought the
appeal in #B254143. R & R, ER at 201 n. 6, 205:11 – 13.
In response to the R & R, Appellant manually filed with the court and
manually served the Appellees through the U. S. mail with the “Objections to the
R & R” (hereinafter “Objections”) within fourteen (14) days of the court’s service
of the R & R on him. Objections, ER 152 – 191. In his Objections responding to
the R & R, Appellant specifically addressed the RF Cut-off, cause of action by
cause of action, and the additional grounds asserted in the motions of the no state
action and absolute immunity defenses. Id.
The Complaint specifically alleges that the superior court lacked jurisdiction
of the action appealed from in the court of appeals, action no. BC466413 in the
superior court, because Conspiring Appellees caused a fake and nonexistent
“zombie” plaintiff to bring the action in the superior court (“1130 Hope Street
Investment Associates LLC”) and to fraudulently dismiss all defendants from the
action before the court ruled on a dispositive motion or tried the action.
Complaint, ER 216 – 224. Appellant alleged that the Conspiring Appellees
intentionally deceived the court, himself and the public by covering up the
2
nonexistence of the zombie plaintiff through manipulation of change of name
records of the Secretary of State of California for a second limited liability
company to the former name of the zombie plaintiff limited liability company.1
See Ex. 1 to Declaration, ER 13 - 14, Objections, ER 163:24 – 164:2, 171;
Complaint, ER 216 – 224, 236 – 240. The Conspiring Appellees concatenated the
name change amendment with the court order in case no. BS140530, which
reinstated the articles of 1130 South Hope Street Investment Associates LLC, to
deceive Appellant into believing that the zombie plaintiff 1130 Hope Street
Investment Associates LLC had existed since in 2003. Objections, ER 169:7 –
170:6, 171.
Appellant’s client in action BC466413 was Mr. Haiem. Mr. Haiem’s
original cross-complaint in action no. BC466413 sought to recover money from the
fund in the court on the theories of money lent and implied contract. Appellant’s
client claimed Two Hundred Thousand Dollars ($200,000) from the balance
remaining of the fund in court of One Million Three Hundred Thousand Dollars
1
Conspiring Appellees petitioned the superior court in action no. BS140530 to
reinstate the articles of 1130 South Hope Street Investment Associates LLC and
Hope Park Lofts LLC in November of 2012, which they claimed were fraudulently
cancelled. Corporations Code §12261. The superior court ordered the entities
reinstated on August 28, 2013. The secretary of state required a name change
amendment because after the secretary cancelled the articles, it registered
unrelated Delaware incorporated entities with these names.
3
($1,300,000). The superior court’s final order of May 22, 2013 in action
BC466413 distributed the remainder of the fund in the court to the Conspiring
Appellees. The fund ceased to exist after May 22, 2013.
The Appellant filed the notice of appeal on January 30, 2013 from the order
of the superior court dated December 4, 2013 in action no. BC466413 which
became appeal no. B254143. See Ex. 4 to Declaration, ER 30. Appellant appealed
from several orders, including the final order dated May 22, 2013 (Ex. 7 to
Declaration, ER 63 – 65) distributing the fake fund in court in the so-called
interpleader, and the order dated December 4, 2013 denying a motion for requested
relief to restore Mr. Haiem’s original cross-complaint for money lent and for
breach of implied contract to the civil active list. Ex. 10 to Declaration, ER 110-
111. Mr. Haiem appealed both orders, because the reversal of the order dated May
22, 2013 would require Conspiring Appellees to restore the fund in court to the
court. The mere reversal of the order dated December 4, 2013 would have resulted
in a trial on a complaint seeking the payment of damages by Conspiring Appellees
personally. Lee v. West Coast Life Insurance Co. (2012) 688 F. 3d 1004.
The Complaint alleges that the state court of appeals did not have
jurisdiction of the appeal because the order of the superior court dated December 4,
2013 appealed from and decided by the court of appeals on April 27, 2015 is void.
Complaint, ER 236 – 242. The Complaint alleges that all orders of the superior
4
court in action no. BC466413 are void because the fake zombie plaintiff brought
the action and caused it to be dismissed by voluntarily dismissing all defendants.
On May 22, 2013, the superior court denied Appellant’s client the right to
challenge the distribution of the fund in court because the fake zombie plaintiff
dismissed the Appellant’s client from the action, despite that the fake zombie
plaintiff had previously filed an answer in no. BC46613 to Mr. Haiem’s original
cross-complaint in 2011!
Appellant prays for leave of this federal circuit court of appeals to amend the
Complaint on remand to allege that the court of appeals lacked jurisdiction of the
issue on appeal, for an additional reason, as follows. Before taking appeal no.
B254143 that included the appeal from the final order dated May 22, 2013 in
action #BC466413, Mr. Haiem separately appealed from the order dated May 22,
2013 in appeal no. B250173 in the second court of appeals. Objections, ER 161,
185; Ex. 11 to Declaration, ER 113 - 123. On or about December 10, 2013, the
Judicial Appellees dismissed Mr. Haiem’s prior appeal in #B250173 from the
order dated May 22, 2013 after Conspiring Appellee Hugh John Gibson Esq.
provided the Judicial Appellees with a copy of the superior court’s order dated
December 4, 2013 in action no. B466413 denying Mr. Haiem’s motion to vacate
the dismissal of his original cross-complaint.
5
The Judicial Appellees dismissed appeal no. B250173 because they reasoned
that Appellant’s client was no longer a party to the action in the superior court as
of May 22, 2013 because the fake zombie plaintiff had voluntarily dismissed the
client in February of 2013, and Mr. Haiem was unsuccessful on December 4, 2013
in his motion to vacate the dismissal of the original cross-complaint by the order of
the superior court on November 10, 2012. The Judicial Appellees failed to
consider that 1130 Hope Street Investment Associates LLC filed an answer to the
original cross-complaint, and that the superior court permitted the fake zombie
plaintiff to control the fund in court. Therefore it was only fair to consider Mr.
Haiem as a party to the action insofar as his original cross-complaint pleaded a
claim against the fund in the court . See Objections 161, 185; Exhibits 7 & 8 to
Declaration, ER 63 – 65, 67 – 82; compare Lee v. West Coast Life Insurance Co.
(2012) 688 F. 3d 1004. But the Judicial Appellees foreclosed this argument by
interpreting the superior court’s denial of Mr. Haiem’s motion to vacate the
dismissal of the original cross-complaint on December 4, 2013 as conclusive proof
that Mr. Haiem was not a party to the action after 1130 Hope Street Investment
Associates LLC dismissed him from the action in February of 2013.
In July of 2014, Conspiring Appellees filed a motion in the court of appeals
to partially dismiss #B254143 including the appeal of the order dated May 22,
2013 and the appeal from the order dated February 1, 2013 (which Mr. Haiem
6
appealed under Cal. Code Civ. Proc. §906). Ex. 11 to Declaration, ER 113 - 123.
The motion asserted that more than sixty (60) days elapsed between the superior
court’s entry of the orders and the filing of the Notice of Appeal. On August 28,
2014, Judicial Appellees granted the Conspiring Appellees’ motion. (Ex. 11 to
Declaration, ER 116).
The opening brief that Appellant filed for Mr. Haiem in July of 2014 argued
that the order dated May 22, 2013 in action no. BC466413 must be reversed on
appeal because Conspiring Appellees caused the plaintiff to dismiss Mr. Haiem
from the action, and the plaintiff was controlled by Conspiring Appellees who also
had claims to the fund in court. The opening brief noted that the plaintiff had
answered the original cross-complaint, and included it in the record on appeal. At
this time, Appellant and his client did not know that the plaintiff was a zombie and
did not make this argument; the Conspiring Appellees’ deception as to the name
change amendment concatenated with the reinstatement of 1130 South Hope Street
Investment Associates LLC as 1130 Hope Street Investment Associates LLC had
cast its spell on Appellant and his client.
Thus the Judicial Appellees prejudged the appeal of the order dated May 22,
2013 twice for the same reason, the first time in the appeal no. B250173 and the
second time in the appeal in no. B254143. Twice when the issue was presented to
them that the superior court allowed 1130 Hope Street Investment Associates LLC
7
to control the claims to the fund in the court, and that Mr. Haiem should be deemed
to be a party to the action notwithstanding that 1130 Hope Street Investment
Associates LLC had filed a voluntary dismissal of Mr. Haiem because it had filed
an answer to his cross-complaint. And after the partial dismissal of the appeal on
August 28, 2014, Mr. Haiem’s only avenue of attack on the order dated May 22,
2013 in appeal no. B254143 was collateral, not direct.
Judicial Appellees refused to grant Appellant’s motion for Mr. Haiem
seeking leave to file additional briefs, or at least to have the reply briefs deemed
filed. Although it was clear because of their premature dismissal of appeal no.
B250173 and the partial dismissal of appeal no. B254143 that Judicial Appellees
would not consider any argument in the appeal that the voluntary dismissal of Mr.
Haiem should be ignored and Mr. Haiem should have been deemed a party to the
action for the purpose of attacking the order dated May 22, 2013, after the partial
dismissal of the appeal the Judicial Appellees’ denied leave to Mr. Haiem to file
additional briefs to more fully address the issue of the jurisdictional time limitation
of Code Civ. Proc. §473(b), thus denying effective access to the courts for Mr,
Haiem and Appellant.
In Lakin v. Watkins Associated Industries (1993) 6 Cal. 4th 644 the state’s
high court stated the general rule that the court of appeals lacks jurisdiction of an
appeal from a postjudgment order involving the same issues as an appeal from the
8
judgment or final order. Compare Payne v. Rader (2008) 167 Cal. App. 4th 1567.
Payne was disapproved by the state’s high court in Ryan v. Rosenfeld (2017) 3 Cal.
5th 124 insofar as it ruled that statutory motions to vacate the judgment under Cal.
Code Civ. Proc. §663 are unappealable postjudgment orders, but not as to Payne’s
alternative holding which restated the general rule in Lakin, supra, which the
state’s supreme court approved in Ryan, supra.
Judicial Appellees prejudged the appeal of the order dated May 22, 2013
twice, when Mr. Haiem had a reasonable argument that he should be deemed to be
a party to the action in spite of the filing of a voluntary dismissal of Mr. Haiem
from the action by the fake zombie plaintiff 1130 Hope Street Investment
Associates LLC. Judicial Appellees prejudged both appeals from the order dated
May 22, 2013 and in appeal no. B254143 treated that appeal as an untimely appeal.
The state rule is that dismissals of motions in the superior court because of missed
jurisdictional time limitations must merely cite the missed time limitation, ie. the
merits are irrelevant. See Sexton v. Superior Court (1997) 58 Cal. App. 4th 1403.
Under Sexton, Lakin and Payne, when it partially dismissed the appeal from
the orders dated February 1, 2013 and May 22, 2013 the court of appeals was
required to sua sponte exercise its discretion to consider whether or not it could
dismiss the appeal from the order dated December 4, 2013 because of a missed
jurisdictional time limitation in the superior court on the motion to vacate the
9
dismissal of the original cross-complaint. Under Sexton, Lakin and Payne, Judicial
Appellees were required to exercise their discretion to dismiss the entire appeal on
August 28, 2014 including the appeal from the order dated December 4, 2013.
Conspiring Appellees filed their motion for appellate sanctions in October of 2014,
after the court of appeals should have lost jurisdiction of the appeal on August 28,
2014.
With their motion for sanctions in appeal B254143, the Conspiring
Appellees intended to destroy Appellant’s practice of law, to disqualify Appellant
from representing their arch-nemesis True Harmony, an Internal Revenue Code
Section 501(c)(3) charity, in its action against Conspiring Appellees in the superior
court in action #BC546574 to recover valuable property from them. Complaint,
ER 224, 233 – 234, 239, 242, 246 – 247, 249 – 250, 252 - 253; Objections, ER
179, 181. The motion for sanctions in the appeal proceeded under the archaic
and void for vagueness so-called “frivolous appeals” statute, Cal. Code Civ. Proc.
§907 as part of the Conspiring Appellee’plot against Appellant. Objections, ER
