Greetings group!

Is anyone aware of the statutory or regulatory requirements for seeking an
"administrative appeal" for an agency failing to be in compliance with a FOIA
request?

For example: the district courts appear to be using a 5 USC 556 hearing to
consider the arguments in a "tax case". However there is no such procedure
detailed in the Federal Register. At the moment, I cannot remember how I
confirmed this fact. Anyone care to remind me, please?

Court citations concerning this issue would be appreciated as well.

Thank you in advance for your help.

Michael

West may resell personal information of drivers, 7th Circuit rules

Sheri Qualters  ContactAll Articles

The National Law Journal

September 30, 2011

Where a Court has jurisdiction, it has a right to decide every question which occurs in the cause; and whether its decision be correct or otherwise, its judgment, until reversed, is regarded as binding in every other Court. But, if it act without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void; and form no bar to a recovery sought, even prior to a reversal, in opposition to them. They constitute no justification; and all persons concerned in executing such judgments or sentences, are considered, in law, as trespassers.

This distinction runs through all the cases on the subject; and it proves, that the jurisdiction of any Court exercising authority 341#####341 over a subject, may be inquired into in every Court, when the proceedings of the former are relied on and brought before the latter by the party claiming the benefit of such proceedings.

It is well known that the jurisdiction and authority of the County Courts of Kentucky are derived wholly, from the statute law of the state. In argument, we were referred to no statute which was supposed, either in terms, or by fair construction, to confer upon the County Court any supervising or controlling power over the acts of the clerk, in taking, in his office, the acknowledgment of a deed, or in recording it, upon an acknowledgment there taken by him. We have sought in vain for such a provision, and it is believed none such exists. No such supervising and controlling power can result to the Court, from the general relations which exist between a Court and its clerk; for in this case, the statutes confer upon the clerk, in his office, a distinct, independent, personal authority, to be exercised by him upon his own judgment and responsibility. We think, therefore, with the Circuit Court that the County Court had no jurisdiction or authority to order the after certificate of Mrs. Elliott's privy examination to be made and recorded. Elliott v. Peirsol, 26 U.S. 328, 340-41 (1828) http://scholar.google.com/scholar_case?case=9851142207306798312&q=%22all+persons+concerned+in+executing+such+judgments+or+sentences%22&hl=en&as_sdt=4,60

This could happen from taking pictures on the Blackberry or Iphone.

  <http://www.youtube.com/watch?v=N2vARzvWxwY>
http://www.youtube.com/watch?v=N2vARzvWxwY

So FOX news has it there is a Notice and Commentary Period for a revision of the
APA regarding the government release of documents.

The DOJ is requesting permission to lie about whether or not attorneys may lie
about the existence or non-existence of documents.

I think this is rather important. Does anyone have more on this, like actual
Notice?

When are the Hearings or Notice of Public Comment?

Thank you,

Michael

Fraud & Corruption Appeal
Filed 11/2/11 in Ninth Cir. Court of Appeals

Ronald  Branson

11245 Otsego St., #12

North Hollywood, CA. 91601

(818) 310-8999

 

Plaintiff Pro Se

 

UNITES STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

 

 

 

Ronald Branson,                                                         Plaintiff-Appellant              v.             CITY OF LOS ANGELES; L.A.P.D.    OFFICER KEVIN BAYONA;    DOE 1/ aka Marvin Gross;    DOE 2/ aka Melony Schoenberg;    DOE 3/ aka Nancy S. Gast;    DOE 4/ aka Michael Jesic;    DOE 5/ aka Anita Dymant;    DOE 6/ aka Patti Jo Mc Kay;    DOE 7/ aka Sunjay Kumar;    & DOEs 8 – 10, Inclusive                       Defendants-Appellees

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

No. 11-56857     D.C. No. 2:11-cv-00565-ODW-JEM   U.S. District Court for Central   California, Los Angeles                    Opposition to Order            Filed by Molly C. Dwyer       Clerk U.S. Court of Appeals                 on Oct. 25, 2011

 

Plaintiff/Appellant hereby appears in Opposition to the “Order” of 10-25-11

 

a copy of which is attached for reference.

 

Good cause exists for allowing this appeal as of right to move forward pursuant to Title 28 U.S.C. Sec. 1291, for the following reasons based on the abundance of evidence already established in this case.

In preparing this Opposition, Appellant’s research reveals that the definition of the term as used in this instant Order “insubstantial” is deemed subjective by this circuit. “Although it is difficult to formulate a precise standard, not every case in which appellant files an unimpressive opening brief is appropriate for summary affirmance. Motions to affirm should be confined to appeals obviously controlled by precedent and cases in which the insubstantiality is manifest from the face of appellant’s brief.2” United States of America v. James Lynn Hooton, Defendant-Appellant No. 82-1441, U.S. Court of Appeals, (Decided October 13, 1982.)

As to form, Plaintiff/Appellant, has found no authority as to the form this Opposition should take, nor has there been any requested format. Therefore, Appellant shall respond in opposition to this Order after a practical manner.

 

FACTS AND ARGUMENT

 

On August 9, 2011, Plaintiff Ronald Branson in the underlying court action,  moved the below court for the entry of Summary Judgment against all Defendants as to all issues, based upon two grounds; namely 1) Non-response to Plaintiff’s Request for Admissions, and 2) upon EXHIBITS A, B, C, and D. Such Exhibits documented a major fraud which took place within the Los Angeles Superior Court, which fraud led all the way up through, and included the Appellate Department of the Superior Court. Such fraud appears on its face to have begun when someone unknown, created and filed a fraudulent Minute Order of 11-24-09, which Minute Order alleges “DEFENDANT IS PRESENT IN COURT, AND REPRESENTED BY MARVIN GROSS DEPUTY PUBLIC DEFENDER – DEFENDANT PLEADS NOT GUILTY TO COUNT 01, 125(A) VC. DEFENDANT PLEADS NOT GUILTY TO COUNT 02, 27153 VC. – DEFENDANT WAS ARRAIGNED AND PLEAD NOT GUILTY ON CITATION 0750701 – THAT CITATION IS NOW FILED AS A MISDEMEANOR ON THIS CASE. – LAST DAY IS 12/18/09.”

It was not until after the matter was on appeal that Plaintiff/Appellant, (hereinafter “P/A”), discovered this fraud upon which all Defendants/Appellees (hereinafter “D/A”) rely in asserting that P/A was convicted of a crime. This fraudulent Minute Order is an exhibit to the Motion for Summary Judgment.

As a result of P/A discovering the information regarding this false and fraudulent arraignment of criminal charges, he consulted with Court Reporter Veronika Cohen about this incident at which he supposedly was present and entered pleas to such charges. She advised P/A that no such incident took place. P/A relayed this same information on to the Appellate Department of the Los Angeles Superior Court at oral argument attempting to impeach the record and uncover the fraud behind this fraudulent Minute Order. P/A asked this panel of judges to consult with the Official Court Reporter for themselves and ascertain the truth regarding this matter, after all, it was this document upon which their entire affirmance of a conviction was based.

California Code of Civil Procedure 1916 provides, “Any judicial record may be impeached by evidence of a want of jurisdiction in the court or judicial officer, of collusion between the parties, or of fraud in the party offering the record, in respect to the proceedings.”

Notwithstanding this law, this County appellate panel forged forward, based upon this exposed fraud, to order, without jurisdiction to do so, a false and fraudulent affirmance of the charges as stated within this fraudulent Minute Order.

It thereby became obvious that it was this very appellate panel itself who were offering this fraudulent record, in respect to the proceedings, and who thereby were in collusion by fraud with the other side. Such conduct, bordering on criminal conduct, cannot be respected by any other tribunal.

P/A then got back with Court Reporter Veronika Cohen listed in the Minute Order, and informed her that the appellate court refused to accept the fact that no arraignment took place. Ms. Cohen then prepared a declaration dated 3-9-11 verifying that there was no such arraignment that took place. In her declaration she identifies her position as the “OFFICIAL REPORTER FOR THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, FOR THE COUNTY OF LOS ANGELES” which P/A attached as Exhibit B to all three Motions for Summary Judgment served upon counsels for all of the D/As.

The declaration of the Official Reporter for the Los Angeles County Courts stands unopposed and deemed true throughout both the State action, and this current federal action. There is nothing more to be resolved in this federal action except damages to be determined by a jury.

