9th Circuit Appeal - Dkt 26 - Sheriff Response To Appeal
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Case No. 09-56073 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
RICHARD FINE, Petitioner - Appellant, vs. SHERIFF OF LOS ANGELES COUNTY, et al. Respondents - Appellees
Appeal From The United States District Court For The Central District of California Honorable John F. Walter Lower Court Docket No. CV 096-01914 JFW (CWx)
APPELLEE’S ANSWERING BRIEF
PAUL B. BEACH, State Bar No. 166265 AARON M. FONTANA, State Bar No. 249540 LAWRENCE BEACH ALLEN & CHOI, PC 100 West Broadway, Suite 1200 Glendale, California 91210-1219 (818) 545-1925 Telephone / (818) 545-1937 Facsimile Attorneys for Respondent /Appellee SHERIFF LEROY D. BACA [erroneously named as Sheriff of Los Angeles County]
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Case No. 09-56073 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
RICHARD FINE, Petitioner - Appellant vs. SHERIFF OF LOS ANGELES COUNTY, et al. Respondents - Appellees Appeal From The United States District Court For The Central District of California Honorable John F. Walter Lower Court Docket No. CV 096-01914 JFW (CWx)
APPELLEE’S ANSWERING BRIEF
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TABLE OF CONTENTS Page(s) INTRODUCTION .......................................................................................... 1 STATEMENT OF FACTS ............................................................................. 2 ARGUMENT.................................................................................................. 6 I.
SHERIFF BACA IS NOT A REAL PARTY IN INTEREST AND THUS HE CANNOT SUBSTANTIVELY RESPOND TO APPELLANT’S HABEAS PETITION ......................................... 6
II.
CONCLUSION .................................................................................... 9
STATEMENT OF RELATED CASES........................................................ 10 CERTIFICATE OF COMPLIANCE............................................................ 11
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TABLE OF AUTHORITIES Page(s) CASES Coalition of Clergy v. Bush 189 F.Supp.2d 1036 (C.D. Cal. 2002)...................................................... 6 Diaz v. Lee Baca 203 Fed.Appx. 884 (9th Cir. 2006) .......................................................... 8 Karras v. Teleydyne Industries, Inc. 191 F.Supp.2d 1162 (S.D. Cal. 2002) ...................................................... 6 Streit v. County of Los Angeles 236 F.3d 552 (9th Cir. 2001) .................................................................... 7 U-Haul Int’l, Inc. v. Jartran, Inc. 793 F.2d 1034 (9th Cir. 1986) ................................................................. 6 Wilson v. U.S. Dist. Court for the Eastern Dist. of California 103 F.3d 828 (9th Cir. 1996) .................................................................... 6 STATUTES California Goverment Code § 53069.8........................................................... 7 California Government Code § 811.9............................................................. 7
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INTRODUCTION Appellant Richard I. Fine (“Appellant”), proceeding pro se, is currently in custody of the Los Angeles County jail pursuant to a contempt order issued by Judge David P. Yaffe (“Judge Yaffe”) of the Superior Court of California, County of Los Angeles (“Superior Court”). The contempt order and Appellant’s imprisonment stem from Appellant’s involvement as an attorney in the Marina Strand Colony II, Homeowners Association v. County of Los Angeles (“Marina Strand”) matter, over which Judge Yaffe presided. After Appellant was imprisoned, he filed a Petition for Writ of Habeas