154, 160 – 161, 166 – 167; Complaint, ER 220, 228 - 232. The state’s high court
last addressed the definition of frivolity in the statute in the vague opinion in
Marriage of Flaherty (1982) 31 Cal. 3d 637. Ex. 12 to Declaration, ER 125 – 146,
Objections, ER 183.
10
The court of appeals also lacked specific jurisdiction over the motion for
sanctions. The vague sanctions statute is limited to sanctions of appeals “as
brought.” Cal. Code Civ. Proc. §907.
With the declaration submitted to the court of appeals for the motion, the
Conspiring Appellees submitted information supposedly regarding the Appellant’s
intent to harm the Conspiring Appellees (an element of a frivolous appeal) based
on extra-record non-admitted into evidence emails between Appellant and Mr.
Gibson attached to it. Id. The court of appeals lacked jurisdiction of the motion
for sanctions because it relied on extra-record information which was not admitted
into evidence under Cal. Code Civ. Proc. §909. Objections, ER 154; Complaint,
ER 212 – 313; see Powers v. City of Richmond (1995) 10 Cal. 4th 85. And because
the court of appeals lacked statutory jurisdiction of the extra-record extra-evidence
motion, it lacked the authority to sanction Appellant. The state courts lack the
inherent power to order the sanction of payment of money. Bauguess v. Paine
(1978) 22 Cal. 3d 626.
The Conspiring Appellees and Judicial Appellees ignored procedural due
process guarantees of a fair trial, access to courts, and free speech and petitioning
rights and equal protection of the laws of the Appellant. The Judicial Appellees
failed to require the filing of a certificate of interested persons for the fake and
zombie central respondent 1130 Hope Street Investment Associates LLC, which
11
Conspiring Appellees could not have truthfully provided. Objections, ER 179;
Complaint 234, 239. Ex. 6 to Declaration, ER 55 – 61. Judicial Appellees failed
to “find” the appellate record for appeal no. B254143, already possessed by them
as the records filed in the court of appeals for appeals nos. B248456 and 250173.
The Honorable John A. Kronstadt, Judge of the United States District Court
first entered an order on February 9, 2017, stating that Appellant failed to file
objections in a timely fashion, and accepted the Magistrate Judge’s R & R. Order,
ER 8. On the same day, the Court entered a judgment. Judgment, ER 7. In
response to Appellant’s verbal request directed to the clerks for the Judge and the
Magistrate Judge to evaluate the timeliness of the Objections, the court entered an
amended order adopting the R & R notwithstanding the Plaintiff’s Objections, on
February 23, 2017. Amended Order, ER 6.
Because the superior court lacked jurisdiction of action BC466413, and the
court of appeals lacked jurisdiction of the appeal in B254143 and of the motion for
sanctions therein. The order for sanctions dated April 27, 2015 is void and the RF
Cutoff does not apply. Kougasian v. TMSL, Inc. (9th Cir. 2004) 359 F. 3d 1136.
After the Appellant filed the complaint in this action Appellant was able to
obtain by subpoena on the escrow officer the escrow documents for the sale of the
property the proceeds of which the Conspiring Appellees alleged became the fund
in court in action no. BC466413. In state court action no. BC546574, conspiring
12
Appellees used the anti-slapp law to block this vital discovery of their crimes that
they conspired to cover up with the bogus motion for sanctions in the state court of
appeals. When the superior court denied the anti-slapp motions, Conspiring
Appellees had obtained protective orders shielding the information from inspection
by Appellant in state court action no. BC546574.
The escrow documents disclosed that Conspiring Appellees gave fake and
false tax identification information for the fake and dummy zombie plaintiff 1130
Hope Street Investment Associates LLC in the interpleader action to the escrow
officer, instead of the information for the seller. The Conspiring Appellees
claimed to distribute the proceeds of the sale to the fake and dummy zombie
plaintiff, whom they claimed received the funds and deposited the so-called “fund
in court.” Ex. 5 to Declaration, ER 44 – 53. When done by an attorney at law
who knows the law, these acts intend to harm the U. S. government and they
completes the crime of conspiracy to defraud the Internal Revenue Service of the
U. S. Treasury. 18 U.S.C. §371; United States. v. Sprecher (S.D.N.Y. 1992) 783 F.
Supp. 133.
On remand, Appellant intends to file a supplemental Complaint herein or to
include in the Amended Complaint as permitted by the order of this court of
appeals a prayer for relief from the additional sanctions and/or attorneys’ fees that
the Conspiring Appellees deceived the superior court to grant (by order dated
13
August 24, 2016 served on Appellant in November of 2016) against Appellant
under Cal. Code Civ. Proc. §128.7 without any evidence therefore, after the court
of appeals entered the remittitur. Ex. 4 to Declaration, ER 28 – 29. Appellant
learned of the existence of this final “new” order for sanctions and attorneys’ fees
from the correspondence in October of 2016 to his office from the representative of
the state bar administration who wrote a letter to Appellant in October of 2016
investigating the failures to report the sanctions and to pay the so-called debt. Id.
The trial court’s recent illegal sanctions and attorneys’ fees are approximately
Forty-five Thousand Dollars ($45,000) in addition to the above amount.
II. STATEMENT OF JURISDICTION
A. DISTRICT COURT
The District Court has jurisdiction of the dismissed Complaint because it
included five federal claims for violation of the Civil Rights Act of 1871, 42 U.S.C.
§1983, and the federal claims arise under federal law as set forth in 28 U.S.C.
§1331.
B. THIS APPELLATE COURT
The Ninth Federal Circuit Court of Appeals has jurisdiction to entertain this
appeal under 28 U.S.C. §1291.
///
///
14
C. FINAL ORDERS
The Notice of Appeal is from an amended order of the court adopting the
Magistrate Judge’s Report and Recommendations to dismiss the action without
leave to amend, dated February 23, 2017 (Dkt. #109, ER 6).
D. TIMELINESS
The central federal district court (by the Honorable John A. Kronstadt, J.)
entered the amended order adopting the Magistrate Judge’s R & R on February 23,
2017. (ER 6). Appellant filed the notice of appeal in the district court on March
24, 2017 (ER 1 – 5).
E. STANDARD OF REVIEW
The Court of Appeals must review the R & R de novo, and the amended
order (judgment) de novo. Manufactured Home Communities Inc. v. City of San
Jose (9th Cir. 2005) 420 F. 3d 1022; Dale v. Moore (11th Cir. 1997) 121 F. 3d
624. And, “[w]hen de novo review is compelled, no form of appellate deference is
acceptable.” Sklar v. Commissioner (9th Cir. 2002) 282 F. 3d 610, 612.
III. STATUTORY AND REGULATORY AUTHORITIES
Cal. Code Civ. Proc. §907 states that:
“When it appears to the reviewing court that the appeal was frivolous or taken
solely for delay, it may add to the costs on appeal such damages as may be just.”
15
Cal. Rule of Court 8.264:
Rule 8.264. Filing, finality, and modification of decision
....
“(b) Finality of decision
(1) Except as otherwise provided in this rule, a Court of Appeal decision in
a civil appeal, including an order dismissing an appeal involuntarily, is final in
that court 30 days after filing.”
Cal. Rule of Court 8.500: Rule 8.500. Petition for Review.
....
“(c) Limits of review
(1) As a policy matter, on petition for review the Supreme Court normally will not
consider an issue that the petitioner failed to timely raise in the Court of Appeal.
(2) A party may petition for review without petitioning for rehearing in the Court
of Appeal, but as a policy matter the Supreme Court normally will accept the Court
of Appeal opinion's statement of the issues and facts unless the party has called the
Court of Appeal's attention to any alleged omission or misstatement of an issue or
fact in a petition for rehearing.”
....
“(e) Time to serve and file
16
(1) A petition for review must be served and filed within 10 days after the Court of
Appeal decision is final in that court. For purposes of this rule, the date of finality
is not extended if it falls on a day on which the clerk's office is closed.
(2) The time to file a petition for review may not be extended, but the Chief Justice
may relieve a party from a failure to file a timely petition for review if the time for
the court to order review on its own motion has not expired.”
IV. QUESTIONS PRESENTED
A. Whether the Exception to the Rooker-Feldman Cut-off for “Independent”
Claims applies to the Complaint?
B. Whether the Rooker-Feldman Cut-off applies to claims or causes of action
equivalent to a Bill of Independent Equitable Relief?
C. Whether the Exception to the Rooker-Feldman Cut-off for Judgments not
involving a party to the action applies to this Complaint?
V. STATEMENT OF THE CASE
This Statement of the Case incorporates by reference the Introduction,
supra. To recapitulate the Introduction, the action no. BC466413 in the superior
court was void, and the appeal in B254143 from the void order of the court
denying the client’s motion for relief under Cal. Code Civ. Proc. §473 was void,
because a dummy nonexistent zombie plaintiff brought and dismissed the action in
BC466413 of the superior court. See Betz v. Pankow (1993) 16 Cal. App. 4th 931;
17
Svistunoff v. Svistunoff (1952) 108 Cal. App. 2d 638, reh. den., rev. den.; see also
Sole Energy Co. v. Hodges (2005) 128 Cal. App. 4th 199.
Judicial Appellees were required to dismiss the entire appeal in response to
Appellee Gibson’s motion to partially dismiss the appeal, because of the rule in
Payne v. Rader, supra, regarding appeals from post-judgment orders denying
motions for relief from an order of the court under Cal. Code Civ. Proc. §473(b).
After the Judicial Appellees dismissed the appeal from the order dated May 22,
2013, there was no point to the court of appeals considering the appeal from the
order denying the motion for relief dated December 4, 2013. See supra at I.
The Judicial Appellees failed to serve Appellant with an appropriately
precise order to show cause for the sanctions under the unconstitutionally vague
and overbroad archaic law for appellate sanctions, Cal. Code Civ. Proc. §907;
Complaint, ER 235. The Judicial Appellees afforded Appellant him woefully
inadequate opportunity for live argument of the sanctions issue at the live
argument of the appeal. Complaint, ER 235, 242 - 243. The Judicial Appellees
ignored precedential decisions of this federal court of appeals requiring a trial by
jury and proof beyond a reasonable doubt of in motions for punitive sanctions
against attorneys at law. Id. The sanctions requested were punitive because
Conspiring Appellees sought recovery of all fees invoiced to Appellee Gibson’s
clients, and the fees allegedly incurred in the motion for sanctions. Knupfler v.
18
Lindblade (In re Dyer, 9th Cir. 2003) 322 F. 3d 1178, F. J. Hanshaw Enterprises,
Inc. v. Emerald River Development Co. (9th Cir. 2001) 244 F. 3d 1128. The
Judicial Appellees awarded appellate sanctions of Fifty-eight Thousand and Five
Hundred Dollars ($58,500), which was eighty percent (80%) of the amount that the
Conspiring Appellees requested in the motion.
Appellant raised and discussed the requirements of a jury trial and proof
beyond a reasonable doubt in his petition for rehearing from the sanctions order,
summarily dismissed by Judicial Appellees. Appellant also criticized the finding
in the sanctions order of intent to harm based on extra-record information and non-
admitted into evidence information. See Powers v. City of Richmond (1995) 10
Cal. 4th 85. The Judicial Appellees’ vague procedures for noticing and deciding
the bogus motion unconstitutionally combined prosecutorial and adjudicatory
functions in violation of the constitutional principles of separation of powers and
due process of the laws, right of access to the courts, and Appellant’s rights of free
speech and petitioning for redress of grievances. Complaint, ER 212 - 313. The
fines and fees that Judicial Appellees awarded to Conspiring Appellee Gibson
threaten the taking of Appellant’s property in his license to practice law without
just compensation in violation of Amendment Five of the U.S. Constitution,
through disciplinary proceedings by the state bar administration brought for the
purpose of collecting the fines and fees for Appellant Gibson. Ibid.
19
In case no. BC546574 in the superior court filed by Appellant for True
Harmony on May 22, 2014, True Harmony alleged that Conspiring Appellees
defrauded the court, the public and True Harmony in forging a fraudulent and void
Settlement Agreement obligating True Harmony to convey part ownership to its
downtown Property to Conspiring Appellees, in action no. BC244718.
Furthermore that Conspiring Appellees defrauded the court, the public and True
Harmony in obtaining void and unenforcible orders of the court in 2008, based on
