(Sorry, the formatting didn’t translate and so the paragraph numbering is not the same here as in the filed copy.)

IN THE CIRCUIT COURT OF SEARCY COUNTY,  ARKANSAS

CIVIL DIVISION

CASE No.  65CV-21-20                                                         

 MICHEAL PIETRCZAK                                                         PLAINTIFF

v.                                         

RURAL REVIVAL LIVING                                                                                                  TRUST; AND LAURA LYNN                                              DEFENDANTS

LAURA LYNN HAMMETT                                                COUNTER-

                                                                                                    CLAIMANT

v.

MICHEAL PIETRCZAK                                                  COUNTER-

                                                                                                  DEFENDANT

SEPARATE DEFENDANT LAURA LYNN AND COUNTERCLAIMANT LAURA LYNN HAMMETT’S MOTION FOR ORDER OF RECUSAL OF JUDGE SUSAN K. WEAVER

     Comes Separate Defendant Laura Lynn and Counterclaimant Laura Lynn Hammett (“Hammett”), in pro se, and for her Motion for Order of Recusal of Judge Susan K. Weaver, states as follows:

1.      Judge Susan K. Weaver is assigned to three cases on which Laura Lynn Hammett (“Hammett”) is a litigant, including the above captioned case. This motion pertains equally to all the cases and Hammett requests the Court recuse from each case.
2.      The cases are the above captioned case which will be called “Pietrczak”, Laura Hammett v. First American Home Warranty Corporation, et al, 23CV-20-631, called “Home Warranty” hereunder, and Laura Lynn Hammett v. Shelter Mutual Insurance Company, et al, 23CV-21-318, called “Insurance” hereunder.

General Facts

•    Judge Weaver made numerous egregious legal errors on each case, which will need to be addressed by our appellate court. In each case, the error is against Hammett’s arguments.
•    Judge Weaver allows opposing counsel to make derogatory and unprofessional comments about Hammett in hearing and by email.
•    Many of the rude comments made in hearing were not transcribed by the Court Reporter, and it is likely Judge Weaver orchestrated the inept transcription.
•     More material inaccuracies were made in the transcription. Even so, the purported comments by the Court admit bias, where the Court said she does not “normally” make the ruling she made against Hammett.
•     Hammett was waiting to file the motion for recusal until after a hearing to settle the record, but the Court’s apparent bias is causing the 59-year-old pro se litigant extreme anxiety over her finances, believing Judge Weaver will use her position of power to transfer wealth Hammett needs to retire to Mr. White and other attorneys representing Hammett’s opposition.
•      It is likely that Hammett will file a complaint under 42 USC 1983 against the court reporter and Judge Weaver, not subject to absolute judicial immunity because it is about an administrative act, the transcription of the record.
•     Judge Weaver made an error against Hammett that she made on another case similarly, but she already corrected the other case by reversing the order.
•     Judge Weaver dismissed Hammett’s counterclaim on Pietrczak sua sponte, with no specific reason given, but she did not dismiss the deficient complaint, even after Hammett filed a motion to dismiss.
•     The appearance of bias is so bad that Hammett cannot find a local attorney who is willing to represent her on any case presided over by Judge Weaver.
•      Attorney White has filed no less than eight documents in this case untimely, Hammett has been timely in each filing, yet the Court repeatedly admonishes Hammett to “follow the Rules”.

