UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA. Defendants

Transcription

1 Colbern C. Stuart III Cole.Stuart@Lexevia.com 1 Pacific Highway Ste. San Diego, CA 0 Telephone: Facsimile: In Pro Se Dean Browning Webb (pro hac vice) RICOman1@aol.com Law Offices of Dean Browning Webb 1 E th St. Vancouver, WA -0 Telephone: 0--1 Eric W. Ching, Esq. SBN Balboa Arms Dr. Unit 1 San Diego, CA Phone: --1 Facsimile: Attorneys for Plaintiff California Coalition for Families and Children, PBC CALIFORNIA COALITION FOR FAMILIES AND CHILDREN, et al., v. SAN DIEGO COUNTY BAR ASSOCIATION, et al., UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA Plaintiffs, Defendants I, Colbern Stuart, declare and state: Case No. :1-cv-1-CAB (BLM) Judge: Hon. Cathy Ann Bencivengo DECLARATION OF COLBERN C. STUART IN SUPPORT OF PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION Date: March, 01 Time: :00 p.m. Courtroom: C ORAL ARGUMENT REQUESTED SUBJECT TO COURT APPROVAL Complaint Filed: August 0, 01 I am a Plaintiff in this action and President and founder of Plaintiff California 1

2 Coalition for Families and Children, PBC. I have personal knowledge of the facts stated herein and if called to testify would competently testify as follows: 1. Attached hereto as Exhibit A are true and correct copies of cited portions of the California Family Code, including the Domestic Violence Prevention Act.. Attached hereto as Exhibit B is a true and correct copy of an article entitled Judge outlines reasons for domestic violence increase by Ms. Elizabeth Marie Himchak appearing in the Pomerado News, on about March, 0.. Attached hereto as Exhibit C are true and correct copies of forms and instructions designed, written, printed, maintained, distributed, and made mandatory by Defendant JUDICIAL COUNCIL ( DV -designated numbers), and certain others prepared by Defendant COUNTY OF SAN DIEGO ( SDSC - designated numbers). These include: a. DV-0 ( Request for Domestic Violence Restraining Order ); b. DV-0-INFO ( Can A Domestic Violence Restraining Order Help Me? ); c. SDSC Form #D-0 ( Instructions for Domestic Violence Restraining Orders ); d. DV-1 ( Description of Abuse ); e. MC-00 ( Additional Page to Attach to Judicial Council Form or Other Court Paper ); f. DV- ( Notice of Court Hearing ); g. DV-0 ( Temporary Restraining Order (CLETS-TRO) ); h. SDSC Form #D-0 ( Order For Removal from Residence ); i. CLETS-001 ( California Law Enforcement Telecommunications System (CLETS) Information Form ); j. DV-0-INFO ( How Can I Respond to a Request for Domestic Violence Restraining Order? ); k. DV-0 ( Response to Request for Domestic Violence Restraining Order ); l. DV-00 ( Proof of Firearms Turned In or Sold ); m. DV-00-INFO ( Can A Domestic Violence Restraining Order Help Me? ;

3 n. DV-0-INFO ( How Do I Ask For A Temporary Restraining Order? ; o. DV 0 ( Get Ready for Court Hearing ); p. CR (Santa Clara County INFO forms); q. FM-1 ( Declaration In Support of Ex Parte Application for Orders ).. Attached hereto as Exhibit D are true and correct copies of pages from internet websites operated and containing information by and about San Diego County public agencies including the Superior Courts, Family Law Facilitators Offices, county self-help centers for litigants, Internet websites, and cooperating agencies such as the Legal Aid Society, Volunteer Lawyer s Program, restraining order clinics and classes, and county law libraries.. Attached hereto as Exhibit E are true and correct copies of pages from private or quasi-private agencies such as Defendant ALLIANCE, the San Diego Family Justice Center and entities such as domestic violence shelters, the YWCA, and Center for Community Solutions.. Attached hereto as Exhibit F are true and correct copies of pages from cooperating public law enforcement entities such as the City of San Diego Police Department and San Diego County Sheriff s Department.. Attached hereto as Exhibit G are true and correct copies of pages from the San Diego City Attorney s Office Domestic Violence Unit and the County of San Diego District Attorney s Office Family Protection Division and victim advocate services therein. See also Defendant ALLIANCE Resources library page relating to domestic violence at Battered Women s Justice Project Resources page relating to domestic violence at Praxis International s Library page at Thousands more exist.. Attached hereto as Exhibit H are true and correct copies of pages from Defendants SDCBA, BIERER, and the law offices of Thomas Huguenor

