Classism in the Courts

Judges who discriminate against self-represented litigants are closing the door to justice against predominately minorities and women in civil cases.

Here is a recently filed reply brief that calls for the disqualification of an elitist judge.

The judge was removed by transferring the case to Judge Todd W. Robinson, a new judge appointed by President Trump. So far, he is not much better than Judge Sammartino and it will be another fight to have the insane existing orders overturned or vacated.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

          Plaintiff Laura Lynn Hammett presents this brief reply to the combined oppositions to the Plaintiff’s motion to disqualify the Honorable Janis L. Sammartino.

          The Sherman Defendants claim the motion is “little more than sour grapes”. (ECF No. 158, 1:22) Merriam-Webster defines “sour grapes” as “disparagement of something that has proven unattainable”. It is saying “I didn’t want those grapes anyhow because they are probably sour.”

          The analogy fails. Plaintiff wants justice. Plaintiff wants a court that has integrity. Plaintiff wants the sweet fruit of democracy. Those are unattainable with Judge Sammartino presiding, but they are not unattainable. That is why disqualification of the Honorable Janis L. Sammartino is imperative.

Plaintiff has not given up.  She continues to peacefully protest the bane of democracy, classism. That is what denying access to our courts to self-represented litigants is, classism. Plaintiff’s motion is in response to a reasonable distrust in Judge Sammartino’s integrity, an appearance of bias against those who can’t afford representation, and against a known champion of those people, Laura Lynn Hammett.

          Neither the McGarrigle Defendants nor SSP filed oppositions to the motion to disqualify. Any response from attorneys who had a duty to SSP at the time the derivative cause was active would be compounding their error. The Nominal Defendant SSP’s attorneys committed malpractice (again) by allowing a person not authorized to practice law to proceed on behalf of the LLC as the real party plaintiff. (See Patrick v. Alacer Corp., 167 Cal. App. 4th 995, 84 Cal. Rptr. 3d 642 (2008), as modified on denial of reh’g (Nov. 21, 2008) in general, especially at h.n.7.)

          “What [a party unauthorized to practice law] purported to do for [another party] in place of an attorney was a nullity, and that fact should have been known to the court and to opposing counsel.” (People By & Through Dep’t of Pub. Works v. Malone, 232 Cal. App. 2d 531, 537, 42 Cal. Rptr. 888, 892 (Ct. App. 1965))

          Opposing Counsel knew proceeding with Hammett advocating for the Real Party Plaintiff was wrong. They know the Court’s silence on the issue shows the Court wanted one party to have a manufactured advantage over another party, an actual bias.

          The Court knew the proceedings on which she based an outrageous award of attorney fees were void and that she must strike them. Excerpted here is a different case presided over by the Honorable Janis L. Sammartino.

     “…LLCs, which combine the features of a corporation and partnership, likewise require a licensed attorney to appear in court. See, e.g., Lattanzio v. COMTA, 481 F.3d 137, 140 (2d Cir. 2007); Mut. Assignment & Indemnification Co. v. Lind-Waldock & Co., LLC, 364 F.3d 858, 860 (7th Cir. 2004); Kipp v. Royal & Sun Alliance Personal Ins. Co., 209 F. Supp. 2d 962, 963 (E.D. Wis. 2002); In re ICLNDS Notes Acquisition, LLC, 259 B.R. 289, 294 (Bkrtcy. N.D. Ohio 2001).

“On the basis of the authorities cited herein, the Court GRANTS plaintiffs’ motion to strike the answers of the entity defendants.” (Lawrence v. Johnson, No. 05CV1259 JLS (WMC), 2007 WL 9776572, at *2 (S.D. Cal. Nov. 20, 2007))

That the Court allowed what she knew to be the illegal representation of the derivative real party plaintiff was a violation of Judicial Code of Conduct Canon 2(A), “A judge should respect and comply with the law[]”; and 3(A)(1), “A judge should be faithful to [] the law”. Further, she not only condoned, but encouraged the violation by denying Plaintiff’s motion for limited scope representation for a specified purpose of explaining derivative actions.

Violating the code of conduct is different than making erroneous rulings that can be challenged on appeal. It demonstrates a lack of integrity. It violates FRCP Rule 1 by increasing the time and expense of the litigation to all parties and wastes precious judicial resources. Disqualification will curtail further waste if the lack of integrity is not systemic.