Specific Facts

1.    In Pietrczak, one error involved the opposing party’s failure to serve summons on the defendants. Summons was not even issued for one necessary party, “Rural Revival Living Trust”.
2.    Pietrczak attorney, William Z. White failed to serve summons on a necessary party in a different case presided over by Judge Susan K. Weaver, 71PR-19-91, Zelda Harrell Walls. In that guardianship case, Ms. Walls had settled a spendthrift trust for her son Richard Gawenis. Mr. Gawenis, represented by William Z. White, convinced Judge Weaver to terminate and revoke the trust on September 22, 2020, without notice to the successor trustee. (as described in Zelda S. Walls Living Trust Dated July 25, 2019, Donna Bryant v. Richard Gawenis, case no. 71CV-20-119, C20D01, paragraph 8) Judgement in favor of the plaintiff in 71CV-20-119 was granted by Judge Weaver on March 30, 2021, reinstating the trust.
3.      Apparently Judge Weaver is now aware that a summons must be served on each defendant.
4.      Mr. White asked Judge Weaver for a continuance of the hearing of August 4, 2021 (“the Hearing”), though he filed an opposition to the continuance on July 30, 2021.
5.     The basis for the continuance was alleged to be the dodging of service of summons on the Rural Revival Living Trust by Hammett. Judge Weaver was aware that summons was not even issued to the trust and there was no evidence Hammett dodged service but granted the continuance anyhow.
6.      The Court appeared to know ahead of time it was going to continue the hearing of August 4, 2021, yet engaged in a charade with Plaintiff’s counsel that Hammett might need to argue her case at a jury trial.
7.      Evidence that the Court knew there would be no trial is that a jury pool was not arranged.
8.      Hammett produced exhibits she would try to introduce into evidence. Mr. White produced none.
9.      The Court abused its discretion to grant a continuance based upon Mr. White’s plea for more time to serve summons on the Rural Revival Living Trust, even though Mr. White had not caused a summons to issue yet, the claims in the complaint were time barred and the almost identical complaint filed in 2018 was dismissed for lack of prosecution.
10.      Pietrczak had not responded to Hammett’s counterclaim and the time to respond was expired by almost a month. The Court did not grant default judgment as requested by Hammett.
11.      Pietrczak asked for an extension of time to serve the summons on Rural Revival Living Trust past the statutory 120 days at the Hearing.
12.      Judge Weaver granted the extension in writing, based on oral motion, in contradiction to ARCP Rule 4(i)(2) and her purported statement that she “normally” requires the motion to extend time to be written.
13.      The oral motion for extension of time was denied during the hearing. Judge Weaver claims and the transcript of the hearing shows that Judge Weaver granted the oral motion during the hearing. This and pervasive inaccuracies in the transcript give the appearance of collusion between the Court, attorney White and, most unfortunately, the Court Reporter, a woman reputed to be honest. (Hammett moved the Court to settle the record and the motion is pending.)
14.      An inaccurate transcription is an administrative error, not a judicial error, and thus, when Hammett files a suit under 42 USC 1983 against the Court Reporter and Judge Weaver, the suit should not be barred by absolute judicial immunity. Judge Weaver is a viable defendant in a suit by Hammett.
15.       In the Home Warranty case, the defendant filed a motion to compel arbitration. (That motion was eventually granted erroneously and may be appealed after the arbitrator’s ruling is reduced to judgment.) It took Judge Weaver 14 months to decide the motion to compel arbitration. This extremely long wait is especially prejudicial since the purpose for arbitration is to speed up the legal process.
16.     In the Insurance case, Judge Weaver ordered Hammett to “add the ‘Rural Revival Living Trust”’ as a plaintiff. Trusts are not a proper party. Assuming the Court meant to add the trustee of the Rural Revival Living Trust, Hammett made a diligent effort to find an attorney to represent the trustee. Three attorneys have refused the job, even if paid by fee. Hammett has reason to believe the refusal of the work is due to the apparent bias of Judge Weaver against Hammett. (One attorney sent a retainer agreement and said he was ready to help in early August, but when Hammett tried to hand him the retainer check in late August, after the crazy hearing and a slew of adverse rulings against Hammett, he refused it.)
17.      Hammett has two appointments to speak with attorneys in counties where Judge Weaver does not preside. (One has appealed orders made by Judge Weaver in the past, but lost on appeal.) Still, the difficulty to get attorneys to take work non-contingent is glaring evidence of the appearance of bias by the Court.

BRIEF IN SUPPORT

•      “Canon 2 of the Arkansas Code of Judicial Conduct provides that a ‘judge shall perform the duties of judicial office impartially, competently, and diligently.’ Rule 2.11(A)(1) of the Code provides that a judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned, including when the judge has a personal bias or prejudice concerning a party or a party’s lawyer.” Matter of Est. of Edens, 2018 Ark. App. 226, 19, 548 S.W.3d 179, 190–91 (2018)
•      “The proper administration of the law requires not only that judges refrain from actual bias but also that they avoid all appearance of unfairness. Id. When a judge exhibits bias or the appearance of bias, the appellate court will reverse.” Id 191.
•      “A clearly erroneous interpretation or application of a law or rule will constitute a manifest abuse of discretion. Id.” Id.   
•     The Court then lied about granting an oral motion for extension of time to serve the summons. Even the lie was legal error, as ARCP Rule 4(i)(2) makes such a motion in writing mandatory.

WHEREFORE, Separate Defendant Laura Lynn and Counterclaimant Laura Lynn Hammett, prays that her Motion for Recusal of Judge Susan K. Weaver be granted, in this and all cases present and future.

This 23rd day of September, 2021.

Respectfully submitted,

/S/ Laura Lynn Hammett 

                                                                      Laura Lynn Hammett                          

                                                                      500 Amity Rd. Suite 5B #306

                                                                      Conway, Arkansas 72032

                                                                      (760) 966-6000

                                                                      Bohemian_books@yahoo.com

                                                                      Defendant and Counterclaimant, pro se

CERTIFICATE OF SERVICE

     I hereby certify that, on September 23, 2021 I electronically filed the Separate Defendant Laura Lynn and Counterclaimant Laura Lynn Hammett’s Motion for Recusal of Judge Susan K. Weaver and Brief in Support with the Clerk of the Court using the eFlex Electronic Filing System, which shall send notification of such filing to all counsel of record.

September 23, 2021                                                  /S/ Laura Lynn Hammett 

                                                                      Laura Lynn Hammett                          

                                                                      500 Amity Rd. Suite 5B #306

                                                                      Conway, Arkansas 72032

                                                                      (760) 966-6000

                                                                      Bohemian_books@yahoo.com

                                                                      Defendant and Counterclaimant, pro se

Whether in family law, a civil dispute or a criminal case, you best be able to lawyer up or you will lose.

Read my personal stories and court documents for experiential accounts of how a person can be right, but be oppressed by the very person who is supposed to protect her, the Judge.

The Judge’s bias is not usually a matter of race. It is a matter of money and political clout. The Court hates to see a self represented litigant wipe the floor with a $425 per hour attorney. The Court won’t stand for it.