a fraudulent interpretation of the Settlement Agreement and prior court orders,
requiring True Harmony to convey title to the Property by deed to Conspiring
Appellees. Furthermore True Harmony alleged that the clerk’s deeds obtained by
Conspiring Appellees through execution on these void court orders are themselves
void. True Harmony alleged that the state’s attorney general failed to approve the
Settlement Agreement under Corporations Code §5913, and the sale of the
Property in the fake escrow in 2011 violated the cease and desist order of the
state’s attorney general against the sale, dated April 1, 2011 .
The factual background to action no. BC546574 explains Conspiring
Appellees’ motive to plot and scheme to deny his civil rights to Appellant. In 2011
Conspiring Appellees purported to sell the Property to a supposedly unrelated
entity for Two Million One Hundred Thousand Dollars ($2,100,000) which they
accomplished through back-to-back escrow accounts and through the intermediary
20
of a personal agent. Complaint, ER 224, 231. The Complaint alleges that the
Property was worth Four Million Dollars ($4,000,000) or more in 2011 and is
worth more than Five Million Five Hundred Thousand Dollars ($5,500,000)
currently. Id.
The Conspiring Appellees requested the escrow holder to deposit the cash
purchase price minus deductions on the closing statement into an account in the
name of the fake zombie entity 1130 Hope Street Investment Associates LLC.
Conspiring Appellees falsely reported to the escrow holder the tax identification
number of 1130 Hope Street Investment Associates LLC instead of the tax
identification number of the seller 1130 South Hope Street Investment Associates
LLC, a per se violation of the penal statute 18 U.S.C. §371 because practicing
attorneys at law know that they defraud the Internal Revenue Service in these
circumstances. U. S. v. Sprecher, supra.
After closing the two sales escrows back-to-back, Conspiring Appellees then
caused the non-existent zombie entity 1130 Hope Street Investment Associates
LLC to bring the fake and dummy interpleader action in case no. #BC466413 in an
unverified complaint. This interpleader complaint falsely alleged that the nominal
seller in the so-called contract for sale of the Property was the zombie fake entity.
Complaint, ER 221, 224, 234. Conspiring Appellees falsely alleged in their
21
unverified complaint that the zombie entity had some entitlement to the proceeds
of the escrow. Ex. 1 to Declaration, ER 13 – 14.
The zombie entity deposited funds into the registry of the court to begin the
interpleader action. Conspiring Appellees carved up the fund in court between
themselves by confidential settlement agreement, before dispositive motions were
heard or a trial held. Complaint, ER 221 - 223. They caused the zombie plaintiff
to voluntarily dismiss all defendants, and moved the court for an order approving
release of the fund in court to themselves which the court granted on May 22,
2013. Ex. 7 to Declaration, ER 63 - 65.
Appellant became involved in the superior court in October 2012 when his
client, Mr. Haiem, engaged his representation. The superior court dismissed Mr.
Haiem’s cross-complaint for money lent and implied contract a month later. Id.
Mr Haiem opposed the motion to distribute funds that the superior court granted on
May 22, 2013. Mr. Haiem appealed this order in appeal no. #B250173 which the
court of appeals dismissed in December of 2013. Objections, ER 161, 184 – 185.
The Complaint alleged that the Judicial Council rule authorizing awards of
attorneys’ fees as sanctions is limited by statute to reasonable fees, the sanctions
exceeded this statutory authority, and infringed upon Appellant’s rights of free
speech and petitioning in general as applied and on its face. Objections; ER 183;
In Re Marriage of Flaherty (1982) 31 Cal. 3d 637. The Complaint challenges the
22
constitutionality of Rule of Court 8.500(c) that requires petitioners for direct
review in the state supreme court to file both a petition for rehearing to correct
misstatements in the unpublished appellate opinions before filing a petition for
direct review with the state supreme court within the forty day period allowed by
court rules. Objections, ER 188. This Rule of Court establishes an irrebuttable
presumption denying due process of the laws generally to petitioners for review in
state supreme court. Vlandis v. Kline (1973) 412 U.S. 441; Berger v. Board of
Psychiatric Examiners (D.C. Cir. 1985) 521 F. 2d 1056. Appellant missed the
deadline for the petition for direct review, because of the irrebuttable presumption,
and the state’s highest court denied leave to file a late petition. Complaint, ER
224:21 – 28; Objections, ER 152 - 154. Appellant seeks to amend the Complaint
on remand to allege generally that the rule creates an unconstitutional irrebuttable
presumption which infringes upon the putatively sanctioned attorney at law’s
fundamental right to practice law. Vlandis, supra; Berger, supra.
Appellant filed a petition for writ of certiorari in the clerk’s office of the U.
S. Supreme Court, which was rejected because the petition lacked an order of the
state supreme court denying review on the merits. Id. Appellant served
Defendants with each of the post appellate opinion petitions, Appellee Gibson
received five letters from Appellant seeking his cooperation in the motion to recall
the remittitur – and responded to none. Id. Appellant later filed a motion to recall
23
the remittitur in the second court of appeals on October 31, 2015, that the Judicial
Appellees summarily denied.
Appellant filed his Complaint in federal district court on August 31, 2016,
alleging five causes of action for violation of his civil rights and two state law
causes of action, one each for unfair, fraudulent and unlawful trade practices under
Cal. Business & Professions Code §17200 and for the independent equitable right
to void the sanctions judgment. Complaint, ER 212 - 313. Judicial Appellees
allegedly have personal liability solely for attorneys’ fees with the fifth cause of
action.2 Id.
Appellees brought a series of motions to dismiss the complaint and special
motions to strike the state law causes of action. Docket, ER 314 - 317. Judicial
Appellees Zelon and Perluss moved to dismiss the complaint based on absolute
immunity, Amendment Eleven immunity, and the Rooker-Feldman cut-off. Id.
Conspiring appellees Perry, Solomon and Gibson were represented by separate
counselors at law (Appellee Solomon nominally represented by Appellee Gibson).
2
The judicial taking of property cause of action arises under Amendment Five of
the U. S. Constitution. All monetary sanctions in the state courts are authorized
solely by statute. Bauguess v. Paine (1978) 22 Cal. 3d 626. Judicial Appellees
awarded Defendant Gibson sanctions as though his client was a prevailing party
and Cal. Code Civ. Proc. §907 shifted fees to the Appellant’s client, but this is not
a fee shifting statute. See infra at VII.C. Appellee Gibson never presented
evidence to the court of appeals or a reviewing court that his clients Appellee
Solomon or Appellee Hope Park Lofts LLC paid his fees.
24
The Conspiring Appellees filed motions to dismiss the complaint based on the
Rooker-Feldman cut-off and failure to allege state action for the private actors’
alleged misconduct. Id.
The Magistrate Judge Andrew J. Wistrich considered the motions and
opposition pleading filed by Appellant and recommended dismissal of the
complaint because of the Rooker-Feldman cut-off. R & R, ER 192 - 210.
Appellant responded to the R & R with the Objection pleading to the Rooker-
Feldman cut-off, absolute judicial immunity and state action in the private actor’s
misconduct, federal cause of action by federal cause of action, and requested leave
of the court to amend the Complaint if the court approved the R & R. Objections,
ER 152 – 191. Neither the Magistrate Judge nor the Article III judge exercised
their prerogative under the local rules to compel the Appellant to come to the
courtrooms to argue the issue.
On Feb. 9, 2017 the court, the Honorable John A. Kronstadt, J., presiding,
entered an order approving the Magistrate Judge Wistrich’s R & R, and reciting
that the court did not receive timely Objections in opposition to the R & R. Order,
ER 8. Also on Feb. 9, the court entered a judgment dismissing the action.
Judgment, ER 7.
Upon receipt of the order served manually by mail, Appellant communicated
verbally to the clerks of Magistrate Judge Andrew Wistrich and Judge Kronstadt
25
that he filed objections within the time allotted by F.R.Civ. P. 72 and the
Magistrate Judges Act, 28 U.S.C. §636, and that he served the objections on the
Appellees by mail at the same time. In response to his verbal communications to
the clerks, the Court, Hon. John Kronstadt, J. presiding, amended the order to state
that the court accepted the R & R notwithstanding the objections, and entered an
amended order dismissing the action. Amended Order, ER 6.
Appellant filed the Notice of Appeal appealing from the Court’s amended
order on March 24, 2017. Notice of Appeal, ER 1 through 5.
VI. SUMMARY OF ARGUMENT
The Rooker-Feldman Cut-off does not apply to civil rights actions such as
Appellant’s complaint of wrongful conduct of the Appellees, which seeks to
remedy the wrongful conduct and which does not seek directly to overturn or
vacate the prior judgment of the court of appeals. Complaint, ER 212 – 313. The
Complaint thus avoids the affair of Rooker and Feldman because it is not a hidden
de facto appeal from the order for sanctions of the court of appeals.
The Complaint is also not inextricably intertwined with the appellate order
for sanctions. The Complaint is not inextricably intertwined with the order for
sanctions because Appellant raises (or will raise after amendment) independent
substantive claims of the Appellees’ wrongful misconduct, relating to the lack of
jurisdiction of the court of appeals to consider the appeal from the order of
26
December 4, 2013 after dismissing the appeal from the order dated May 22, 2013.
It also is not inextricably intertwined because it attacks the jurisdiction of the
superior court over an action brought by a fake zombie plaintiff and asserts the
voidness of all orders entered therein and the appeal from the void orders in which
the court of appeals ordered sanctions against Appellant.
The Complaint is not inextricably intertwined with the appellate order for
sanctions because it generally attacks the unconstitutionality of the procedural
requirement in Rule of Court 8.500(c) of a separate petition for rehearing to correct
the false facts in an appellate opinion in the time period established by Rule of
Court 8.264. Objections, ER 152 – 154; Complaint, ER 242. It is not inextricably
intertwined because it attacks rules of the Judicial Council of the state of California
authorizing recovery of more than reasonable fees in sanctions proceedings,
unauthorized by Cal. Code Civ. Proc. §1034. Complaint, ER 229 – 230, 234. It
attacks the appellate sanctions statute as void for vagueness, and it infringing on
his constitutional rights of free speech and to petition the government for redress of
grievances under Amendment One of the Constitution. Complaint, ER 231 - 232,
235.
An independent bill in equity affords relief from a void judgment in a void
appeal regardless of the Cut-off of Rooker-Feldman. Each federal cause of action
in the Complaint alleges a background of a void action in the superior court, and a
27
void appeal from a void order in the superior court, and a void order for sanctions
in a void appeal. The civil rights causes of action are each equivalent to an
independent bill in equity.
Appellant was not a party to the void appeal of the void order in which the
bogus monetary sanctions were levied on him, and therefore the RF Cutoff does
not apply.
VII. ARGUMENT
A. THE ROOKER-FELDMAN AFFAIR SOLELY APPLIES TO ATTACKS TO
THE MERITS OF A STATE COURT JUDGMENT, AND THE COMPLAINT
DOES NOT ATTACK THE MERITS OF A STATE COURT JUDGMENT
The Rooker-Feldman “Cut-Off” (or “RF Cut-off”) is an interpretation of the
jurisdiction of the federal courts under 28 U.S.C. §1257 as excluding disguised
appeals from the state courts to the federal courts below the U. S. Supreme Court.
District of Columbia Court of Appeals v. Feldman (1983) 460 U. S. 462; Rooker v.
Fidelity Trust Co. (1923) 263 U. S. 413. The Conspiring Appellees’ attack on the
Complaint based on the RF Cut-off is a facial attack and not a factual attack on
jurisdiction. United States v. Ritchie (6th Cir. 1994) 15 F.3d 592, 598, reh. en
banc den.
In Exxon-Mobil Corp. v. Saudi Basic Industries Corp. (2005) 544 U. S. 280,
the Supreme Court of the United States wrote that "Rooker and Feldman exhibit
28
the limited circumstances in which this Court's appellate jurisdiction over state-
court judgments precludes a United States district court from exercising subject-