P/A has testified numerous times by declaration that he was neither present at any arraignment, had never received notice of any arraignment, never plead to any charges at an arraignment, was never presented with a verified complaint alleging charges, that he never waived his right to defend himself should he be presented with criminal charges. Everything involving the People of the State of California v. Ronald Branson, Case # 9VY04970, is based upon a total fraud, and that the affirmation of conviction based upon a fraudulent non-existent arraignment on fraudulent non-existing charges performed without notice and without the presence or knowledge of P/A, all now manifest as a magnificent cover-up in this federal action.

Coming to the other ground for P/A’s Motion for Summary Judgment, i.e., non-response to Request for Admissions, it was therefore deemed admitted by the D/As: “That there was no case called Re Ronald Branson; that there was no foundation for the affirmance of a criminal conviction against Ronald Branson inasmuch as there was no arraignment on criminal charges against him. (Admission 6 & 8). That the case of People v. Ronald Branson, 9VY04970 was absent jurisdiction and the most basic fundamental right to due process, and was based on fraud; that the intended targeted victim was Ronald Branson to cause him to suffer imprisonment. (Admission 13 & 15).”  – Conclusion of P/A’s Reply to Opposition of Defendant Marvin Gross to Plaintiff’s Motion for Summary Judgment by Plaintiff Ronald Branson against Defendant Marvin Gross & Los Angeles County, page 14, lines 12 – 21.

Since it is manifest by both the declaration of the Official Court Reporter for the County of Los Angeles, and by their own deemed admissions that there was no criminal charges brought forth against P/A, nor an arraignment on anything, that the criminal court debacle upon which these D/As rely for their Motions to Dismiss was devoid of absolutely all jurisdiction both in personam, and in rem, and are situated in the same legal status as if no criminal proceeding existed. Further noteworthy is the fact that the City of Los Angeles did not even oppose  P/A’s Motion for Summary Judgment. They submitted nothing in their defense against the granting of the Motion for Summary Judgment.

 

The question now in consideration is whether such lack of jurisdiction through manifest fraud, and deception, should carry over into this Federal litigation.

 

P/A’s Motion for Summary Judgment was set for hearing on October 17, 2011. On this date, P/A appeared in court for a decision regarding this fraud. However, rather than a decision regarding this fraud, the court rendered the following; “ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS by Judge Otis D Wright, II. This Court GRANTS Moving Defendants’ Motion and dismisses Plaintiff’s FAC in its entirety. In the event Plaintiff’s conviction is overturned on appeal, he may file a new action. All remaining motions are hereby found moot, and the Clerk of Court shall close this case.”

It therefore becomes obvious that Judge Otis D. Wright’s Order completely ignores all the evidence regarding the fraud. By saying, “In the event Plaintiff’s conviction is overturned on appeal, he may file a new action,” he thereby refutes that P/A never received a notice, was never arraigned, was never presented with a verified complaint, that he never entered a plea to anything, that there was no magistrate, no Probable Cause, he was never allowed to put on his own defense should he have been presented with charges, and that he was never convicted of any charges. It was impossible to affirm a conviction of anything against P/A.

He also, by his Order, necessarily, by implication, calls the Official Court Reporter for the County of Los Angeles, a liar when she states under oath by declaration that there was no such criminal proceeding before her upon which Minute Order all Defendants rely in asserting that there was a conviction.

 Obviously, it is impossible to “overturn” a non-existent fraudulent “conviction,” based upon a non-existent fraudulent arraignment, based upon non-existent fraudulent charges, all performed without notice to P/A, and without his knowledge or his appearance, thereby making it impossible to “file a new action.”

All of this fraud was brought to the judge’s attention within P/A’s opposition to all of these D/A’s Motions to Dismiss, which facts, for purposes of the Motion to Dismiss, must assume the truthfulness of the factual allegations. As to the application of substantive law as to the facts of Notice and Opportunity, and fraud, P/A will establish this within his below points and authorities.

 

POINTS AND AUTHORITIES

 

As stated in U.S. v. Hooton, (Supra), cited in the commencement of this Opposition to “Order,” the standard for insubstantiality of an Opening Brief is case precedent, “Although it is difficult to formulate a precise standard, not every case in which appellant files an unimpressive opening brief is appropriate for summary affirmance. Motions to affirm should be confined to appeals obviously controlled by precedent and cases in which the insubstantiality is manifest from the face of appellant’s brief.2”

While acknowledged that this is not an Opening Brief, which Opening Brief would otherwise be due April 2, 2012, the same minimum standard of case precedent for an Opening Brief should be applied as to when no Opening Brief on appeal is allowed.

Below are case precedents in matters of lack of notice, lack of opportunity to put on a defense, and of extrinsic fraud, as alleged, and even proved, within discovery below. P/A had a right to notice, a right to appear, to be apprised of  charges, if any, that might be laid against him, to a magistrate, and to Probable Cause, and to put on his own defense, all of which were denied him.

 

 “No state shall … deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Fourteenth Amendment, U.S. Constitution.

“While warrants were not required in all circumstances, the requirement of probable cause, as elaborated in numerous precedents, was treated as absolute. The "long-prevailing standards" of probable cause embodied "the best compromise that has been found for accommodating [the] often opposing interests" in "safeguard[ing] citizens from rash and unreasonable interferences with privacy" and in "seek[ing] to give fair leeway for enforcing the law in the community's protection." Brinegar v. United States, 338 U. S. 160, 338 U. S. 176 (1949). The standard of probable cause thus represented the accumulated wisdom of precedent and experience as to the minimum justification necessary to make the kind of intrusion involved in an arrest "reasonable" under the Fourth Amendment. The standard applied to all arrests….”  Dunaway v. New York, 4422 U.S. 200 (1979)

“The petition here involved does not disclose whether petitioner upon his arrest was immediately taken before a magistrate …. It does aver that no waiver was made. Under such circumstances the filing of a complaint was mandatory, and essential to the jurisdiction of the court. ‘Jurisdiction is fundamental. It is the primary question for determination by a court to any case for jurisdiction is the power to hear and determine. [Citing cases.] If a judgment is rendered by a court which did not have jurisdiction to hear a cause, such judgment is void ab initio. [Citing cases.] Even though a void judgment is affirmed on appeal, it is not thereby rendered valid.’ (In re Wyatt, 114 Cal.App. 557, 559. [300 P. 132])” Ralph v. Police Court, 84 C.A.2d 257, 260.

 “Fraud vitiates everything it touches.” Nudd v. Burrows (1875) 91 U.S. 416.

 

          “Fraud destroys the validity of everything into which it enters.”

Boyce’s Executors v. Grundy (1830) 28 U.S. 210.

 

          “Fraud vitiates the most solemn contracts, documents and even judgments.” United States v. Throckmorton (1878) 98 U.S. 61, 70.

 

          “No court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment or a court, no order of a minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. …fraud vitiates all transactions, and if taken for a fraudulent purpose to carry out a fraudulent scheme, such action is void and of no force or effect whatever, equality will compel fair dealing, disregarding all forms and subterfuges, and looking only to the substance of things.” Jackson Law Office, P.C. v. Chappell, 327 SW2d 15 at 27 citing Libhart v. Copeland 949 SW2d 783, 794.

 

“Extrinsic fraud usually arises when a party is denied a fair adversary hearing because he has been ‘deliberately kept in ignorance of the action or proceeding, or in some other way fraudulently prevented from presenting his claim or defense.’ ’’   Cross v. Tustin (1951) 37 Cal.2d 1067.

 

“The principle stated in this terse language lies at the foundation of all well ordered systems of jurisprudence. Wherever one is assailed in his person or his property, there he may defend, for the liability and the right are inseparable. This is a principle of natural justice, recognized as such by the common intelligence and conscience of all nations. A sentence of a court pronounced against a party without hearing him or giving him an opportunity to be heard is not a judicial determination of his rights, and is not entitled to respect in any other tribunal.      
        “That there must be notice to a party of some kind, actual or constructive, to a valid judgment affecting his rights is admitted. Until notice is given, the court has no jurisdiction in any case to proceed to judgment, whatever its authority may be, by the law of its organization, over the subject matter. But notice is only for the purpose of affording the party an opportunity of being heard upon the claim or the charges made; it is a summons to him to appear and speak, if he has any thing to say, why the judgment sought should not be rendered. A denial to a party of the benefit of a notice would be in effect to deny that he is entitled to notice at all, and the sham and deceptive proceeding had better be omitted altogether. …. It is difficult to speak of a decree thus rendered with moderation; it was in fact a mere arbitrary edict, clothed in the form of a judicial sentence.” Windsor v. McVeigh, 93 U. S. 274 (1876).

