I very recently found out that I lost the appeal. There is no legal basis for me to lose that appeal as I'd already proven time and time again that it was all a fraud on the part of Mathilde Notaro. But, the court chose to please their cronies. It happens all the time.
I was jailed(without legal basis) and this was decided while I was jailed and oddly enough the oral argument that I had prepared for was set to be on November 16th but I was fraudulently incarcerated at that time. I have a rough draft on my e-mail and now that I see that someone saw fit to publish the treason "loss" I will have to make a hugely concerted effort to take apart their decision bit by but but for this moment I will just paste the rough drafts of the appeal and the reply brief and then Allison Sievers and Tig Notaro's lies etc. Why? Because my reputation has suffered at the hands of the worst of the worst and I can't tolerate being "swift boated" any longer. Someone saw fit to publish the "results' online and so I must now show peice by peice what a hoax/scam/fraud has been perpertrated against the American taxpayer in the name of Mathilde Notaro aka Tig Notaro
COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
B209220
SS0116746
MATHILDE NOTARO
Plaintiff and respondent
Vs.
ALISA SPITZBERG
.
Defendant and Appellant
Appeal from the Los Angeles Superior Court
The Honorable Judge Rosenberg
____________________________________________
APPELLANT’S REPLY BRIEF
__________________________________________
Alisa Spitzberg
xxxx
IN PROPRIA PERSONA
TABLE OF CONTENTS
TABLE OF CONTENTS …………………………………………………………………………………i
TABLE OF AUHORITIES
…………………………………………………………… ……………………………ii
INTRODUCTION
SUMMARY OF ARGUMENT ……………………………………………………………………………1-2
THE PLAINTIFF MISREPRESENT FACTS TO THIS COURT REPEATEDLY
………………………………………………………. ……………………. 3-5
THE ACCUSATIONS MADE THAT SIEVERS CONTENDS ARE REASONS TO GRANT SUCH AN ORDER AND APPELLANT’S REPLY TO THESE ACCUSATIONS
…………………………………………………………………………5-11
THE PLAINTIFF REPRESENTATTION TO THIS COURT OF BOTH THE FACTS AND THE ARGUMENTS TO BE FOUND IN SPITZBERG’s OPENING BRIEF.
………………………………………………………………………. 12-17 CONCLUSION………………………………………………………………… 17 REQUEST FOR ORAL HEARING…………………………………………………..17
TABLE OF AUTHORITIES
COURT OF APPPEALS CASES
Ross v. Figueroa, supra, 139 Cal.App.4th 856. …………………………………………………….. 2,4,8,9.10,13,17,20,21,22,24,27,29
Bekk Vs Wills. (1989) 207 Cal.App.3d 719, 732-732 …………………………………………………………………………………2,10,13 McCarthy v. Mobile Cranes, Inc. (1962) 199 Cal.App.2d 500, 508-509.)… 32
(Russell v. Douvan (2003) 112 Cal.App.4th 399, 402, citing Scripps Health v. Marin (1999) 72 Cal.App.4th 324, 332-333, [injunction under section 527.8] (Scripps).) . 14
Schild v Rubin (1991) 232 Cal. App.3d 755, 762 ………………………………………………………………………………………… 32
OTHER AUTHORITIES
Canons 1-6 Code of Judicial Ethics………………………………………………1-17
Unites States Constitution ………………………………………………………1-17
Journal of the American Bar Association ………………………………………….1-17
INTRODUCTION
The appellant , Alisa Spitzberg, a law abiding citizen with not even a traffic infraction on her record, and absolutely no documented or undocumented history of violence appeals from an order of the Los Angeles Superior Court issued after a hearing, granting a three-year CLETS injunction(Code Civ. Proc., 527.6 and 527.9) to stop civil harassment of a person named Mathilde Notaro , and three individuals who are neither known to the appellant nor are mentioned anywhere in the record, but nevertheless are listed in the temporary and final order (R- 3, R-46.) Spitzberg contends that Notaro lied repeatedly in the hearing and invented the whole thing from jealousy and spite. Spitzberg implores the higher court to review the transcript and record which contains a lengthy answer (CR16-44) prepared by Spitzberg but which by all indications seems to have not been considered by Judge Gerald Rosenberg. The appellant contends that the comedy world in Los Angeles spawns ruthlessness in some, and this ruthlessness is at the root of this vendetta of Notaro’s against Spitzberg. As a very talented comedian (Willen was convinced she “should quit her job” to launch Spitzberg’s career)
Spitzberg can only surmise that Willen intentionally or unintentionally provoked Notaro by “talking up” Spitzberg one too many times, and this inspired in Notaro, rabid jealousy and competitiveness, and which led her to fabricate these destructive allegations against Spitzberg. Spitzberg reacted to the fact that Notaro was spreading slander in a small community and was having her banned from clubs which were necessary if Spitzberg were to pursue her profession. No reasonable person would construe harassment or stalking from the actions taken by Spitzberg (and her family) as she/they tried to find out why this was happening when she began to wholeheartedly pursue a career in comedy again, after a long illness, and which is why she came to Los Angeles .Spitzberg never called, visited or touched Notaro or Willen. Spitzberg never threatened either of them and any “course of action” she pursued to clear up this mess was short lived(2 occasions within a mile from Spitzberg’s home, in public, and accompanied by family member) and was done for a legitimate purpose i.e. to reach some understanding of what kind of threat to her career she was facing. After April 29th Spitzberg realized that she wasn’t dealing with a rational person and did not contact Notaro or Willen again nor did she do the things Notaro suspects (T pg 4 lines 18-28) and the “documents” that Notaro supposedly has that supposedly has evidentiary value is not entered into the record nor has it been available to Spitzberg despite her efforts to obtain it. Spitzberg only met Notaro for total of approximately 20 minutes and on one occasion in 2007. Spitzberg asserts that the whole “push” at Tsunami is pure fiction and that many witnesses can attest to this if a continuance or a remand is permitted. In 2008, the sum of their contacts was Spitzberg saying “Good show’ to Notaro as Notaro stood by Spitzberg at the bar area. Spitzberg asserts that Griffee, Whitaker and especially Seccia have perjured themselves to benefit their careers as did Willen (R 44) and that the TRO and this order should never have been granted.
“Thus, although the procedures set forth in the harassment statute are expedited, they contain certain important due process safeguards. Most notably, a person charged with harassment is given a full opportunity to present his or her case, with the judge required to receive relevant testimony and to find the existence of harassment by clear and convincing proof of a course of conduct that actually and reasonably caused substantial emotional distress, had no legitimate purpose, and was not a constitutionally protected activity. (Schraer, supra, 207 Cal.App.3d at pp. 730-731.)”
I. STATEMENT OF JURISDICTION
The Appellate Division has appellate jurisdiction over cases in which a notice of appeal was filed. (Cal. Rules of Court, rules 8.751 (civil appeals.)
II. STATEMENT OF ISSUES
1 Did Judge Gerald Rosenberg abuse or misuse his discretion, considering Ross v. Figueroa, supra, 139 Cal.App.4th 856. When both litigants are pro per what is the judge’s role and was this role carried out in the interest of fairness and in accord with the Canon’s of judicial ethics.
2. Does there seem to be a considerable differential between the referee’s treatment of the defendant and the plaintiff? Does the record indicate that ex parte contacts took place that were not made known to the defendant?
3. Did the judge err by granting this order after (accidentally?) granting the defendant a continuance (CT p35 lines 5-7) removing a key defense witness, mocking the defendant and her only remaining witness, leading the plaintiff and her witnesses by reminding them of dates and previous testimony, allowing all the plaintiffs witnesses to stand by her witnesses to stand by her (CT pg9,lines24-27) while the plaintiff was not accorded the same treatment, and asking the defendant and her witness argumentative and irrelevant questions constitute an abuse of discretion that led to a faulty and voidable judgment?