It seems the public policy that reigns supreme is making sure lawyers get paid, and paid well.

Those unable to pay need not play.

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

Laura Lynn Hammett, Plaintiff, v. MARY E. SHERMAN, et.al.                                                  Defendants

Case No.:            19-CV-0605-JLS-AHG   PLAINTIFF’S REPLY TO THE COMBINED OPPOSITIONS TO THE MOTION FOR DISQUALIFICATION OF THE HONORABLE JANIS L. SAMMARTINO Date of Hearing: Vacated Time: 1:30 p.m. Place: Courtroom D Hon. Janis L. Sammartino presiding Hon. Magistrate Allison H. Goddard

          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

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

Laura Lynn Hammett, Plaintiff, v. MARY E. SHERMAN, et.al.                                                  Defendants

Case No.:            19-CV-0605-JLS-AHG   PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR DISQUALIFICATION OF THE HONORABLE JANIS L. SAMMARTINO MEMORANDUM OF POINTS AND AUTHORITIES WITHIN AFFIDAVIT IN SUPPORT FILED CONCURRANTLY Date of Hearing: October 1, 2020 Time: 1:30 p.m. Place: Courtroom D Hon. Janis L. Sammartino presiding Hon. Magistrate Allison H. Goddard

NOTICE OF MOTION

TO EACH DEFENDANT AND ITS ATTORNEYS OF RECORD:

     PLEASE TAKE NOTICE THAT on October 1, 2020, at 1:30 p.m. or as soon thereafter as the matter may be heard, in Courtroom D of the above entitled court, located at 221 West Broadway, San Diego, CA 92101, Plaintiff Laura Lynn Hammett will, and hereby does, move for the disqualification of the Honorable Janis L. Sammartino, pursuant to 28 U.S.C. §§ 144 and 455, on the grounds that there is evidence of bias in favor of the defendants and prejudice against the plaintiff. This motion will be based upon the memorandum of points and authorities within, the affidavit of Laura Lynn Hammett, the exhibit attached, the Certificate of the Plaintiff in pro se, and all pleadings and records on file in this action.

    Plaintiff requests determination by a judge other than Judge Samartino pursuant to 28 U.S.C. §144.

MOTION

     Plaintiff Laura Lynn Hammett (“Plaintiff” or “Hammett”) hereby moves to disqualify the Honorable Janis L. Sammartino as the sitting judge in the present case on the grounds of 28 USC Sections 144 and 455.  As set forth in more detail in the memo, this motion is based on evidence contained in the supporting Affidavit of Hammett. This includes Judge Sammartino’s refusal to allow the Plaintiff representation on a limited scope by special appearance for a derivative cause of action that Plaintiff could not legally argue pro se, which makes access to justice impossible for the modest means litigant; failure to require the derivative action to be advocated for by a person authorized to practice law, rendering it and the judgments based on it null and void, increasing the time and expense of litigation needlessly for all parties and the court; admonishment to the Plaintiff that chilled her First Amendment right to petition for presenting a grievance about a court staff member, after the Plaintiff presented written testimony and documentary evidence of backdating of a docket entry by the clerk; and decisions on this case that are contrary to reasons given for decisions she has made on other cases.

     The backdating clerk also told Plaintiff that Judge Sammartino told him what her decision on a motion was going to be before an opposition was filed, as discussed in the affidavit and memo.

     The combination of clerk backdating at the request of opposing counsel and the Court’s admonishment not to make accusations, on what the court called “gratuitous speculation”, is a violation of Plaintiff’s civil rights under color of law for which Plaintiff intends to file a separate suit.[1]

     Finally, the Court made a convoluted order, unlike any she ever made before, that “closed” and “terminated” the case before leave to amend had expired. Plaintiff was forced to file a notice of appeal to protect against a claim that the orders became final when “closed” and “terminated”, and the 30-day time to file a notice of appeal had passed, rendering the orders unappealable. This caused the plaintiff to pay filing costs for the appeal and hire an appellate attorney to write the brief if the appellate court found the odd closing procedure rendered the case “final”. The appellate court did not find the case to be final, and so defendants have filed motions for attorney fees for the appeal. In other words, Judge Sammartino’s bizarre closing with leave to amend caused Plaintiff more time, more stress and more money in violation of FRCP Rule 1. (Aff. ⁋⁋49-60)

     The only reasonable appearance left by the foregoing is that the Honorable Janis L. Sammartino has a bias that makes her unsuitable to preside on this case and an informed, rational, objective observer would doubt her impartiality.