“If the court of a state had jurisdiction of a matter, its decision would be conclusive, but this Court cannot yield assent to the proposition that the jurisdiction of a state court cannot be questioned where its proceeding were brought collaterally before the circuit court of the United States.

“Where a court has jurisdiction, it has a right to decide any question which occurs in the cause, and whether its decision be correct or otherwise, its judgment, until reversed, are regarded as binding in every other court. But if it acts without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void, and form no bar to a remedy sought in opposition to them, even prior to a reversal. They constitute no justification, and all persons concerned in executing such judgments or sentences are considered in law as trespassers.

“The jurisdiction of any court exercising authority over a subject may be inquired into in every other court when the proceedings of the former are relied on and brought before the latter by a party claiming the benefit of such proceedings.” Elliott v. Lessee of Piersol, 26 U.S. 1 Pet. 328 (1828).

 

“The affirmance of a void judgment upon appeal imparts no validity to the judgment, but is in itself void by reason of the nullity of the judgment appealed from.” Pioneer Land Co. v. Maddux, 109 Cal. 633, 642.

 

“The doctrine of res judicata is inapplicable to void judgments. ‘Obviously a judgment, though final and on the merits, has no binding force and is subject to collateral attack if it is wholly void for lack of jurisdiction of the subject matter or person, and perhaps for excess of jurisdiction or where it is obtained by extrinsic fraud.” Rochin v. Pat Johnson Manufacturing Co., (1998) 67 Cal. App. 4^th 1228, 1239.

“… [W]e are of opinion that we should recognize the condition created by the judgment of the state court unless, from an intrinsic consideration of the state record, one or all of the following conditions should appear: 1, that the state procedure, from want of notice or opportunity to be heard, was wanting in due process, 2, that there was such an infirmity of proof as to facts found to have established the want of fair private and professional character as to give rise to a clear conviction on our part that we could not, consistently with our duty, accept as final the conclusion on that subject, or 3, that some other grave reason existed which should convince us that to allow the natural consequences of the judgment to have their effect would conflict with the duty which rests upon us not to disbar except upon the conviction that, under the principles of right and justice, we were constrained so to do.”  Selling v. Radford, 243 U.S. 46, 51 (1917)

 

CONCLUSION

 

Should Plaintiff-Appellant be allowed the standard process of filing an Opening Brief in this appeal, such Opening Brief would be voluminous, among which would tentatively include not only the FAC, but various Motions for Summary Judgment, and a Motion for Sanctions for refusing to respond to the questions of discovery with obvious answers which D/A know would further substantiate P/A’s Motions for Summary Judgment. The fact is, these D/As have absolutely no defense whatsoever within this action, but depend entirely upon fraud, cover-up and evasion of the truth.

This case manifesting major fraud and cover-up throughout, has already passed through the hands of several Federal Judges, to wit; Judge Margaret M. Morrow, Judge Gary A. Feess, Judge Marina R. Pfaelzer, Judge Dale S. Fischer, all of which judges chose to recues themselves from this case prior to being finally assigned to a fifth judge, Judge Otis D. Wright. All of these aforementioned judges had the opportunity to act on the issue of fraud alleged herein, but instead chose, for whatever reason, to recues themselves.

Before this Appellate Court now is the question of how Judge Otis D. Wright ruled on this issue of fraud? He chose not to address this issue at all, but rather chose to collude with D/As in avoiding the issue altogether. Ignoring the question of fraud alleged before a court does not make it go away. Neither does it defeat the numerous case precedents cited herein by P/A relating to fraud.

P/A hates to utter this word, as he has heretofore avoided even the hint of suggesting bias of any federal judge who has been previously assigned this case, but P/A has to reluctantly admit that he sincerely questions Judge Otis Wright’s ability to faithfully rule according to law applied to the facts of this case. Judge Wright has chosen to avoid all of this authority as if such authorities did not exist. Judge Wright instead counters the allegations of the FAC, and asserts contrariwise to the complaint that P/A must “overturn” his conviction, after which he may then file a new federal action. Such assertion defies imagination in light of the facts and evidence. P/A questions whether Judge Wright is capable of entering a summary judgment against these defendants, even if the appropriate law so required it, due to his personal bias.

Finally, this case is hardly one of “insubstantiality” so that a Title 28 USC 1291 right of appeal should be summarily dismissed without allowing the filing an Opening Brief, or presentation of evidence.

 

 

__________________________________

               Ronald Branson                                     Dated:  November 2, 2011

 

 

The US Court of Appeals, 9th Circuit, Patronizes Corruption of the US District Court in LA and the Los Angeles Superior Court
The US courts are not ready, willing, able to address their own corruption.  No remedy can be found there for the abuse... Chief Judge Alex Kozinski has presided over corruption of historic proportions of the justice system under the 9th Circuit.



Chief Judge Alex Kozinski
US Court of Appeals, 9th Circuit

Date: Fri, 04 Nov 2011 08:20:17 -0700
From: Ron Branson
Subject: Fraud & Corruption Appeal - Filed 11/2/11 in Ninth Cir. Court of Appeal
X-ELNK-AV: 0
X-ELNK-Info: sbv=0; sbrc=.0; sbf=00; sbw=000;

Fraud & Corruption Appeal
Filed 11/2/11 in Ninth Cir. Court of Appeals

Ronald  Branson

11245 Otsego St., #12

North Hollywood, CA. 91601

(818) 310-8999

 

Plaintiff Pro Se

 

UNITES STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

 

 

 

   Ronald Branson,

                        

                               Plaintiff-Appellant

             v.      

  

   CITY OF LOS ANGELES; L.A.P.D.

   OFFICER KEVIN BAYONA;

   DOE 1/ aka Marvin Gross;

   DOE 2/ aka Melony Schoenberg;

   DOE 3/ aka Nancy S. Gast;

   DOE 4/ aka Michael Jesic;

   DOE 5/ aka Anita Dymant;

   DOE 6/ aka Patti Jo Mc Kay;

   DOE 7/ aka Sunjay Kumar;

   & DOEs 8 – 10, Inclusive

 

                    Defendants-Appellees

  No. 11-56857

 

  D.C. No. 2:11-cv-00565-ODW-JEM

  U.S. District Court for Central

  California, Los Angeles


           Opposition to Order

 

         Filed by Molly C. Dwyer

      Clerk U.S. Court of Appeals

                on Oct. 25, 2011
 

Plaintiff/Appellant hereby appears in Opposition to the “Order” of 10-25-11 a copy of which is attached for reference.


Good cause exists for allowing this appeal as of right to move forward pursuant to Title 28 U.S.C. Sec. 1291, for the following reasons based on the abundance of evidence already established in this case.

In preparing this Opposition, Appellant’s research reveals that the definition of the term as used in this instant Order “insubstantial” is deemed subjective by this circuit. “Although it is difficult to formulate a precise standard, not every case in which appellant files an unimpressive opening brief is appropriate for summary affirmance. Motions to affirm should be confined to appeals obviously controlled by precedent and cases in which the insubstantiality is manifest from the face of appellant’s brief.2” United States of America v. James Lynn Hooton, Defendant-Appellant No. 82-1441, U.S. Court of Appeals, (Decided October 13, 1982.)

As to form, Plaintiff/Appellant, has found no authority as to the form this Opposition should take, nor has there been any requested format. Therefore, Appellant shall respond in opposition to this Order after a practical manner.

 

FACTS AND ARGUMENT

 

On August 9, 2011, Plaintiff Ronald Branson in the underlying court action,  moved the below court for the entry of Summary Judgment against all Defendants as to all issues, based upon two grounds; namely 1) Non-response to Plaintiff’s Request for Admissions, and 2) upon EXHIBITS A, B, C, and D. Such Exhibits documented a major fraud which took place within the Los Angeles Superior Court, which fraud led all the way up through, and included the Appellate Department of the Superior Court. Such fraud appears on its face to have begun when someone unknown, created and filed a fraudulent Minute Order of 11-24-09, which Minute Order alleges “DEFENDANT IS PRESENT IN COURT, AND REPRESENTED BY MARVIN GROSS DEPUTY PUBLIC DEFENDER – DEFENDANT PLEADS NOT GUILTY TO COUNT 01, 125(A) VC. DEFENDANT PLEADS NOT GUILTY TO COUNT 02, 27153 VC. – DEFENDANT WAS ARRAIGNED AND PLEAD NOT GUILTY ON CITATION 0750701 – THAT CITATION IS NOW FILED AS A MISDEMEANOR ON THIS CASE. – LAST DAY IS 12/18/09.”