4. Did the plaintiff meet the burden of proof required by statutes that underlie such a remedy as a three year CLETS, that not only restrains the appellant from Notaro but from three men unmentioned on the record and unknown to the appellant. Why is the name of Willen included and then crossed out (R. pg46 ) in the permanent and not included in the Temporary order when Notaro now contends that Spitzberg is “Stalking” Willen, instead of Notaro. Is the credibility of Notaro and her witnesses questioned by the lower court? Is any credibility afforded the defendant? If not, why?
5. Did any of the actions supposedly undertaken by the defendant rise to the level where a reasonable person would be in fear of their safety, believe she was stalked, and reasonably believe that the appellant posed a credible threat of violence? If so, what were those actions and did the judge err when signing his name to this order that says that it is “based on stalking” and “a credible threat of violence?” not to mention arriving at the conclusion that the hapless attempts of Spitzberg to clear her name constituted a course intended to harass annoy and intimidate for no legitimate purpose.
6. Was the plaintiff’s credibility so overwhelmingly compelling that the referee needn’t have given credence to the defendant’s oral or written responses to these accusations? Does it appear from the record that the defendant’s filed response is taken into account by this referee?
7. Was the defendant as an uncounseled pro per in any viable position wherein she could anticipate the nature of these proceeding and participate in a way where preserving a more substantial record for appeal could be initiated?
8. Did the exclusion of the police reports and other notes from a supposed LAPD investigation available to the plaintiff at the time of this hearing harm or hurt the appellant’s case? Why did the detective in charge of this case decide to file a proof of service on the 27th of May with the court and yet choose not to file the police reports that should have bolstered the “victim’s” position but that Spitzberg contends would have completely impeached Notaro.
9. Is the affidavit of Notaro and her court testimony consistent and if not, why? Was her affidavit and court testimony consistent with that of her witnesses? Should the “inconsistencies” and omissions of Notaro, be considered with more vigor by any referee who is interested in the safeguards suggested by the justices in Ross v. Figueroa, supra, 139 Cal.App.4th 856. Why did Judge Rosenberg” (CT-pg 3 lines 14-18, Pg 10-16.pg.32 line 9) rely on a series of assumptions when the defendant and her witnesses are eager and available to testify and an answer filed by Spitzberg repeatedly references my space and shows why she was there. Side note: Myspace can easily be made “private” if Notaro truly feared someone but it never was.
10. Would the fact that Judge Rosenberg repeatedly say things like “ you have one minute,” , “I’ll give you two minutes (CT 31lines 15-18)to the defendant, make the defendant feel rushed and perhaps lead her to speak faster and give the judge a reason to make it seem as if Spitzberg wasn’t somehow following his order. Is it fair to say to her and her witness, I’ll give you a minute to ask questions (CT pg32, 7-9) and why does he promise Spitzberg the “last word.” (CT pg 22, lines 14-17) when no such promise was kept. B Does he say to the defendant or any of her witnesses “I’ll give you a minute.” Or does he comment on their delivery or his opinion of their testimony?
11. Is there a pattern to be witnessed where Judge Gerald Rosenberg puts words in the mouth of the defendant and responds to her testimony and that of her witness in a way that would lead any reasonable person to conclude that he was not paying attention?
III. STATEMENT OF THE CASE
On May 1st, 2008 an ex parte declaration appears to have been filed but not made known to the appellant (R 48). On May 4th, there is evidence that a Civil Case Cover sheet addendum is filed (CR 15) and then on May 5, 2008 there is evidence that another ex parte document is filed (CR 10) and this date is referenced by Judge Rosenberg as the date in which Notaro “came to the court and filed the temporary order.” In the transcript (CT pg, 4 lines 16 -18 and CR 1.2). The other two dates are not mentioned and the clerk makes mention in the appellate record that both the petition for injunction order- harassment and an order to show cause and TRO CLETS is filed on (CR -1) and that it was filed by the respondent’s attorney on the 5th of May (CR 2) not by Notaro as the judge says, in his seeming desire to refresh the memory of Notaro;
On May 27th, the appellant filed her answer CR-1). On May 28th 2008 a hearing was held in Department A of the Santa Monica Courthouse, where Judge Rosenberg signed his name to a three year CLETS restraining order restraining Alisa Spitzberg from Mathilde Notaro, Christopher Fairbanks, Tom Sharpe, and Kjell Bjorgen. The appellant does not know any of these people. The answer filed by Spitzberg (CR 19-44) was her chance to shed light on what really happened and nothing in Notaro’s court testimony or affidavit or the testimony of her witnesses is more credible than Spitzberg’s account if seen with any appraising eye.
The only person familiar to the appellant is Stephanie Willen and her name was included but crossed out for reasons unknown. The appellants witness, Lauren Spitzberg, signed in as a witness, but was soundlessly removed by a bailiff before she could testify. No reasons were given and though she signed in and was removed, the minute order doesn’t reflect her presence or removal. The appellant was angry with her sister for leaving to the bathroom or to go outside and smoke and never even imagined the bailiff could just remove her so she did not preserve this fact for the appellate record as she was in no way made aware that her sister was told to leave and it was done in such a way that with Alisa Spitzberg’s back to her witnesses, she could not see or know that such a crucial witness was removed. It was done soundlessly as well, for reasons unknown.
The appellant and her unremoved witness were treated with mockery and disdain by the judge. The court transcript (CT pg 1-36) and the apparent disinterest of the judge in the appellant’s answer (CR-19-44) resulted in an erroneous and to the defendant—a very costly outcome.
The appellant was rushed out of court and the bailiff would not let her file an appeal right then though on (CT pg 35, lines 25-28) though this is mentioned as her interest. Spitzberg was never served with the order and no proof of its service is in the record. Sometime in late 2008, the court of appeals informed Spitzberg that there was no original final order found in the files and some pages of Spitzberg’s’are missing as well. The minute order (CR 49-50) does not reflect the fact that the listed attorney (CR3) is a party and is not present and it does not mention that Lauren Spitzberg was removed before she could testify. To say that the “Defense” rested is misleading as it is clear from the transcript that the defendant was very upset at the way this order came down and said “ This is so unjust your honor, I need a continuance, I have so many witnesses I could call etc.”
On June 23rd 2008 Spitzberg filed her notice of appeal and on August 5th 2008 she filed her notice designating record on appeal.
IV. STATEMENT OF FACTS
On May 28th Judge Gerald Rosenberg granted a three year CLETS restraining order against Spitzberg that would serve to restrain Spitzberg from Mathilde Notaro, Chris Fairbanks, Thom Sharpe, and Kjell Bjorgen. Judge Rosenberg signed his name(R 47) to all the conditions requested by Notaro (CR 45-47) and he signs his name too after reading Notaro’s response to question 13 (CR 47 CT) presumably concurring that these statements are factual and have been proven by the plaintiff.
a. x- the order is based on stalking
b.x-the order is based on a credible threat of violence
c.x the person in 1 is entitled to a fee waiver
The evidence presented does not include the police reports that were available on May 28th 2008 and yet were not filed by any party related to the defense. Detective Gregozek even filed a proof of service with the court on May 27th 2008 and didn’t see fit to file the police reports that his elite anti stalking unit wrote up after agreeing to help Notaro because of who she had retained as an attorney.
