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Memorandum Of Points And Authorities

I. Prefatory Statement.

Richard I. Fine (hereinafter “Fine”) has been incarcerated in the Los Angeles County Men’s Central Jail since March 4, 2009 under a Remand Order from Los Angeles Superior Court Judge David P. Yaffe with “no bail,” without a court date on such Order, and showing as the charge “CCP Section 1219.” California Code of Civil Procedure § 1219(a) is a “coercive incarceration.”

From the outset, the “coercive incarceration” was both unlawful and penal. Judge Yaffe knew that “coercion” would not succeed and that answering questions was not related to the real issue of the case, his unlawful refusal to recuse himself.

It is now obvious that “coercive incarceration” has failed.

II. “Coercive incarceration was a sham from the outset.

The “Answering Brief of Appellees, Superior Court of California, County of Los Angeles, and the Honorable David P. Yaffe, Judge of the Superior Court of California, County of Los Angeles” stated at page 3, line 16, to page 4, line 2, in describing the contempt proceedings, as follows:

The proceedings culminated in a finding of both civil and criminal contempt. Coercive civil contempt pursuant to California Code of Civil Procedure Section 1219(a) was imposed. Footnote 4

The Answering Brief then falsely stated in Footnote 4:

…the basis of the finding of the civil contempt was not related to Fine’s challenges based upon the payment of local judicial benefits, but to Fine’s failure to answer questions and produce documents at the judgment debtor hearing conducted by Commissioner Gross.

The falsity of the aforementioned statement and the coercive confinement was shown by the fact that Fine had challenged Judge Yaffe’s presiding over the Marina Strand case, as shown, as Judge Yaffe disclosed that he was receiving payments from LA County. The first disclosure by Judge Yaffe was made in a March 20, 2008 court hearing by Judge Yaffe, and Fine’s CCP 170.3 Objection was filed and served on March 25, 2008. Fine subsequently challenged Judge

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Yaffe’s judging his own actions by presiding over the contempt proceedings. The Answering Brief conceded that the LA County payments were one of the crucial underlying issues in the case, stated at page 3, lines 5-8, under the heading of Statement of Issues Presented.

On July 20, 2009, the Court [the Ninth Circuit] issued its order specifying a single issue on appeal as follows:

Appellant [Fine] is granted a certificate of appealability on the issue of whether the trial judge [Judge Yaffe] should have recused himself.

The issue of recusal based upon Judge Yaffe having received payments from LA County, a party before him, and Judge Yaffe having presided over contempt proceedings in which he judged his own actions, did not have any relationship or relevance to Fine’s answering questions about his assets before Commissioner Gross.

The California case law which Judge Yaffe knew, and was bound to know, at the time he issued the Contempt and Remand Order held in the case of In Re Farr, 36 Cal.App.3d 577, 584 (1974), that once it was established that there was no substantial likelihood that such contempt order would serve its coercive purpose, the commitment would become punitive in nature and thus subject to the statutory limitation [five days under CCP § 1218], cited in In Re William T. Farr on Habeas Corpus, 64 Cal.App.3d 605, 610-611 (1976).

The Contempt and Remand Orders were both penal from the outset as Judge Yaffe knew that such orders and incarceration would not coerce Fine to disclose his assets. The transcript of the March 4, 2008 hearings shows at page 8, line 8, to page 9, line 14, that Fine was not going to answer the questions unless he lost all of the writ proceedings because Fine believed that the proceedings were illegal as Judge Yaffe had violated the Constitution. This was repeated at page 16, line 18, to page 25, line 3, which further emphasized the illegal LA County payments, the immunity from criminal prosecution for Judge Yaffe under Senate Bill SBX2-11, the violation of the U.S. Constitution, federal law; i.e. 18 U.S.C. 1346, and the risk of false imprisonment by incarcerating Fine.

Despite the knowledge Judge Yaffe violated the law and ordered Fine to the LA County Jail, and knowing that the incarceration was false and penal from the outset, under CCP § 1218, Fine should have been released on March 9, 2009, having served only five days of penal incarceration, which itself was false. Instead, after eleven months, Fine is still incarcerated.

The criminal contempt referred to in the Answering Brief reflects the penal incarceration. The second contempt conviction was for “practicing law while not

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an active member of the bar”. However, at page 9, line 18, page 10, line 3, Judge Yaffe did not find any court order that ordered Fine inactive or took his license away. It should be noted that the disbarment order did not become effective until March 25, 2008, which was after the March 4, 2008 hearing, and the California Supreme Court never ordered Fine “inactive.”