It was not until after the matter was on appeal that Plaintiff/Appellant, (hereinafter “P/A”), discovered this fraud upon which all Defendants/Appellees (hereinafter “D/A”) rely in asserting that P/A was convicted of a crime. This fraudulent Minute Order is an exhibit to the Motion for Summary Judgment.

As a result of P/A discovering the information regarding this false and fraudulent arraignment of criminal charges, he consulted with Court Reporter Veronika Cohen about this incident at which he supposedly was present and entered pleas to such charges. She advised P/A that no such incident took place. P/A relayed this same information on to the Appellate Department of the Los Angeles Superior Court at oral argument attempting to impeach the record and uncover the fraud behind this fraudulent Minute Order. P/A asked this panel of judges to consult with the Official Court Reporter for themselves and ascertain the truth regarding this matter, after all, it was this document upon which their entire affirmance of a conviction was based.

California Code of Civil Procedure 1916 provides, “Any judicial record may be impeached by evidence of a want of jurisdiction in the court or judicial officer, of collusion between the parties, or of fraud in the party offering the record, in respect to the proceedings.”

Notwithstanding this law, this County appellate panel forged forward, based upon this exposed fraud, to order, without jurisdiction to do so, a false and fraudulent affirmance of the charges as stated within this fraudulent Minute Order.

It thereby became obvious that it was this very appellate panel itself who were offering this fraudulent record, in respect to the proceedings, and who thereby were in collusion by fraud with the other side. Such conduct, bordering on criminal conduct, cannot be respected by any other tribunal.

P/A then got back with Court Reporter Veronika Cohen listed in the Minute Order, and informed her that the appellate court refused to accept the fact that no arraignment took place. Ms. Cohen then prepared a declaration dated 3-9-11 verifying that there was no such arraignment that took place. In her declaration she identifies her position as the “OFFICIAL REPORTER FOR THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, FOR THE COUNTY OF LOS ANGELES” which P/A attached as Exhibit B to all three Motions for Summary Judgment served upon counsels for all of the D/As.

The declaration of the Official Reporter for the Los Angeles County Courts stands unopposed and deemed true throughout both the State action, and this current federal action. There is nothing more to be resolved in this federal action except damages to be determined by a jury.

P/A has testified numerous times by declaration that he was neither present at any arraignment, had never received notice of any arraignment, never plead to any charges at an arraignment, was never presented with a verified complaint alleging charges, that he never waived his right to defend himself should he be presented with criminal charges. Everything involving the People of the State of California v. Ronald Branson, Case # 9VY04970, is based upon a total fraud, and that the affirmation of conviction based upon a fraudulent non-existent arraignment on fraudulent non-existing charges performed without notice and without the presence or knowledge of P/A, all now manifest as a magnificent cover-up in this federal action.

Coming to the other ground for P/A’s Motion for Summary Judgment, i.e., non-response to Request for Admissions, it was therefore deemed admitted by the D/As: “That there was no case called Re Ronald Branson; that there was no foundation for the affirmance of a criminal conviction against Ronald Branson inasmuch as there was no arraignment on criminal charges against him. (Admission 6 & 8). That the case of People v. Ronald Branson, 9VY04970 was absent jurisdiction and the most basic fundamental right to due process, and was based on fraud; that the intended targeted victim was Ronald Branson to cause him to suffer imprisonment. (Admission 13 & 15).”  – Conclusion of P/A’s Reply to Opposition of Defendant Marvin Gross to Plaintiff’s Motion for Summary Judgment by Plaintiff Ronald Branson against Defendant Marvin Gross & Los Angeles County, page 14, lines 12 – 21.

Since it is manifest by both the declaration of the Official Court Reporter for the County of Los Angeles, and by their own deemed admissions that there was no criminal charges brought forth against P/A, nor an arraignment on anything, that the criminal court debacle upon which these D/As rely for their Motions to Dismiss was devoid of absolutely all jurisdiction both in personam, and in rem, and are situated in the same legal status as if no criminal proceeding existed. Further noteworthy is the fact that the City of Los Angeles did not even oppose  P/A’s Motion for Summary Judgment. They submitted nothing in their defense against the granting of the Motion for Summary Judgment.

 

The question now in consideration is whether such lack of jurisdiction through manifest fraud, and deception, should carry over into this Federal litigation.

 

P/A’s Motion for Summary Judgment was set for hearing on October 17, 2011. On this date, P/A appeared in court for a decision regarding this fraud. However, rather than a decision regarding this fraud, the court rendered the following; “ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS by Judge Otis D Wright, II. This Court GRANTS Moving Defendants’ Motion and dismisses Plaintiff’s FAC in its entirety. In the event Plaintiff’s conviction is overturned on appeal, he may file a new action. All remaining motions are hereby found moot, and the Clerk of Court shall close this case.”

It therefore becomes obvious that Judge Otis D. Wright’s Order completely ignores all the evidence regarding the fraud. By saying, “In the event Plaintiff’s conviction is overturned on appeal, he may file a new action,” he thereby refutes that P/A never received a notice, was never arraigned, was never presented with a verified complaint, that he never entered a plea to anything, that there was no magistrate, no Probable Cause, he was never allowed to put on his own defense should he have been presented with charges, and that he was never convicted of any charges. It was impossible to affirm a conviction of anything against P/A.

He also, by his Order, necessarily, by implication, calls the Official Court Reporter for the County of Los Angeles, a liar when she states under oath by declaration that there was no such criminal proceeding before her upon which Minute Order all Defendants rely in asserting that there was a conviction.

 Obviously, it is impossible to “overturn” a non-existent fraudulent “conviction,” based upon a non-existent fraudulent arraignment, based upon non-existent fraudulent charges, all performed without notice to P/A, and without his knowledge or his appearance, thereby making it impossible to “file a new action.”

All of this fraud was brought to the judge’s attention within P/A’s opposition to all of these D/A’s Motions to Dismiss, which facts, for purposes of the Motion to Dismiss, must assume the truthfulness of the factual allegations. As to the application of substantive law as to the facts of Notice and Opportunity, and fraud, P/A will establish this within his below points and authorities.

 

POINTS AND AUTHORITIES

 

As stated in U.S. v. Hooton, (Supra), cited in the commencement of this Opposition to “Order,” the standard for insubstantiality of an Opening Brief is case precedent, “Although it is difficult to formulate a precise standard, not every case in which appellant files an unimpressive opening brief is appropriate for summary affirmance. Motions to affirm should be confined to appeals obviously controlled by precedent and cases in which the insubstantiality is manifest from the face of appellant’s brief.2”

While acknowledged that this is not an Opening Brief, which Opening Brief would otherwise be due April 2, 2012, the same minimum standard of case precedent for an Opening Brief should be applied as to when no Opening Brief on appeal is allowed.

Below are case precedents in matters of lack of notice, lack of opportunity to put on a defense, and of extrinsic fraud, as alleged, and even proved, within discovery below. P/A had a right to notice, a right to appear, to be apprised of  charges, if any, that might be laid against him, to a magistrate, and to Probable Cause, and to put on his own defense, all of which were denied him.

 

 “No state shall … deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Fourteenth Amendment, U.S. Constitution.

“While warrants were not required in all circumstances, the requirement of probable cause, as elaborated in numerous precedents, was treated as absolute. The "long-prevailing standards" of probable cause embodied "the best compromise that has been found for accommodating [the] often opposing interests" in "safeguard[ing] citizens from rash and unreasonable interferences with privacy" and in "seek[ing] to give fair leeway for enforcing the law in the community's protection." Brinegar v. United States, 338 U. S. 160, 338 U. S. 176 (1949). The standard of probable cause thus represented the accumulated wisdom of precedent and experience as to the minimum justification necessary to make the kind of intrusion involved in an arrest "reasonable" under the Fourth Amendment. The standard applied to all arrests….”  Dunaway v. New York, 4422 U.S. 200 (1979)

“The petition here involved does not disclose whether petitioner upon his arrest was immediately taken before a magistrate …. It does aver that no waiver was made. Under such circumstances the filing of a complaint was mandatory, and essential to the jurisdiction of the court. ‘Jurisdiction is fundamental. It is the primary question for determination by a court to any case for jurisdiction is the power to hear and determine. [Citing cases.] If a judgment is rendered by a court which did not have jurisdiction to hear a cause, such judgment is void ab initio. [Citing cases.] Even though a void judgment is affirmed on appeal, it is not thereby rendered valid.’ (In re Wyatt, 114 Cal.App. 557, 559. [300 P. 132])” Ralph v. Police Court, 84 C.A.2d 257, 260.