4 describing their services relating to obtaining domestic violence restraining orders, including online instructions, classes, referrals, and advice.. Online videos detailing these forms and restraining orders are available at the following locations: A official PowerPoint Audio/Video created by a state entity is available at A video explaining the process by the San Diego Legal Aid Society at A San Diego private law firms explanation is available at and and Attached hereto as Exhibit I are true and correct copies of relevant portions of the California Penal Code.. Attached hereto as Exhibit J are true and correct copies of publications of JUDICIAL COUNCIL, CITY OF SAN DIEGO, ALLIANCE, and the National Domestic Violence Hotline defining abuse and domestic violence from Domestic Dispute Industry organizations.. The term batter is associated with meanings in the Domestic Dispute Industry that are distinct from the definition of the term battery in California Penal Code section (e)(1). Attached hereto as Exhibit K are true and correct copies of definitions and explanations of concepts related to the term batter. Pages P- provide definitions and descriptions of the crime domestic battery under Cal. Pen.C (e)(1). 1. Attached hereto as Exhibit L is a true an-d correct copy of an article by Herma Hill Kay entitled An Appraisal of California's No-Fault Divorce, Cal. L. Rev. 1 (1) discussing California s pre- fault divorce law and the post- no fault law and analyzing the change. 1. Attached hereto as Exhibit M is a true and correct copy of a article by Lynn D. Wardle entitled No-Fault Divorce and the Divorce Conundrum, BYU L. Rev. () available at

5 wreview. 1. I have personal knowledge of the policies, customs, and practices of several Defendants herein through years working with or against them in various capacities in my own matters, and in assisting hundreds of moms, dads, and children in similar matters nationwide as a founder and current President of California Coalition for Families and Children. My experience is supplemented by thirteen years practicing law and in litigating dozens of matters in state and federal courts nationwide. 1. I hereby incorporate by reference Plaintiffs First Amendment Complaint, Doc. No. 0, paragraphs - describing The Pit a tool empowered in part by the Domestic Violence Restraining Orders this Motion seeks to enjoin. The Pit is one pillar for the extortion, fraud, and abuse of process exploited by the Domestic Dispute Industry Criminal Enterprise (DDICE) to perpetrate the crimes described in the First Amended Complaint. 1. To illustrate how domestic violence restraining orders are exploited by the DDICE as part of The Pit to defraud and extort Domestic Dispute Industry Litigants, I attach hereto as Exhibit N a true and correct copy of a 1 article written by Leonard Karp and published in The Journal of the American Academy of Matrimonial Lawyers ( AAML ). 1. The AAML is an invitation only Domestic Dispute Industry organization consisting primarily of elite Domestic Dispute Industry lawyers. See, AAML profile of Defendant Sharon Blanchet describing Ms. Blanchet as a Certified Family Law Specialist with years of experience. She is a Fellow in the invitation-only American Academy of Matrimonial Lawyers (President of the So Calif Chapter 0) and the International Academy of Matrimonial Lawyers In Mr. Karp s AAML Journal article, he counsels:

