What is wrong with our country is not just racism. It is egalitarianism. It is cronyism. It is that justice became “just us”.

What happens when a person of modest means has her property, money, opportunity, health or even life stolen by one of the elite? Nothing.

Good luck going to court to represent yourself. Even if you are gifted enough to know how to file the proper paper at the proper time, opposing counsel will use every trick in the book to steal justice too. And, unfortunately, the judge just may throw you to the ground and stick her knee in the back of your neck.

This is a plea I filed at the Ninth Circuit Court of Appeals to help me out. I should have just wrote “I can’t breathe!”

Laura Lynn Hammett, “Plaintiff” or “the plaintiff”, responds here to the order to show cause entered on May 1, 2020 why the appeal 20-55442 should not be dismissed. (All dates are in 2020 unless specified.)

          One order named on the Notice of Appeal “clerk’s default judgment” was a misnomer for the requested order for the trial court to compel the clerk to enter clerk’s default as of August 1, 2019.

          This is not a brief as to why plaintiff should prevail on appeal. It is the reasons she should be allowed to brief the reasons she should prevail on appeal. Two examples of error will be given as illustration.

          There are two issues.

          One. Technically, the order is final. The trial court used a confusing procedure to close the case that made the pro se plaintiff believe as this court believed that the orders were interlocutory. But the orders are final, the case “closed” and “terminated”. It remains closed unless plaintiff files an amendment by August 7^th. If she fails to file by August 7^th and did not file her Notice of Appeal by April 22^nd, her right to appeal would not be preserved. The presiding judge has no other order written this way posted on Westlaw. It appears the trial court is treating the pro se plaintiff differently than is the court’s common practice.

Two. The District Court is wasting court resources by deciding issues contradictory to her own opinions on other cases. She can use a nudge in the right direction. Petitioner intends to file a motion for disqualification of the judge, but since the Court created this technical error that allows for an early review, we can save time and money for all involved by reviewing the case now.

References to the district court record are illustrated in the attachments. Attachments are designated “A#”; “EFC No. X:Y” refers to the district court docket electronic case filing number followed by a page and line number. The page number is the electronic docket page number, not the number on the bottom of the page. This makes it easier to locate.

The dispute involves a limited liability company whose main business was a $10M shopping center. It is a hybrid of member-managed and manager-managed. The shareholders who are all family members or trusts of family members are responsible for making what the operating agreement calls “major decisions”. Day to day operations were managed by the oldest sister, Mary Sherman, and the professional managers of her choosing.

In late 2013, petitioner became completely estranged from all the other family members who had voting rights in the LLC, except for communications about the business.

The LLC began paying about 11% gross rents for management, which is more than double a reasonable rate. Petitioner was denied her right to access to company financial records. Petitioner asked for an accounting and was denied. She offered to sell her share to her sisters and was denied. Then in 2015 the company counsel seemed to work on behalf of the other members of the LLC and tried to negotiate a sale of Petitioner’s share to the other sisters for 1/6^th its value. Petitioner rejected that offer. About 18 months later the property sold for 6 times the amount the company attorney defendant opined the value to be.

The dispute stems from the misappropriation of funds from the company, including paying attorneys to represent the company and simultaneously each member of the LLC as an individual, excluding only the petitioner. The buyer’s prospectus reflected a net operating income that was six figures higher than the NOI reported to petitioner on K-1s.

As presented into evidence by two defendants with no exclusion for use and no objection from any other litigant, the petitioner offered to settle the dispute for $60,000 in 2018. Half this would go to her Stanford and Hasting trained attorney who was then working on contingency. She had capital in the company of over $70,000. The other members and company counsel decided it would be better to litigate. The attorney defendants alone claim they have spent about $58,000 on attorney fees since then and there is no end in sight.   

          The Order is Final

As per the order of this court, we all should “avoid ‘the hazards of confusion or misunderstanding as to the time for appeal’”.

          The trial court created confusion and misunderstanding when it wrote the Order of March 23, 2020.

“Plaintiff MAY FILE an amended complaint within forty-five (45) days of the electronic docketing of this order. Should Plaintiff fail timely to file an amended complaint, this action shall remain closed without further Order of the Court.” (A1: ECF 111, 54:7-10)

For three weeks, the plaintiff understood this to mean the order was not final, because she could amend her complaint. Finality would come 45 days later. That is how it is done the vast majority of the time.