matter jurisdiction in an action it would otherwise be empowered to adjudicate
under a congressional grant of authority." Id. at 291 [125 S. Ct. 1517].
In Exxon-Mobil, our Supreme Court accepted a similar definition of an
independent claim as adumbrated by this federal circuit court’s definition of the
term in Noel v. Hall (9th Cir. 2003) 341 F. 3d 1148. It stated that: “[i]f a federal
plaintiff presents some independent claim, albeit one that denies a legal conclusion
that a state court has reached in a case to which he was a party, then there is
jurisdiction and state law determines whether the defendant prevails under
principles of preclusion.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp. (2005)
544 U.S. 280, 293 (internal citations, quotation marks omitted).
Prior to Exxon-Mobil in 2005, some federal circuit courts of appeals had
held that R Cut-off deprived the district court of jurisdiction of a complaint which
was barred under preclusion doctrine in state law. Eg., Moccio v. N.Y. State Office
of Court Admin. (2d Cir. 1996) 95 F. 3d 195 (“subsequent litigation of the claim
will be barred under the Rooker-Feldman doctrine if it would be barred under the
principles of preclusion”). Exxon-Mobil may not have vacated the “inextricably
intertwined” branch of the affair of Rooker and Feldman, but it considerably
29
narrowed its scope to exclude the application of res judicata from it. Skinner v.
Switzer (2011) 562 U. S. 521.
This court has described the Exxon-Mobil standard as involving two steps:
first, an analysis of whether or not the civil rights complaint attacks the merits of
the state court judgment, and second, an analysis of whether or not the civil rights
plaintiff had a full and fair opportunity to attack the issues decided by the state
court leading up to the judgment. Manufactured Home Communities, Inc. v. City
of San Jose (9th Cir. 2005) 420 F. 3d 1022, 1030; see Long v. Shore Bank
Development Corp. (7th Cir. 1999) 182 F. 3d 548. This court of appeals has
correctly interpreted Exxon-Mobil as adopting a liberal interpretation of Rooker
and Feldman similar to the pre-existing interpretations of the Eleventh and Fifth
Federal Circuit Courts of Appeal. Eg. Davis v. Bayless (5th Cir. 1995) 70 F. 3d
367; Wood v. Orange County (11th Cir. 1983) 715 F. 2d 1543, cert. denied (1984)
467 U. S. 1210. However this federal circuit court of appeals has apparently never
settled on the meaning of the “inextricably intertwined” language of Feldman,
supra.
The Second Federal Circuit Court of Appeals has described Exxon-Mobil as
establishing four requirements for Rooker’s and Feldman’s Cut-off. Hoblock v.
Albany County Board of Elections (2d Cir. 2005) 422 F. 3d 77, 84. The four
requirements are: “(1) the plaintiff must have lost in state court; (2) the plaintiff
30
must complain of injuries caused by the state court judgment; (3) the plaintiff must
invite district court review and rejection of that judgment; and (4) the state court
judgment must have been rendered prior to the beginning of federal court
proceedings.” Hoblock, 422 F.3d at 85. Hoblock discarded the “inextricably
intertwined” language from Feldman. Hoblock held that the second requirement
of causation of harm by the judgment is unsatisfied if the injury to a civil rights
plaintiff is merely ratified, acquiesced in or left unpunished by a state court
judgment. 422 F. 3d at 88.
The Sixth Federal Circuit Court of Appeals has held that a federal civil
rights claim is “inextricably intertwined” with a prior state court judgment if “the
federal claim succeeds only to the extent that the state court wrongly decided the
issues before it.” Peterson Novelties, Inc. v. City of Berkley (6th Cir. 2002) 305 F.
3d 386. In Peterson the Sixth Federal Circuit Court of Appeals adopted the
interpretation of “inextricably intertwined” in Justice Marshall’s concurring
opinion in Pennzoil Co. v. Texaco, Inc. (1987) 487 U. S. 1. This federal circuit
court of appeals adopted the Marshall definition of “inextricably intertwined” ten
years later in Cooper v. Ramos (9th Cir. 2012) 704 F. 3d 772. Appellant submits
that it is the Cooper interpretation of “inextricably intertwined” is the sole
interpretation that is harmonious with the definition of “independent claim” in
Exxon-Mobil.
31
None of the claims in the Complaint was “before” the court in appeal
B254143 within the meaning of Cooper, supra. And the success of none of the
claims depends on a decision by the federal district court that the court of appeals
wrongly decided the issues raised by Conspiring Appellees’ ill-conceived and
badly executed motion unauthorized by Cal. Code Civ. Proc. §907, §909 and
§1034 in the context of a void appeal of which the court of appeals lacked all
jurisdiction.
The goals of the Appellees’ conspiracy were to dissuade Appellant from
continuing to represent True Harmony, their nemesis in the lawsuit in action no.
BC546574, and to conceal the prima facie evidence of the Conspiring Appellees’
violation of 18 U.S.C. §371. They used a twisted jurisdictionless action and a
jurisdictionless appeal and unauthorized bogus motion for sanctions to accomplish
their wicked scheme, a scheme which was as fraudulent and fraudulently
concealed as to Appellant as the suppression by its defense attorneys at law of the
asbestos in the defendant’s products destroyed by its defense attorneys in Williams
v. BASF Catalysts LLC (3d Cir. 2014) 765 F. 3d 306. In Williams, the Third
Federal Circuit rejected the RF Cutoff.
The Conspiring Appellees terminated case no. BC466413 by causing the
zombie nonexistent plaintiff to voluntarily dismiss all defendants before
Appellant’s client could discover the nonexistence of the zombie plaintiff and the
32
felony violation of 18 U.S.C. §371. This caused all orders of the superior court to
become void and the appeal in #B254143 to become void. And as already
explained supra at I and V, the Judicial Appellees terminated their jurisdiction over
the appeal when they partially dismissed the appeal from the final order in the
superior court action dated May 22, 2013, in July of 2014.
The Conspiring Appellees terminated discovery in case no. BC546574 to
harm Appellant and his client True Harmony, subjecting True Harmony to
successive special motions to strike the pleadings under Cal. Code Civ. Proc.
§425.16 and to three motions for protective orders that the superior court granted
without blinking an eye. In this action on appeal in the federal district court,
Appellant was empowered to subpoenaed the prima facie evidence of the
Conspiring Appellees’ fraud on the United States under 18 U.S.C. §371 from a
third party escrow agent. It was Appellant’s only opportunity to discover the
Conspiring Appellees’ tax fraud that they were trying to cover up with the punitive
appellate sanctions.
As in Arthur v. J. P. Morgan Chase Bank N. A. (11th Cir. 2014) 596 Fed.
Appx. 669 (Fla. RICO Act), “[i]nstead of seeking to nullify the state court
judgment," Appellant seeks at worst "to bypass any findings in the state court
judgment that would be adverse to [him] n this suit." Id. Here as in the Arthur
decision, the ”‘plaintiff . . . is not so much attacking as trying to bypass the
33
judgment in that suit; and the doctrine that [may apply to] block him is res
judicata,” NOT the RF Cut-off raised by Appellees. Id.
In Nesses v. Shepherd (7th Cir. 1995) 68 F. 3d 1003, cited for authority in
Arthur, supra, the appellant alleged a conspiracy between state court judges to
engineer plaintiff’s defeat in certain state court litigation. The plaintiff claimed
that the lawyers for the opposition used their “political clout to turn the [state]
judges against him.” 68 F. 3d at 1004. Chief Judge Posner, speaking for a
divided panel, found that whether Rooker and Feldman applied depended on
whether the plaintiff was “[merely] claiming that the decision of the state court
was incorrect [and therefore] that it denied him some constitutional right,” or
whether plaintiff claimed that it violated “some independent right of his, such as a
right (if it is a right) to be judged by a tribunal that is uncontaminated by politics.”
68 F. 3d at 1005. Nesses’s claim was the latter type of complaint because he was
“relying on the adverse decision in state court only to show that the violation of his
rights had caused the plaintiff’s harm.” Id.
The term “independent” claim in this context apparently originated in the
venerable decision of Barrow v. Hunton (1878) 99 U.S. (9 Otto) 80 [25 L. Ed.
407], an action involving a bill in equity to relieve a judgment debtor of a
judgment resulting from extrinsic fraud. This federal court of appeals recognized
that extrinsic fraud on the court is an exception to Rooker and Feldman in
34
Kougasian v. TMSL, Inc. (9th Cir. 2004) 359 F. 3d 1136. In this action involving a
fake, dummy and zombie plaintiff, an action over which the trial court failed to
acquire jurisdiction, and a void sanctions order in a void appeal from a void action,
the fraud on the court is proven by the classic interference with adjudicative
functions of the court. The Complaint clearly fits the Kougasian mold of a classic
fraud on the court. See infra at B.
In Nesses Chief Judge Posner used the phrase “independent claim” in a
sense that is distinguishable from the term as used in Barrow, supra. In Bianchi v.
Rylersdaam (9th Cir. 2003) 334 F. 3d 895, cert. den. (2004) 540 U. S. 1213 Justice
Fletcher wrote that neither Rooker nor Feldman barred jurisdiction of the federal
courts of violations of constitutional rights allegedly caused by biases of state
courts and state court judges. Without mentioning Justice Fletcher’s concurring
opinion in Bianchi, this court of appeals ruled that Rooker and Feldman did not cut
off the complaint in Manufactured Home Communities, Inc. v. City of San Jose
(9th Cir. 2005) 420 F. 3d 1022, 1030.
In Manufactured Home Communities the plaintiff alleged that the bias of a
hearing officer of the city of San Jose violated its constitutional rights. This court
of appeals wrote that the plaintiff was “su[ing] the City ... (an adverse party), not a
state court,” and the plaintiff was “challenging the City’s interpretation of the
35
Ordinance” but not “directly challeng[ing] the state court’s factual or legal
conclusion.”
In Maldonado v. Harris (9th Cir. 2004) 370 F. 3d 945, cert. den. sub nom.
Kempton v. Maldonado (2005) 544 U. S. 968 this circuit court of appeals held that
constitutional law claims against a billboard statute enforced by the biased state
department of transportation were not barred by Rooker-Feldman because the
property owner did not plead or argue his claims of bias in the context of a prior
nuisance lawsuit in state court, and the merits of the civil rights claims were not
raised in the state court. In Bell v. City of Boise (9th Cir. 2013) 709 F.3d 890, 897
this federal circuit court of appeals held that civil rights challenges to the biased
application of Idaho’s largest city’s homeless ordinance and its sleeping ordinance
were independent claims and not de facto appeals, because the civil rights plaintiff
did not have a full and fair opportunity to raise them to the biased state court.
Several federal circuit courts of appeals have held or stated in obiter dicta
that violations of the due process of laws caused by combination of adjudicative
and investigative functions in a single decisionmaker involve independent
constitutional rights beyond the grasp of Rooker and Feldman. Eg., Karsjens v.
Piper (8th Cir. 2017) 845 F. 3d 394; rehg. en banc den., cert. filed 5/19/2017;
Illinois Central Railroad Co. v. Guy (5th Cir. 2012) 682 F. 3d 381, 391; Great
Western Mining & Mineral Co. v. Fox Rothschild, supra; Fieger v. Ferry (6th Cir.
36
2006) 471 F.3d 637; Todd v. Weltman, Weinbert & Reis Co. (6th Cir. 2006) 434 F.
3d 432, reh. den., cert. den. 549 U. S. 886; United States v. Dicter (11th Cir. 1999)
198 F. 3d 1284, cert. den. 531 U. S. 828 (allegations of conspiracy between
attorneys at law and judges, “predetermined result”).
In Ernst v. Child & Youth Services of Chester County (3d Cir. 1997) 108 F.
3d 486, cert. den. 1997 U. S. Lexis 5181, the Third Federal Circuit Court of
Appeals rejected a Rooker-Feldman challenge to a complaint alleging violations of
substantive due process relating to combination of adjudicative and investigative
decision-making in a single decisionmaker. The complaint escaped the clutches of
Rooker and Feldman because it “would not have involved the invalidation of any
conclusion or judgment [of the merits] reached by the state court.” The Third
Federal Circuit Court of Appeals ruled that a similar complaint of denial of
constitutional rights because of an administrative decision based on an inadequate
record of the facts survived the RF Cut-off. Parkview Associates Partnership v.
City of Lebanon (3d Cir. 2000) 225 F. 3d 321. And in
Clearly the Complaint alleges violations of Appellant’s constitutional rights
which were not raised to the state court of appeals and were therefore not before