6 Almost every divorce case carries with it some form of domestic tort, and thus, the filing of such a claim must be considered in all divorce cases. When a marriage turns sour, spouses frequently engage in offensive and sometimes violent behavior towards each other, and many times towards their children. Thus, the filing of the tort usually, as in any other tort case, is weighted by considerations of your client's damages and the chances of recovery. Only when there is a serious physical or psychological injury, and a source of recovery, should a practitioner consider pursuing a separate tort action. The source of recovery, however, need not be limited to the perpetrator's estate alone. Damages may be sought from third parties who may share in the responsibility for the injured spouse's damages, or from insurance coverage. In other cases, when the damages are not as significant, or when a "deep pocket" defendant cannot be found, the threat of a domestic tort, along with a well prepared strategy to proceed, can be a bargaining chip for a larger share of the marital estate, or higher spousal maintenance payments at the negotiation table. In drafting the cause of action, a practitioner is limited only by his or her imagination. As a starting point, common legal theories that have been used as a basis for pleading a domestic tort case include: negligence, negligent infliction of emotional distress, negligence per se, defamation, deceit and fraudulent misrepresentation, false imprisonment, intentional infliction of emotional distress, wrongful death, assault and battery, and implied cause of action for the violation of a criminal statute, including sexual assault. Thus, the causes of action available, coupled with the lesser burden of proof in a civil case for a victim, plus the absence of the constitutionally protected rights of the perpetrator and evidentiary rules protective of criminal defendants, make the filing of a domestic tort a realistic option for a victim to redress abuse.

7 Leonard Karp, Federal Law and Domestic Violence: The Legacy of the Violence Against Women Act 1 Journal of the American Academy of Matrimonial Lawyers 1 (1) available at pdf. (Ex. N hereto). 0. The American Academy of Matrimonial Lawyers thus conveys the logic of seeking a deep pocket that is in addition to the perpetrator s estate by asserting any number of allegations limited not by veracity, but only by a practitioner s imagination. Mr. Karp also counsels Domestic Dispute Industry practitioners that there exists an absence of the constitutionally protected rights of the perpetrator and evidentiary rules protective of criminal defendants in Family Court. 1. Mr. Karp counsels that this absence of constitutional and procedural protections makes assertion of an implied cause of action for the violation of a criminal statute or negligence per se or negligent infliction of emotional distress a realistic option to increase the pool of recoverable damages in a dissolution proceeding. He counsels that by such action a dissolution petitioner may expand the pool of recovery to include not only the community property over which the dissolution court has jurisdiction, but also a spouse s separate property assets.. Mr. Karp s article counsels, commands, induces or procures (1 U.S.C. ) AAML members to assert an implied cause of action for the violation of a criminal statute against not only the other party to the dissolution proceedings, but also to pursue other deep pockets such as the dissolving couple s homeowner s insurer, separate liability insurance, employers, and assets of the spouse s relatives to leverage a bargaining chip for a larger share of the marital estate, or higher spousal maintenance payments at the negotiation table.. Mr. Karp s counsel to use the threat of an implied cause of action for the violation of a criminal statute is quite ingenious. It s also quite illegal.

8 U.S.C. 11 provides: (a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both. (b) As used in this section (1) The term robbery means the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property, or property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining. () The term extortion means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right. Cal. Pen.C. 1 provides: Extortion is the obtaining of property from another, with his consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear, or under color of official right. Cal. Pen.C. 1 provides:

9 Fear, such as will constitute extortion, may be induced by a threat, either: 1. To do an unlawful injury to the person or property of the individual threatened or of a third person; or,. To accuse the individual threatened, or a relative of his or her, or member of his or her family, of a crime; or,. To expose, or to impute to him, her, or them a deformity, disgrace, or crime; or,. To expose a secret affecting him, her, or them.. This obscene exploitation of The Pit counseled, commanded, induced and procured by the AAML is multiplied by the manufactured perception ongoing in this lawsuit that there exists a domestic relations exception to the laws of the United States and the State of California.. For example, counsel for Defendant Dr. Stephen Doyne, Mr. Christopher Zopatti, has deployed such a perpetration before this Court at Doc. No. -1, pp Mr. Zopatti argues that this Court lacks subject matter jurisdiction over Plaintiff s federal law claims because the parties or events have a relationship to prior domestic dispute litigation in state court.. This proposition is clearly false. This matter is brought under the constitution and laws of the United States, and no Plaintiff asserts state domestic law. To the extent that any Plaintiff challenges the constitutionality of state policies, practices, regulations, or laws under Title of the United States Code, such matters are expressly within the public health and welfare jurisdiction of United States courts under U.S.C In Ankenbrandt v. Richards, 0 U.S., () the United States Supreme Court defined the Domestic Relations Exception to exist only within federal diversity jurisdiction under U.S.C. 1. It s inapplicability to federal question jurisdiction has been recently confirmed in a case originating out of our neighboring Central District of California, Marshall v. Marshall, U.S.,