MEMORANDUM OF POINTS AND AUTHORITIES

TABLE OF CONTENTS

Table of Authorities   Page 4

Affidavit Annotated    Page 6

Argument                     Page 10

1. The Affidavit of Laura Lynn Hammett is Timely Filed Under 28 U.S.C. § 144

                                                                                                                   Page 10

1. Hammett Set Forth Facts in Her Affidavit Requiring Recusal                 Page 12

1. Disqualification is Also Required Under 28 U.S.C. § 455(a) in Order to Avoid an Appearance of Bias or Partiality                                                           Page 14

1. Conclusion                                                                                                 Page 17

TABLE OF AUTHORITIES

American Textile Mfrs. Institute, Inc. v. The Limited, Inc., 190 F.3d 729, 742 (6th Cir. 1999)…………………………………….10

Bernard v. Coyne (In re Bernard), 31 F.3d 842, 847 (9th Cir. 1994)……….11

City of Downey v. Johnson, 263 Cal.App.2d 775, h.n. 3………………..7

 Davis Test Only Smog Testing v. Department of Consumer Affairs, 15 Cal.App.5th 1009, (2017) h.n.2)………………………..7

Kennedy v. Kennedy, 235 Cal. App. 4th 1474, 186 Cal. Rptr. 3d 198 (2015), as modified (Apr. 22, 2015)h.n.2……………….8

In re Larson, 43 F.3d 410, h.n. 6 (8^th Cir. 1994)………………11

Liljeberg v. Health Services Acquisition Corp. 486 U.S. 847, 860-61 (1988)….14

Liteky v. U.S., 510 U.S. 540, h.n. 3 (SCOTUS 1994)………..12, 16

In re Martinez-Catala, 129 F.3d 213, 218 (1st Cir. 1997)…….12, 16

McDermott, Will & Emery v. Superior Court, 83 Cal. App. 4th 378, 379, 99 Cal. Rptr. 2d 622 (2000) ……………….7

Melendres, 2009 WL 2132693, at *15, 2009 U.S. Dist. LEXIS 65069, at *52-53…17

Morris v. U.S., 26 F.2d 444, 449 (8th Cir. 1928………………11

People By & Through Dep’t of Pub. Works v. Malone, 232 Cal. App. 2d 531, 537, 42 Cal. Rptr. 888, 892 (Ct. App. 1965)……………………………………..8

Phillips v. Tobin, 548 F.2d 408, 415 (2nd Cir. 1975)………….7

Reiffen v. Microsoft Corp., 158 F.Supp.2d 1016, 1022 (N.D. Cal. 2001)…………12

Tenants & Owners in Opposition to Redevelopment (TOOR) v. HUD, 338 F.Supp.29, 32 (N.D. Cal. 1972)………………………………………………..10

U.S. v. Holland, 519 F.3d 909, 911 (9th Cir. 2008)…………….16

United States v. Kelley, 712 F.2d 884, 889 (1st Cir. 1983)…….12

United States v. Partin, 312 F.Supp. 1355, 1359 (D. La. 1970)….12

U.S. v. Sibla, 624 F.2d 864, 867-68 (9th Cir. 1980)………………14

United States v. Tucker, 78 F.3d 1313, 1324 (8th Cir. 1996)……..15

28 USC 144………………..10, 12, 13

28 USC 455………………..12, 13, 14

18 USC 1001……………….10, 15

AFFIDAVIT ANNOTATED

     The Honorable Janis L. Sammartino was assigned to this matter when the complaint was filed on April 2, 2019. (Docket)

     Plaintiff did not serve summons on the defendants until after filing a First Amended Complaint (“FAC”) on May 29, 2019. (Docket)

     Herein the abbreviations will be used for each defendant named in the caption of the FAC, ECF No. 3:

     Mary E. Sherman, an individual, “Sherman”;

     Mary E. Sherman, as manager of Silver Strand Plaza LLC, “the Manager”;

     Mary E. Sherman as trustee of the various irrevocable trusts, collectively “the Grandchildren’s Trusts”;

     Mary E. Sherman and Jeffrey M. Sherman as co-trustees of the J&M Sherman Family Trust, collectively “the J&M Trust”;

     Diane Dennis, an individual, “Dennis”;

     Linda R. Kramer, an individual, “Kramer”;

     Linda R. Kramer and Erik Von Presintin Hunsaker as co-trustees of the Lynn and Erik’s Trust, “the L&E Trust”;

     Silver Strand Plaza, LLC, “SSP”;    

     Ellis Roy Stern, Esq., “Stern”, Alan N. Goldberg, Esq., “Goldberg”, Stern & Goldberg, Patrick C. McGarrigle, Esq., “McGarrigle” and McGarrigle, Kenney & Zampiello, APC, collectively “Attorney Defendants”.

     The Grandchildren’s Trusts, J&M Trust, Dennis and Kramer are collectively “the Member Defendants”.

     The clerk who customarily makes docket entries for cases presided over by Judge Sammartino is known to Plaintiff as “JPP” or “Jude”.

     In the FAC, Plaintiff included a “derivative” cause of action of legal malpractice against the Attorney Defendants who represented SSP and simultaneously, all the other defendants. (Affidavit (“Aff.”) ⁋⁋ 2)

      Plaintiff filed a Motion for Leave to Retain Representation on Limited Scope on July 22, 2019. In it she stated she could not afford an attorney for all causes. One need was “for explanation of particularly complex issues like Derivative causes of action.” (Aff. ⁋⁋ 5, 6)

     Judge Sammartino denied the motion. (ECF No. 22)

     Plaintiff who is not authorized to practice law learned that a derivative action is “on behalf of an LLC. (Aff. ⁋⁋ 8, 9) “A derivative action, in contrast, does not transfer the cause of action from the corporation to the shareholders. Rather, the cause of action in a shareholder derivative suit belongs to, and remains with, the corporation.” (McDermott, Will & Emery v. Superior Court, 83 Cal. App. 4th 378, 379, 99 Cal. Rptr. 2d 622 (2000); also, Phillips v. Tobin, 548 F.2d 408, 415 (2nd Cir. 1975))