Further, the Order to Show Cause contained a criminal charge of practicing law while not an active member of the bar, under CCP § 6126, but Fine never received a jury trial, and the charge was never dismissed. Thus Fine’s Sixth Amendment right to a trial by jury was violated. Additionally, the conviction of practicing law without being an active member of the bar is inconsistent with the “not guilty” judgment on the charge of “lying about the status with state bar in pleadings filed in this court and oral arguments made before this court” in which Fine at all times represented and argued that the California Supreme Court had not ordered him inactive. There was never an issue of a disbarment order from the California Supreme Court, as such did not become effective until after the contempt proceedings were over. In this regard, the attention of the Court is respectfully invited to the case of Fine v. State Bar of California, et al, USDC case no. CV-10-0048 JFW (CW), which charges the State Bar and others with fraud on the Court in seeking and obtaining the disbarment of Fine. The lawsuit seeks an order voiding and annulling such disbarment.

The transcript of the March 4, 2008 hearing was attached as Exhibit “D” to the “Declaration of Kevin M. McCormick in Support of the Response of the Superior Court of California, County of Los Angeles, et al, to Petition for Writ of Habeas Corpus, etc.” Judge Yaffe has a copy in that Kevin McCormick is his attorney in that matter.

III. Proposed orders.

Given the admissions in the Answering Brief and the March 4, 2009 transcript that:

1. the issue is “whether the trial judge [Judge Yaffe] should have recused himself”;

2. that the convictions were civil and criminal; and3. that no orders were violated to justify practicing law without

being an active member of the State Bar;

and given that Judge Yaffe knew that Fine would not answer any questions and

would not be coerced to answer any questions, that questions about Fine’s assets

did not have any relationship or relevance to the issue of Judge Yaffe’s recusal

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which was the issue of the case, and given that Judge Yaffe knew and was bound

to know the holding of In Re Farr, demand is made that Judge Yaffe:

1. Immediately order the LA County Sheriff to release Fine forthwith;

2. Void and annul the March 4, 2009 Order of Contempt against Fine;

3. Void and annul all orders and judgments against Fine in the Marina

Strand case;

4. Enter an order awarding attorney’s fees and costs to Fine against LA

County and Del Rey Shores Joint Venture, Del Rey Shores Joint

Venture North, their local partners the Epstein Family Trust and

Jerry B. Epstein and Pat T. Epstein, trustees, and their attorneys

Armbruster and Goldsmith, R.J. Comer and Joshua L. Rosen;

5. Void and annul the May 15, 2007 LA County approval of the Del

Rey Shores EIR based upon fraud upon the Court by LA County

and Del Rey Shores Joint Venture and Del Rey Shores Joint Venture

North, their local partners the Epstein family Trust and Jerry B.

Epstein and Pat T. Epstein, trustees, and their attorneys Armbruster

and Goldstein, R.J. Comer and Joshua L. Rosen for not disclosing

the illegality of the LA Board of Supervisors 4-0 vote on the EIR

due to contributions given by the Epsteins and Jerry Epstein’s chief

of staff, David D. Levine, of $500 or more by each of them,

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individually or through the Epstein Family Trust, within twelve

months of the vote, to LA County Supervisors Antonovich and

Knabe, thereby leaving only two lawful affirmative votes when three

were needed, and because the EIR did not show an economic benefit

to LA County from the project; or alternatively, Judge Yaffe:

a) immediately order the LA County Sheriff to release Fine

forthwith; and

b) recuse himself retroactively from the Marina Strand case as

of June 14, 2007 (the date that the case was filed), void and

annul all orders made in the case including the contempt

proceedings, and transfer the case to a judge who does not

receive payments from LA County or any other County.

IV. Judge Yaffe knew he was violating the U.S. Constitution, California law and the California Code of Judicial Ethics.

Since the illegality of the May 15. 2007 vote did not become known until Fine exposed it during the contempt trial by showing the contributions of the Epsteins and Levine and their proximity in time to the vote, the refusal of Judge Yaffe to adopt either of the alternatives will further reinforce the fact that the LA criminal payments to the LA Superior Court judges were bribes. As criminal payments under SBX2-11, the LA County payments fall into three categories:

1. misappropriation of funds;

2. obstruction of justice; and

3. bribes.