 “Fraud vitiates everything it touches.” Nudd v. Burrows (1875) 91 U.S. 416.

 

          “Fraud destroys the validity of everything into which it enters.”

Boyce’s Executors v. Grundy (1830) 28 U.S. 210.

 

          “Fraud vitiates the most solemn contracts, documents and even judgments.” United States v. Throckmorton (1878) 98 U.S. 61, 70.

 

          “No court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment or a court, no order of a minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. …fraud vitiates all transactions, and if taken for a fraudulent purpose to carry out a fraudulent scheme, such action is void and of no force or effect whatever, equality will compel fair dealing, disregarding all forms and subterfuges, and looking only to the substance of things.” Jackson Law Office, P.C. v. Chappell, 327 SW2d 15 at 27 citing Libhart v. Copeland 949 SW2d 783, 794.

 

“Extrinsic fraud usually arises when a party is denied a fair adversary hearing because he has been ‘deliberately kept in ignorance of the action or proceeding, or in some other way fraudulently prevented from presenting his claim or defense.’ ’’   Cross v. Tustin (1951) 37 Cal.2d 1067.

 

“The principle stated in this terse language lies at the foundation of all well ordered systems of jurisprudence. Wherever one is assailed in his person or his property, there he may defend, for the liability and the right are inseparable. This is a principle of natural justice, recognized as such by the common intelligence and conscience of all nations. A sentence of a court pronounced against a party without hearing him or giving him an opportunity to be heard is not a judicial determination of his rights, and is not entitled to respect in any other tribunal.      
       “That there must be notice to a party of some kind, actual or constructive, to a valid judgment affecting his rights is admitted. Until notice is given, the court has no jurisdiction in any case to proceed to judgment, whatever its authority may be, by the law of its organization, over the subject matter. But notice is only for the purpose of affording the party an opportunity of being heard upon the claim or the charges made; it is a summons to him to appear and speak, if he has any thing to say, why the judgment sought should not be rendered. A denial to a party of the benefit of a notice would be in effect to deny that he is entitled to notice at all, and the sham and deceptive proceeding had better be omitted altogether. …. It is difficult to speak of a decree thus rendered with moderation; it was in fact a mere arbitrary edict, clothed in the form of a judicial sentence.” Windsor v. McVeigh, 93 U. S. 274 (1876).

“If the court of a state had jurisdiction of a matter, its decision would be conclusive, but this Court cannot yield assent to the proposition that the jurisdiction of a state court cannot be questioned where its proceeding were brought collaterally before the circuit court of the United States.

“Where a court has jurisdiction, it has a right to decide any question which occurs in the cause, and whether its decision be correct or otherwise, its judgment, until reversed, are regarded as binding in every other court. But if it acts without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void, and form no bar to a remedy sought in opposition to them, even prior to a reversal. They constitute no justification, and all persons concerned in executing such judgments or sentences are considered in law as trespassers.

“The jurisdiction of any court exercising authority over a subject may be inquired into in every other court when the proceedings of the former are relied on and brought before the latter by a party claiming the benefit of such proceedings.” Elliott v. Lessee of Piersol, 26 U.S. 1 Pet. 328 (1828).

 

“The affirmance of a void judgment upon appeal imparts no validity to the judgment, but is in itself void by reason of the nullity of the judgment appealed from.” Pioneer Land Co. v. Maddux, 109 Cal. 633, 642.

 

“The doctrine of res judicata is inapplicable to void judgments. ‘Obviously a judgment, though final and on the merits, has no binding force and is subject to collateral attack if it is wholly void for lack of jurisdiction of the subject matter or person, and perhaps for excess of jurisdiction or where it is obtained by extrinsic fraud.” Rochin v. Pat Johnson Manufacturing Co., (1998) 67 Cal. App. 4^th 1228, 1239.

“… [W]e are of opinion that we should recognize the condition created by the judgment of the state court unless, from an intrinsic consideration of the state record, one or all of the following conditions should appear: 1, that the state procedure, from want of notice or opportunity to be heard, was wanting in due process, 2, that there was such an infirmity of proof as to facts found to have established the want of fair private and professional character as to give rise to a clear conviction on our part that we could not, consistently with our duty, accept as final the conclusion on that subject, or 3, that some other grave reason existed which should convince us that to allow the natural consequences of the judgment to have their effect would conflict with the duty which rests upon us not to disbar except upon the conviction that, under the principles of right and justice, we were constrained so to do.”  Selling v. Radford, 243 U.S. 46, 51 (1917)



CONCLUSION

 

Should Plaintiff-Appellant be allowed the standard process of filing an Opening Brief in this appeal, such Opening Brief would be voluminous, among which would tentatively include not only the FAC, but various Motions for Summary Judgment, and a Motion for Sanctions for refusing to respond to the questions of discovery with obvious answers which D/A know would further substantiate P/A’s Motions for Summary Judgment. The fact is, these D/As have absolutely no defense whatsoever within this action, but depend entirely upon fraud, cover-up and evasion of the truth.

This case manifesting major fraud and cover-up throughout, has already passed through the hands of several Federal Judges, to wit; Judge Margaret M. Morrow, Judge Gary A. Feess, Judge Marina R. Pfaelzer, Judge Dale S. Fischer, all of which judges chose to recues themselves from this case prior to being finally assigned to a fifth judge, Judge Otis D. Wright. All of these aforementioned judges had the opportunity to act on the issue of fraud alleged herein, but instead chose, for whatever reason, to recues themselves.

Before this Appellate Court now is the question of how Judge Otis D. Wright ruled on this issue of fraud? He chose not to address this issue at all, but rather chose to collude with D/As in avoiding the issue altogether. Ignoring the question of fraud alleged before a court does not make it go away. Neither does it defeat the numerous case precedents cited herein by P/A relating to fraud.

P/A hates to utter this word, as he has heretofore avoided even the hint of suggesting bias of any federal judge who has been previously assigned this case, but P/A has to reluctantly admit that he sincerely questions Judge Otis Wright’s ability to faithfully rule according to law applied to the facts of this case. Judge Wright has chosen to avoid all of this authority as if such authorities did not exist. Judge Wright instead counters the allegations of the FAC, and asserts contrariwise to the complaint that P/A must “overturn” his conviction, after which he may then file a new federal action. Such assertion defies imagination in light of the facts and evidence. P/A questions whether Judge Wright is capable of entering a summary judgment against these defendants, even if the appropriate law so required it, due to his personal bias.

Finally, this case is hardly one of “insubstantiality” so that a Title 28 USC 1291 right of appeal should be summarily dismissed without allowing the filing an Opening Brief, or presentation of evidence.

 

 

__________________________________

               Ronald Branson                                     Dated:  November 2, 2011

____
Joseph Zernik, PhD
Human Rights Alert (NGO)
 
The 2010 submission of Human Rights Alert to the Human Rights Council (HRC) of the United Nations was reviewed by the HRC professional staff and incorporated in the official HRC Professional Staff Report with a note referring to “corruption of the courts and the legal profession and discrimination by law enforcement in California.”
_______ 
 