Corpus (“Petition”) in the Central District, which was denied. This Court granted Appellant’s appeal, and, on August 27, 2009, Appellant filed his Opening Brief (“Brief”). The Brief addresses the single issue of whether Judge Yaffe should have recused himself from the Marina Strand matter. While Appellant may have correctly named Sheriff Leroy D. Baca (“Sheriff Baca”) as Respondent, and while Sheriff Baca does not contest that he has been properly named, Sheriff Baca is not a real party in interest here. This is because Sheriff Baca is only the custodian of Appellant and he has no knowledge of, or involvement in, Appellant’s contempt proceedings in the Superior Court, which led to Appellant’s incarceration. Nor does Sheriff Baca possess first-hand knowledge of the Marina Strand matter, upon which Appellant’s Brief is based. 1
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The real parties in interest here are Appellant, Judge Yaffe and the Superior Court, and, indeed, these parties have submitted papers addressing the relative merits of the appeal. Because Sheriff Baca, on the other hand, is only the custodian of Appellant, he respectfully requests that this Court order that Sheriff Baca not be bound to substantively respond to Appellant’s Brief. Further, Sheriff Baca respectfully requests that this Court rule on the real parties’ Brief-related papers as appropriate. Sheriff Baca will obviously abide by any Court order as to the release or the continuing detainment of Appellant. STATEMENT OF FACTS The underlying matter in this case is Marina Strand Colony II, Homeowners Association v. County of Los Angeles, Los Angeles Superior Court of California, Case No. BS 109420. (See, generally, Appellee Sheriff Baca’s Excerpts of Record (“Excerpts”)1, pp. 3-16.) Judge Yaffe presided over the Marina Strand matter. (Id.) Appellant was the counsel of record for Marina Strand in that matter. (Excerpts, p. 7, ¶¶ 1-3.) Also involved in the matter were Del Rey Joint Venture and Del Rey Joint Venture North
1
Appellant did not provide a record in this matter. Appellee’s Excerpts of Record contains the following three documents: (1) Exhibit “C” of Appellant’s original Habeas Petition in the Central District, case number 2:09-cv-01914-JFW-CW; (2) Sheriff Baca’s Motion to Dismiss Appellant’s Petition in the Central District; and (3) the Central District docket related to Appellant’s Petition. 2
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(“Del Rey”), represented by attorney Joshua L. Rosen. (Excerpts, pp. 3, 20, 26.) While the Marina Strand proceedings were ongoing, the State Bar of California issued an order recommending the disbarment of Appellant. (Id. at 7, ¶ 4.) The Bar also involuntary classified Appellant as inactive. (Id.) Soon after, Appellant was removed as counsel in the Marina Strand matter. (Id.) On December 15, 2008, Judge Yaffe dismissed the Marina Strand matter and ordered Appellant to pay reasonable compensatory legal fees of $46,329.01 to Del Rey. (Excerpts, pp. 7-8.) After Judge Yaffe’s ruling, Appellant failed to submit to several judgment debtor examinations pertaining to the award of fees against him. (Id. at 8-9.) Judge Yaffe thus found Appellant in contempt of court and, on March 4, 2009, he ordered Appellant sentenced to confinement in the Los Angeles County jail until Appellant agreed to submit to a judgment debtor examination. (Id. at 16.) Prior to his incarceration, Appellant filed habeas petitions with the California Court of Appeals and the California Supreme Court (Excerpts, pp. 27-28.) Appellant’s state habeas petitions named the Superior Court of California as Respondent. (Id.) Sheriff Baca, however, was neither a party, nor a respondent to these state court habeas filings.