     Judge Sammartino never admonished Plaintiff that a derivative suit is on behalf of an entity that must be represented by a person authorized to practice law. She did not, and still has not mentioned that derivative suits presented by persons who are unauthorized to practice law are null and void. (Aff. ⁋10; City of Downey v. Johnson, 263 Cal.App.2d 775, h.n. 3; Davis Test Only Smog Testing v. Department of Consumer Affairs, 15 Cal.App.5th 1009, (2017) h.n.2)

     Judge Sammartino did not acknowledge or comment on the reason why Plaintiff made the voluntary dismissal in the “Order Denying as Moot Motions to Strike or, Alternatively, to Dismiss Filed by [the Attorney Defendants]” which she made “[i]n light of Plaintiff’s voluntary dismissal of her fifth and sixth causes of action against the Moving Defendants”.  (Aff. ⁋11, ECF No. 39, 2:3-4)

     Judge Sammartino erred by ignoring that dismissal required Court approval. (See ECF No. 39 in general; “Dismissal of a shareholder derivative claim requires court approval.” (Kennedy v. Kennedy, 235 Cal. App. 4th 1474, 186 Cal. Rptr. 3d 198 (2015), as modified (Apr. 22, 2015)h.n.2))

     Judge Sammartino did make several other sua sponte arguments against Plaintiff when denying motions Plaintiff filed, such as denying a motion for an extension of time to amend the complaint due to the Coronavirus Pandemic, because Plaintiff neglected to provide notice to opposing council first. (Aff. ⁋12, ECF Nos. 118 and 119) All sua sponte arguments were adverse to the Plaintiff, or where they should have supported the Plaintiff’s position, were misapplied.

     Judge Sammartino knew or should have known the derivative cause was “on behalf of SSP” and Plaintiff was not authorized to proceed to advocate for the interests of SSP. “What [party unauthorized to practice law] purported to do for [other 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))

     By allowing Plaintiff to advocate for a limited liability company and denying the right to delegate that duty to a person authorized to practice law, Judge Sammartino was causing prejudice to the interests of SSP that Plaintiff wanted to protect, and was ordering the continued violation of law. She was increasing the costs of the administion of justice in violation of FRCP Rule 11, as the orders based on the derivative cause of action, such as attorney fees for the anti-SLAPP, are nullities. They were wasteful exercise.

      Jude made an error in entering the FAC defendants into the docket.

     He entered Linda R. Kramer without the tag, an individual or as co-trustee of the Lynn and Erik’s Trust”. He did reference Mary E. Sherman in all her capacities correctly, the number of times she was named. (Aff. ⁋14)

      On July 30, 2019, attorney Keith Cochran filed a Motion to Dismiss (“ L&E Trust MTD”). On the face above the caption it said “Attorneys for Defendants Linda R. Kramer and Erik Von Pressentin (sic) Hunsaker as Co-Trustees of the Lynn and Erik’s Trust”. No mention of “Linda R. Kramer, an individual”, was made on the face of the L&E Trust MTD, except in the caption. (ECF No. 19)

     Plaintiff filed a request for entry of clerk’s default on August 1, 2019. (Aff. ⁋20, ECF Nos. 23 and 25)

     Instead of entering clerk’s default, Mr. Cochran and Jude conspired together to alter the docket to reflect that Kramer had joined with the L&E Trust Defendants to file the L&E Trust MTD on July 29, 2019. They were going to deny Plaintiff equal protection under the law by altering the docket. (Aff. ⁋⁋21-28)

     When Mr. Cochran and Jude learned that there was a copy of the unaltered docket, the alterations were changed back, but clerk’s default was still not entered.

     This was a serious violation of Plaintiff’s First Amendment right to due process.

     Shockingly, Judge Sammartino did not compel the Clerk to enter default.

     Instead she wrote an admonishment that chills the Plaintiff’s right to petition for redress of grievances.  (Aff. ⁋⁋30-34; ECF No. 111, f.n. 13)

     Further, Jude expressed belief that he knew that the Judge was going to deny the motion to compel before the motion was fully briefed. (Aff. ⁋⁋35-38)

39.          I noticed that all Judge Sammartino’s orders appear like she is representing the defendants, which is not usually a reason for disqualification. But as the defendants’ attorney, Judge Sammartino is making arguments that violate Rule 11.

     Judge Sammartino made sua sponte arguments against Plaintiff’s interests, which is allowed, but the arguments and application of law, if made by an attorney, would violate FRCP Rule 11. There is a huge difference between an honest difference of opinion and purposefully throwing a lawsuit. (Aff. ⁋⁋39-48)

     Judge Sammartino created confusion and misunderstanding when she wrote the Order of March 23, 2020. She used a rarely used procedure that seems to be exclusively used on pro se litigants who are usually incarcerated, often asking for appointed counsel, and often incoherent. The procedure screams “Go away! You lose!” (Aff. ⁋⁋49-60)

     Plaintiff does not know the reason for Judge Sammartino’s bias and prejudice. It may be that Plaintiff reported unflattering information about a colleague. It might be a bias against all pro se litigants. But the bias and prejudice is distinct and absolutely apparent. (Aff. ⁋⁋61-67)