Flag Counter: 126
http://inproperinla.blogspot.com/ 
http://inproperinla.wordpress.com/
http://human-rights-alert.blogspot.com/
Total Reads: 627,060
Followers: 1,130
http://www.scribd.com/Human_Rights_Alert
http://twitter.com/inproperinla
http://www.liveleak.com/user/jz12345
Total Item Views: 566,338
http://www.examiner.com/x-38742-LA-Business-Headlines-Examiner
_____________________________
WHAT DID THE EXPERT SAY ABOUT THE CURRENT FINANCIAL CRISIS?
* Foreclosure fraud: The homeowner nightmares continue
CNN (April 7, 2011)
* About 3 million homes have been repossessed since the housing boom ended in 2006… That number could balloon to about 6 million by 2013
Bloomberg (January 2011)
* "...a system in which only the little people have to obey the law, while the rich, and bankers especially, can cheat and defraud without consequences."
http://www.scribd.com/doc/50753639/
Prof Paul Krugman, MIT (2011)
_____________________________
WHAT DID THE EXPERTS SAY ABOUT THE JUSTICE SYSTEM IN LOS ANGELES COUNTY, CALIFORNIA?
* "...judges tried and sentenced a staggering number of people for crimes they did not commit."
Prof David Burcham, Dean, Loyola Law School, LA (2001)
http://www.scribd.com/doc/29043589/
* "This is conduct associated with the most repressive dictators and police states... and judges must share responsibility when innocent people are convicted."    
Prof Erwin Chemerinsky, Dean, Irvine Law School (2001)
http://www.scribd.com/doc/27433920/
* "Innocent people remain in prison"
* "...the LA Superior Court and the DA office, the two other parts of the justice system that the Blue Panel Report recommends must be investigated relative to the integrity of the system, have not produced any response that we know of..."
LAPD Blue Ribbon Review Panel Report (2006)
http://www.scribd.com/doc/24902306 /
_____________________________
WHAT DID THE EXPERTS SAY ABOUT THE JUSTICE SYSTEM IN CALIFORNIA?
* "...corruption of the courts and the legal profession and discrimination by law enforcement in California."
United Nations Human Rights Council Staff Report (2010)
http://www.scribd.com/doc/38566837/
_____________________________
WHAT DID THE EXPERTS SAY ABOUT THE STATE COURTS IN THE UNITED STATES?
* "On July 26, 2010, Laurence Tribe, Senior Counsel for the United States Department of Justice, Access to Justice Initiative, delivered an important speech to the Conference of Chief Justices, challenging them to halt the disintegration of our state justice systems before they become indistinguishable from courts of third world nations."
Prof Laurence Tribe, Harvard Law School (2010), per National Defender Leadership Institute (2010)
http://www.nlada.net/library/article/national_dojspeechto%20chiefjustice07-26-2010_gideonalert
_____________________________
WHAT DID THE EXPERTS SAY ABOUT THE SUPREME COURT OF THE UNITED STATES?
* "More than 100 law professors have signed on to a letter released today that proposes congressional hearings and legislation aimed at fashioning "mandatory and enforceable" ethics rules for Supreme Court justices for the first time. The effort, coordinated by the liberal Alliance for Justice, was triggered by "recent media reports," the letter said, apparently referring to stories of meetings and other potential conflicts of interest involving Justices Antonin Scalia and Clarence Thomas among others."
More than 100 law professors, as reported by the Blog of the Legal Times (February 2011)
http://www.scribd.com/doc/49586436/
_____________________________
WHAT DID CHIEF JUDGE OF THE US COURT OF APPEALS, 5TH CIRCUIT, SAY ABOUT THE US JUSTICE SYSTEM?
* "The American legal system has been corrupted almost beyond recognition..."
Chief Judge, US Court of Appeals, 5th Circuit, Edith Jones, speaking before the Federalist Society of Harvard Law School (February 2003)
http://www.scribd.com/doc/50137887/
_____________________________
WHAT DID THE CHAIR OF THE SENATE JUDICIARY COMMITTEE SAY ABOUT THE US JUSTICE SYSTEM?
* In a speech in Georgetown University, Senator Leahy, Chair of the Senate Judiciary Committee called for a "Truth and Reconciliation Commission" on the US Department of Justice.
Transcript of Senator Leahy speech (2009)
http://www.scribd.com/doc/38472251/

A court will in general take judicial notice of and apply the law of its own
jurisdiction without pleading or proof thereof, the judges being deemed to know
the law or at least where it is to be found, 9 Wigmore on Evidence (3 d ed.,
1940), 551.


Here is the case:


Leary v. Gledhill

  	 New Jersey Supreme Court

  	 8 N.J. 260 (1951)    84 A.2d 725

Decided: November 26, 1951.

THOMAS A. LEARY, PLAINTIFF-RESPONDENT,
v.
WILLIAM L. GLEDHILL, DEFENDANT-APPELLANT

On appeal from the Law Division of the Superior Court.

Mr. Charles L. Bertini argued the cause for the appellant.

Mr. Charles H. Roemer appeared for the respondent.

For affirmance -- Chief Justice Vanderbilt, and Justices Case, Oliphant,
Wachenfeld, Burling and Ackerson. For reversal -- None. The opinion of the court
was delivered by Vanderbilt, C.J.

Vanderbilt

[8 NJ Page 262]

From a judgment of the Law Division of the Superior Court entered on a jury
verdict in favor of the plaintiff the defendant appealed to the Appellate
Division of the Superior Court. We have certified the appeal on our own motion.

The plaintiff and the defendant were friends who had become acquainted while in
the military service. They first

[8 NJ Page 263]

met in 1943 and occasionally thereafter through 1945. They corresponded but did
not meet again until Christmas, 1948, when the defendant visited the plaintiff
in Germany where he was stationed. At that time the defendant was no longer in
the military service but was in Europe attempting to sell tractors for the
Franam Corporation. Prior to the defendant's trip to Europe he had corresponded
with the plaintiff with reference to an investment in the Franam Corporation as
one which would be very profitable. Their correspondence resulted in the
plaintiff purchasing $1,000 worth of stock when the defendant went to see him in
Germany, the defendant delivering to the plaintiff certificates of stock which
he had brought with him to Europe in exchange for the plaintiff's check for
$1,000.

In April, 1949, the plaintiff at the defendant's invitation visited him in
Paris. The defendant had left the United States with $500 in his possession and
after arriving in Europe had been in constant need of money to meet his
expenses. In a conversation in a hotel in Paris the defendant told the plaintiff
that he needed about $4,000 and that he could raise about $2,000 by selling his
Cadillac car. In the plaintiff's presence the defendant made a telephone call to
his wife in the United States and instructed her to sell the automobile. The
defendant asked the plaintiff to help him, but did not mention anything about
selling the plaintiff any shares of stock. The plaintiff said he would think it
over for a few days and see what he could do. After returning to his base in
Germany the plaintiff mailed the defendant a check payable to the defendant's
order for $1,500 without indicating on the check or in the accompanying letter
what the money was for. The defendant endorsed the check and converted it into
traveller's checks. The parties did not see each other again until the day of
the trial, although the plaintiff had made many attempts to see the defendant
after they both had returned to the United States, seeking him at his home and
calling him on the telephone at various times, but always without success.

[8 NJ Page 264]

The plaintiff instituted this suit against the defendant on two counts, the
first for $1,000 and the second for $1,500, but at the outset of the trial the
plaintiff moved for a voluntary dismissal of the first count and the pretrial
order was amended accordingly. The issue as stated in the amended pretrial order
was limited to whether the money given by the plaintiff to the defendant was a
loan or an investment in a business venture. At the trial the plaintiff
testified that the check for $1,500 was a personal loan to the defendant but
this the defendant denied, contending that he had never borrowed any money from
the plaintiff. At the end of the plaintiff's case and again at the end of the
entire case the defendant moved for an involuntary dismissal on the ground that
the plaintiff's proofs were insufficient, there being no promise to repay, no
demand for repayment, and no pleading or proof of the law of France where the
transaction occurred. These motions were denied, the trial court holding that
while it would not take judicial notice of the law of France it would proceed,
first, on the presumption that the law involving loans is the same there as in
other civilized countries, and, secondly, on the ground that the issue with
respect to the law of France had not been set forth in the pretrial order. When
the case was submitted to the jury, the defendant objected to the charge on the
ground that it did not instruct the jury to find as a fact what the law of
France was. The jury returned a verdict in favor of the plaintiff in the sum of
$1,500, and from the judgment entered thereon the defendant took this appeal. It
is significant that the defendant never proved or even attempted to prove either
the delivery of any stock to the plaintiff or a tender thereof. Neither did the
defendant attempt to prove or even suggest that the law of France was such as to
preclude recovery in the circumstances.

The defendant argues five points on this appeal, none of which has merit:

1. "The motion to dismiss should have been granted where the complaint alleges
an express contract of loan and

[8 NJ Page 265]

there is a failure to prove a promise to repay." A loan may be established by a
contract implied in fact as well as by an express promise; the only difference
between the two is the kind of evidence used to prove the undertaking. At the
oral argument the defendant relied on Allen v. Bunting, 18 N.J.L. 299 (Sup. Ct.
1841) holding that a note or a check in the hands of the maker or drawer after
payment at the bank, instead of being prima facie evidence of so much money
lent, is only prima facie evidence that the maker or drawer was indebted to the
payee at the time he gave the note or check and that it was given in
satisfaction of that specific debt. It is difficult to see how this ruling as to
the prima facie effect of a cancelled check in the plaintiff's hands aids the
defendant in view of the testimony given at the trial concerning defendant's
need of $4,000 to pay his expenses, his instructions to his wife by
trans-Atlantic telephone to sell his Cadillac car for $2,000, and his request to
the plaintiff for a loan, followed by the plaintiff's mailing him a check for
$1,500. The issue presented by the pretrial order as to whether or not the
plaintiff had given the $1,500 to the defendant as a loan was properly presented
to the jury which reached a conclusion supported by the evidence before it.