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On March 20, 2009, Appellant filed his Central District Petition, which named Sheriff Baca as Respondent. (Excerpts, p. 59.) Among other things, the Petition argued that Judge Yaffe should have recused himself from the Marina Strand matter. As Appellant’s Petition named Sheriff Baca, representatives for Sheriff Baca were served and, through County Counsel for the County of Los Angeles, the law firm of Lawrence Beach Allen & Choi, PC, was retained to represent Sheriff Baca. (Excerpts, pp. 2526.) Subsequently, attorneys for Sheriff Baca contacted representatives for the Superior Court of California and Judge Yaffe, as well as for Del Rey. (Id.) The counsel for all of these parties informed Sheriff Baca’s attorneys that they would be prepared to respond to Appellant’s Petition if the Court required it. (Id.) On April 21, 2009, Sheriff Baca filed a Motion to Dismiss Appellant’s Petition (“Motion to Dismiss”). (Excerpts, pp. 17-26 and 60.) The Motion to Dismiss argued that while Appellant may have correctly named Sheriff Baca as a respondent, Sheriff Baca was not the real party in interest in the matter. (Excerpts, pp. 17-26.) This is because Sheriff Baca is only the custodian of Appellant and he has no knowledge of Appellant’s contempt proceedings in Marina Strand. (Id.) Accordingly, Sheriff Baca urged the court to dismiss the Petition to the extent the Appellant expected Sheriff Baca to substantively respond to Appellant’s Petition. (Id.) Alternatively, 4
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Sheriff Baca respectfully requested that the Court enter an order asking the real parties in interest to respond to Appellant’s Petition. (Id.) On April 24, 2009, Appellant filed an Opposition to Sheriff Baca’s Motion to Dismiss Appellant’s Petition. (Excerpts, p. 61.) On May 1, 2009, meanwhile, Judge Yaffe, represented by Kevin M. McCormick, filed an Answer to Appellant’s Petition. (Id.) On May 8, 2009, Del Rey Shores filed an Ex Parte Application to Intervene as to Appellant’s Petition. (Excerpts, pp. 61-62.) On June 12, 2009, the magistrate issued a Report and Recommendation recommending dismissal of Appellant’s Petition. (Id. at 62.) Pertinent to this matter, the Magistrate held that Appellant’s contention that Judge Yaffe should have recused himself was without merit. On June 29, 2009, the Court adopted the Report and Recommendation. (Id.) Accordingly, the Court also held that Sheriff Baca’s Motion to Dismiss the Petition was moot, as was Del Rey Shores Application to Intervene. (Id.) On August 12, 2009, this Court granted Appellant’s certificate of appealability on the sole issue of whether Judge Yaffe should have recused himself in the Marina Strand matter. Obviously, Sheriff Baca was not a party to the Marina Strand proceedings and is only the current custodian of Appellant. He is thus not in the position to defendant Judge Yaffe’s decision not to recuse himself from 5
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that matter. Therefore, Sheriff Baca respectfully requests that this Court order that Sheriff Baca is not bound to substantively respond to Appellant’s Petition. Sheriff Baca respectfully requests that this Court rule on the real parties’ Brief-related papers as appropriate. Based on the ruling, Sheriff Baca will continue to detain Appellant or release him, as is required. ARGUMENT I.
SHERIFF BACA IS NOT A REAL PARTY IN INTEREST AND THUS HE CANNOT SUBSTANTIVELY RESPOND TO APPELLANT’S HABEAS PETITION. Sheriff Baca does not dispute that he is properly named here;
however, because Sheriff Baca is not a real party in interest, he is not in the position to address the merits of Appellant’s Brief. Real parties in interest are those persons or entities possessing the right or interest sought to be enforced through the litigation. Karras v. Teleydyne Industries, Inc., 191 F.Supp.2d 1162 (S.D. Cal. 2002). Real parties in interest are expected to litigate their own matters. Coalition of Clergy v. Bush, 189 F.Supp.2d 1036, 1040-41 (C.D. Cal. 2002); see also, Wilson v. U.S. Dist. Court for the Eastern Dist. of California, 103 F.3d 828 (9th Cir. 1996) (in which the real parties submitted briefs and there was no appearance as to the named respondent); U-Haul Int’l, Inc. v. Jartran, Inc., 793 F.2d 1034, 1038 (9th Cir. 1986) (the real party in interest is the person who has the right to sue 6