On August 29, 2007 the Respondent Mathilde Notaro states under penalty of perjury in an affidavit filed on May 5th 2008 that The defendant, Spitzberg, committed violence against her as well as verbal abuse towards her and her witness Stephanie Willen. (CR-pg 7) The appellant denies these allegations in the answer filed on May 27th 2008. The plaintiff further alleges that on April 7th she saw the Defendant for the first time since seeing her for the first time 9 months beforehand. Notaro alleges that Spitzberg here was removed because according to Notaro’s affidavit “after I got off stage Alisa approached me to ask if I remembered her.”
Here (CR pg. 7) Notaro responds “plainly”, “Yes I do” she says before continuing the conversation she claims to be having with her “agent.” Alisa supposedly interrupts this conversation to say, “No you don’t, you don’t remember me.” In response to this odd declaration by Spitzberg Notaro says, “Yes I remember you. The night we met you were being aggressive and you pushed me. I remember you and I don’t want to talked (sic) to you at all. Leave me alone.” Whereupon, according to Notaro, Spitzberg became “quickly enraged and insisted repeatedly that I was “lying.” According to Notaro, Notaro afraid that this would “escalate” had Michael Griffee (who she refers to as the doorman and security but who seems to think he’s the “General Manager) here “Escort” the appellant out of the building for reasons that vary over the course of the record and court reporter’s transcript. The plaintiff further alleges that on April 12th, the defendant and her sister were “noticed by Notaro and the defendant and her sister 15 feet away from Notaro. According to Notaro they ran towards Notaro and lunged at her. Notaro states under penalty of perjury that she was able to run inside before the defendant and her sister “could make physical contact.” The sisters then, according to Notaro, were not allowed admission into the club and an individual by the name of Mark Flanagan immediately called the police. The trial judge granted Notaro and three other individuals by the names of Thomas Sharpe, Christopher Fairbanks, and Kjell Bjorgen an emergency restraining order on either May 1st or May 5th 2008. No notice was required as the affidavit sworn my Notaro was sufficient for this lower court, apparently. On May 28th 2008, Judge Rosenberg granted that the temporary order be extended to a permanent CLETS order after hearing.
1. The recent ruling in Ross v. Figueroa, supra, 139 Cal.App.4th 856 reasserts the necessity for a more judicious approach when an individual is at risk of losing valuable rights and freedoms. Spitzberg was ready to be told it was time to cross examine when the orders were made and therefore:
“Because the right of cross-examination is fundamental, its denial or undue restriction may constitute reversible error. (Wegner et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2006) 10:6, p. 10-2, quoting McCarthy v. Mobile Cranes, Inc. (1962) 199 Cal.App.2d 500, 508-509.)
The appellant requests a de novo review of this court or anything similar. Or to quote verbatim from the DISCUSSION portion of Ross v. Figueroa, supra, 139 “We know the litigants, both plaintiffs and defendants, are unrepresented by counsel in the vast majority of cases – as was true here. We also know this fact influences how these hearings should be conducted – with the judge necessarily expected to play a far more active role in developing the facts, before then making the decision whether or not to issue the requested permanent protective order. In such a hearing, the judge cannot rely on the pro per litigants to know each of the procedural steps, to raise objections, to ask all the relevant questions of witnesses, and to otherwise protect their due process rights. We have some concerns about how the trial court conducted the hearing in this particular case.
V. SUMMARY OF THE ARGUMENT
The recent decision in Ross v. Figueroa, supra, 139 Cal.App.4th 856 gave voice to the higher courts and the justices in that they very necessarily come forth to forcefully advise that a restraining order proceeding should be conducted in a manner befitting the seriousness of the allegations and the liberties and freedoms that are at stake in such a proceeding. Spitzberg does not see in the record or transcript how it can be conceived that hers was a fair hearing, and how the conclusions that a credible threat of violence was proven and that this order was based on stalking could have been reached by Judge Rosenberg.
Spitzberg was not given a chance to present her case and she went to management and wrote e-mails in a very legitimate attempt to understand why she was removed and then banned from an establishment when she knew she did nothing but sit quietly and watch a show. Spitzberg at no time did anything but question those in authority why she was being slandered(Supplementary CR- 1) Notaro omits the fact that Alisa is a comedian in all her statements in the record, as it adds a reasonableness to her actions that may be absent otherwise. The answer filed by Spitzberg is the absolute truth and available to the higher court for much desired scrutiny on the part of the appellant.
Seccia is never mentioned in the record as a possible witness and his testimony is very different from the testimony of Michael Griffee and should be compared and will at the end of the argument sections. Seccia later spoke to an investigator for the defendant, and gave a completely different version that shows that he committed pure perjury, but that has not been preserved for the appellate record, unfortunately. None of the defendant’s answer is mentioned though Notaro’s “paperwork” is certainly utilized by the judge.
VI.ARGUMENT
1. Did Judge Gerald Rosenberg abuse or misuse his discretion if this from Ross v. Figueroa, supra, 139 Cal.App.4th 856 is considered.” When both litigants are pro per what is the judge’s role and was this role carried out in the interest of fairness. Was the outcome affected by the referee’s failure to heed the sentiments expressed in Ross v Figueroa, supra 139 Cal.App.4th 856, and Schraer, supra, 207 Cal.App.3d at pp. 730-731.)
Not only did this referee not apprise anyone of their fundamental rights either orally or by written summary as mentioned in v. Figueroa, supra, 139 Cal.App.4th 856, but in fact showed bias on a consistent basis and disabled the defendant from feeling as if objecting to his incessant leading questions of the defendant (CT p 1-36) and preferential treatment shown to the plaintiff would hurt rather than harm her. She was promised that she would get the “her chance: (CT pg. 9, lines 3-5. ) by this referee and this lulled her into a false optimism—that she indeed would be heard in any fair way. Preservation of the record couldn’t have seemed a priority to a pro per litigant who hadn’t even had a chance to understand that such an order would be granted without even a chance for her or her witnesses to be heard
2. Does there seem to be a differential between the referee’s treatment of the defendant and the plaintiff. Does the record indicate that ex parte contacts took place that were not made known to the defendant?
“A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct manifest engage in speech, gestures, or other conduct that would reasonably be perceived as (1) bias or prejudice, including but not limited to bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status, Amended Canon of Judicial Ethics 3B (5”
Though no substitution of attorney was filed nor was the attorney’s absence at the hearing noted by the judge the presence of such a well known Hollywood firm might very well have had an influence on things like the judge’s treatment from page one where he dutifully spells the name for the plaintiff (CT pg 1 22-28) called the plaintiff ma’am and miss and alternately called the defendant, “SPITZBERG.” Rosenberg reminds the plaintiff throughout what she states about what she says in her affidavit. Nowhere in Spitzberg’s eventual but very truncated testimony can Judge Rosenberg be said to even mention her answer or to attempt to assist her. The only “assistance” shown was to constantly carp on the speed of Spitzberg’s speech which for the record is not something she’s ever had a problem with in her 40 years, and which couldn’t have been helped by the this referee’s saying on multiple occasions only to the defendant and never to the plaintiff or her witnesses, “I’ll give you one more minute, I’ll give you two minutes etc.”