2. "The trial court erred in failing to dismiss the complaint where the
plaintiff failed to prove a demand for repayment of the money." This defense
comes with bad grace from a defendant who had so assiduously avoided the efforts
of the plaintiff to communicate with him, and no authorities to support it are
cited by the defendant in his brief nor did he come forward with any at the oral
argument. In the circumstances here the starting of suit is all the demand the
defendant is entitled to. We consider that the answer to the defendant's
contention is well stated in section 264 of the Restatement of Contracts:

"Where a contractual promise to pay money is in terms performable on demand by
the promisee, but the duty of performance is otherwise unconditional, and
neither more specific words nor usage requires a different result, a right of
action by the promisee is not conditional on a demand being made."

[8 NJ Page 266]

3. "The rules of law for a foreign country must be pleaded and proved as facts
along with the other elements of a cause of action to enable a plaintiff to
recover against the defendant." A court will in general take judicial notice of
and apply the law of its own jurisdiction without pleading or proof thereof, the
judges being deemed to know the law or at least where it is to be found, 9
Wigmore on Evidence (3 d ed., 1940), 551. Under the common law of England as
adopted in this country, however, the law of other countries, including sister
states, would not be so noticed and applied by a court, but it was deemed an
issue of fact to be pleaded and proved as other material facts had to be, Title
Guarantee and Trust Co. v. Trenton Potteries Co., 56 N.J. Eq. 441, 444 (E. & A.
1897); Coryell v. Buffalo Union Furnace Co., 88 N.J.L. 291, 294 (E. & A. 1915);
Fithian v. Pennsylvania Railroad Co., 91 N.J.L. 275, 279 (E. & A. 1918);
Giardini v. McAdoo, 93 N.J.L. 138, 141 (E. & A. 1919); Robins v. Mack
International Motor Truck Corp., 113 N.J.L. 377, 387 (E. & A. 1934); Coral
Gables, Inc., v. Kretschmer, 116 N.J.L. 580, 582 (E. & A. 1936); Franzen v.
Equitable Life Assur. Soc., 130 N.J.L. 457, 459 (Sup. Ct. 1943); 9 Wigmore on
Evidence (3 d ed. 1940), 554. This common law rule had two great disadvantages;
it made every jury pass on questions of law quite beyond its competence and the
decision of the jury as to the foreign law was unappealable at common law as
were its findings on all questions of fact.

The courts, however, were reluctant to dismiss an action for a failure to plead
and prove the applicable foreign law as they would have dismissed it for a
failure to prove other material facts necessary to establish a cause of action
or a defense. Accordingly the courts frequently indulged in one or another of
several presumptions: that the common law prevails in the foreign jurisdiction;
that the law of the foreign jurisdiction is the same as the law of the forum, be
it common law or statute; or that certain fundamental principles of the law
exist in all civilized countries. As a fourth alternative, instead of indulging
in any presumption as to the law of the

[8 NJ Page 267]

foreign jurisdiction, the courts would merely apply the law of the forum as the
only law before the court on the assumption that by failing to prove the foreign
law the parties acquiesce in having their controversy determined by reference to
the law of the forum, be it statutory or common law. By the application of these
various presumptions the courts have in effect treated the common law rule that
foreign law could not be noticed but must be pleaded and proved as if it were a
matter of fact merely as a permissive rule whereby either party could, if it
were to his advantage, plead and prove the foreign law. Thus the failure to
plead and prove the foreign law has not generally been considered as fatal. For
a thorough discussion of the presumptions applied in the absence of proof of the
foreign law see the notes: "How case determined when proper foreign law not
proved," 67 L.R.A. 33-61; and "Determination of case properly governed by law of
foreign country which is not proved," 34 L.R.A. (N.S.) 261-274.

In New Jersey, in the absence of proof as to the applicable foreign law, the
courts have frequently applied the presumption that the common law exists in the
foreign jurisdiction. This presumption had long been recognized in this State
when Chief Justice Beasley said in Waln v. Waln, 53 N.J.L. 429, 432 (E. & A.
1891):

"There was no offer made at the trial to show what the law of Pennsylvania was;
and consequently, according to the general rule of law, and which rule has been
repeatedly recognized and applied by our own courts, the inference, juris et de
jure, is that the system there prevalent was that of the common law."

For more recent New Jersey cases in which this presumption has been applied or
recognized see Bodine v. Berg, 82 N.J.L. 662 (E. & A. 1911); Thayer Mercantile
Co. v. First National Bank of Milltown, 98 N.J.L. 29, 32 (Sup. Ct. 1922);
Reingold v. Reingold, 115 N.J.L. 532, 534 (E. & A. 1935); Coral Gables, Inc., v.
Kretschmer, 116 N.J.L. 580, 583 (E. & A. 1936); Redmond v. N.J. Historical
Society,

[8 NJ Page 268]

132 N.J. Eq. 464, 469 (E. & A. 1942); Kelly v. Kelly, 134 N.J. Eq. 316, 319
(Prerog. 1944); and Shepherd v. Ward, 5 N.J. 92, 106 (1950). This presumption,
insofar as the law of the states, territories and other jurisdictions of the
United States is concerned, is reenforced by the first section of the Uniform
Judicial Notice of Foreign Law Act, L. 1941, c. 81, ? 1, as amended by L. 1942,
c. 104, ? 1 (N.J.S.A. 2:98-28).

While our attention has not been directed to any New Jersey cases on the point,
this presumption as to the existence of the common law in a foreign jurisdiction
is equally applicable in cases involving other common law countries such as
England in the absence of proof to the contrary, see note 34 L.R.A. (N.S.) 261,
270, cited supra; 20 Am. Jur., Evidence, ? 181; 31 C.J.S., Evidence, ? 133, p.
767. That the presumption as to the existence of the common law applies to all
common law jurisdictions is further borne out by the fact that by virtue of R.S.
2:98-18, originally enacted by L. 1860, c. 92, ? 1:

"The reports of judicial decisions of other states of the United States and
foreign countries may be judicially noticed by the courts of this state as
evidence of the common law of such states or countries, * * *."

While the application of the presumption that the common law exists in the
foreign jurisdiction works well in many cases, it does not produce sound results
in a case where the common law on the subject involved has been substantially
changed by statute here and in the foreign state. For example, if a case
involved the capacity of a married woman to contract or to hold and convey
property, resort to the common law to decide the case might well result in a
decision contrary to long established statutory enactments here and in the
foreign jurisdiction altering the common law rule. While the presumption as to
the existence of the common law in the foreign jurisdiction has the advantages
of having been long indulged in by the courts of this and other states and of
being incorporated

[8 NJ Page 269]

in the Uniform Judicial Notice of Foreign Law Act, in a proper case
consideration might well be given to rejecting it in favor of the presumption
that the foreign law is the same as the law of the forum, be it statutory or
common law, or even more preferable, in favor of the presumption that the
parties by their failure to plead and prove the foreign law acquiesce in the
application of the law of the forum as the only law before the court.

In the instant case the transaction occurred in France. Our courts may properly
take judicial knowledge that France is not a common law, but rather a civil
jurisdiction. It would, therefore, be inappropriate and indeed contrary to
elementary knowledge to presume that the principles of the common law prevail
there. This does not mean, however, that the plaintiff must fail in his cause of
action because of the absence of any proof at the trial as to the applicable law
of France. In these circumstances any one of the other three presumptions may be
indulged in, i.e., that the law of France is the same as the law of the forum;
that the law of France, like all civilized countries, recognizes certain
fundamental principles, as, e.g., that the taking of a loan creates an
obligation upon the borrower to make repayment; that the parties by failing to
prove the law of France have acquiesced in having their dispute determined by
the law of the forum.