Even if this District does not have a mechanism for limited scope representation, the Court should have allowed, even insisted on an authorized attorney to represent SSP’s interests. Its failure to do so denied Hammett of the competing interest of access to the courts required by the 5^th and 14^th amendment and the Federal equivalent of 18 USC 1983, the Bivens findings. Where “[plaintiff] alleged that [State] prison officials improperly denied him permission to telephone his attorney” he was allowed to proceed on a 1983 claim. (Fisher v. Arizona Dep’t of Corr., 990 F.2d 1257 (9th Cir. 1993))

Because of absolute judicial immunity, Hammett may not be able to prevail on a Bivens action against Judge Sammartino. “Judge will not be deprived of immunity because action [s]he took was in error, was done maliciously, or was in excess of [her] authority; rather, [s]he will be subject to liability only when [s]he has acted in clear absence of all jurisdiction.” (Stump v. Sparkman, 435 U.S. 349, 98 S. Ct. 1099, 55 L. Ed. 2d 331 (1978))

Without forced disqualification, disciplinary action or criminal charges being brought against a judge who purposefully denies civil rights under color of law, there is no way for a litigant to deter further malicious rulings. If one of the three options is not applied, Plaintiff has no recourse but to challenge the Constitutionality of absolute judicial immunity.

          Linda R. Kramer, an individual purports to argue against the disqualification, but as the Court is well aware, when the order denying entry of clerk’s default is reversed on appeal, any arguments from the separate defendant are a nullity until a motion to set aside default is granted. (Kremen v. Cohen, 2008 WL 11508541 at 1 and 2, FRCP 55(a and c))

          The Responding Defendants argue that Plaintiff has not alleged extrajudicial bias.

          Plaintiff did mention in Aff. ⁋65 that she surveyed over 100 cases presided over by the Court finding none where the self-represented prevailed. Of course, page limitations make it impossible to give a summary of each case or even name each. But the affidavit is supposed to be taken as true. To expand, Plaintiff surveyed the 675 cases that came up on Westlaw searching by “Janis L. Sammartino” and narrowed by “pro se” in California and related Federal cases, and found none that were favorable to the pro se litigant.

Even where the Court presided over an appeal of a case where the pro se litigant prevailed at the trial court and had counsel for the appeal, the Court reversed to rule against the pro se. (Miranda v. Anchondo, 684 F.3d 844)(9th Cir. 2012)

          It appears the Court’s bias is against litigants who can’t afford counsel in general. The Court may be even more harsh toward Hammett because Hammett is not as easy to oppress as, for example, an inmate such as Raul Arellano. Mr. Arellano filed suit in 2014, begging the Court for relief from an injury that allegedly occurred when the inmate was assigned to a top prison bunk, against doctor’s orders, and fell off during a seizure. Mr. Arellano has asked several times for assistance of counsel and the Court denied him each time. (Arellano v. Dean, No. 15-CV-2247 JLS (JLB), 2020 WL 1929022 (S.D. Cal. Apr. 20, 2020)) The Court is making prosecuting a simple personal injury case more painful than the underlying injury. That is true in the case at bar as well.

          Not all the self-represented cases in the study involved inmates. For example Margaret Melinda Sprague, pro se, was a physician who lost her license. (Sprague v. Med. Bd. of California (MBC), 402 F. App’x 275 (9th Cir. 2010)). In that case the dismissal was affirmed at appeal. It is hard to believe though that out of hundreds of pro se litigants, not one had a meritorious case. It is extremely difficult to win on appeal, as evidenced by the higher fees charged by appellate attorneys.

          Dennis and the defendants joining her give an inaccurate list of Plaintiff’s reasons for moving for disqualification. (ECF No. 157, 2:24 to 3:5)

          Plaintiff’s citation of the denial of her motion for extension of time specified that the issue was the Court seemingly representing the Defendants with her sua sponte arguments against the Plaintiff and letting the Defendants, all represented by attorneys, to slide on their procedural defects and gross substantive defects. (Aff. ⁋12)

          The court “has a duty to ensure that pro se litigants do not lose their right to a hearing on the merits of their claim due to ignorance of technical procedural requirements.” See Balistreri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 1990) 

          “Judges are charged with ascertaining the truth, not just playing the referee. (See Guardianship of Simpson (1998) 67 Cal.App.4th 914, 79 Cal.Rptr.2d 389.) A lawsuit is not a game, where the party with the cleverest lawyer prevails regardless of the merits. (Adams v. Murakami (1991) 54 Cal.3d 105, 284 Cal.Rptr. 318, 813 P.2d 1348.) Judges should recognize that a pro per litigant may be prone to misunderstanding court requirements or orders—that happens enough with lawyers—and take at least some care to assure their orders are plain and understandable. Unfortunately, the careless use of jargon may have the effect, as in the case before us, of misleading a pro per litigant. The ultimate result is not only a miscarriage of justice, but the undermining of confidence in the judicial system.” (Gamet v. Blanchard, 91 Cal. App. 4th 1276, 1285, 111 Cal. Rptr. 2d 439, 445–46 (2001)).