Though it is a serious accusation, the appellant sees strong evidence to suggest that illegal ex parte contact took place. First, because of the two filing found in the record for ex parte contact on two separate dates(R- 10, 11) Second, because the fact that the attorney didn’t show up was not mentioned by Rosenberg and the absence of mention can indicate a foreknowledge that involved ex parte communication with Alison Sievers. In her absence, Judge Rosenberg can be said to take on her role and leaves the defendant in an unenviable position. Thirdly, the appellant accidentally misconstrued that the answer only had to be filed before the date of the hearing and so after being unable to get it in earlier as she wanted anyhow, she was forced to go to court (which is far from her home) the day before to file the answer. The judge could be said to have discounted the answer based on an improper contact and influence with Notaro’s attorney. This isn’t mere speculation as there are two instances in the transcript that don’t make sense if not for ex parte communication (pg 2 lines 8, 9, 10) Here, the judge finishes Notaro’s sentence with “To see this other person.” First, there is no evidence that Spitzberg ever came to see any other person or any person period and the fact that Notaro later will say in the transcript(CT pg 5, lines, 11-16) is highly suspicious. The logic of Spitzberg seeking Willen out 9 months after seeing her last, knowing where she lives and works, and yet seeking her out in this comedy club far away from Willens residence contains no logic. Also as shown (CR 36, 37) to make the point that in the time that Spitzberg knew Willen, Notaro performed regularly right near the appellant’s home and the appellant never made an effort to see her. Therefore, 9 months after running into Notaro and Willen at Tsunami and having no altercations with them, though Notaro has decided to invent one, Spitzberg goes to a comedy club, doesn’t heckle or ask Notaro about Willen according to Notaro , but sits there quietly throughout the whole show and Notaro says in the hearing( T Pg.6.lines 13-16)
The appellant is tired of protesting her innocence and yet this is not only a malicious fabrication but it is highly unreasonable and not present in the affidavit of Notaro regarding April 7, 2008. (CR pg 7)
It would be reasonable to presume that Notaro would have remembered and wanted to mention this inflammatory allegation in her affidavit to obtain the TRO.It would also seem reasonable that Notaro would cite this (CT pg 6, lines 7-11) This is almost the same language that Spitzberg supposedly uses 9 months before at the supposed incident at Tsunami and in that someone else supposedly uses against her on the letter sent to me by Willen, (CR-9) and it is not reasonable that she would mention that in her affidavit but rather have Spitzberg saying unrealistic non hate laced obscenities like, “ Do you remember me.” In the letters to Willen (CR25) and my answer relating to that date (CR24 and CR25) and the rest that and I now see too late and is missing from the record (CR26) it would seem a very different scenario took place and just the fact that in her affidavit she says that I purposelessly implore of her if she remembers me and in court she says this (CT pg 6. lines 7-11) should raise suspicion.
In her affidavit (CR 7) Notaro says that Spitzberg called Willen but this is not true and phone records would prove that Spitzberg never called Willen nor did Spitzberg ever harass Willen in any way at any time. No proof is offered as to this new and highly prejudicial sounding accusation, and Willen is not asked to confirm this when she testifies after Notaro, nor is it every mentioned in any document on the record (or off)
Willen doesn’t even confirm the alleged “push” on August 29, 2007. It’s as if the judge is trying to spare her from having to perjure herself at the request of someone or in any case, why wouldn’t the judge have Willen before him and not ask her about this and the tsunami “push?” Willen can only attest that Spitzberg “Denigrates our characters and stuff.” Which is a far cry from the stalking and violence that Notaro claims. Or perhaps no semblance of a fair hearing took place because lunch was on Rosenberg’s mind. The appellant can only surmise.
3. Did the judge err by granting this order after granting the defendant a continuance (T –p35 lines 5-7) , excluding a defense witness, mocking the defendant and her mother as a witness, coaching the plaintiff and her witnesses to remember previous testimony, allowing all the plaintiffs witness to stand by her witnesses to stand by her (T- pg 9 lines, 24-27) while the plaintiff was not accorded the same treatment, and asking the defendant and her mocked witness argumentative and irrelevant questions constitute an abuse of discretion that is responsible for the final judgment?
The recent decision in Ross v. Figueroa, supra, 139 Cal.App.4th 856 would lend credence to reversible error in this case but remand is all the appellant needs if the justices are concerned for the safety of anyone. The appellant is aware that she is restricted to what is preserved in the record. Since the defendant in this hearing was ignorant of the reputations these hearings have gained and could not have foreseen that a fair hearing wasn’t forthcoming she would have taken a much more aggressive approach regarding the requested continuance. , admittedly, her request for a continuance seems tardy. But, if strict adherence to the record is paramount, it can be argued that the continuance was granted (CT pg 35- 5-7) Judge Rosenberg says “That’s fine” and though it, of course, appears that he said this mistakenly it can be argued that since due process was denied the defendant should be allowed to “Continue” this case. The defendant was not served with notice of the TRO and though she understands that the facts are different in Ross v. Figueroa, supra, 139 Cal.App.4th 856, she can foresee that if preservation of the record is viewed a certain way by the higher court, the long delayed continuance can be justified and thus granted to the appellant. And, if that argument doesn’t suffice there is:
Thus, the argument will try to show as observed in Schraer v. Berkeley Property Owners Assn. (1989) 207 Cal.App.3d 719, 732-733 (Schraer) with respect to section 527.6 and equally applicable to section 527.8: [T]he procedure for issuance of an injunction prohibiting harassment is self-contained. There is no full trial on the merits to follow the issuance of the injunction after the hearing provided by section 527.6, subdivision (d). That hearing therefore provides the only forum the defendant in a harassment proceeding will have to present his or her case. To limit a defendants right to present evidence and cross-examine as respondents would have us do would run the real risk of denying such a defendants due process rights, and would open the entire harassment procedure to the possibility of successful constitutional challenge on such grounds
4. Was the burden of proof required by statutes that underlie such injunctions as a three year CLETS order ,that will in this instance serve to restrain the appellant not only from Notaro but from three men unmentioned on the record and unknown to the appellant. Why is the name of Willen included and then crossed out (CR 46 ) in the permanent and not included in the Temporary order when Notaro now contends that Spitzberg is “Stalking” Willen, instead of Notaro. Is the credibility of Notaro and her witnesses questioned by the lower court? If not, why?
An injunction is authorized only when it appears that wrongful acts are likely to recur. (Russell v. Douvan (2003) 112 Cal.App.4th 399, 402, citing Scripps Health v. Marin (1999) 72 Cal.App.4th 324, 332-333, [injunction under section 527.8] (Scripps).)
Spitzberg submits that her acts were not “wrongful” but even if they were On (CT pg 4 lines 12- 28 and pg 5 lines 1-3) this exchange takes place where it seems that all depends on Notaro’s hunches and baseless accusations. The appellant submits she never harassed Notaro online nor should the judge be satisfied with Notaro’s “yeah,’ when asked if she suspected that Spitzberg “harassed” her. Why pose such a question when either a yes or no seems to suffice or hunches or rank suspicion is acceptable evidence.
“Did you consider her to do anything to you that you thought was harassing” is asked rather than the judge deducing from the testimony if he thinks harassment took place.
Perhaps, if all that Notaro said was undisputed or undisputable than there could be an argument that she was somewhat put out or even frightened but all that she says is contradictory to the evidence gathered and the appellant will include a thorough comparison of what Notaro says in her affidavit vs. her transcript vs. what her witnesses contend etc, at the end of the argument section in Argument 9
5. Did any of the actions supposedly undertaken by the defendant rise to the level that a reasonable person would be in fear of their safety, believe she was stalked, and reasonably believe that the appellant posed a credible threat of violence? If so, what were those actions and did the judge err when signing his name to this order that says that it is “based on stalking” and “a credible threat of violence?”
Three “witnesses” do indeed appear at this hearing and claim assorted verbally vague but presumably upsetting things. The problem with all that testimony is first that it is false but more importantly the fact that these witnesses all say THEY did this THEY said this when Alisa Spitzberg is the one “on trial.”