But on April 14^th, Plaintiff noticed that the Clerk of the Court wrote “closed” and “terminated” on the header of the docket. (A2: docket cover printed 4/14/2020)

Plaintiff made a written inquiry of the clerk.

Joseph Diaz, CM/ECF Coordinator responded. “Yes. The case was terminated on 03/23/2020 per the following order: [followed by the order]”. (A3: Email of 4/15/2020 in response to plaintiff’s online inquiry)

“Closed” means “(Of a class or organization) confined to a limited number”. (Black’s Law Dictionary (11^th ed. 2019)) “Terminate” means “1. To put an end to; to bring to an end. 2. To end; to conclude.” (id.)

The Plaintiff who is now in pro se is not an attorney, but wrote about the courts for many years, and had never seen an order “closed” with an option to reopen. She searched Westlaw for other documents that said, “remain closed” narrowed by “may file an amended”. None presided over by Judge Janis L. Sammartino came up. A few from other judges were almost like this case, but the time for amending was 30 days or less. Those plaintiffs would not lose their right to appeal if they found they could not amend by the due date.

A timely Notice of Appeal must be filed within 30 days of entry of order or judgment.  (28 U.S. Code § 2107(a))

Plaintiff found some orders granting leave to amend by Judge Sammartino. Here is a typical sample: “Plaintiffs MAY FILE an amended complaint on or before thirty (30) days of the electronic docketing of this Order. Should Plaintiffs choose not to file an amended complaint by this time, this case shall be dismissed and the file closed.” (Barvie v. Bank of America, N.A., U.S.D.C., S.D. Cal., 2018 WL 4537723)

In Barvie, if the order was issued on March 23^rd, the amended complaint would need to be filed on April 22^nd. If no amended complaint was filed, the case would then be dismissed on April 23^rd. The clerk would mark it “closed” and “terminated” on the docket. The notice of appeal would be due on May 23^rd or the next Monday if it fell on a weekend.

In Hammett, the order was issued on March 23^rd. If plaintiff decided against the amendment, the notice of appeal would be due April 22^nd. March 23^rd is the day the case was “closed” and “terminated”. It never opened back up. There would be an argument if the plaintiff tried to file a notice of appeal 30 days after the day the amendment was due.

This Court’s memorandum quotes WMX Techs., Inc.: “Something more is both anticipated and required.”

Plaintiff anticipates filing an amendment. But it is not required.

In the usual situation where leave to amend is given, if an amendment is not timely filed, the clerk must close the case. That is the required act.

In this case if an amendment is not filed, nothing more is required. The case is already closed. WMX Techs., Inc is specific that “both” anticipated and required events are the hallmark of a non-final case.

Plaintiff cited WMX Techs,, Inc in her responses to the attorney defendants’ “request” for entry of judgment. (A4 to A6: ECF 113, 2:1; ECF 115, 2:1; ECF 117, 2:12) She was tricked, as this court was tricked, into believing the order was not final. The counterfeit looked so much like the original that the effect of the ambiguity was not noticeable until it was analyzed deeply.

The Little Technicalities and “Wasteful Exercise”  

The district court confused the case at bar by closing the case before the time to amend expired instead of after the time to amend expired. The Court and Defendants might call this a “technicality”. But one of the orders appealed, the denial of the order to compel the clerk to enter default pursuant to FRCP 55(a) is also based on a technicality. And that technicality will prejudice the case profoundly.

The petitioner is in pro se. She studied law online one semester and is otherwise self-taught.

Three defendants are attorneys. Counsel who represented two of the attorneys is now with the State Office of Attorney General. Each defendant is represented by a licensed attorney and one has an additional pro hoc vice.

Petitioner is held to all the rules of court. The defendants and the Court must be held to the same standard. Anything less is a violation of due process and equal justice under the law.

The Case of the King’s New Clothes

Promises that the case will be reopened if the plaintiff files her amended complaint are hard to believe. The clerk was supposed to enter default pursuant to FRCP 55(a) when “Linda R. Kramer, an individual” did not appear on the face of the motion to dismiss filed on behalf of Linda R. Kramer as co-trustee of the Lynn and Erik’s Trust. (A7: ECF 19) The individual will be called “Kramer” herein.