ARGUMENT

I. THE AFFIDAVIT OF LAURA LYNN HAMMETT IS TIMELY FILED UNDER 28 U.S.C. § 144

     Since the United States District Court for the Southern District of California does not sit in specific sessions or terms, but is deemed to be in continuous session, there is no specific “timely” period for filing an Affidavit pursuant to 28 U.S.C. § 144. By extension from the fact that there is no “term,” there is no ten-day period. Accordingly, even where there can be no good cause shown for delay, an affidavit will be considered timely filed, and timeliness will be dealt with as a matter of weight rather than admissibility. (Tenants & Owners in Opposition to Redevelopment (TOOR) v. HUD, 338 F.Supp.29, 32 (N.D. Cal. 1972))

     “[A] litigant’s duty to investigate the facts of his case does not include a mandate for investigations into a judge’s impartiality.” (American Textile Mfrs. Institute, Inc. v. The Limited, Inc., 190 F.3d 729, 742 (6th Cir. 1999)). In this case, Plaintiff did undertake a preliminary investigation of Judge Sammartino’s impartiality. However, in Plaintiff’s past experience, she has had four judicial officers voluntarily recuse themselves from cases involving the Plaintiff and two of those were unknown to Plaintiff before their recusal. (Aff. ⁋⁋61-64) Even with her hypervigilance due to past experience, Plaintiff did not find any reason to justify filing an affidavit under 28 U.S.C. § 144. It was not until the Court made its absurd order of March 23, 2020 with the admonishment not to report alleged violations of 18 U.S.C. 1001 and Plaintiff came upon the caselaw that shows it is the duty of the trial judge to advise the representative on behalf of an LLC that she may not advocate on behalf of the Company that the Plaintiff knew there is an actual bias.  (Morris v. U.S., 26 F.2d 444, 449 (8th Cir. 1928) (affidavit was timely filed immediately before trial where “on several occasions defendant requested his attorneys to prepare and file application to disqualify the trial judge,” but attorneys disagreed with him until he obtained new information which was imparted to his attorneys)).

     Only in light of these more recent discoveries did a motion to disqualify appear fully justified and appropriate. “A lawyer who reasonably believes that the judge before whom he is appearing should not sit must raise the issue so it may be confronted and put to rest. Any other course would risk undermining public confidence in our judicial system.” (Bernard v. Coyne (In re Bernard), 31 F.3d 842, 847 (9th Cir. 1994)).

     This must be weighed against the burden on the movant to show objective prejudice. “Judge is presumed to be impartial, and parties seeking recusal bears substantial burden of proving otherwise.” (In re Larson, 43 F.3d 410, h.n. 6 (8^th Cir. 1994)) The Plaintiff waited until the evidence against the Judge was overwhelming to file this motion.

     The timing of the order granting all dismissals with leave to amend was also suspect. The Court waited five (5) months after the motions were fully briefed to issue her order on March 23, 2020. Then, in the beginning of the Coronavirus Pandemic lockdowns, Judge Sammartino issued her strange order. Plaintiff was overwhelmed with the rest of the country with physical illness and acute anxiety and asked for a stay of proceedings which was granted until August 7, 2020. (ECF Nos. 126 and132)

      While seventeen (17) months have passed since Plaintiff filed this case, twelve (12) of those were in a holding pattern. A hypersensitive person might suspect Judge Sammartino’s bias from the first denial of counsel to explain the derivative action. The Plaintiff did not know though that the denial was encouraging an illegal act. She thought the Court’s attitude did not promote adjudication on the merits or economics of resources, but she did not realize it was outright wrong.

     This motion and affidavit are filed two weeks after Plaintiff filed her SAC, which is the first amended complaint that was served on the defendants. This while Plaintiff is in treatment for acute situational anxiety.

     In view of the foregoing, this affidavit and motion are timely.

II. HAMMETT SET FORTH FACTS IN HER AFFADAVIT REQUIRING RECUSAL.

     A legally sufficient declaration under 28 U.S.C. § 144 must meet the following requirements: (1) the facts are material and stated with particularity; (2) the facts are such that, if true they would convince a reasonable person that a bias exists; and (3) the facts show that the bias is personal, as opposed to judicial, in nature. (Reiffen v. Microsoft Corp., 158 F.Supp.2d 1016, 1022 (N.D. Cal. 2001))

     Section 144 requires a district judge to accept the moving party’s affidavit as true. (In re Martinez-Catala, 129 F.3d 213, 218 (1st Cir. 1997))  While a trial judge may not pass upon the truth of the matters asserted in the moving party’s affidavit, a trial judge is not required to recuse himself immediately, because the “judge must pass upon the legal sufficiency of the affidavit.” (United States v. Kelley, 712 F.2d 884, 889 (1st Cir. 1983))         Furthermore, “[s]ince sections 144 and 455 of 28 U.S.C. use similar language, and are intended to govern the same area of conduct, they have been construed in pari materia, and the test of the legal sufficiency of a motion for disqualification is the same under both statutes.” Id.