And, if indeed a fair hearing was allowed by the lower court, none of these witnesses could have been properly considered as none were are listed (CR4) and the appellant wouldn’t have known of these witnesses if and when the time came where she was allowed to cross-examine or be heard in any meaningful way. The appellant claims that Notaro kicked her out of that club for absolutely no reason and any action Spitzberg might have undertaken afterward was only the appellants floundering attempt to get an explanation. Spitzberg never touched Notaro at any time and such a strange and baseless accusation at that time seemed to be maybe some mistaken identity or misunderstanding and Spitzberg held out hope that it could be understood. The e-mails in Spitzberg’s answer indicate that this was the case (R 24-277-9) as does much of the answer (CR19-44) At no time did Spitzberg threaten Notaro or anyone and at all times she only sought to find out why her career suddenly seemed irreparably jeopardized by the false accusations of a near stranger who she never had any trouble with. “This order is based on stalking” is profoundly unfair and doesn’t result from any understandable analysis of the record. What stalker takes their mother and sister to very public places to stalk their presumptive prey? What stalker worth their salt would only go to inquire of Notaro and the management/security/door guy ( CT pg 13 lines 4-12 ) 4 of these two clubs on two occasions what was up when Notaro is playing all over Los Angeles and elsewhere (CR36,37)
Or this from (T pg 20 lines 14- 17)
First would any trier of fact feel secure when the presumed defendant gets called “THEY” on over 38 instances in the transcript and even in the affidavit of Notaro.
Why would Seccia suggest that someone else might be in the wrong here? And why do Notaro and her witnesses say “THEY” when supposedly this hearing is to find out about Alisa Spitzberg’s guilt or innocence or if she is deserving of such orders. In Brian Whitaker’s testimony his use or misuse of THEY is so prevalent and so profound that any trier of fact would not feel secure about who THEY might be and if the appellant should lose her liberties and more for the actions of this ever-present THEY that is seen throughout. When you are dealing with a scenario where there is a THEY that indicates that more than one entity is speaking and like the judge says “ Two people speaking.”
6. .Did the exclusion of the police reports and other notes from a supposed LAPD investigation available to the plaintiff at the time of this hearing harm or hurt the appellant’s case? Why did the detective in charge of this case decide to file a proof of service on the 27th of May with the court and yet choose not to file the police reports that should have bolstered the “victim’s” position? Why weren’t these detectives at the hearing and why if in fact nothing of any “harassing” nature could be cited by Notaro after the 29th of April? Why was a Permanent order granted when nothing occurred once these detectives alerted Spitzberg to any possibility that her actions were causing Notaro to take such measures on May 7th, and after the TRO was granted without notice on May 5th? Wasn’t the purpose of the TRO more than served and wouldn’t all police reports if not helpful to the defense be included in the record?
The appellant submits that the police reports that she later was able to obtain would have proven invaluable to further impeach Notaro’s credibility and that there absence from the record is very significant. The appellant is aware that these reports are not in the record but she submits that they and the investigators reports be permitted as an attachment at the end for reasons that she understands won’t decide the appeal.
VI. ARGUMENT
1. Did the Superior Court lose jurisdiction at most and a wrong conclusion at best by not fulfilling its role as a referee as cited in Ross v. Figueroa, supra, 139 Cal.App.4th 856. When both litigants are pro per what is the judge’s role? Was a continuance wrongfully denied to Spitzberg?
Judge Gerald Rosenberg granted an order to Notaro whereby Spitzberg is restrained from four individuals for a period of three years and all that is checked by Notaro is approved by Judge Rosenberg.(R 46) The order is based on this judge concluding that stalking and a credible threat of violence was proven by the plaintiff ( R 47) All of these three individuals are abject strangers to Spitzberg and were not mentioned anywhere in the record nor where they present at the hearing, yet Spitzberg will be held in criminal contempt of court if she goes 100 yards near any of them or their workplaces or …. Since Spitzberg has no idea who these people are she does not know where they work but has since learned they are comedians who in fact do not live with Notaro. Even if they had, Spitzberg would have her liberty compromised, as she too is a comedian, and there is a limited amount of venues in the Los Angeles Area and coming within 100 yards of these individuals would be likely and could only be avoided if Spitzberg became a hermit who would no longer pursue comedy in the Los Angeles area. They were not present in court nor are they mentioned in the affidavit or court testimony. Notaro and Spitzberg have only met briefly on one occasion in August of 2007, On April 7th, 2008, -- 9 months after this meeting, Spitzberg went to see a particular comedy act within a mile from her home(R, pg 24) and was not concerned when she discovered that Notaro was hosting. Spitzberg couldn’t have foreseen that Notaro was nursing a nefarious agenda. Recent violence is claimed by Notaro on (R5) “She has made a scene in public with club owners and door security with verbal abuse and by physically pushing them. I don’t trust she has boundaries. “And, Notaro accuses Spitzberg of violence on August 29, 2007 as well after admitting that the two of them had never met before that date. Notaro contends that Spitzberg pushed her outside a coffeehouse on August 29, 2007 for reasons that are this in the affidavit but that change considerably in the transcript.
Neither the plaintiff nor any of her witnesses are asked to either confirm or deny the “Physical pushing” of the multiple parties suggested by Notaro’s statement that Spitzberg “physically pushed not only club owners but a plural amount of security personnel.” (R 5)
Willen should bear witness to the violence alleged in August 29th 2007 but this referee doesn’t pursue that or any line of questioning that can corroborate the alleged violence. Nor does the judge inquire of the other witnesses as to why they don’t see fit to mention how she “physically pushed them.” We know they are there as Notaro doesn’t fail to mention on several occasions that she has brought “Security,’ to testify on her behalf. Griffee denies being security and rather says he is the general manager. Notaro seems to think that he is “her door guy” but e the judge must have concluded this is merely semantics, as he doesn’t call attention to the many inconstancies in her statement and those of her witnesses. The tale is in the transcript and the record and the appellant is only listing the smallest of incidences when she notes the job description problem with Griffee. The record especially (CR pg. 40-42) is meant to show the trier of fact that Notaro admits to a lack of honesty and other relevant matters etc. in the answer.
Regardless of the failure of the referee to get corroboration from these witnesses to Notaro’s various accusations of this very recent violence, the last witness , Stephanie Willen is called last which doesn’t make sense chronologically but nevertheless, she is called last to recall the “incident” that happened first and 9 months beforehand. At this point, the defendant has been told by a detective for the threat management team of the LAPD that Willen will back Notaro on this supposed “push.” The defendant plans to cross examine all the witnesses and the plaintiff and is holding her answer and now due to their oral testimony can show even more convincingly that this is a malicious fraud perpetuated by Notaro. The defendant awaits her to confirm that any such push takes place as she knows many witnesses can be called to deny this but the referee stops it there and after this omission Spitzberg is allowed “ a Minute” to “get her last word.” But even such feeble concessions are ultimately denied her.
Any “word” allowed the witness and the witness that was removed without cause is distorted by the referee and words are put in the mouth of the defendant that were never uttered. Here is an exchange with the defendant’s witness where the judge seems to be accusing the witness of an action that isn’t suggested by anything to be found in the record, (CT- 33, lines 12-19) Nowhere in the record has it been suggested by anyone that this witness was inside the club and when she answers the referee with “No, Never.” His response resembles that of some who can’t get a straight answer.
This judge has now accused appellant of talking about her trip to New York when nothing of the sort was stated and he is impatient with her mother as his next question suggests she is somehow evading his questions, when in reality his questions are senseless and her answers are unambiguously valid.
”No. Never.”