 Under his name, address and bar number, Mr. Cochran wrote, “Attorneys for Defendants Linda R. Kramer and Erik Von Pressentin Hunsaker as Co-Trustees of the Lynn and Erik’s Trust”. The word “individual” appears in the list of defendants, as it appears on the complaint that Petitioner wrote. Petitioner did not represent Kramer. “Individual” next appears on the memo page 6 at footnote 3. (A8: ECF 19-1, 6:fn3)

The first time Kramer appeared as an individual on the list of represented parties on the face of a pleading was on September 26, 2019, almost two months after Plaintiff requested entry of default. (A9: ECF 80) (Erik Von Pressintin Hunsaker was left off the docket entry but did appear on the document itself. He was included on the docket entry for ECF 81.)

The clerk did not honor plaintiff’s request for entry of default made on August 1, 2019. The trial court denied Plaintiff’s motion to compel the clerk to enter default. Instead, the trial court treated her analysis as if a motion to set aside entry of default was filed pursuant to FRCP 55(c).

FRCP 55(c) requires the defendant to file a motion to set aside default. The defendant refused calling it a “wasteful exercise”. (A9: ECF 80, 6:23)

Proceeding without deciding the issue of the default is prejudicial. If the case proceeds and plaintiff files the same appeal after all claims are adjudicated and prevails, any defense given by Linda R. Kramer, an individual subsequent to August 1, 2019 will be of no consequence.

The following is from an order written by District Judge Janis L. Sammartino, the judge presiding in the case at bar (Bold added):

“The Court denies the motion [to dismiss] because the Court cannot consider any of Ms. Cohen’s arguments on the merits unless and until the entry of default against her is set aside. Pursuant to FRCP 55(a), the Clerk entered default against Ms. Cohen on January 12, 2006, when the first amended complaint (“FAC”) was the operative pleading in the litigation. (Doc. No. 40.) Plaintiff filed the SAC on March 5, 2007. (Doc No. 62.) Without previously moving to set aside the default, Ms. Cohen answered the SAC on June 5, 2007. (Doc. No. 83.) The Hon. Jeffrey T. Miller granted plaintiff’s unopposed FRCP 12(f) motion to strike on August 14, 2007. (Doc. No. 96.) In that Order, Judge Miller explained the effect of the default entered against Ms. Cohen prior to the filing of the SAC: ‘Since default has already been entered against the [defendants], they are no longer permitted to answer. This is true even though they were defaulted in connection with the now-inoperative FAC, which in all material terms is identical to the SAC as far as the Cohens are concerned.’ (Id. at 2.)

“Unless and until Ms. Cohen files a noticed motion to have the entry of default set aside (pursuant to FRCP 55(c)) and then prevails on that motion, she cannot litigate the merits. ‘ “[O]nce a default is entered, a defendant on default has no further standing to contest the factual allegations of plaintiff’s claim for relief.” ‘ Taylor v. City of Ballwin, Mo., 859 F.2d 1330, 1333 n.7 (8th Cir. 1988) (quoting Caribbean Produce Exch. v. Caribe Hydro-Trailer, Inc., 65 F.R.D. 46, 48 (D.P.R. 1974)); accord New York Life Ins. Co. v. Brown, 84 F.3d 137, 143 (5th Cir. 1996); Twist & Shout Music v. Longneck Xpress, N.P., 441 F. Supp. 2d 782, 783 (E.D. Tex. 2006); In re Uranium Antitrust Litig., 473 F. Supp. 382, 386 (N.D. Ill. 1979); Great Am. Ins. Co. v. M.J. Menefee Constr., Inc., 2006 WL 2522408, at *2 (E.D. Cal. Aug. 29, 2006); see also TCI Group Life Ins. Plan v. Knoebber, 244 F.3d 691, 701 (9th Cir. 2001) (‘[f]or had there been no default, the plaintiff would of course have had to litigate the merits of the case’).”(Kremen v. Cohen, 2008 WL 11508541 at 1 and 2)

The violation of FRCP 55(a) is an important issue of law and is prejudicial to the outcome of the case. If the plaintiff must wait to appeal the issue until after the case is reopened and goes through trial, and the appellate court agrees that a default should have been entered on August 1, 2019, then according to the trial court’s previous ruling in Kremen, all evidence and argument presented by Linda R. Kramer, an individual subsequent to the amended complaint will be inadmissible. That is a lot more wasted exercise than filing a 55(c) motion.

