Monday, June 7, 2010

Notaro vs. Spitzberg Appeal- The void order illegally ignored by Judge Gerald Rosenberg and which permitted the appeals court to make their fallacious ruling


Alisa Spitzberg


Attorneys for Plaintiff
Alisa Spitzbeg



IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF Los Angeles


Mathilde Notaro

            Plaintiff

vs.

Alisa Spitzberg

            Defendant

Case No.   SS016746   

MOTION TO SET ASIDE VOID ORDER

Violation of Due Process,: Procurement by Fraud, and Perjury Under California Code Of Civil Procedure Section 473(d) And UNDER RULE 60 (A) (b) 3 AND 4, AND ARTICLE 6 (1)AND (2)
TO THE U.S. CONSTITUTION ARTICLES OF AGREEMENT AND CONFEDERATION THUS DECLARING TO BE NULL AND VOID THE COURT ORDER GRANTED BY THIS COURT ON MAY 28th 2008 THAT IS VOID AB-INITIO AS IS THE TRO GRANTED ON MAY 5th LEADING TO THE PERMANENT CLETS RESTRAINING  ORDER  

I.
HISTORY OF THE CASE
          On May 1st, 2008 an ex parte declaration appears to have been filed by plaintiff, Mathilde Notaro or her attorney, but not made known to the appellant. On May 4th, there is evidence that a Civil Case Cover sheet addendum is filed and then on May 5, 2008 there is evidence that another ex parte document is filed 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 by the respondent’s attorney on the 5th of May  not by Notaro as the judge says, in his seeming desire to refresh the memory of Notaro. 
On May 27th 2008, the appellant filed her answer with the court. 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. And, since the hearing she has found out for a fact that Tom Sharpe not only doesn’t live with Notaro at her address but never lived with her (See Exhibit 1  ) and she is also aware that Christopher Fairbanks does not live with Notaro and did not live with Notaro and the time of the hearing. No information has been discovered or sought about Kjell Bjorgen at this time. At the hearing in the court minutes it says that all parties are present but since Alison Sievers filed the TRO and appears to have signed it she is a party and she was not present and Judge Rosenberg seems to not only not notice this absence that requires a substitution of attorney but seems to fill in for Ms. Severs and aims to remind Notaro of dates and events that are not even mentioned in the pleadings.
Spitzberg’s answer was never referenced in the court transcript and when Spitzberg inquired about this, “Have you read my answer,” this judge replies only “I have it.”
              The only person familiar to the appellant is Stephanie Willen and her name was included but crossed out for reasons unknown but that suggest that Notaro was given Carte Blanche and that Spitzberg’s 1st Amendendment rights,2nd amendment rights,  5 amendment rights and fourteenth amendment rights were not being consider by the “trier of fact.”.  The defendant’s 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.  Nor does the minute order make clear that Henya Spitzberg was a material witness and wasn’t there for her “daughter” but to testify to material facts. The defendant 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. Spitzberg 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 appellants answer (CR-19-44) resulted in an erroneous result and unjust result.
Spitzberg 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. 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. On August 11, 2008, Spitzberg filed a defamation claim against Notaro.
Sometime in September, Spitzberg was informed by summons that she was in contempt of this void order and even later on she was informed that Notaro was now claiming that Spitzberg had spoken to a friend of hers and said something about how this was killing Spitzberg’s mother. Due to this furtherance of her malicious agenda, an investigator for the Public defender interviewed witnesses and the attached documents will show that Notaro and her witnesses perpetrated a fraud on this court. and therefore the order is void.  The investigator never did question Brian Whitaker or Stephanie Willen(Despite numerous attempts to do so) and so though Whitaker’s testimony varies considerable from Reeta Piazza’s and suggests that he is lying and that she is lying perjury will be harder to prove. In Late February and Early March of 2008 Spitzberg was made aware of these statements and now less than six months later she is presenting it to this court, though in such circumstances there is no time limit as shown in the points and authorities. On June 10, Spitzberg submitted her opening brief to the appellate court.
Till now, June 14, 2008, Spitzberg is being prosecuted on this void order and Notaro has added many new lies to her arsenal and her Attorney, Allison Sievers, filed these lies with the knowledge that they were lies, and that she did not tender important and very available information adverse to her client’s claims  according to the canons of the State Bar and the ABA had to be tendered
the court was not
II.