\
And then he puts words in the mouth of the defendant when castigating her for not being relevant when she never said anything that he is now claiming (CT pg 29, lines 18-28)
The questioning above appears adversarial in nature and something one would expect from an opposing attorney but it is in fact the referee, a judge, who is speaking and on (pg. 29 lines 26 -28,) the judge is giving the sense that appellant is talking about her trip to New York, which would entail her having no sense and just isn’t remotely what was said. The appellant mentioned New York in the context of why perhaps she spoke relatively quickly (CT pg. 24, lines 20-23)
The appellant concludes that beginning on pg. 1 of the court reporters transcript it is shown that this judge is treating these litigants very differently. The judge coddles and assists the plaintiff and mocks the defendant and her mother and eventually will ask them very few questions and the questions asked have an adversarial tone and are not based on anything that is known to the defendant and seem tailored either to confuse the defendant or out of just from this judge being inattentive . He asks were you ever at Largo? She was there 7 years ago so she wants to answer correctly and the judge makes it seem as if she is being evasive (CT pg 22 lines 18-26,) and tells her that she is adding irrelevancies when it clearly states that on pg 22 line 21, “ You ever been there?” and it says on pg.
.
When, in fact, she saw clearly that this was not to be—that this judge was granting the order without her stating her case—she requested a continuance and gave reasons for doing so. The judge granted it if the record is perceived as sacrosanct, “That’s fine” would enable the defendant to obtain the witnesses and evidence that she would have presented had Notaro not tricked Spitzberg by putting up (R-46)
And this (R- and this (R and this R led her to incorrectly conclude that “zipping her lip” as suggested by the referee would be the only way in which she might earn the “last word.” Nor is there any indication that Spitzberg received any of the assistance mentioned in “self help assistance or even that such assistance was available to unrepresented parties appearing in this particular court on this particular day Presumably, had Figueroa had the opportunity to obtain such assistance, and taken advantage of it, he would have been informed, among other things, of his entitlement to offer oral testimony in support of his defense to the alleged victim’s charges Ross v. Figueroa, supra, 139 Cal.App.4th 856
This appellant contends that a new hearing would provide her with a level of sophistication as to her rights that was wholly lacking in that hearing and that was required when the trier of fact was not trying to find the truth. Had the appellant known what she would face, and had a better grasp of the rights promised her by the Constitution of the United States of America, she would have objected to almost sentence in the transcript as the vast majority is perjury or hearsay that is not true, and the referee consistently tried to assist the plaintiff, didn’t try to discover who THEY was thought THEY was mentioned over 30 times, degraded the significance of a witness for the defense by mockingly and injudiciously saying, “ you really want you mother to testify?
On page 1 of the transcript the judge calls Notaro both Ms. Notaro and Ma’am and Spitzberg… Spitzberg. He angrily tells Spitzberg to spell her name while he volunteers to spell out the name for the plaintiff. That can be seen as a petty detail if it only occurred a few times but it to be found over and over in the transcript.
The mother was not there as a character witness but was mentioned by Notaro as being present on April 29th 2008—or “The most recent incident.”
Unlike in the case of Ross v. Figueroa, Ms. Spitzberg, was not aware of her rights regarding a “support person,” It should be noted that this referee has all her witnesses stand by her( CT pg 9 lines 24-27) and does not offer the appellant the same right. Spitzberg stood alone as she listened to a barrage of lies.
It is not mentioned in the record , but should be noted that three bailiffs were suddenly standing around Spitzberg when she was finally allowed to testify, and must have been requested by Notaro for reasons that defy logic but indicate further malice on her behalf and which served to provide an environment where the defendant felt very intimidated. Here the appellant would like to quote directly from Ross v. Figueroa, supra, 139 Cal.App.4th 856.
“At that point, especially in a proceeding largely used by Pro Pers and in which Figueroa was in fact participating on a pro per basis, the referee should have advised Figueroa he could provide oral testimony, even though he would not be permitted to file the written statement he had failed to timely serve on Ross. It is true Figueroa had mentioned his witnesses were not present and thus he was in no position to offer their oral testimony. But he certainly could have testified himself and raised questions to be posed to Ross, had the referee advised him of his right to do so. The role of a judicial officer sitting in such a court, which has many attributes of an inquisitorial as opposed to an adversarial process, is different than when sitting in a purely adversarial court where the parties are presumed to be “well counseled” by skilled and knowledgeable lawyers.”
2. Unequal treatment of parties
It should be noted that Judge Rosenberg is aware or should be under the impression that Notaro has obtained counsel (R- pg 3, 7) has been counseled, and though the attorney isn’t present for reasons unknown( nor has a substitution of attorney been discussed or apparently required) is in a less “pro per situation that the defendant. The referee here acts contrary to what one would expect in this situation and appears to remind the defendant of dates and times and to tell witnesses what was said about what they are to testify to etc. It is pervasive throughout (CT 1-36)
Canon 3B(5) Amended-Judicial Code of Ethics
A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct manifest engage in speech, gestures, or other conduct that would reasonably be perceived as (1) bias or prejudice, including but not limited to bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status....
3. Was Spitzberg granted a continuance and was she entitled to one under these conditions
Spitzberg had no way of anticipating that one witness would be removed, one would be disregarded and mocked , and that she would be misquoted and falsely led to believe that she would get the last word. Spitzberg did not anticipate that a record of appeal would become paramount and had no experience with legal matters and wrongly assumed she’d be heard in any substantial way. The appellant felt that not alienating this adversarial seeming referee was the only tack to take. None of the witnesses that showed up were at the hearing,
Spitzberg requested a continuance for three reasons. First, she hadn’t had the funds to get a lawyer and saw now that without one she was being treated very poorly(See third reason too) Second, she had decided that the cost of getting all the witnesses to court( and there were over ten ) that would have supplied very relevant testimony would be too cost prohibitive considering what she saw here (R. pg35) This ruse was effective and since Spitzberg was even told by the police that had been contacted by Notaro( to advance the vendetta against Spitzberg,) that “She in all probability won’t show up” she fell for the trick and a continuance became necessary and would have been requested if Spitzberg was aware that due process would be denied her at this hearing. Third, Spitzberg made a few attempts to consult lawyers and they told her after reviewing her case that they “wouldn’t feel right taking her money,” as it was obvious that Notaro was lying and there was no chance it would be granted.”
4. Was Spitzberg’s filed answer thorough and well considered and if so why was it not utilized in this hearing . Would a reading of the record justify the judgment rendered by Judge Rosenberg.
What Spitzberg saw on (R-35) was a part of Spitzberg’s attempt to make sure she never ran into Notaro and risked jail and it was a part of her research when she realized that Notaro was saying things on her blogs and elsewhere that could be useful in evaluating Notaro’s credibility as well as the credibility of Willen (R-36-44.) It would seem reasonable if one read Spitzberg’s answer that looking at Notaro’s Myspace would be smart in that Spitzberg could easily unwittingly go to the venues mentioned (R36.37) and risk violating the temporary order and then when Spitzberg saw that Notaro was revealing things about her veracity and character that should have proved useful to the court she made use of it.
Yet, this is what the judge concludes or “Assumes” (T- pg 31, lines, 10-15) when the defendant makes her plea for a hearing based on the merits and tries to indicate that a fair hearing would require a continuance.
The appellant realized that she should have requested the continuance at the start but she could not have anticipated that the need for a continuance would be so very necessary to a fair hearing. The appellant contends that therefore this rule could apply to Spitzberg-- Family Code section 243, subdivision (e) provides respondents are entitled as a matter of right to a continuance when they first appear at a hearing where a permanent order is being considered, if but only if the temporary order was “issued without notice.” Spitzberg says this and the referee says this:
as she was issued the TRO without notice and she was according to the record told “That’s fine.” When asking for a continuance... (CT pg.31, 6-18)
And (CT pg 25 lines 13 -18)
As was the case in Ross vs. Figueroa, at the time the referee ruled, the only evidence before him was the form request for the temporary protective order which Notaro or her Attorney had submitted on May 5. 2008. This form was signed under penalty of perjury and included a narrative statement from Notaro describing the events leading to her need for a protective order. She claims in the affidavit (CR7) that an email was sent to her by Spitzberg that said only this, “I will do everything in my sustainable power to get even with you.”