It is strange. Motions to set aside default are almost always granted if filed two days after the pleading was due. The more time that passes, the less chance a court will approve a motion to set aside default; but here the defendant would rather wait a year and go through an appeal than to file a motion under 55(c).

Knowing that she will lose on appeal after years of litigation and proceeding stubbornly without filing the 55(c) shows that the defense is made only to protract litigation. And the Court is approving of what she knows will cause horrible waste.

Instead of doing the simple right thing, Mr. Cochran colluded with the clerk to change docket entries to show Kramer was added on July 30, 2019, then when Plaintiff told Mr. Cochran she had proof that the change was made, it was changed back. Then the attorney and clerk decided a footnote on page six would relieve Kramer of following procedure.

Then the court wrote her own footnote 13 on the order page 53:

“The Court cautions Plaintiff against impugning the Clerk or other staff of this Court or District based on gratuitous speculation regarding relationships of favoritism toward litigants or their counsel. See, e.g., ECF No. 85 at 2, 4. Such accusations should not be made lightly and, absent evidence supporting such claims, the Court will not countenance them.”

Testimony is evidence. Circumstantial evidence is evidence. Emails admitting to calling the clerk to make a change is evidence. Evolving docket entries printed out is evidence. All these were attached to plaintiff’s pleadings.

One argument Kramer made was that Plaintiff did not cite any caselaw that holds that a clerk’s error on the docket is cause to enter clerk’s default. (A9, ECF 80 5:23, 24) The error was not the clerk’s, though the clerk did make an error in docketing. Kramer was included as an individual on the caption by the clerk, but only the co-trustees of the Lynn and Erik’s Trust were represented on the face of the document. When Plaintiff went to file her request for entry of default on August 1, 2019, there was only one option to check off for Linda R. Kramer. The plaintiff called the clerk immediately and asked him to correct the docket, which he did. When the motion to dismiss was filed on July 30, 2019 for two defendants, “Linda R. Kramer and Erik Von Pressentin Hunsaker as co-trustees of the Lynn & Erik’s Trust”, their counsel or his paralegal did not contact the clerk to correct the error. The document specified it was on behalf of “two defendants” within the document as well (A8: ECF 19-1, 3:26)

The first packet of information the pro se plaintiff received from this court included a notice. “ATTENTION ALL PARTIES AND COUNSEL PLEASE REVIEW PARTIES AND COUNSEL LISTING”.

The second paragraph states: “Failure to ensure that all parties and counsel are accurately listed on our docket, []may also result in the waiver of claims or defenses.”

This may be a case of first impression, and it is likely this Court will not allow counsel to place responsibility for his negligence onto the clerk. It is more disturbing that the trial court let him.

If the error was the clerk’s, it would still be an inadvertent error that might be remedied by a motion pursuant to FRCP 55(c). Instead counsel demanded and the judge reiterated that Linda R. Kramer, an individual named a party to the motion to dismiss for purposes of entry of default. It is like the case of the king’s new clothes. Only the plaintiff does not see “Linda R. Kramer, an individual” on the face of the MTD.

But No One Else Sees the Elephant in the Room

One of the myriad of errors made in determining to grant attorney fees on the defendants’ anti-SLAPP motion stems from Petitioner’s voluntary dismissal of the derivative malpractice cause.

Plaintiff stated her reason to dismiss the malpractice cause without prejudice was because she was not a licensed attorney and therefore not considered competent to proceed “on behalf” of a Limited Liability Company. (A10: ECF 38, 2:10-14) Neither the trial court nor any of the army of defense attorneys nor defendant attorneys explained this nuance of derivative actions to Plaintiff and all seemed content to allow Plaintiff to litigate “on behalf of Silver Strand Plaza, LLC.” The district court even denied plaintiff’s motion for leave to retain limited scope representation “for explanation of particularly complex issues like Derivative causes of action.”(A11: ECF 11-3, 3:10-11)

Plaintiff’s reason to dismiss the conversion direct action was the exact opposite behavior the anti-SLAPP statute tries to deter. Plaintiff was accommodating the attorney defendants so their attorneys didn’t work piecemeal and was going to reinstate the cause after she got permission of the court to proceed on the conspiratorial causes against the attorneys pursuant to CCP 1714.10.