The court below based its decision upon the presumption that the law of France
in common with that of other civilized countries recognizes a liability to make
repayment under the facts here present, and its decision is not without
substantial merit in reason and support in the authorities, see, for example,
Cuba Railroad Co. v. Crosby, 222 U.S. 473 (1912), and Parrot v. Mexican Central
Railway Co., 207 Mass. 184, 93 N.E. 590 (1911). The utilization of this
presumption has decided limitations, however, for in many cases it would be
difficult to determine whether or not the question presented was of such a
fundamental nature as reasonably to warrant the assumption that it would be
similarly treated by the laws of all civilized countries. The presumption

[8 NJ Page 270]

that in the absence of proof the parties acquiesce in the application of the law
of the forum, be it statutory law or common law, does not present any such
difficulties for it may be universally applied regardless of the nature of the
controversy. This view, moreover, is favored by the authorities, see the notes
in 67 L.R.A. 33 and 34 L.R.A. (N.S.) 261, cited supra, and appears to have been
followed in at least one instance in this State, Sturm v. Sturm, 111 N.J. Eq.
579, 587 (Ch. 1932), a case in which the law of Austria was involved. We are of
the opinion, therefore, that in the instant case the rights of the parties are
to be determined by the law of New Jersey which unquestionably permits recovery
on the facts proven.

We recognize, of course, that in certain cases there might be present factors
which would make it unreasonable for the court to indulge in any presumption and
where the court in the exercise of its sound discretion might require proof of
applicable foreign law to be laid before the court, but such is certainly not
the situation here. The defendant is in no way prejudiced by the application of
the law of this State. If he had desired to raise an issue as to the foreign
law, he might have done so in his answer or at the pretrial conference or, with
permission of the court, at the trial itself, and himself have introduced proof
as to the law of France. It is against the letter and the spirit of our practice
to permit him to make the failure of the plaintiff to plead and prove foreign
law the basis of a surprise motion addressed to the court either in the course
of or at the conclusion of the case.

4. "The rules of law of a foreign country are a question of fact to be
determined by the jury, along with the other elements of a cause, to enable a
plaintiff to recover against a defendant." This contention is without merit
here, for in all cases in which the court in the absence of proof indulges in a
presumption as to the applicable foreign law the question is perforce one for
the court rather than for the jury; see sections 3 and 5 of the Uniform Judicial
Notice of Foreign Law Act (N.J.S.A. 2:98-30 and 32) and

[8 NJ Page 271]

Franzen v. Equitable Life Assur. Soc., 130 N.J.L. 457, 459-461 (Sup. Ct. 1943).

5. "The verdict is against the weight of the evidence." The testimony of the
plaintiff and of the defendant was in sharp conflict. The inferences to be drawn
were more compatible with the view of the $1,500 being a loan than with its
being payment for stock in a business venture. The defendant's need for $4,000,
the selling of his automobile to raise $2,000, his requesting the plaintiff for
a loan, his failure to deliver any stock to the plaintiff or to tender any, and
his evasion of the plaintiff, all conspire to make his story unbelievable. Under
our Constitution and the rules of court the verdict of a jury is not to be set
aside as against the weight of the evidence unless it clearly and convincingly
appears that the verdict was the result of mistake, partiality, prejudice or
passion. Rule 1:2-20(a).

The judgment below is affirmed.

 Occupy Rose Parade occupytheroseparade@... has invited you to join the OccupyTheRoseParade group with this message:
Website : http://www.OccupyTheRoseParade.org
Official Google Group Invite: http://groups.google.com/group/
occupytheroseparade?hl=en
This is an invitation to join the OTRP listserve & donate for the Jan 1-2, 2012 actions. Please also 'Like' our Facebook page: http://www.facebook.com/
pages/Occupy-the-Rose-Parade-Mon-Jan-2-2012/279763812055563
KEY FACTS : 1 million will be in attendance at the Rose Parade in Pasadena. 50
million will be watching throughout the USA with another 200 million watching globally via live TV circuits and thousands of on-site reporters & cameras. KTLA, NBC and ABC will cover live (esp. the corner by Orange Grove & the Norton Simon museum -- where 'the Rose' is). See the giant blowup map onsite at OccupyLA's southside City Hall steps (near 'the Box'/media bulletin board).
Why the Rose Parade? Simple. The Rose Parade has become far too militarized (
see, for example, this coming year's Jan 2012 Grand Marshall, J.R. Martinez-- an Iraq war soldier) and far too corporatized with major banks & financial institutions increasingly undwriting many of the floats. Please note we have no criticism of Mr. Martinez himself -- only of the growing militarization and
corporatization of U.S. politics & popular culture. Tens of thousands will converge to protest the complete breakdown of U.S. Justice & Wall Street's revolving door and the 1%'s de facto control & takeover of America's political,
cultural & economic systems. I.e., the corporate takeover of public spaces & events such as the Pasadena Rose Parade.
Http://www.OccupyTheRoseParade.org/ : We are a two day affinity project of the international "Occupy Wall Street" movement . Please share the site with other 99%ers via Facebook, Twitter or other social media platforms. We are striving for 40,000 national & international occupiers converging at Pasadena's Norton Simon (by Orange Grove Blvd & Colorado Blvd) from Dec. 31, 2011 to 2 pm, Jan. 2, 2012. Further details pending (see website also). Here is the group's description:
Affinity project of the international "Occupy Wall Street" movement . Primary Goals : (1) Legislate real Wall Street Accountability; (2) Mobilize "We Are the 99%" support for real systemic reforms. Facebook: http://www.facebook.com/
pages/Occupy-the-Rose-Parade-Mon-Jan-2-2012/279763812055563 ---------------------- Google Groups Information ----------------------
You can accept this invitation by clicking the following URL:
http://groups.google.com/group/occupytheroseparade/sub?s=CgbVeRQAAABIq99778sma_LBVgDVF1rX7bui7rJFiLdJKj94WgW_0Q&hl=en
--------------------- If This Message Is Unwanted ---------------------
If you feel that this message is abuse, please inform the Google Groups staff by using the URL below.
http://groups.google.com/groups/abuse?invite=YgAAAGHfxKVaAAAAy5uwUQUAAAAAAEZNTB5Mo77Rv8dBuan8KH_VwAo&hl=en

--- In tips_and_tricks@yahoogroups.com, "artmourad" <artmourad@...> wrote:
>
> A court will in general take judicial notice of
> and apply the law of its own jurisdiction without
> pleading or proof thereof, the judges being deemed
> to know the law or at least where it is to be found,
> 9 Wigmore on Evidence (3 d ed., 1940), 551.

Of course judges know the law.  They also know that
most non-attorneys do not, and proceed accordingly.

Saturday  26 November 2011

What matters is what something IS, not what
something is called.  [Shades of Clinton stating,
"It depends on what the definition if is, is."]

The genius of Shakespeare knows no bounds.

Juilet:

"'Tis but thy name that is my enemy;
Thou art thyself, though not a Montague.
What is a Montague?  It is nor hand, nor foot,
nor arm, nor face, nor any other part
belonging to a man.  O, be some other name!
What's in a name?  That which we call a rose
by any other name would smell as sweet;
So Romeo would, were he not Romeo call'd,
retain that dear perfection which he owes
without that title.  Romeo, doff thy name
and for that name which is no part of thee,
take all myself."

Ancient Egyptians associated the name with
the soul.  It was believed that knowledge of a
god or spirit's name gave one complete power
over that deity, and knowledge of a man's name
provided the power to do that man good or ill.
A person could not exist without his name.

In ancient China, a name was considered to
have enormous power, and for that reason, it
was forbidden to speak the name of the emperor.

Judge:  "What is your name?'

There must be a reason why this is the very first
question asked in any administrative/court
proceding.  If you give your name, one has to
wonder if you are giving the "judge" assent for
him/her to assert power over the fictional
entity, spelled in all-capitalized letters.

Otherwise, there is no other way for a legal
fiction to exist if it has no name, hence the
likely purpose of that very first question.

When I went before an administrative "judge"
to contest an administrative law "judge's"
decision over a parking ticket, that was the
first order of business.  The insistance in
asking the question spoke to its importance,
but I had no prepared response, at that time.

It would be informative to know if any "judge"
can proceed without stating one's  name.  If
anyone has some first-hand experience or
direct knowledge on this issue, it would be
great to have it shared.

I am guessing it may be good to ask a question
instead of responding, such as, "I do not understand
what you mean by the word name.  No disrespect
to you, [must avoid giving a reason for spending
time in jail for disrespecting the court], but can you
explain what the word name means to this court?"

None of us are a name, as Shakespeare has Juliet
explain.  Rather, each of us is who we say we are,
as in  "one of the people," or " a flesh and blood man
or woman."  [In other words, on the land and not
in a political fictional plane.]

Open for duscussion...