the state court of appeals in its decision on April 27, 2015. Appellant did not have
a full and fair opportunity to raise his claims in the appeal. This federal circuit
court of appeals should not ignore the well-reasoned precedent of Peterson
37
Novelties, supra, and require more than the allegation of no opportunity to raise the
federal civil rights’ violations to beat the RF Cutoff. And any other conception of
the “inextricably intertwined” language in Feldman violates Appellant’s rights of
free speech and to petition the government under Amendment One of the
Constitution, and is void for vagueness.
In his petition for rehearing that the court of appeals denied in May 2015,
Appellant raised claims going to lack of jurisdiction of the extra-record and extra-
evidence fake motion for sanctions, and the failure of the court to conduct a
hearing with proof beyond a reasonable doubt and decision by a jury. But the
petition for rehearing was not a part of the appeal. Board of Directors, Rotary
International v. Rotary Club of Duarte (1987) 481 U. S. 537.
Appellant requests leave of this court of appeals to amend the Complaint to
allege that the local rules of court requiring the Appellant to first file a separate
petition for rehearing during the first fifteen days of the finality period after the
appellate opinion on April 27, 2015 established an irrebuttable presumption that
denied him due process of the laws, on its face and as applied to his vested
fundamental right to practice law. Berger v. Board of Psychologist Examiners,
supra. As alleged in the Complaint, Appellant did not have a full and fair
opportunity to file a timely petition for direct review to that state supreme court
because the unconstitutional irrebuttable presumption of true false facts in the
38
appellate opinion, Rules of Court 8.500(c), required him to first file the petition for
rehearing in the court of appeals during the finality period after April 27, 2015.
Appellant requests leave of this court of appeals to amend the Complaint to allege
that the unconstitutional irrebuttable presumption of the Rules of Court caused the
late petition for direct review, and denied him his right of direct review in the state
supreme court, and due process of the laws. He requests leave to amend the
Complaint to include the allegation that the court of appeals forfeited jurisdiction
of the appeal remaining after it partially dismissed the appeal including; dismissal
of the appeal from the order dated May 22, 2013, the final order in the action. See
Ex. 11 to Declaration, ER 113 - 123.
The Seventh Federal Circuit court of Appeals applies a simple per se rule
that a federal civil rights suit for damages due to fraud outside of the state court
courtroom is an independent claim that is not, and therefore not subject to the Cut-
off. Iqbal v. Patel (7th Cir. 2015) 780 F. 3d 728 (citing Johnson v. Pushpin
Holdings, LLC (7th Cir. 2014) 748 F. 3d 769. The Complaint is a civil rights
action for damages and solely incidental declaratory relief, and thus fits within the
mold of Iqbal. It is true that this court of appeals stated in dictum in a later opinion
in Bell v. Boise, supra, that Rooker and Feldman do not apply to complaints
seeking solely retrospective relief. But in Fontana Empire Center LLC v. City of
Fontana (9th Cir. 2002) 307 F. 3d 987, this circuit court of appeals apparently
39
recognized that Rooker and Feldman does not apply to allegations seeking
monetary relief because a state court judgment was obtained by extrinsic fraud.
Thus this federal circuit court of appeals has applied a very similar rule to Iqbal,
for the just result of reversal of the affair of Rooker and Feldman. Compare
Scripsamerica Inc. v. Ironridge Global LLC (C.D. Cal. 2014) 56 F. Supp. 3d 1121
(disabled persons rights); with Housing Rights Center v. Sterling (C.D. Cal. 2004)
404 F. Supp. 2d 1179 (housing discrimination); see also Goddard v. Citibank
(E.D. N.Y. 2006) 2006 U. S. Dist. Lexis 19651 (independent claims for conversion
and intentional infliction of emotional distress arising out of foreclosure
proceeding; Ms. Goddard suffered a stroke in the courtroom).
In the Complaint, Appellant recited his due process rights to a jury trial and
proof beyond a reasonable doubt in his petition for rehearing to the court of
appeals. Knupfler, supra; F. J. Hanshaw, supra. The Complaint should allege
entitlement to a severance of the argument of the merits of the appeal from the
argument on the sanctions because of conflicts of interest of the Appellant and his
client. F. R. Crim. Pro. 8 & 14; see United States v. Lane (1986) 474 U. S. 438.
The court of appeals thus denied him his due process rights as an accused subject
to appellate sanctions.
Appellant also alleged in his Complaint that the due process of the laws
required a precise notice of order to show cause for sanctions and a substantial
40
opportunity to contest the sanctions in live argument. Complaint, ER, 244 - 245.
The vagueness of the statute and the Judicial Appellees’ order to show cause and
the failure of Judicial Appellee’s to provide a meaningful opportunity for live
argument unconstitutionally combined adjudicative and investigative functions of
the court of appeals in violation of his rights to access to the courts and his rights to
due process of the laws. Complaint, ER, 244 – 250.
In Dubinka v. the Judges of Los Angeles County (9th Cir. 1994) 23 F. 3d
218, this federal court of appeals held that the claim that a certain proposition
adopted by the voters was unconstitutional was a general constitutional claim
excepted from Rooker-Feldman. Appellant’s claims that his procedural due
process rights were violated because of bias and because he was not accorded a
jury trial are similar to the plaintiffs’ class claims in Dubinka that the changes in
criminal procedure violated the class’s constitutional rights.3 These are general
constitutional law claims. Appellant’s claim that the Rule of Court 8.500
establishes an unconstitutional irrebuttable presumption of the truth of false facts in
appellate opinions (for the Complaint as he seeks leave to amend it) is also a
general constitutional law claim.
3
A criminal forfeiture is unconstitutional under the Excessive Fines Clause of
Amendment Eight of the U. S. Constitution if it is "grossly disproportional to the
gravity of the defendant's offense." United States v. Bajakajian (1998) 524 U. S.
321; cited in United States v. Levesque (1st Cir. 2008) 546 F. 3d 78.
41
In Mothershed v. Justices of Supreme Court (9th Cir. 2005) 410 F. 3d 602
this federal circuit court of appeals considered the Civil Rights Act claim of an
attorney at law whom another state bar association disbarred because the Arizona
State Bar Association censured his unauthorized practice of the law in Arizona.
This court of appeals considered that the attorney at law’s claim challenging the
general application of a rule for admission of all applicants to the bar association in
Arizona could be a general constitutional law claim, thus avoiding Rooker and
Feldman. Compare Dubinka with Johnson v. Rodriques (10th Cir. 2004) 226 F.
3d 1103, reh. en banc den. 2005 U.S. App. Lexis 25438 and Catz v. Chalker (6th
Cir. 1998) 142 F. 3d 379, reh. den. This court of appeals court wrote that Rooker
and Feldman do not "prohibit a plaintiff from presenting a generally applicable
legal challenge to a state statute in federal court, even if that statute has previously
been applied against him in state court litigation." Mothershed, 410 F. 3d at 606.
This court of appeals ultimately concluded that Mothershed had a particularized
claim, but Appellant’s Complaint alleges general claims.
The Complaint alleges both independent and general constitutional law
claims. For example it alleges that the Judicial Council rule allowing motions for
sanctions exceeds authority for rules for award of reasonable attorney’s fees in Cal.
Code Civ. Proc. §1034. Complaint, ER 229 – 230, 234. The Complaint challenges
the legality of Rule of Court 8.500(c) that requires petitioners for direct review to
42
write and file a petition for rehearing to correct misstatements in the unpublished
opinion within the time allotted for filing a single petition for direct review in the
state supreme court, and a petition for direct review in the state’s supreme court as
an irrebuttable presumption against due process of the laws and equal protection of
the laws under Amendment Fourteen of the U. S. Constitution.
Manufactured Home Communities, Maldonado, Bell and Cooper are
precedents of this federal court of appeals that compel a reversal here of the federal
district court. Whether or not the claims in the Complaint are characterized as
general constitutional claims or independent claims that Appellant did not have a
full and fair opportunity to raise in the state court, the affair of Rooker and
Feldman does not bar the Complaint.
B. THE ACTION IS A SUBSTANTIAL CONTINUATION OF THE
PROCEEDINGS IN THE STATE COURT
In state law, “‘[a] judgment is void on its face if the court which rendered
the judgment lacked personal or subject matter jurisdiction or exceeded its
jurisdiction in granting relief which the court had no power to grant.’” Carr v.
Kamins, 151 Cal. App. 4th 929, 933; see Pajaro Valley Water Management
Agency v. McGrath (2005) 128 Cal. App. 4th 1093, 1100; Groves v. Peterson
(2002) 100 Cal. App. 4th 659, 667; Rochin v. Johnson Manufacturing Co. (1998)
67 Cal. App. 4th 1228, 1239. The Complaint alleged lack of jurisdiction of the
43
action in the superior court because of the fake, dummy and zombie plaintiff that
brought the action in no. BC466413 and dismissed it, the voidness of the order
appealed from in B254143, and lack of jurisdiction of the appeal “as brought” and
of the motion for sanctions. As amended, it will allege lack of jurisdiction of the
appeal as partially dismissed. See supra at I.
The Conspiring Appellees’ concealment of the lack of jurisdiction of the
superior court and the court of appeals is extrinsic fraud in state law. Carr v.
Kamins, supra. In Toledo Scale Co. v. Computing Scale Co. (1923) 261 U. S. 399,
our Supreme Court defined extrinsic fraud in federal law as fraud which deprives
the defrauded party of a full and fair opportunity to present the proof of its case or
its defense. The extrinsic fraud that voided the state court judgment in Kougasian
v. TMSL, Inc. (9th Cir. 2004) 359 F. 3d 1136 and avoided the RF Cutoff was
perjured testimony in the state court trial.
This court of appeals wrote in Kougasian that:
“Kougasian does not seek to set aside the judgments of the
California courts in Kougasian I and II based on alleged legal errors
by those courts. Rather, she seeks to set aside these judgments based
on the alleged extrinsic fraud by defendants that produced those
judgments. Nor does Kougasian seek damages based on any alleged
44
legal error by the state courts. Rather, she seeks damages based on
the alleged wrongful behavior of the defendants.” 359 F. 3d at 1139.
The Conspiring Appellees’ extrinsic fraud is the wrongful behavior necessary to
allege an independent claim of civil rights violations. Kougasian, supra; see
Williams v. BASF Catalysts LLC (3d Cir. 2014) 765 F. 3d 306; Marshall v. Grant
(E.D. N.Y. 2007) 521 F. Supp. 2d 240.
In Kougasian this court of appeals relied on two sources of law for its
decision: (1) the local law for the equitable power of courts to set aside judgments
on grounds of fraud, mistake, or lack of jurisdiction; and (2) the Supreme Court’s
decision in Barrow v. Hunton, (1878) 99 U.S. (9 Otto) 80 [25 L. Ed. 407], holding
that, under Louisiana law, a judgment is a nullity if “obtained through fraud,
bribery, forgery of documents, & etc.” The Kougasian opinion also relied on the
opinion in McKay v. Pfeil (9th Cir. 1987) 827 F. 2d 540. In McKay this circuit
court of appeals recognized that an independent bill in equity to set aside the
judgment of an Alaskan state court for extrinsic fraud is excepted from Rooker
and-Feldman. This federal court of appeals wrote that:
“The question presented with regard to ... jurisdiction ... is, whether
the proceeding ... is or is not in its nature a separate suit, or whether
it is a supplementary proceeding so connected with the original suit
as to form an incident to it, and substantially a continuation of it. If
the proceeding is merely tantamount to the common-law practice of
moving to set aside a judgment for irregularity, or to a writ of error,
or to a bill of review or an appeal, it would belong to the latter
45
category, and the United States court could not properly entertain
jurisdiction of the case. Otherwise, the Circuit Courts of the United
States would become invested with power to control the proceedings
in the State courts, or would have appellate jurisdiction over them in
all cases where the parties are citizens of different States. Such a
result would be totally inadmissible.”
“On the other hand, if the proceedings are tantamount to a bill in