. Spitzberg in her answer shows that the letter described by Notaro distorts and omits and provides the actual letter to the court (pg 8) which the appellant sees now is missing from the record but declares under any penalty that this was the letter that was in the file.
This is the e-mail that was sent after I was kicked out for no reason:
Subject: (no subject)
Date: 4/8/2008
To: tignation@hotmail.com
I had absolutely no beef with you. I just didn't. Why would I? But, for you to make up a false accusation of me pushing you and have me kicked out when I asked you if I'd heard right about that is incomprehensible. My sister and I were told to check out the Walsh brothers and she didn't want to go so I decided to see what turned out to be your show. You were excellent, and the show was great and that's that. Why would you want to lie about and hurt someone in your audience? I never deserved or anticipated that you'd make up some lie and then have me thrown out. What a hateful thing to do to someone who just pays you a compliment and who has nothing to do with you except for some bad fling ,over a year ago, with your then ex girlfriend. I'll do everything in my (substantial) power to get even.
Note to judge: My idea of getting even has nothing to do with violence. I have never shown the slightest indication to these women or to anyone in my life of being threatening or violent. I thought too that kicking me out without cause and slandering me in a venue where it was harmful was legally actionable and that is what I am talking about. “Substantial power” refers to that and wouldn’t be a way to express a threat of violence.
The referee did not permit Spitzberg to offer meaningful oral testimony, nor did listen to Spitzberg or her witnesses.
He asks Spitzberg whether she wanted to challenge any of the statements in the written submission. Moreover, when Spitzberg pleas to the judge that so much needs to be said and so many witnesses can be called this is ignored by this referee, who makes it a point to say that he has “listened.’ The record does not bear this out.
(On pg 34 CT 26-28 and pg 35, lines 1-8, Pg 36 lines 1-2)
5. Were the requirements of the statute of 527 met to show that 527.6 was warranted?
A. Spitzberg it is clear is going to public places where she cannot afford to be banned from if she is to pursue her career and it is clear by Griffees testimony that she is asking “Why’ this is happening, and her purpose is legitimate, noncriminal, and very short lived. Spitzberg at no time threatened Notaro or anyone and never verbally or physically touched anyone in the course of her short lived and hapless effort to find out why Notaro was willing to bear false witness against her.
Spitzberg gave up trying to understand the reasons for Notaro’s destructive and unwarranted behavior on April 29, 2008. There was no necessity for the steps then taken by Notaro and nothing in the record would indicate that there was any pattern that would be repeated or that on two occasions going to nearby comedy clubs in which one is suddenly banned under false pretenses and goes to inquire of the management or Notaro what is up “serves no legitimate reason” as is a required to be proven by the statute. Spitzberg at all times was aware of the law and never acted outside of it and did not entertain the notion that by exerting her 1st Amendment right to free speech, she would find herself in this strange and unjust position. No reasonable person would perjure themselves and suborn the perjury of others out of pure spite and that is the only reason all this is occurring and the appellant prays that her faith in the judicial system can be restored and that Notaro is held accountable for defamation and perjury eventually. Because of the relationship Spitzberg had with Willen she was well aware of all addresses and phone numbers and yet she never even called either of them but only wrote e-mails that attempted to set things straight. When Notaro says in an affidavit that Spitzberg calls Willen she is lying, under penalty of perjury and when she claims that Spitzberg came to a comedy club almost a year of not seeing or hearing from Willen to “Stalk” Willen she is lying and she is making an accusation that is serious and that makes no sense in the context of the facts of this case.
The appellant further asks the court to see that unlike Ross v. Figueroa this is a case where a reversal is warranted but not necessarily requested.
Insufficient grounds to support the orders could be gleaned by comparison between the affidavit of Notaro and that of her court testimony and that of her witness’s court testimony
August 29, 2007
Affidavit of Mathilde Notaro (CR pg 7) Vs. Court testimony of Notaro - (CT pg 8 lines 1-28, pg 9 lines 9-17) Vs. WILLEN’s Court TESTIMONY AS (CT pg 20 lines 26-28. pg. 21 lines 1-28. pg 22 lines 1-12) vs. Spitzberg answer (CR 21-22)
April 7, 2008.
Notaro’s statement in Affidavit- (CR -7)
Vs.
Transcript testimony of (CT pg 5, lines 11-28 and CT pg 6 lines 1-12)
Vs.
Griffee’s account of April 7th pg. 11 and 12 gets too confused in the testimony his account of April 12 so the first account is all pasted here.
THE COURT: WHY DID YOU ASK HER TO LEAVE THE CLUB?
MR. GRIFFEE: TIG EXPRESSED THAT SHE FELT THREATENED BY THE DEFENDANT, AND SHE ASKED IF I WOULD ASK HER TO LEAVE. AND,
OF COURSE, IN MY LINE OF WORK, IF MY ARTIST FEELS UNCOMFORTABLE ABOUT ANYTHING, I ASK THEM TO LEAVE.
THE COURT: DID YOU TELL MS. SPITZBERG TO LEAVE?
MR. GRIFFEE: YES.
THE COURT: WHAT DID SHE SAY TO YOU?
MR. GRIFFEE: SHE SAID "WHY?" I SAID, "YOU ARE MAKING TIG FEEL UNCOMFORTABLE."SHE SAID, "WELL, I DIDN'T DO ANYTHING TO HER. I SAID -- YOU KNOW, I DIDN'T WITNESS ANY INTERACTION BETWEEN THE TWO OF THEM. I SAID: "YOU KNOW, IT'S MY JOB HERE TO MAKE MY ARTIST FEEL COMFORTABLE, SO I WILL HAVE TO ASK YOU TO LEAVE."
THE COURT: DID SHE LEAVE PEACEFULLY?
MR. GRIFFEE: BASICLY, YES. IT WAS AFTER THE SHOW, SO THERE WAS PEOPLE LEAVING AT THAT POINT THAT THE CLUB WAS KIND OF EMPTYING OUT. I WALKED HER TO THE FRONT DOOR, AND THEN, AS -- WHEN SHE GOT TO THE FRONT DOOR, SHE
JUST SAID: "YOU KNOW, SHE'S CRAZY. SHE SAYS I DID ALL THIS STUFF
TO HER. SHE'S CRAZY."
SHE KEPT SAYING HOW TIG WAS CRAZY AND SHE DIDN'T DO ANYTHING. I SAID: "THAT'S NOT MY PLACE TO JUDGE.
YOU NEED TO LEAVE NOW
Vs.
Griffee’s testimony about the same date and time but later on in the transcript (e same transcript a few minutes/pages later. (CT pg 14 lines 26-28, and Pg 15, lines 1- 21) vs. Spitzberg’s answer (CR 24-27, and CR 43)
April 12, 2008
Notaro’s Affidavit(CR 7)
Vs.
Notaro’s testimony (CT pg, 6 lines 25-28, and pg 7 line 1-18)
Vs/
Griffee testimony as to April 12th (CT pg 10 line 28 and pg 11)
MR. GRIFFEE: LAST TIME THAT I SAW HER AT THECLUB WAS ON APRIL 12, SATURDAY NIGHT.
THE COURT: DID SHE SAY ANYTHING TO YOU?