     If an affidavit of bias or prejudice complies with the statutory standards set forth in this section concerning timeliness and legal sufficiency, then the judge against whom it is directed is obligated to recuse herself. A judge is required to recuse herself even if the judge believes (or knows with certainty) that the allegations of bias and prejudice made against her are false. (United States v. Partin, 312 F.Supp. 1355, 1359 (D. La. 1970))

     “Recusal is required whenever impartiality might reasonably be questioned. (28 U.S.C.A. § 455(a).” Citing Liteky v. U.S., 510 U.S. 540, h.n. 3 (SCOTUS 1994))

     “Favorable or unfavorable predisposition can serve to be characterized as “bias” or “prejudice” requiring recusal because, even though it springs from the facts adduced or the events occurring at trial, it is so extreme as to display clear inability to render fair judgment; that is the “pervasive bias exception” to the extrajudicial source doctrine. (28 U.S.C.A. §§ 144, 455.”id. h.n. 9)

     “Fact that opinion held by judge derives from source outside judicial proceedings is not necessary condition for bias or prejudice recusal, as predisposition developed during the course of a trial will sometimes suffice; fact that opinion held by judge derives from a source outside judicial proceedings is also not a sufficient condition for bias or prejudice recusal, as some opinions acquired outside the context of judicial proceedings will not suffice; it is thus more proper to speak of an extrajudicial source factor than of an extrajudicial source doctrine in recusal jurisprudence. 28 U.S.C.A. § 455(a).” (id. h.n. 14)

     “Judicial remarks during course of trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases ordinarily do not support a bias or partiality challenge; they may do so if they reveal an opinion that derives from an extrajudicial source and they will do so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible.” (Id. h.n.17)

     The Judge’s actions complained of evidence such deep-seated favoritism or antagonism as would make fair judgment impossible. (Id. at 541)

     The facts stated in Hammett’s affidavit are material and are stated with particularity. As to their sufficiency to show bias for or against a party, Judge Sammartino’s refusal to allow Plaintiff to turn the derivative cause of action over to a licensed attorney, denial of counsel for the specific purpose of explaining a derivative action, from which the unlawful practice of law arose, and comments meant to keep an alleged violation of 18 U.S.C. 1001 by her clerk covered up are extraordinary measures that may be criminal, may be unethical, and are definitely signs of bias.

III. DISQUALIFICATION IS ALSO REQUIRED UNDER 28 U.S.C. § 455(a) IN ORDER TO AVOID AN APPEARANCE OF BIAS OR PARTIALITY.

     In 1974, Congress rewrote 28 U.S.C. § 455 to correct perceived problems in the disqualification statutes. Prior to 1974, both the technical and legal sufficiency requirements of section 144 had been construed strictly in favor of judges. Courts also operated under the so-called “duty to sit” doctrine which required a judge to hear a case unless a clear demonstration of extra-judicial bias or prejudice was made.  Consequently, disqualification of a judge was difficult under section 144. In passing the amended 28 U.S.C. § 455, Congress broadened the grounds and loosened the procedure for disqualification in the federal courts.

     Section 455 “is directed to the judge, rather than the parties, and is self-enforcing on the part of the judge.” (U.S. v. Sibla, 624 F.2d 864, 867-68 (9th Cir. 1980)) It “modifies section 144 in requiring the judge to go beyond the section 144 affidavit and consider the merits of the motion pursuant to section 455(a) & (b)(1).” (Id. at 868)

     In Liljeberg v. Health Services Acquisition Corp. 486 U.S. 847, 860-61 (1988), the Supreme Court, quoting the lower court’s decision, stated:

The goal of section 455(a) is to avoid even the appearance of partiality. If it would appear to a reasonable person that a judge has knowledge of facts that would give him an interest in the litigation then an appearance of partiality is created even though no actual partiality exists because the judge does not recall the facts, because the judge actually has no interest in the case or because the judge is pure in heart and incorruptible. Under section 455(a), therefore, recusal is required even when a judge lacks actual knowledge of the facts indicating his interest or bias in the case if a reasonable person, knowing all the circumstances, would expect that the judge would have actual knowledge.

     In sum, under section 455, “it is the appearance of bias or partiality that matters here, not actual bias.” (United States v. Tucker, 78 F.3d 1313, 1324 (8th Cir. 1996)) In Tucker, prosecutors, relying “primarily on news articles,” sought the recusal of District Court Judge Woods from the trial of Governor Tucker, because of Woods’s close association with Hillary Clinton, wife of then-President Bill Clinton. Governor Tucker was indicted for financial crimes related to an investigation of President and Mrs. Clinton. (Id. at 1315, 1316) The news articles indicated that not only did the Clintons have a close relationship with Judge Woods, but also they had expressed their support of Governor Tucker, including after he was indicted.

     The Tucker court held:

The Independent Counsel argues that, because of the “unmistakable appearance” of bias or partiality here, “reassignment is necessary to preserve the appearance and reality of justice.” [] We agree. Based on the information before us in this case, we conclude that the risk of a perception of judicial bias or partiality is sufficiently great so that our proper course is to order reassignment on remand. As we have discussed, Judge Woods’s link with the Clintons and the Clintons’ connection to Tucker have been widely reported in the press. Moreover, as the Independent Counsel has noted, “this case will, as a matter of law, involve matters related to the investigation of the President and Hillary Rodham Clinton.” [] Given the high profile of the Independent Counsel’s work and of this case in particular, and the reported connections among Judge Woods, the Clintons, and Tucker, assignment to a different judge on remand is required to insure the perception of impartiality.