POINTS AND AUTHORITIES IN SUPPORT OF
MOTION TO SET ASIDE JUDGMENT;

  1. The defendants denial of due process and the fact that this order was procured by intrinsic and extrinsic fraud makes this  judgment  null and void because, it is in conflict with the supreme Law of the land; and that
  2. Honorable Judge Gerald Rosenberg erred in his decision on May 28th 2008 to grant an order without allowing due process to the defendant and not making  any perceivable attempt to recognize the perjury and fraud that was even evident on the day of the hearing,  it is in conflict with the supreme Law of the land, wherefore is void Ab-Initio ; and that
  3. Honorable Judge Gerald Rosenberg, pursuant to California Civil code 473(d) and the Federal Rules of Civil Procedure rule 60 made the mistake of issuing an order conflicting with the supreme Law of the land, therefore, the May 28th 2008 order is void ab-initio; and that
  4. Wherefore the TRO granted after an illegal ex parte hearing on May 1, 2008 and the  3 year CLETS restraining order are void Ab-Initio  , because it is in conflict with the supreme Law of the land; and that
  5. The U.S. Supreme Court stated this principle of law, Courts are constituted by authority, and they cannot go beyond that power delegated to them. If they act beyond that authority, and certainly in contravention of it, their judgments and orders are regarded as nullities. They are not void able, but simply void, AND THIS IS EVEN PRIOR TO REVERSAL.” [Emphasis added]. Vallely v. Northern Fire and Marine Ins. Co., 254 U.S. 348, 41 S. Ct. 116 (1920). See also Old Wayne Mut. I. Assoc. v. McDonough, 204 U.S. 8, 27 S.Ct. 236 (1907); Williamson v. Berry, 8 How. 495, 540, 12 L. Ed, 1170, 1189, (1850); Rose v. Himely, 4 Cranch 241, 269, 2 L.Ed. 608, 617 (1808); and that
  6. There is a misconception by some attorneys and judges that only a judge may declare an order void, but this is not the law: (1) there is no statute nor case law that supports this position, and (2) should there be any case law that allegedly supported this argument, that case would be directly contrary to the law established by the U.S. Supreme Court in Vallely v. Northern Fire & Marine Ins. Co., 254 U.S. 348, 41 S. Ct. 116 (1920) as well as other state courts, e.g. by the Illinois Supreme Court in People v. Miller. Supra. A party may have a court vacate a void order, but the void order is still void Ab-Initio, whether vacated or not; a piece of paper does not determine whether an order is void, it just memorializes it, makes it legally binding and voids out all previous orders returning the case to the date prior to action leading to void Ab-Initio. While a Judge may issue orders to control his court, he has no lawful authority to issue any order which violates the Supreme Law of the Land; and that
  7. Pursuant to the Vallely court decision, a void order does not have to be reversed by any court to be a void order. Courts have also held that, since a void order is not a final order, but is in effect no order at all, it cannot even be appealed. Courts have held that a void decision is not in essence a decision at all, and never becomes final. Consistent with this holding, in 1991, the U.S. Supreme Court stated that, “Since such jurisdictional defect deprives not only the initial court but also the appellate court of its power over the case or controversy, to permit the appellate court to ignore it. …[Would be an] unlawful action by the appellate court itself.” Freytag v. Commissioner, 501 U.S. 868 (1991); Miller, supra. Following the same principle, it would be an unlawful action for a court to rely on an order issued by a judge who did not have subject-matter jurisdiction and therefore the order he issued was Void Ab-Initio. 
  8. The lack of jurisdiction to enter an order under any of these circumstances renders the order a complete nullity and it may be "impeached directly or collaterally by all persons, anywhere, at any time, or in any manner." Barnes v. Am. Fertilizer Co., 144 Va. 692, 705, 130 S.E. 902, 906 (1925). A judgment obtained by extrinsic or collateral fraud is Also void Ab-Initio. Rook v. Rook, 233 Va. 92, 95, 353 S.E.2d 756, 758 (1987).