equity to set aside a decree for fraud in the obtaining thereof, then
they constitute an original and independent proceeding, and
according to the doctrine laid down in Gaines v. Fuentes (92 U.S. [2
Otto] 10 [23 L. Ed. 524] the case might be within the cognizance of
the Federal courts. The distinction between the two classes of cases
may be somewhat nice, but it may be affirmed to exist. In the one
class there would be a mere revision of errors and irregularities, or of
the legality and correctness of the judgments and decrees of the State
courts; and in the other class, the investigation of a new case arising
upon new facts, although having relation to the validity of an actual
judgment or decree, or the party's right to claim any benefit by reason
thereof.”
In United States v. Throckmorton (1878) 98 U.S. 61 the Supreme Court
recognized the availability of the equitable remedy for fraud on the court that
caused a final judgment. It defined the elements of an independent action of a bill
in equity as: (1) a judgment which ought not, in equity and good conscience, be
enforced; (2) a good defense to the alleged cause of action on which the judgment
is founded; (3) fraud, accident, or mistake which prevented the defendant in the
judgment from obtaining the benefit of their defense; (4) the absence of fault or
negligence on the part of the defendant; and (5) the absence of any adequate
remedy at law. See Marshall v. Holmes (1891) 141 U.S. 589 at 599; Johnson v.
46
Waters (1884) 111 U.S. 640, 667 [4 S. Ct. 619]. Each of these elements is either
expressly pleaded, or incorporated by reference, in the civil rights causes of action
in the Complaint.
In Marshall v. Holmes, supra, our Supreme Court assumed that the federal
court has jurisdiction of a bill in equity to correct the judgment of a state court
procured by fraud. Compare Sun Valley Foods Co. v. Detroit Marine Terminals,
Inc. (6th Cir. 1986) 801 F. 2d 186, 188-89 (“fraud exception” to the RF Cutoff).
A later Supreme Court decision cited Marshall for the jurisdiction in the federal
court of the independent equitable action to set aside a state court judgment. Wells
Fargo & Co. v. Taylor (1920) 254 U. S. 175, 179–80, 189.
In United States v. Beggerly (1998) 524 U.S. 38, 45–46 our Supreme Court
confirmed that an “’independent action’ for fraud “may be regarded as ancillary
to the prior suit, so that the relief asked may be granted by the court which made
the decree in that suit . . . . The bill, though an original bill in the chancery sense
of the word, is a continuation of the former suit, on the question of the jurisdiction
of the [court].”
In McKay, supra, this court applied the RF Cutoff notwithstanding its
statement of the law disallowing it for challenges of personal jurisdiction because
it found that Attorney at law McKay had challenged personal jurisdiction under the
due process of the laws clause of Amendment Fourteen of the Constitution and lost.
47
Thus McKay stands for the rule that federal allegations of a state court judgment
obtained by extrinsic fraud will be terminated by Rooker and Feldman if, and only
if, the federal court plaintiff alleged extrinsic fraud in the state court and lost.
Compare Davis v. Bayless, supra.4 Additional decisions of this federal circuit
court of appeals and other federal circuit court of appeals have acknowledged that
void orders and judgments in void actions are not immune from attack because of
the Rooker-Feldman Cut-off. United States v. Shepherd (5th Cir. 1994) 23 F. 3d
218; see also Reusser v. Wachovia Bank N. A. (9th Cir. 2008) 525 F. 3d 855 (citing
Kougasian, supra).
As previously explained, the fake zombie plaintiff brought the action in
superior court and obtained a final order disbursing the so-called fund in court in
the fake interpleader as extrinsic fraud. Conspiring Appellees maintained this
extrinsic fraud of the existence of the central respondent 1130 Hope Street
Investment Associates LLC in appeal no. B254143, to conceal their financial crime
in violation of 18 U.S.C. §371 from Appellant, the court and the world. Conspiring
Appellees filed a bogus motion for sanctions in a part of the appeal in which the
Judicial Appellees lacked all jurisdiction, based on extra-record and extra-evidence
information which was not based on the appeal “as brought,” and they engaged
4
Because Appellant pleaded extrinsic fraud, Civil Code §47(b) does not apply.
Kimes v. Stone (9th Cir. 1996) 84 F. 3d 1121.
48
the joint action of Judicial Appellees to grant the motion without due process
protections of notice and opportunity to be heard, and a jury trial and proof beyond
a reasonable doubt for punitive sanctions, which because of the totality of
circumstances is also extrinsic fraud, or fraud on the court.
C. APPELLANT WAS NOT A PARTY TO THE STATE COURT APPEAL
Appellant did not bring the appeal as the district court erroneously stated in
the R & R. As already explained supra, the court of appeals had no jurisdiction to
decide the appeal. Obviously, the court of appeals could not add Appellant as a
party to an appeal of which it lacked all jurisdiction.
Attorneys at law are not parties to an action in the court, unless attorneys’
fees are awarded against them under a fee shifting statute. See Willis v.
Government Accountability Office (Fed. Cir. 2006) 448 F. 3d 1341, cert. den.
(2007) 549 U. S. 1206. Cal. Code Civ. Proc. §907 does not expressly authorize an
award of attorneys’ fees, and it is not a fee-shifting statute.
Appellant was not a party to the appeal. In state law, a nonparty aggrieved
by an order of a state court has standing to appeal. See eg., In re Fair Wage Law
(2009) 176 Cal. App. 4th 279, 285 [state supreme court’s recognition of
Appellant’s right to appeal is not proof that he was a party to the appeal]; People
v. Hernandez (2009) 172 Cal. App. 4th 715, 720 [pawnbrokers, nonparties to
criminal action, aggrieved by ex parte order to release stolen property]; see also
49
Shaw v. Hughes Aircraft Co. (2000) 83 Cal. App. 4th 1336, rev. den. 2001 Cal.
Lexis 251; Marsh v. Mountain Zephyr (1995) 43 Cal. App. 4th 289. Appellant’s
attempts to appeal the sanctions order did not somehow ratify or acquiesce in party
status.
Appellant’s petition for rehearing of the order for sanctions was not part of
the appeal. Board of Directors, Rotary International v. Rotary Club of Duarte
(1987) 481 U. S. 537. The untimely petition for direct review was not part of the
appeal from the appellate opinion. See discussion supra at A; see also Dubinka v.
Judges of Superior court (9th Cir. 1994) 23 F. 3d 218.
This court of appeals has refused to apply the RF Cutoff to plaintiffs who are
not parties to a prior state court action resulting in a judgment. Eg., Southern
California Edison Co. v. Lynch (9th Cir. 2002) 307 F. 3d 794 [2002 U.S. App.
Lexis 19802]; Bennett v. Yoshina (9th Cir. 1998) 140 F.3d 1218, cert. den. (1999)
525 U. S. 1213; compare Mo’s Express LLC v. Sopkin (10th Cir. 2006) 441 F. 3d
1229; Holliday Amusement Co. of Charleston, Inc. v. State of South Carolina (4th
Cir. 2005) 401 F. 3d 534, cert. denied 546 U.S. 822; Gross v. Weingarten (4th Cir.
2000) 217 F. 3d 208. The Supreme Court has since adopted the “not involving a
party” exception to Rooker and Feldman in Lance v. Dennis (per curiam 2006)
546 U.S. 459
50
In Children A & B ex rel. Cooper v. Florida (N.D. Fla. 2004) 355 F. Supp.
2d 1298, aff’d. 140 Fed. Appx. 845 (11th Cir. 2005) the district court held that
Rooker and Feldman did not bar the parents’ action in federal court to vindicate
their right to enroll their children in a private school at public expense, simply
because of a prior action between the state and the parents as guardians. The
parents were guardians-at-law of the minor children in their state court action,
similar to Appellant’s role as attorney at law in appeal #B254143.
The doctrine of res judicata controls whether or not Appellant is bound by
the appellate opinion as a non-party, and the Supreme Court has ruled that res
judicata is distinct from the RF Cutoff. Skinner v. Switzer (2011) 562 U. S. 521.
Appellant disagrees with Hoblock v. Albany County Board of Elections, supra, in
which the Second Federal Circuit Court of Appeals referred to the state law of res
judicata to decide that the voters in the federal action were a party to, or privy to, a
prior state court judgment. Hoblock preceded Skinner.
In Doran v. Salem Inn (1975) 422 U. S. 922, three “topless” dancing clubs
were represented by a single counselor at law. The three businesses sought to
enjoin enforcement of an ordinance which banned topless dancing as obscene. The
Supreme Court decided that the three businesses were not bound by the events in
each separate action in the court involving the other businesses. The Supreme
Court denied "that all three plaintiffs should automatically be thrown into the same
51
hopper for Younger purposes ...." Id. at 928. The Supreme Court reasoned that ". .
. while respondents are represented by common counsel, and have similar business
activities and problems, they are apparently unrelated in terms of ownership,
control, and management. We thus think that each of the respondents should be
placed in the position required by our cases as if that respondent stood alone."
D. OTHER ISSUES
This court of appeals may consider the standing of Appellant to sue
Conspiring and Judicial Appellees notwithstanding that neither the Notice of
Appeal nor the Amended Order appealed from addressed or decided the issue. To
have standing to seek "declaratory relief, a plaintiff must show that he has suffered
or is threatened with a `concrete and particularized' legal harm, coupled with `a
sufficient likelihood that he will again be wronged in a similar way.'" Canatella v.
California (9th Cir. 2002) 304 F. 3d 843, 852, reh. en banc denied. A plaintiff
must also "show that the feared harm is `actual or imminent.'" Id.
Appellant’s Complaint alleges that Appellees’ extrinsic fraud and/or joint
action in the courts caused the State Bar Administration to regard him as having
breached his duties to Conspiring Appellees and also to find that he must pay
Conspiring Appellees for his breach of the same duties. His complaint also alleges
the State Bar Administration threatens to suspend his license to practice law
because he did not pay the appellate sanctions. As to the availability of declaratory
52
relief and attorneys’ fees, the Federal Courts Improvement Act of 1996 authorized
declaratory relief and attorneys’ fees against Judicial Appellees. See Quern v.
Jordan (1979) 440 U. S. 332; Agua Caliente Band of Cahuilla Indians v. Hardin
(9th Cir. 2000) 223 F. 3d 1041. The text of the Federal Courts Improvement Act
of 1996, Pub. L. No. 104-317, expressly reserved declaratory relief actions from
absolute immunity of judges, thus the Act overruled Pulliam v. Allen (1984) 466
U. S. 522 only partially by withdrawing only the power to enjoin state court judges
from the federal courts. S. Rep. 104-366, Appendix.
Pullam v. Allen interpreted the doctrine of comity. Our Supreme Court has
described the Rooker-Feldman Cutoff as an abstention doctrine, which is based on
comity. Johnson v. DeGrandy (1994) 512 U. S. 997. This federal circuit court of
appeals has likewise described Rooker and Feldman as an abstention issue. See
Henrichs v. Valley View Development (9th Cir. 2007) 474 F. 3d 609.
This court of appeals plainly may not order abstention in this case. The
State Bar Court of California suspended its disciplinary proceedings against
Appellant while this appeal is pending. See Green v. City of Tucson (9th Cir. 2001)
(en banc) 255 F. 3d 1086, 1097. “The mere potential for conflict in the results of
adjudications is not the kind of interference that merits federal court abstention.”
Id. Appellant seeks declaratory relief, and the remedy is manageable. Los Angeles
County Bar Association v. Eu (9th Cir. 1992) 979 F. 2d 697; compare Allen v. De
53
Bello (D. N.J. 2016) 2016 U. S. Dist. Lexis 55900, aff’d. (3d Cir. 2017) 861 F. 3d
453.
Furthermore, the Conspiring Appellees committed extrinsic fraud on the
superior court and court of appeals to conceal the prima facie evidence that they
committed the felony crime of defrauding the United States with respect to
collection of federal income taxes due from the proceeds of the escrow of the sale
of the Property. 18 U. S. C. §371; United States v. Sprecher (S.D.N.Y. 1992) 783
F. Supp. 133.
VIII. CONCLUSION
This court of appeals must reverse the erroneous decision of the federal
district court. The sanctions are the intentional result of the Conspiring Appellees’
skillful manipulation of the unauthorized actions of the Judicial Appellees, who
had no jurisdiction to order sanctions.
Dated: August 31, 2017 Respectfully submitted,
s/Jeffrey G. Thomas______
JEFFREY G. THOMAS
Telephone: 310-650-8326
Attorney for Appellant
In Propria Persona
54
55
CERTIFICATE OF WORD COUNT
I hereby certify that the word count of this opening brief as measured by the
Microsoft Word© word processing software is 12,955 words.
__/s/ Jeffrey G. Thomas__
JEFFREY G. THOMAS
Telephone: 310-650-8326
Appellant In Propria Persona
Word Count – Thomas v. Zelon et al.