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In Judge Yaffe’s situation, the LA County payments were clearly bribes. He testified on October 22, 2008 that he could not remember any case in the last three years that he decided against LA County other than concerning the dirt in the Marina Strand case. However, when he became aware of the illegal May 15, 2007 vote on the EIR and the non-benefit to LA County, he did nothing to void the EIR.

Judge Yaffe was bound under U.S. Supreme Court precedent to recuse himself at the outset of the Marina Strand case. In Offutt v. United States, 348 U.S. 11, 14 (1954), the Court stated “a judge receiving a bribe from an interested party over which he is presiding does not give the appearance of justice.” The U.S. Supreme Court has ruled and reaffirmed the principle that “justice must satisfy the appearance of justice” in Levine v. United States, 362 U.S. 610 (1960), citing Offutt, supra. Clearly, by not voiding the EIR when he became aware of its illegality, Judge Yaffe had succumbed to the bribe from LA County, if he had not already done so. At such time his recusal was doubly mandated.

Further, by presiding over the contempt proceeding where he was judging his own actions of taking payments from LA County and making orders in favor of LA County against Fine, Judge Yaffe violated both the common law and the Supreme Court precedent of In Re Murchison, 349 U.S. 133, 136 (1955), which stated the general rule that “no man can be a judge in his own case”, adding that “no man is permitted to try cases where he has an interest in the outcome”, cited in Caperton v. A.T. Massey Coal Co., Inc., 566 U.S. __ (2009), Slip Opinion page 10.

Even without the LA County payments being criminal, Judge Yaffe violated due process by accepting payments of $46,433 per year, which were equal to 27% of his $178,800 state salary for each of the two years that he presided over the Marina Strand case, or $92,932. This “significant and disproportionate influence – coupled with the temporal relationship … [with] the pending case” “’” “offer a possible temptation to the average … judge to … lead him not to hold the balance nice, clear and true.” Caperton, supra, Slip Opinion at page 16, citing to Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 825 (1986), quoting Ward v. Monroeville, 409 U.S. 57, 60 (1972), in turn quoting Tumey v. Ohio, 273 U.S. 510, 532 (1927).

Under Article VI, Clause 2, of the U.S. Constitution, state judges must follow the U.S. Constitution and laws of the United States. By taking the LA County payments while LA County was a party before him, Judger Yaffe violated the due process clause of the U.S. Constitution.

If Judge Yaffe were a federal judge, his conduct would be cause for impeachment under Article III, Clause 1, which states that: “The judges, both of the Supreme and inferior courts, shall hold their officers during good behavior

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…”. In 1965, Justice Abe Fortas resigned from the Supreme Court, upon being selected as Chief Justice, when it was discovered that he was receiving an annual retainer from the Wolfson Foundation to provide business advice and attend an annual meeting. The Wolfson Foundation and Louis Wolfson and his companies did not have any cases before the Supreme Court. The resignation was made because of the possibility that a Supreme Court decision might affect the Wolfson business.

Using the standard, Judge Yaffe’s conduct of taking money from a party in a case over which he is presiding clearly qualifies as a lack of good behavior and would engender his impeachment or result in his resignation, if he were a federal judge.

But for the retroactive immunity from disciplinary action provided by Senate Bill SBX2-11, the same result should occur under California law, if the Commission on Judicial Performance were to perform their Constitutional function.

Absent a resignation, Judge Yaffe’s fate will be decided at his next election, as will that of all the other judges who took LA County payments and who will be seeking re-election.

At all times, Judge Yaffe knew that he should have recused himself at the outset of the Marina Strand case due to the LA County payments. He displayed this knowledge at page 13, lines 13-23, of the Judgment and Order of Contempt where he rejected his recusal and disqualification, which was based upon his March 20, 2008 admission of receiving LA County payments. Judge Yaffe argued that Fine’s CCP § 170.3 objection should have been filed at the outset of the case, before Judge Yaffe made his March 20, 2008 admission. He stated at page 13, lines 18-21:

Mr. Fine knew that all judges of this court receive compensation from the County of Los Angeles on June 14, 2007, when he filed the underlying case BS 109420 on behalf of petitioner Marina Strand Colony II Homeowners Association.

The argument was false. Judge Yaffe knew that he violated the California Code of Judicial Ethics, which prohibited him from taking the payments, required their disclosure and mandated his self-recusal. Instead, he did not disclose such in his Form 700 Statement of Economic Interests, did not disclose such at the outset of the case, did not self-recuse, and refused to obey the Code of Judicial Ethics. Under CCP § 170, the obligation was on him, not on Fine.