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under substantive law, rather than others who may merely be interested in or benefit from the litigation). The real parties in interest here are: (1) Appellant; (2) the Superior Court of California; and (3) Judge Yaffe. This is because these parties are those who would seek to enforce or overturn the District Court’s holding that Judge Yaffe was not bound to have recused himself from the Marina Strand matter. Said another way, Appellant does not actually seek his redress from Sheriff Baca. Rather, so that he may be allowed release from jail, Appellant seeks redress from the Superior Court and Judge Yaffe regarding Judge Yaffe’s involvement in the underlying matter. Moreover, it should be noted that Judge Yaffe is an officer of the State of California, and the Superior Court is administered by the State of California. See, Cal. Gov’t Code § 811.9. Sheriff Baca, on the other hand, is contracted by the County of Los Angeles, not the State of California. Cal. Gov’t Code § 53069.8; and Streit v. County of Los Angeles, 236 F.3d 552, 562 (9th Cir. 2001). Also, Sheriff Baca is represented by Lawrence, Beach, Allen & Choi, through the County of Los Angeles county Counsel; whereas Judge Yaffe and the Superior Court has different representation. Thus, in addition to the fact that Sheriff Baca had nothing to do with the decision to actually incarcerate Appellant save carrying out a lawful court order, (See, Excerpts, pp. 1-16), neither Sheriff Baca nor his counsel are in the position 7
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to defend Judge Yaffe’s failure to recuse himself or, for that matter, Appellant’s incarceration by the Superior Court of California. At most, Sheriff Baca is only in a position to continue to detain Appellant should this Court find that Appellant is rightly incarcerated, or release Appellant should this Court find that Appellant is wrongfully incarcerated. This matter is similar to Diaz v. Lee Baca, 203 Fed.Appx. 884 (9th Cir. 2006), in which an attorney was held in contempt by the Superior Court of California and he filed a habeas petition, naming Sheriff Baca as the respondent. (Id.; and, see, Excerpts, pp. 30-49.) The attorneys representing the Superior Court of California, and not attorney for Sheriff Baca, filed the responsive brief in that matter. Additionally, while the docket reflected that the respondent was Sheriff Baca, the only real party in interest to actually respond to the Appellant’s habeas petition was “Superior Court of Los Angeles County California.” (Id.) Here, likewise, while Sheriff Baca may be properly named as Respondent, he is not the proper party to address the merits of Appellant’s Brief. Sheriff Baca simply was not and is not privy to the facts underlying the Marina Strand matter or the reasons why Judge Yaffe did not recuse himself. Judge Yaffe and the Superior Court of California have such information. Sheriff Baca thus respectfully requests that this Court rule on
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the real parties’ papers as appropriate. Based on the ruling, Sheriff Baca will continue to detain Appellant or release him, as is required. II.
CONCLUSION. Sheriff Baca respectfully requests that this Court order that Sheriff
Baca not be bound to address the merits of Appellant’s Brief regarding whether Judge Yaffe should have recused himself from the Marina Strand matter.
Dated: October 9, 2009
LAWRENCE BEACH ALLEN & CHOI, PC s/___________________________ Aaron M. Fontana Attorneys for Respondent-Appellee SHERIFF LEROY D. BACA
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STATEMENT OF RELATED CASES (9th Circuit Rule 28-2.6) In accordance with Ninth Circuit Local Rule 28-2.6, Appellee hereby advises the Court that he is presently unaware of any related case to the instant appeal. Dated: October 9, 2009
LAWRENCE BEACH ALLEN & CHOI, PC
s/ Aaron M. Fontana Attorneys for Respondent-Appellee SHERIFF LEROY D. BACA
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CERTIFICATE OF COMPLIANCE Pursuant to Ninth Circuit Rule 32(a)(7)(c), I certify that the Answering Brief is double spaced, proportionately spaced (Times New Roman), has a typeface of 14 points and contains 1,854 words.
Dated: October 9, 2009
LAWRENCE BEACH ALLEN & CHOI, PC s/ Aaron M. Fontana Attorneys for Respondent-Appellee SHERIFF LEROY D. BACA
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CERTIFICATE OF SERVICE STATE OF CALIFORNIA; COUNTY OF LOS ANGELES I hereby certify that on October 9, 2009, I electronically filed the foregoing APPELLEE’S ANSWERING BRIEF with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system. I further certify that some of the participants in the case are not registered CM/ECF users. I have mailed the foregoing document by FirstClass Mail, postage prepaid, or have dispatched it to a third party commercial carrier for delivery within three (3) calendar days, to the following non-CM/ECF participants:
Richard I. Fine Booking No. 1824367 c/o Men’s Central Jail 441 Bauchet Street Los Angeles, CA 90012
In Pro Per Petitioner/Appellant
Kevin Michael McCormick Benton Orr Duval & Buckingham 39 N. California Street Ventura, CA 93001-2620
Attorneys for RespondentsAppellees Superior Court of California, etc., et al.