10 (00). Further contemporary analysis is available. Attached hereto as Exhibit O is a true and correct copy an article by Emily J. Sack entitled The Domestic Relations Exception, Domestic Violence, and Equal Access to Federal Courts, Wash. U.L. Rev. 11 (00).. Dr. Doyne s attempt to deceive this Court is foolishly ambitious, yet not entirely surprising given the success with which he has been able to deceive or collude with state courts to perpetrate the deception on family court litigants. Unlike the Court and at least some present counsel, the citizens who entrust their family s welfare to Dr. Doyne and thousands of his ilk are rarely so sophisticated. Indeed, when aware litigants assert federal rights in state family court procedure, the Domestic Dispute Industry has been less than welcoming. See, e.g., STUART ASSAULT, MALICIOUS PROSECUTION, OBSTRUCTION OF JUSTICE, CIVIL RIGHTS, RACKETEERING Counts in Plaintiffs First Amended Complaint. 0. Yet thousands of county superior court judges throughout the state of California oversee perpetration of the fraud daily in their courtrooms, and even extend the courtesies of the State of California s police powers to enforce illegal domestic violence restraining orders such as those challenged in Plaintiffs Motion. See Exhibit T 1. Attached hereto as Exhibit P is a true and correct copy of the Report of United States Department of Justice, Bureau of Justice Statistics, Intimate Partner Violence in the U.S.. Attached hereto as Exhibit Q is a true and correct copy of the transcript of oral argument before the United States Supreme Court in the proceedings for the matter entitled United States v. Hayes, Doc. No. 0-0, available at Attached hereto as Exhibit R is a true and correct copy of the transcript of oral argument before the United States Supreme Court in the proceedings for the

11 matter entitled United States v. Castleman, Doc. No. -11, available at Notwithstanding the abundant attention devoted to the issue of domestic violence, there exists remarkable disagreement among many researchers as to the nature, cause, and solutions to the problem. Attached hereto as Exhibit S is a publication entitled The Partner Abuse State of Knowledge Project. This article states Over the years, research on partner abuse has become unnecessarily fragmented and politicized.. It is my professional opinion as a lawyer of fifteen years, father, and family court reform advocate that much of this confusion and fragmentation has been caused by ill-advised drafting, interpretation, and enforcement of domestic violence laws, leading to confusion, and enabling parties such as the present defendants to manipulate vague laws and standards such as abuse harass domestic violence and the like for inappropriate ends. Such laws enable not merely confusion, but coercion, fraud, and extortion of domestic dispute industry litigants en masse, leading to the racketeering, civil rights abuse, obstruction of justice and deplorable malicious profiteering from such chaos.

12 I have personally been subjected to deprivation under three Temporary Restraining Orders issued by Defendant C. GOLDSMITH on JUDICIAL COUNCIL Form DV-0 and by the processes identified above. I am presently restrained by a Domestic Violence Restraining Order based on Form DV-10, issued in about May, 0 by un-named judicial official Edward Allard, which is effective until about May or June, 01. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. DATED: February, 01 By: /s/ Colbern C. Stuart, III Colbern C. Stuart, III, President, California Coalition for Families and Children, PBC in Pro Se

13 CERTIFICATE OF SERVICE The undersigned hereby certifies that all counsel of record who are deemed to have consented to electronic service are being served with a copy of this document via the court's CM-ECF system per Federal Rule of Civil Procedure (b )()(E). Any other counsel of record will be served by facsimile transmission and/or first class mail this th day of February, 01. By: /s/ Colbern C. Stuart, III Colbern C. Stuart, III, President, California Coalition for Families and Children, PBC in Pro Se -1- STUART DEC. ISO MTN FOR PRELIM INJ :1-cv-1 CAB BLM