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Under the California Code of Judicial Ethics, Canons 3E(1) and (2), Judge Yaffe was bound to disclose the LA County payments and disqualify himself. Such canon states as follows:

(1) A judge will disqualify himself or herself in any proceeding in which disqualification is required by law.

(2) In all trial court proceedings, a judge shall disclose on the record information that is reasonably relevant to the question of disqualification under Code of Civil Procedure Section 170.1, even if the judge believes there is no actual basis for disqualification.

Under Canons 4D(1)(a) and (b), Judge Yaffe was prohibited from accepting any “compensation” or payments from LA County. Such canon states:

(1) A judge shall not engage in financial and business dealings that (a) May reasonably be perceived to exploit the judge’s judicial

position, or(b) Involve the judge in frequent transactions or continuous

business relationships with lawyers, or persons likely to appear before the court on which the judge serves.

The Advisory Committee Commentary makes the prohibition clear. It states in relevant part:

Participation by a judge in financial and business dealings is subject to the general prohibition in Canon 4A against activities that tend to reflect adversely on impartiality, demean the judicial office, or interfere with the proper performance of judicial duties. Such participation is also subject to the general prohibition in Canon 2 against activities involving impropriety or the appearance of impropriety and the prohibition in Canon 2B against the misuse of the prestige of judicial office.

In addition, a judge must maintain high standards of conduct in all of the judges activities, as set forth in Canon 1.

Canon 6(A) requires all judges to comply with the Code of Judicial Ethics.

Conclusion

Judge Yaffe knew that “coercive incarceration” was a sham. He knew that there was no relationship between ordering Fine to answer questions about his assets and the issue of the case which was “whether Judge Yaffe should have recused himself.”

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Judge Yaffe knew that, under the Farr case, Fine has to be set free. First, the “coercive incarceration” was false imprisonment from the outset as Judge Yaffe knew it would not succeed. Second, it immediately became penal due to its inability to succeed, and the five-day limitation under CCP § 1218 has long since passed.

All of Judge Yaffe’s actions have been a fraud and a sham as they violated due process, federal law and California law, in particular the California Code of Judicial Ethics.

Judge Yaffe was mandated to recuse himself from the Marina Strand case at the outset of the case, on June 14, 2007.

Now, two and a half years later, demand is made that he free Fine, void and annul his March 4, 2009 Judgment and Order of Contempt, recuse himself from the proceeding and the Marina Strand case nunc pro tunc as of June 14, 2007, transfer the case to a judge who does not receive payments from LA County or any other county, and award attorney’s fees to Fine.

Dated this _____ day of January, 2010 Respectfully submitted,

BY: _________________________RICHARD I. FINE,In Pro Per

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PROOF OF SERVICE

STATE OF CALIFORNIA,COUNTY OF LOS ANGELES

I am Fred Sottile. My address is 2601 E. Victoria Street, # 108, Rancho

Dominguez, CA 90220.

On January ___, 2010, I served the foregoing document described as DEMAND FOR IMMEDIATE RELEASE FROM LA COUNTY JAIL AND OTHER RELIEF; MEMORANDUM OF POINTS AND AUTHORITIES on interested parties in this action by depositing a true copy thereof, which was enclosed in a sealed envelope, with postage fully prepaid, in the United States Mail, addressed as follows:

Kevin M. McCormick Elaine M. LemkeBenton, Orr, Duval & Buckingham Principal Deputy County Counsel39 N. California Street LOS ANGELES COUNTY COUNSEL OFF.P.O. Box 1178 500 West Temple StreetVentura, CA 93002 Los Angeles, CA 90012-2713

Joshua Lee Rosen R.J. ComerJoshua L Rosen Law Offices Armbruster & Goldsmith, LLP5905 Sherbourne Drive 10940 Wilshire Blvd., Ste. 2100Los Angeles , CA 90056 Los Angeles, CA 90024

Rose M. Zoia Judge David P. Yaffe (courtesy copy)50 Old Courthouse Square, Ste.401 LOS ANGELES COUNTY SUPERIOR CTSanta Rosa, CA 95404 111 North Hill Street, Dept. 86

Los Angeles, CA 90012

I certify and declare, under penalty of perjury under the laws of the United States of America and the State of California, that the foregoing is true and correct.

Executed on this _____ day of January, 2010, at Rancho Dominguez,

California.

____________________________________FRED SOTTILE