s/________________________ Aaron M. Fontana
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Case No. 09-56073 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
RICHARD FINE, Petitioner - Appellant, vs. SHERIFF OF LOS ANGELES COUNTY, et al. Respondents - Appellees
Appeal From The United States District Court For The Central District of California Honorable John F. Walter Lower Court Docket No. CV 096-01914 JFW (CWx)
APPELLEE’S ANSWERING BRIEF
PAUL B. BEACH, State Bar No. 166265 AARON M. FONTANA, State Bar No. 249540 LAWRENCE BEACH ALLEN & CHOI, PC 100 West Broadway, Suite 1200 Glendale, California 91210-1219 (818) 545-1925 Telephone / (818) 545-1937 Facsimile Attorneys for Respondent /Appellee SHERIFF LEROY D. BACA [erroneously named as Sheriff of Los Angeles County]
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Case No. 09-56073 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
RICHARD FINE, Petitioner - Appellant vs. SHERIFF OF LOS ANGELES COUNTY, et al. Respondents - Appellees Appeal From The United States District Court For The Central District of California Honorable John F. Walter Lower Court Docket No. CV 096-01914 JFW (CWx)
APPELLEE’S ANSWERING BRIEF
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TABLE OF CONTENTS Page(s) INTRODUCTION .......................................................................................... 1 STATEMENT OF FACTS ............................................................................. 2 ARGUMENT.................................................................................................. 6 I.
SHERIFF BACA IS NOT A REAL PARTY IN INTEREST AND THUS HE CANNOT SUBSTANTIVELY RESPOND TO APPELLANT’S HABEAS PETITION ......................................... 6
II.
CONCLUSION .................................................................................... 9
STATEMENT OF RELATED CASES........................................................ 10 CERTIFICATE OF COMPLIANCE............................................................ 11
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TABLE OF AUTHORITIES Page(s) CASES Coalition of Clergy v. Bush 189 F.Supp.2d 1036 (C.D. Cal. 2002)...................................................... 6 Diaz v. Lee Baca 203 Fed.Appx. 884 (9th Cir. 2006) .......................................................... 8 Karras v. Teleydyne Industries, Inc. 191 F.Supp.2d 1162 (S.D. Cal. 2002) ...................................................... 6 Streit v. County of Los Angeles 236 F.3d 552 (9th Cir. 2001) .................................................................... 7 U-Haul Int’l, Inc. v. Jartran, Inc. 793 F.2d 1034 (9th Cir. 1986) ................................................................. 6 Wilson v. U.S. Dist. Court for the Eastern Dist. of California 103 F.3d 828 (9th Cir. 1996) .................................................................... 6 STATUTES California Goverment Code § 53069.8........................................................... 7 California Government Code § 811.9............................................................. 7
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INTRODUCTION Appellant Richard I. Fine (“Appellant”), proceeding pro se, is currently in custody of the Los Angeles County jail pursuant to a contempt order issued by Judge David P. Yaffe (“Judge Yaffe”) of the Superior Court of California, County of Los Angeles (“Superior Court”). The contempt order and Appellant’s imprisonment stem from Appellant’s involvement as an attorney in the Marina Strand Colony II, Homeowners Association v. County of Los Angeles (“Marina Strand”) matter, over which Judge Yaffe presided. After Appellant was imprisoned, he filed a Petition for Writ of Habeas Corpus (“Petition”) in the Central District, which was denied. This Court granted Appellant’s appeal, and, on August 27, 2009, Appellant filed his Opening Brief (“Brief”). The Brief addresses the single issue of whether Judge Yaffe should have recused himself from the Marina Strand matter. While Appellant may have correctly named Sheriff Leroy D. Baca (“Sheriff Baca”) as Respondent, and while Sheriff Baca does not contest that he has been properly named, Sheriff Baca is not a real party in interest here. This is because Sheriff Baca is only the custodian of Appellant and he has no knowledge of, or involvement in, Appellant’s contempt proceedings in the Superior Court, which led to Appellant’s incarceration. Nor does Sheriff Baca possess first-hand knowledge of the Marina Strand matter, upon which Appellant’s Brief is based. 1