MR. GRIFFEE: YES, SIR.SHE SAID THINGS OVER THE ABOUT AN HOUR AND A HALF, SIR. THERE WAS LOTS SAID --
THE COURT: WHAT ELSE DID SHE SAY TO YOU?
MR. GRIFFEE: BY THEN, THE OWNER WENT INSIDE ANDI STAYED OUTSIDE. HER SISTER WAS WITH HER OR THE PERSON I WAS TOLD WAS HER SISTER WAS WITH HER, AND THEY BASICLY JUST BEGAN HARASSING ME SAYING THAT THEY WERE GOING TO CLOSE DOWN THE CLUB AND THAT THEY WERE VERY POWERFUL PEOPLE; THAT I WAS AN ASSHOLE, A FAGOT, AND BALD,
THE COURT: WHAT ELSE DID SHE SAY TO YOU?
MR. GRIFFEE: YOU KNOW, SHE BASICLY JUST KEPT REITERATING, YOU KNOW, "WHY DID KICK ME OUT LAST" -- IWAS, YOU KNOW, FIVE DAYS BEFORE THEN "WHY DID YOU KICK ME OUT ON MONDAY. I WANT JUSTICE. I WANT JUSTICE." I KEPT SAYING, "I DON'T KNOW
WHAT THAT MEANS. THIS IS MY BUSINESS. IF I SAY YOU SAY CAN’T BE HERE; YOU CAN'T BE HERE." THEY WALKED AWAY AFTER A COUPLE MINUTES,
AND THEN TEN MINUTES LATER SHE SHOWED UP AT THE BACK DOORAN ALLEY AND MY KITCHEN DOOR.
THE COURT: DID SHE SAY ANYTHING TO YOU BY THE BACK DOOR?
MR. GRIFFEE: YES. THEY, MYSELF, AND KEVIN WERE OUT BACK. KEVIN WAS HAVING A CIGAR IN THE ALLEY, AND I WENT BACK TO MAKE SURE THEY DIDN'T TRY TO COME IN THE BACK DOOR. BEFORE LONG THEY HAD BOTH COME UP THE ALLEY AN APPROACHED US AND WERE JUST VERBALLY HARASSIN I CAN TELL YOU THE GIST OF WHAT THEY WERE SAYI WAS JUST, YOU KNOW, STANDING FACE TO FACE WITH ME AND JUSTSAYING, YOU KNOW: "YOU ARE AN ASSHOLE. YOU ARE A FUCKER.""YOU CAN'T KICK ME OUT OF YOUR CLUB."
"MY MOTHER IS A VERY POWERFUL PERSON."WE'RE GOING TO SHUT YOUR CLUB DOWN." IT WENT ON A VERY LONG TIME.
THE COURT: DID THEY SAY ANYTHING ABOUT MS. NOTARO?
MR. GRIFFEE: WELL, THEY SAID, BASICALLY --
THE COURT: STRIKE MY QUESTION.DID MS. SPITZBERG SAY ANYTHING ABOUT MS. NOTARO?
MR. GRIFFEE. MS. SPITZBERG BASICLY WAS JUST SAYING, YOU KNOW: "THAT BITCH CAN'T GET ME THROWN OUT OF YOUR CLUB AND, YOU KNOW: "SHE HAS NO RIGHT TO TELL ME WHERE I CAN GO AND, YOU KNOW -- AND I JUST KEPT SAYING: "WHY ARE YOU HERE? I DON'T UNDERSTAND WHY ARE YOU HERE? WHY DO IF YOU DON'T LIKE HER, WHY ARE YOU TRYING TO COME TO HER SHOW. WHY ARE YOU EVEN HERE."
THE COURT: AND SHE SAID?
MR. GRIFFEE: I NEVER GOT A LUCID ANSWER, YOUR HONOR. SHE KEPT SAYING: "I WANT JUSTICE.I WANT JUSTICE. YOU CAN'T KICK ME OUT OF YOUR CLUB.
Vs.
SECCIAS Version of April 12th (CT Pg. 19, pg 20 lines 1-24)
* NOTE- Standing side by side with Griftee. Please, compare.
Vs. Spitzberg’s filed answer (CR 28- and top of CR 29)
April 29th 2008
Affidavit of Notaro- - (CR4, 5, and 7)
* Note --Notaro did not do a double bill that night and according to her she was inside and why would the Spitzbergs go and try to discourage people in line going to another show? Where is the police report? In actuality, there is not even an incident report in existence
.Vs.Transcript testimony of Notaro.
(CT Pg. 2. lines 23-28, and Pg 3 lines 1-28 and pg 4, lines 1-11)
* Note -- Notaro did not do a double bill that night and according to her she was inside and why would the Spitzbergs go and try to discourage people in line going to another show? Where is the police report? In actuality, there is not even an incident report in existence
Vs. The testimony of Brian Whitaker (CT pg(s) 16-18, all lines)
Vs. Spitzberg’s filed answer (CT 30 -31)
CONCLUSION
In the opinion handed down in Ross vs. Figueroa the justices write, “ We feel it necessary to reverse and remand for a proper hearing where appellant is given the opportunity to challenge respondent’s evidence and also to present affirmative evidence in his defense and where respondent likewise has the same meaningful opportunity.”
The appellant fervently contends that a fair hearing was denied her and prays that the higher court perceives the injustice that occurred, and remands or reverses. The appellant only is desirous of a fair chance, and would welcome a new hearing. The appellant is grateful to the justices who had the foresight to add Ross vs. Figueroa to the realm of published opinions as such opinions are sparse re: restraining orders. The appellant hopes that any legitimate attention to the transcript and record will motivate them to reverse and remand, or even consider under Federal Rule 60 as it was obtained by fraud (See attachment) and because the judge’s abuse of discretion and denial of the defendant’s due process rights have in effect made this order a nullity, California Code of Civil Procedure § 473(d) and rule accordingly.
The appellant wants only the court to assess the record on its merit.
“In assessing whether substantial evidence supports the requisite elements of willful harassment, as defined in. . . section 527.6, we review the evidence before the trial court in accordance with the customary rules of appellate review. We resolve all factual conflicts and questions of credibility in favor the prevailing party and indulge in all legitimate and reasonable inferences to uphold the finding of the trial court if it is supported by substantial evidence which is reasonable, credible and of solid value. (Schild v. Rubin (1991) 232 Cal.App.3d 755, 762.)
The appellant further contends that the injunction is not merited by the facts of this case, would not be sought by a reasonable person; and that a fair hearing be required before such a remedy is required, and that the granting of this 3 year order violated the rights allowed by the fourteenth amendment to the constitution. The affidavit and testimony of the plaintiff should have been regarded as suspect by any trier of fact as the contradictions are too numerous to detail, though effort is made. Even barring the defendant’s right to be fairly heard, the testimony and affidavit of Notaro should alert any trier of fact/referee that a much more vigorous assessment would be necessary to arrive at any just result.
The appellant asserts that substantial evidence does not support the issuance of the injunctions but contrarily supports the appellant’s conviction and the reasonable conclusion that Notaro and her witnesses committed fraud upon the court. And, that Notaro did so with malice. Spitzberg further contends that she was denied her due process right to cross-examine plaintiffs, to have her witnesses be heard, to have the referee judge the case on its merits, and to testify in her own defense Schraer, supra, 207 Cal.App.3d at p. 733 [right to present oral testimony is an important due process safeguard in the expedited procedure]. Albrecht et al., Judicial Techniques for Cases Involving Self-Represented Litigants 42 Judges’ Journal of the American Bar Association
CERTIFICATE OF COMPLIANCE
This brief does not exceed 14,000 words.
REQUEST FOR ORAL HEARING
The Appellant respectfully requests an oral hearing in this case.
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