Here is the second paragraph of an order written by Judge Sammartino which the Court referred to in the order on appeal. Bold was added to particularly significant phrases, and commentary added in straight parenthesis.

“As just discussed, under Coltrain, Plaintiff’s voluntary dismissal of Attorney Defendants creates a presumption that Attorney Defendants are the prevailing party. 66 Cal.App.4th at 107, 77 Cal.Rptr.2d 600. As Attorney Defendants note, Plaintiff did not file an opposition to the anti-SLAPP motion. [Hammett did.] (MTS Opp’n 13.) Nor does Plaintiff, in his own motion to strike, explain why he dismissed Attorney Defendants while their anti-SLAPP motion was still pending. [Hammett did.] (See generally MTS; MTS Reply.) [omitted irrelevant text] But the California anti-SLAPP statute, as interpreted and applied by Coltrain and its progeny, allows the Court to inquire into Plaintiff’s reasons for dismissing these Defendants. And he has given none.[Hammett did.] [omitted repetitive text] See, e.g., Fleming v. Coverstone, No. 08CV355 WQH (NLS), 2009 WL 764940, at *6 S.D. (Cal. Mar. 18, 2009) (finding that a defendant was a prevailing party within the meaning of California’s anti-SLAPP statute where the plaintiff “d[id] not assert that he dismissed the defamation claim because Plaintiff has substantially achieved his goals through settlement, because Defendant was insolvent, or for other reasons unrelated to the probability of success on the merits”).[Hammett did.] (A1: ECF 111, 46:18-22; Gottesman, 263 F. Supp. 3d 1034, 1043; Coltrain, 66 Cal. App. 4th at 107, 77 Cal.Rptr.2d 600; A10: ECF 38, 2:10-22).

Plaintiff was not able to legally represent an LLC in a derivative action and immediately ended that representation when she read the statement in caselaw presented by the attorney defendants for a different purpose. It is shocking that the new attorney to the LLC defendant did not complain that a layperson was arguing “on behalf of” his client.

This is just one issue with the order granting attorney fees that petitioner hopes to address on appeal. It illustrates that the Court is not just making errors. The Court is making errors that she knows are errors, as evidenced by her rulings on other cases. If the order is not deemed final now, the petitioner can be subjected to years of bad rulings. She can grapple with issues that Hasting trained attorneys find complex and confusing. And then the case can be remanded on appeal and the process can start all over again. But that seems like a wasteful exercise.

Prayer for Relief

Plaintiff hopes to move forward with the appeals. If this Court bases approval to reactivate the appeal on the premise that the order is final, then the underlying case should be stayed. Otherwise, when the amended complaint is filed, the case reverts from final, rendering an active appeal interlocutory.

 If the order is not deemed final, the words “closed” and “terminated” should be removed from the docket and the order should be amended to say: “Should Plaintiff fail timely to file an amended complaint, the clerk shall close the action without further Order of the Court.”

If this court maintains that the order is not a final order, for clarification, this court should order that a notice of appeal is not due on any part of the order until September 6, 2020. The plaintiff may stand on her pleadings and appeal; or amend.

 The petitioner, like most of the citizens of our nation, had her life turned upside-down by the Coronavirus Pandemic and does not know yet if she will amend or appeal.

The trial court should have denied motions to dismiss on all issues as the operative complaint was written, but Plaintiff can make the complaint withstand even the erroneous finding of flaws with alternative causes of action and additional causes of action. For example, where the Court decided the libel per se causes are subject to Arkansas law, plaintiff can change the name to “false light invasion of privacy” and plead alternatively by California law and Arkansas law.

If this Court allows the appeal to proceed now with a stay on when the amendment is due, then plaintiff will have her brief on the two orders named on the notice of appeal ready in about two weeks. She will amend the remaining issues after the appeal is decided. An attorney will mediate on behalf of the petitioner if the defendants agree or this Court orders mediation.

If this court sends the case back to the district court without an appeal plaintiff prays for instructions for the presiding judge to recuse herself in the interest of justice and court economy.

Verification

The foregoing is true to the best of petitioner’s knowledge and belief and is sworn to under penalty of perjury according to the laws of the United States of America.

Dated 5/20/2020         s/Laura Lynn Hammett

                  Laura Lynn Hammett, Plaintiff and appellant in pro se