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The real parties in interest here are Appellant, Judge Yaffe and the Superior Court, and, indeed, these parties have submitted papers addressing the relative merits of the appeal. Because Sheriff Baca, on the other hand, is only the custodian of Appellant, he respectfully requests that this Court order that Sheriff Baca not be bound to substantively respond to Appellant’s Brief. Further, Sheriff Baca respectfully requests that this Court rule on the real parties’ Brief-related papers as appropriate. Sheriff Baca will obviously abide by any Court order as to the release or the continuing detainment of Appellant. STATEMENT OF FACTS The underlying matter in this case is Marina Strand Colony II, Homeowners Association v. County of Los Angeles, Los Angeles Superior Court of California, Case No. BS 109420. (See, generally, Appellee Sheriff Baca’s Excerpts of Record (“Excerpts”)1, pp. 3-16.) Judge Yaffe presided over the Marina Strand matter. (Id.) Appellant was the counsel of record for Marina Strand in that matter. (Excerpts, p. 7, ¶¶ 1-3.) Also involved in the matter were Del Rey Joint Venture and Del Rey Joint Venture North
1
Appellant did not provide a record in this matter. Appellee’s Excerpts of Record contains the following three documents: (1) Exhibit “C” of Appellant’s original Habeas Petition in the Central District, case number 2:09-cv-01914-JFW-CW; (2) Sheriff Baca’s Motion to Dismiss Appellant’s Petition in the Central District; and (3) the Central District docket related to Appellant’s Petition. 2
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(“Del Rey”), represented by attorney Joshua L. Rosen. (Excerpts, pp. 3, 20, 26.) While the Marina Strand proceedings were ongoing, the State Bar of California issued an order recommending the disbarment of Appellant. (Id. at 7, ¶ 4.) The Bar also involuntary classified Appellant as inactive. (Id.) Soon after, Appellant was removed as counsel in the Marina Strand matter. (Id.) On December 15, 2008, Judge Yaffe dismissed the Marina Strand matter and ordered Appellant to pay reasonable compensatory legal fees of $46,329.01 to Del Rey. (Excerpts, pp. 7-8.) After Judge Yaffe’s ruling, Appellant failed to submit to several judgment debtor examinations pertaining to the award of fees against him. (Id. at 8-9.) Judge Yaffe thus found Appellant in contempt of court and, on March 4, 2009, he ordered Appellant sentenced to confinement in the Los Angeles County jail until Appellant agreed to submit to a judgment debtor examination. (Id. at 16.) Prior to his incarceration, Appellant filed habeas petitions with the California Court of Appeals and the California Supreme Court (Excerpts, pp. 27-28.) Appellant’s state habeas petitions named the Superior Court of California as Respondent. (Id.) Sheriff Baca, however, was neither a party, nor a respondent to these state court habeas filings.
3
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On March 20, 2009, Appellant filed his Central District Petition, which named Sheriff Baca as Respondent. (Excerpts, p. 59.) Among other things, the Petition argued that Judge Yaffe should have recused himself from the Marina Strand matter. As Appellant’s Petition named Sheriff Baca, representatives for Sheriff Baca were served and, through County Counsel for the County of Los Angeles, the law firm of Lawrence Beach Allen & Choi, PC, was retained to represent Sheriff Baca. (Excerpts, pp. 2526.) Subsequently, attorneys for Sheriff Baca contacted representatives for the Superior Court of California and Judge Yaffe, as well as for Del Rey. (Id.) The counsel for all of these parties informed Sheriff Baca’s attorneys that they would be prepared to respond to Appellant’s Petition if the Court required it. (Id.) On April 21, 2009, Sheriff Baca filed a Motion to Dismiss Appellant’s Petition (“Motion to Dismiss”). (Excerpts, pp. 17-26 and 60.) The Motion to Dismiss argued that while Appellant may have correctly named Sheriff Baca as a respondent, Sheriff Baca was not the real party in interest in the matter. (Excerpts, pp. 17-26.) This is because Sheriff Baca is only the custodian of Appellant and he has no knowledge of Appellant’s contempt proceedings in Marina Strand. (Id.) Accordingly, Sheriff Baca urged the court to dismiss the Petition to the extent the Appellant expected Sheriff Baca to substantively respond to Appellant’s Petition. (Id.) Alternatively, 4