STATEMENT OF RELATED CASES
There are no related cases in this court of appeals.
__/s/ Jeffrey G. Thomas__
JEFFREY G. THOMAS
Telephone: 310-650-8326
Appellant In Propria Persona
Statement of Related Cases – Thomas v. Zelon et al.

ADDENDUM
Section 309 of Pub. L. No. 104-317, the Federal Courts Improvement
Act of 1996:
SEC. 309. PROHIBITION AGAINST AWARDS OF COSTS, INCLUDING
ATTORNEY’S FEES, AND INJUNCTIVE RELIEF AGAINST A JUDICIAL
OFFICER.
(a) NONLIABILITY FOR COSTS.—Notwithstanding any other provision of
law, no judicial officer shall be held liable for any costs, including
attorney’s fees, in any action brought against such officer for an act or
omission taken in such officer’s judicial capacity, unless such action was
clearly in excess of such officer’s jurisdiction.
(b) PROCEEDINGS IN VINDICATION OF CIVIL RIGHTS.—Section
722(b) of the Revised Statutes (42 U.S.C. 1988(b)) is amended by inserting
before the period at the end thereof ‘‘, except that in any action brought
against a judicial officer for an act or omission taken in such officer’s
judicial capacity such officer shall not be held liable for any costs, including
attorney’s fees, unless such action was clearly in excess of such officer’s
jurisdiction.’’
(c) CIVIL ACTION FOR DEPRIVATION OF RIGHTS.—Section 1979 of the
Revised Statutes (42 U.S.C. 1983) is amended by inserting before the period
Addendum – p. 1
at the end of the first sentence: ‘, except that in any action brought against a
judicial officer for an act or omission taken in such officer’s judicial
capacity, injunctive relief shall not be granted unless a declaratory decree
was violated or declaratory relief was unavailable’.
Pages 36 and 37 from S. Rep. No. 104-366 state that:
Senate Report No. 104-366 states at pages 36 - 37:
Sec. 311.—Prohibition of awards of costs, including attorney’s
fees, and injunctive relief against judicial officers
This section restores the doctrine of judicial immunity to the
status it occupied prior to the Supreme Court’s decision in
Pulliam v. Allen, 466 U.S. 522 (1984), and has the support of
the American Judges Association, the Conference of Chief
Judges of the National Center for State Courts, and the
American Bar Association. Legislation identical to section 311
was introduced as S. 1115 by Senator Thurmond in this
Congress on August 3, 1995. Nearly identical bills were also
introduced, and the subject of hearings in previous
years, including the 100th, the 101st and the 102d Congresses.
While the Committee favorably reported these bills in each of
three Congresses, the full Senate never considered them. See S.
Addendum – p. 2
Rept. 556, 100th Cong., 2d sess. (1988); S. Rept. 465, 101st
Cong., 2d sess. (1990); S. Rept. 224, 102d Cong., 1st sess.
(1991).
In Pulliam, the Supreme Court broke with 400 years of common
law tradition and weakened judicial immunity protections. The
case concerned a State magistrate who jailed an individual for
failing to post bond for an offense which could be punished only
by a fine and not incarceration. The defendant filed an action
under 42 U.S.C. 1983, obtaining both an injunction against the
magistrate’s practice of requiring bonds for nonincarcerable
offenses, and an award of costs, including attorney’s fees. The
Supreme Court affirmed, expressly holding that judicial
immunity is not a bar to injunctive relief in section 1983 actions
against a State judge acting in a judicial capacity, or to the
award of attorney’s fees under the Civil Rights Attorney Fees
Award Act, 42 U.S.C. 1988. Those statutes are now amended
to preclude awards of costs and attorney’s fees against judges
for acts taken in their judicial capacity, and to bar injunctive
relief unless declaratory relief is inadequate.
Addendum – p. 3
In the 12 years since Pulliam, thousands of Federal cases have
been filed against judges and magistrates. The overwhelming
majority of these cases lack merit and are ultimately dismissed.
The record from the Committee’s previous hearings on this
issue is replete with examples of judges having to defend
themselves against frivolous cases. Even when cases are
routinely dismissed, the very process of defending against those
actions is vexatious and subjects judges to undue expense.
More importantly, the risk to judges of burdensome litigation
creates a chilling effect that threatens judicial independence
and may impair the day-to-day decisions of the judiciary in
close or controversial cases.
Subsection 311(a) codifies the general prohibition against
holding judicial officers (justices, judges and magistrates)
liable for costs, including attorney’s fees, for acts or omissions
taken in their judicial capacity. Subsection 311(b) amends 42
U.S.C. 1988 to prohibit holding judicial officers liable for costs
or fees. Subsection 311(c) amends 42 U.S.C. 1983 to bar a
Federal judge from granting injunctive relief against a State
judge, unless declaratory relief is unavailable or the State
Addendum – p. 4
judge violated a declaratory decree. In short, subsection (a)
states the general rule, while subsections (b) and (c)
specifically address the statutes at issue in Pulliam. The
legislation extends protection to Federal as well as State
judicial officers out of concern that Federal judges otherwise
might be subject to cost and fee awards in cases alleging
Federal constitutional torts. See, e.g., Bivens v. Six Unknown
Named Agents of the Federal Bureau of Narcotics, 403 U.S.
388 (1977); Butz v. Economou, 438 U.S. 478 (1978).
This section does not provide absolute immunity for judicial
officers. Immunity is not granted for any conduct ‘‘clearly in
excess’’ of a judge’s jurisdiction, even if the act is taken in a
judicial capacity. Moreover, litigants may still seek
declaratory relief, and may obtain injunctive relief if a
declaratory decree is violated or is otherwise unavailable.
Section 311 restores the full scope of judicial immunity lost in
Pulliam and will go far in eliminating frivolous and harassing
lawsuits which threaten the independence and objective
decision-making essential to the judicial process.
Addendum – p. 5