          The Court in this case used confusing language like in the order of March 23, 2020 that “terminated” and “closed” the case before leave to amend expired. The Attorney Defendants capitalized on the Court’s obvious bias by filing untimely motions for entry of judgment. Even though the motions were withdrawn, there was no admonishment from the Court that the Attorney Defendants could not refile at whim. (ECF Nos. 112 to 117 and 127)

          Defendants made dozens of mis-“quotations” of the FAC and introduced numerous extraneous facts in their MTDs. Plaintiff brought these violations of Rule 11 to the Court’s attention by an ex parte motion to strike, ECF No. 63. Plaintiff detailed about 100 misquotes and contested facts interjected by Defendants. Instead of striking the offending documents or ordering Defendants to file amended motions, the Court denied Plaintiff relief because there was, according to the Court, no exigent circumstance to file the motion to strike ex parte. (ECF No. 75) So, Defendants’ attorneys were permitted to violate FRCP Rule 11 blatantly and obnoxiously, but the pro se litigant was expected to wait until after her oppositions to the MTDs were due to have her motion heard.

          Plaintiff’s citation of the denial of her motion for limited scope representation specified that the Court was ignoring violation of a law and where an unauthorized person advocated for an LLC, the pleading was void. Further proceedings based on it were wasteful and a violation of FRCP Rule 11 by the attorneys who continued (and still continue) to pursue a judgment based on it. (Aff. ⁋10).

          Plaintiff cited the order granting the MTDs, not for the errors that would be the basis of an appeal. She cited them for examples of judicial misconduct. For example, the Court’s footnote cited in Aff. ⁋31 violated Canon 3(B)(4) and (6).

           “A judge should not retaliate against those who report misconduct. A judge should hold court personnel under the judge’s direction to similar standards.” Canon 3(B)(4).

           “A judge should take appropriate action upon receipt of reliable information indicating the likelihood that [] a judicial employee’s conduct contravened the code of conduct for judicial employees, or that a lawyer violated applicable rules of professional conduct.” Canon 3(B)(6).

          Again, the Court did not just make innocent legal error or have an honest difference of opinion. The Court appeared to hold a deep animosity toward the Plaintiff and there is nothing in the record that would cause an unbiased person to feel animus.

          In Dennis Opp., ECF No. 157, 4:2, she claims Plaintiff’s “assertions present only patent speculation.” This is wrong. Plaintiff speculated as to why the Court appears to have a bias; the appearance of bias is not speculative.

          It is like with the investigation of former Commissioner Alan H. Friedenthal. Even when the CJP issued the “severe” public admonishment against him, they did not say why the judicial officer held his apparent bias, just that he appeared to have a bias.

          It was only years later that Plaintiff discovered that Jeff Sherman was friendly with Mr. Friedenthal since childhood. Only then did Plaintiff realize the Shermans asked for a judicial favor to have Hammett’s parental rights terminated so they could convince Plaintiff’s wealthy parents to write Hammett’s sons out of their inheritance to “protect” the elders’ money from Plaintiff’s former spouse. The effect was millions more dollars for the Shermans.

          It is possible Plaintiff will discover the reason behind Judge Sammartino’s bias someday; but for the purpose of disqualification, it matters only that there is an appearance of bias. Plaintiff’s speculation was added to give context.

          Stern and Goldberg give a similar list to that of Dennis regarding the basis of Plaintiff’s motion at ECF No. 159, 4:21 to 5:8. It would be redundant to address each one again.

          Plaintiff notes #9 at 5:5-7. The Defendants wrote that the Court indicated “that if plaintiff fails to file an amended pleading, the action is closed without further order.” (emphasis added) This was not a quote. The Court used the words “shall remain closed”. (ECF No. 111, 54:8-10) Case closure usually results from entry of judgment. (Williams v. Phillips, No. 1:11-CV-00456-GBC PC, 2012 WL 1604874, at *1 (E.D. Cal. May 7, 2012)) The altered wording downplays the confusion created by the Court.

          Stern and Goldberg Defendants claim the motion is untimely. (ECF No. 159, 2:21and starting at 3:2). The Defendants have filed only one round of MTDs. No discovery has been done. It took an exceedingly long time to get to this point because the Sherman Defendants and SSP dodged service for about four (4) months, the Court took five (5) months to decide the MTDs, then there was the Coronavirus pandemic and the Ninth Circuit needed time to clarify if the March 23, 2020 order was final, or merely terminated and closed.

          The litany of early erroneous orders that might be reversed on appeal don’t constitute the basis for this motion, as the defendants claim. Plaintiff did not discover the nullity issue and the Court did not make its improper threat of retaliation for reporting the Clerk’s crime until March 23, 2020. Then there was a stay and wait to see if the Ninth Circuit was taking jurisdiction.

          Plaintiff is reaching for something, but it is not sour grapes. Plaintiff wants equal protection under the law.

          This is attainable only by the disqualification of the Honorable Janis L. Sammartino and the appointment of a fresh judge.

          Respectfully Submitted,

Dated September 6, 2020                      s//Laura Lynn Hammett

                                                               Laura Lynn Hammett in pro se