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Sheriff Baca respectfully requested that the Court enter an order asking the real parties in interest to respond to Appellant’s Petition. (Id.) On April 24, 2009, Appellant filed an Opposition to Sheriff Baca’s Motion to Dismiss Appellant’s Petition. (Excerpts, p. 61.) On May 1, 2009, meanwhile, Judge Yaffe, represented by Kevin M. McCormick, filed an Answer to Appellant’s Petition. (Id.) On May 8, 2009, Del Rey Shores filed an Ex Parte Application to Intervene as to Appellant’s Petition. (Excerpts, pp. 61-62.) On June 12, 2009, the magistrate issued a Report and Recommendation recommending dismissal of Appellant’s Petition. (Id. at 62.) Pertinent to this matter, the Magistrate held that Appellant’s contention that Judge Yaffe should have recused himself was without merit. On June 29, 2009, the Court adopted the Report and Recommendation. (Id.) Accordingly, the Court also held that Sheriff Baca’s Motion to Dismiss the Petition was moot, as was Del Rey Shores Application to Intervene. (Id.) On August 12, 2009, this Court granted Appellant’s certificate of appealability on the sole issue of whether Judge Yaffe should have recused himself in the Marina Strand matter. Obviously, Sheriff Baca was not a party to the Marina Strand proceedings and is only the current custodian of Appellant. He is thus not in the position to defendant Judge Yaffe’s decision not to recuse himself from 5
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that matter. Therefore, Sheriff Baca respectfully requests that this Court order that Sheriff Baca is not bound to substantively respond to Appellant’s Petition. Sheriff Baca respectfully requests that this Court rule on the real parties’ Brief-related papers as appropriate. Based on the ruling, Sheriff Baca will continue to detain Appellant or release him, as is required. ARGUMENT I.
SHERIFF BACA IS NOT A REAL PARTY IN INTEREST AND THUS HE CANNOT SUBSTANTIVELY RESPOND TO APPELLANT’S HABEAS PETITION. Sheriff Baca does not dispute that he is properly named here;
however, because Sheriff Baca is not a real party in interest, he is not in the position to address the merits of Appellant’s Brief. Real parties in interest are those persons or entities possessing the right or interest sought to be enforced through the litigation. Karras v. Teleydyne Industries, Inc., 191 F.Supp.2d 1162 (S.D. Cal. 2002). Real parties in interest are expected to litigate their own matters. Coalition of Clergy v. Bush, 189 F.Supp.2d 1036, 1040-41 (C.D. Cal. 2002); see also, Wilson v. U.S. Dist. Court for the Eastern Dist. of California, 103 F.3d 828 (9th Cir. 1996) (in which the real parties submitted briefs and there was no appearance as to the named respondent); U-Haul Int’l, Inc. v. Jartran, Inc., 793 F.2d 1034, 1038 (9th Cir. 1986) (the real party in interest is the person who has the right to sue 6
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under substantive law, rather than others who may merely be interested in or benefit from the litigation). The real parties in interest here are: (1) Appellant; (2) the Superior Court of California; and (3) Judge Yaffe. This is because these parties are those who would seek to enforce or overturn the District Court’s holding that Judge Yaffe was not bound to have recused himself from the Marina Strand matter. Said another way, Appellant does not actually seek his redress from Sheriff Baca. Rather, so that he may be allowed release from jail, Appellant seeks redress from the Superior Court and Judge Yaffe regarding Judge Yaffe’s involvement in the underlying matter. Moreover, it should be noted that Judge Yaffe is an officer of the State of California, and the Superior Court is administered by the State of California. See, Cal. Gov’t Code § 811.9. Sheriff Baca, on the other hand, is contracted by the County of Los Angeles, not the State of California. Cal. Gov’t Code § 53069.8; and Streit v. County of Los Angeles, 236 F.3d 552, 562 (9th Cir. 2001). Also, Sheriff Baca is represented by Lawrence, Beach, Allen & Choi, through the County of Los Angeles county Counsel; whereas Judge Yaffe and the Superior Court has different representation. Thus, in addition to the fact that Sheriff Baca had nothing to do with the decision to actually incarcerate Appellant save carrying out a lawful court order, (See, Excerpts, pp. 1-16), neither Sheriff Baca nor his counsel are in the position 7