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Case: 17-55404, 08/31/2017, ID: 10566393, DktEntry: 9, Page 1 of 74

UNITED STATES COURT OF APPEALS

LAURIE ZELON, DENNIS PERLUSS, HUGH JOHN GIBSON, HOPE

On Appeal From the United States District Court

Jeffrey G Thomas, Esq.

CORPORATE DISCLOSURE AND

This statement is made pursuant to F. R. App. P. 26.1. Appellant is an

individual and not a corporation.

The State Bar Administration of California may have an interest in the

STATEMENT REGARDING ORAL ARGUMENT

The issue on appeal is controlled by precedent of this circuit court of

appeals, and especially Kougasian v. TMSL, Inc. (2003) 359 F. 3d 1136.

courtroom is necessary if Appellees contradict the briefs.

To avoid the appearance of impropriety, the justices (or their spouses)

California judiciary or its state bar association or administration.

CORPORATE DISCLOSURE …………………………………………………. ii

TABLE OF CONTENTS ………………………………………………………. iii

TABLE OF AUTHORITIES …………………………………………………… v

II. STATEMENT OF JURISDICTION …………………………………………. 14

A. District Court Jurisdiction ..................................................................... 14

B. This Appellate Court ……...................................................................... 14

C. Final Order ............................................................................................. 15

E. Standard of Review …………………………………………………… 15

III. STATUTORY AND REGULATORY AUTHORITIES …………………… 15

IV. QUESTIONS PRESENTED ……………………………………………….. 17

V. STATEMENT OF THE CASE ....................................................................... 17

VI. SUMMARY OF ARGUMENT ..................................................................... 26

VII. ARGUMENT ................................................................................................ 28

A. THE ROOKER-FELDMAN AFFAIR APPLIES SOLELY TO DE FACTO

APPEALS FROM STATE COURT, AND THE DISMISSED COMPLAINT IS

NOT A DE FACTO APPEAL ………………………….……………………….. 28

B. THE ACTION IS A SUBSTANTIAL CONTINUATION OF THE

PROCEEDINGS IN THE STATE COURTS …………………………………… 43

C. APPELLANT WAS NOT A PARTY TO THE APPEAL IN THE STATE

COURT AND THE ACTION IS NOT SUBJECT TO ROOKER AND/OR

D. OTHER ISSUES …………………………………………………………….. 52

VIII. CONCLUSION …………………………………………………………… 54

CERTIFICATE OF WORD COUNT …………………………………………. post

STATEMENT OF RELATED CASES ……………………………………….. post

APPENDIX (Relevant passages from S. Rep. No. 104-366) …………………. post

Agua Caliente Band of Cahuilla Indians v. Hardin

Arthur v. JP Morgan Chase Bank, NA (11th Cir. 2014)

Bauguess v. Paine (1978) 22 Cal. 3d 626 …………………………………. 11, 24

Berger v. Board of Psychiatric Examiners (D.C.Cir. 1985)

Betz v. Pankow (1993) 16 Cal. App. 4th 931 …………………………………… 17

Board of Directors, Rotary International v. Rotary Club of Duarte

Canatella v. State of California (9th Cir. 2002) 304 F. 3d 843,

Children A & B ex rel. Cooper v. Florida (N.D. Fla. 2004) 355 F.

Dale v. Moore (11th Cir. 1997) 121 F. 3d 624 ………………………………….. 15

Davis v. Bayless (5th Cir. 1995) 70 F. 3d 367 ……………………………….. 30, 48

District of Columbia Court of Appeals v. Feldman (1983)

Doran v. Salem Inn (1975) 422 U.S. 922 ……………………………………….. 51

Exxon-Mobil Corp. v. Saudi Basic Industries Corp.

F. J. Hanshaw Enterprises, Inc. v. Emerald River Development

Fieger v. Ferry (6th Cir. 2006) 471 F. 3d 637 ……………………………………. 36

Fontana Empire Center LLC v. City of Fontana (9th Cir. 2002)

Great Western Mining & Mineral Co. v. Fox Rothschild LLP

Gross v. Weingarten (4th Cir. 2000) 217 F. 3d 208 …………………………… 47

Groves v. Peterson (2002) 100 Cal. App. 4th 659 ……………………………… 43

Hoblock v. Albany County Board of Elections (2d Cir. 2005)

Holliday Amusement Co. of Charleston, Inc. v. State of South Carolina

Housing Rights Center v. Sterling (C.D. Cal. 2004)

Illinois Central Railroad Co. v. Guy (5th Cir. 2012)