     (Id. at 1324-1325 (citations omitted))

     In the instant case, Judge Sammartino has a longstanding and close working relationship with clerk Jude who Plaintiff alleges violated a criminal code 18 U.S.C. 1001 and who, in the least, should be disciplined and removed from this case for backdating a docket entry. Hammett further argues that the clerk conspired with counsel who represented the L&E Trust Defendants at the time, and subsequently, Kramer. A reasonable person would well question the ability of Judge Sammartino to be impartial in deciding the case in general, especially since a gravamen of the case is whom exactly the Attorney Defendants were representing.

     Moreover, a separate Bivens action may arise from the clerk’s conduct and Judge Sammartino’s threatening admonishment in this case. Judge Sammartino may be called as a hostile witness in that case. Again, a reasonable person would easily question whether Judge Sammartino is able to impartially assess the evidence that Hammett asserts against Kramer that she did not file a timely response to the FAC and is therefore subject to default.

     Moreover, judicial remarks during the course of litigation may also support a bias or partiality challenge “if they reveal an opinion that derives from an extrajudicial source.” (Liteky v. U.S., 510 U.S. 540, 555 (1994))

      Footnote 13 of the March 23, 2020 order, has an implication that Hammett gave no evidence supporting her claims in the documents filed pertaining to the backdating of the docket, Judge Sammartino revealed her prejudice against Hammett and a belief that she files baseless claims.

     Courts have also noted, in the context of recusal motions, that “the whole is sometimes greater than the sum of the parts. The cumulative effect of a judge’s individual actions, comments and past associations could raise some question about impartiality, even though none (taken alone) would require recusal. (In re Martinez-Catala, supra, 129 F.3d at 221)

     “[A] judge may not sit in cases in which his impartiality might reasonably be questioned.” (U.S. v. Holland, 519 F.3d 909, 911 (9th Cir. 2008) (original emphasis) (internal quotation marks omitted)) “If it is a close case, the balance tips in favor of recusal.” Id. For that reason, the court in Melendres decided that recusal was appropriate: “No Court should tolerate even the slightest chance that its continued participation in a high profile lawsuit could taint the public’s perception of the fairness of the outcome. Certainly, this Court is unwilling to take such a risk.” (Melendres, 2009 WL 2132693, at *15, 2009 U.S. Dist. LEXIS 65069, at *52-53)

     While the underlying case is not high profile and of little concern to the public, the Bivens action arising from the case may become high profile. The Plaintiff has been on Fox News and contributed to a series regarding corruption in the family law courts and is likely to bring this case to media attention in order to advocate for the rights of low and moderate income citizens to have access to civil courts. Clerk JPP and Judge Sammartino have elevated a mundane business and libel matter to a matter of deep public concern…the integrity of our courts.

IV. CONCLUSION.

     The instant case involves an issue that is relevant in today’s political and societal climate. The common man, or woman, feels a lack of empowerment in our legal system. Unless misconduct committed by a police, lawyer or judicial officer is caught on video, it will too often go unpunished. In civil court, as Judge Sammartino pointed out, litigants don’t even have the Constitutional right to counsel. So, those without obscene wealth cannot afford justice. They are outlawyered. Unfortunately, as in this case, the court staff, including judges, may do favors for friends, such as backdating a docket entry. And no judge really cares to be called out on the bad behavior.

      Against that backdrop, there is considerably more than the “slightest chance” that Judge Sammartino’s variance from her usual course of conduct “could taint the public’s perception of the fairness of the outcome.”

     The Judge’s Bias and Prejudice is personal and Extrajudicial.

     Because the acts that demonstrate bias came early, when the Court failed in its duty to protect the LLC derivative interests by informing Plaintiff that the derivative action was on behalf of the LLC, there was really no reason within the four walls of the courtroom that Judge Sammartino could develop her bias.

     In fact, to date, Judge Sammartino has not spoken to the Plaintiff. The Court has no more experience with the Plaintiff’s demeanor than any other person reading the Plaintiff’s papers.

     The Plaintiff’s words are polite and respectful. Even when describing behavior that is reprehensible, like a clerk of the court backdating a docket entry, Plaintiff does not cuss. She does not throw bricks through storefront windows or spray-paint expletives on the courthouse. She merely speaks what she thinks is the truth.

     Plaintiff is not certain why Judge Sammartino was prejudiced.

     If Judge Sammartino dislikes that Plaintiff reports injustice, then she should disqualify herself, rather than shooting the messenger. The Plaintiff has standing to ask her to do so, but the more important beneficiary is the People of the United States of America who long for justice for all.

     Respectfully submitted,

Date ____8/22/2020_________ Signature__s/Laura Lynn Hammett___________

                                                   Plaintiff in Pro Se Laura Lynn Hammett

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[1] The Plaintiff will not name Judge Sammartino as a defendant in the suit due to absolute judicial immunity, but Judge Sammartino will be called as a witness. The fair administration of justice is a competing policy with absolute judicial immunity even in the case where misconduct on the bench is clear, and can only be preserved by disqualification of the judge, disciplinary action or criminal prosecution under 18 U.S.C. 1001.