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to defend Judge Yaffe’s failure to recuse himself or, for that matter, Appellant’s incarceration by the Superior Court of California. At most, Sheriff Baca is only in a position to continue to detain Appellant should this Court find that Appellant is rightly incarcerated, or release Appellant should this Court find that Appellant is wrongfully incarcerated. This matter is similar to Diaz v. Lee Baca, 203 Fed.Appx. 884 (9th Cir. 2006), in which an attorney was held in contempt by the Superior Court of California and he filed a habeas petition, naming Sheriff Baca as the respondent. (Id.; and, see, Excerpts, pp. 30-49.) The attorneys representing the Superior Court of California, and not attorney for Sheriff Baca, filed the responsive brief in that matter. Additionally, while the docket reflected that the respondent was Sheriff Baca, the only real party in interest to actually respond to the Appellant’s habeas petition was “Superior Court of Los Angeles County California.” (Id.) Here, likewise, while Sheriff Baca may be properly named as Respondent, he is not the proper party to address the merits of Appellant’s Brief. Sheriff Baca simply was not and is not privy to the facts underlying the Marina Strand matter or the reasons why Judge Yaffe did not recuse himself. Judge Yaffe and the Superior Court of California have such information. Sheriff Baca thus respectfully requests that this Court rule on
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the real parties’ papers as appropriate. Based on the ruling, Sheriff Baca will continue to detain Appellant or release him, as is required. II.
CONCLUSION. Sheriff Baca respectfully requests that this Court order that Sheriff
Baca not be bound to address the merits of Appellant’s Brief regarding whether Judge Yaffe should have recused himself from the Marina Strand matter.
Dated: October 9, 2009
LAWRENCE BEACH ALLEN & CHOI, PC s/___________________________ Aaron M. Fontana Attorneys for Respondent-Appellee SHERIFF LEROY D. BACA
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STATEMENT OF RELATED CASES (9th Circuit Rule 28-2.6) In accordance with Ninth Circuit Local Rule 28-2.6, Appellee hereby advises the Court that he is presently unaware of any related case to the instant appeal. Dated: October 9, 2009
LAWRENCE BEACH ALLEN & CHOI, PC
s/ Aaron M. Fontana Attorneys for Respondent-Appellee SHERIFF LEROY D. BACA
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CERTIFICATE OF COMPLIANCE Pursuant to Ninth Circuit Rule 32(a)(7)(c), I certify that the Answering Brief is double spaced, proportionately spaced (Times New Roman), has a typeface of 14 points and contains 1,854 words.
Dated: October 9, 2009
LAWRENCE BEACH ALLEN & CHOI, PC s/ Aaron M. Fontana Attorneys for Respondent-Appellee SHERIFF LEROY D. BACA
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CERTIFICATE OF SERVICE STATE OF CALIFORNIA; COUNTY OF LOS ANGELES I hereby certify that on October 9, 2009, I electronically filed the foregoing APPELLEE’S ANSWERING BRIEF with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system. I further certify that some of the participants in the case are not registered CM/ECF users. I have mailed the foregoing document by FirstClass Mail, postage prepaid, or have dispatched it to a third party commercial carrier for delivery within three (3) calendar days, to the following non-CM/ECF participants:
Richard I. Fine Booking No. 1824367 c/o Men’s Central Jail 441 Bauchet Street Los Angeles, CA 90012
In Pro Per Petitioner/Appellant
Kevin Michael McCormick Benton Orr Duval & Buckingham 39 N. California Street Ventura, CA 93001-2620
Attorneys for RespondentsAppellees Superior Court of California, etc., et al.
s/________________________ Aaron M. Fontana
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