  9. THAT THE JUDGE WAS WITHOUT JURISDICTION OR VIOLATED A PERSON’S DUE PROCESS RIGHTS, or where fraud was involved in the attempted procurement of jurisdiction, is sufficient for an order to be void. Potenz Corp. v. Petrozzini, 170 Ill. App. 3d 617, 525 N.E. 2d 173, 175 (1988). In instances herein, the law has stated that the orders are void Ab-Initio and not voidable because they are already void actions taken by a court  which are in error. An order is  void Ab-Initio if entered by a court if the character of the order is such  that the court had no power to render it, or if the mode of
 procedure used by the court was one that the court could "not  lawfully adopt." Evans v. Smyth-Wythe     Airport Comm'n, 255 Va. 69, 73, 495 S.E.2d 825, 828 (1998)(quoting Anthony v. Kasey, 83 Va. 338, 340, 5 S.E. 176, 177 (1887)).  Due Process is a requirement of the U.S. Constitution. Violation of the United States Constitution by a judge deprives that person from acting as a judge under the law. He/She is acting as a private person, and not in the capacity of being a judge (and, therefore, has no jurisdiction). 
  1. That The United States Supreme Court, in Twining v. New Jersery, 211 U.S. 78, 29 S.Ct. 14, 24, (1908), stated that “Due Process requires that the court which assumes to determine the rights of parties shall have jurisdiction.”; citing Old Wayne Mut. Life Assoc. V. McDonough, 204 U. S. 8, 27 S. Ct. 236 (1907); Scott v McNeal, 154 U.S. 34, 14, S. Ct. 1108 (1894); Pennoyer v. Neff, 95 U.S. 714, 733 (1877). 
  2. This principle of law was stated by the U.S. Supreme Court as “Courts are constituted by authority and they cannot go beyond that power delegated to them. If they act beyond that authority, and certainly in contravention of it, their judgments and orders are regarded as nullities. They are not voidable, but simply VOID, AND THIS IS EVEN PRIOR TO REVERSAL.” [Emphasis added]. Vallely v. Northern Fire and Marine Ins. Co., 254 U.S. 348, 41 S. Ct. 116 (1920). See also Old Wayne Mut. I. Assoc. v. McDonough, 204 U.S. 8, 27 S.Ct. 236 (1907); Williamson v. Berry, 8 How. 495, 540, 12 L. Ed, 1170, 1189, (1850); Rose v. Himely, 4 Cranch 241, 269, 2 L.Ed. 608, 617 (1808). 
According to California Civil Code of Procedue 473(d)
   (d) The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may,on motion of either party after notice to the other party, set aside any void judgment or order.
  1. A void order may be challenged in any court, at any time, and even by third parties. A void order has no legal force or effect. As one court stated, a void order is equivalent to a blank piece of paper
  2. While a Judge may issue orders to control his court, he has no lawful authority to issue any order which violates the Supreme Law of the Land. The First Amendment to the U.S. Constitution states that all entities have the mandatory right of an adequate, complete, effective, fair, full meaningful and timely That the United States Supreme Court has clearly, and repeatedly, held that any judge who acts without jurisdiction is engaged in an act of treason. U.S. v. Will, 449 U.S. 200, 216, 101, S. Ct. 471, 66 L.Ed. 2d 392, 406 (1980): Cohens v. Virginia, 19 U.S. (6 Wheat) 264, 404, 5 L.Ed 257 (1821); and that access to the court. The Fourteenth Amendment and the fifth amendement to the U.S. Constitution provides guarantees Due Process and Equal Protection to all. “No state shall deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” United States Constitutional Amendment XIV
1.      Spitzberg hereby moves this Court to set aside the judgment entered on May 28,2008 and
2.      Obtain from a law enforcement investigators or any personnel  all available information not made available  to the defendant and therefore not included as an attachment, any informationobtained from criminal background checks of any suspected perpetrator, Obtain any law enforcement investigator's investigation, including information obtained 4.Any other information the evaluator or investigator believes would be helpful to the court in determining what is in the best interests of  justice.
            Alisa Spitzberg could testify and describe what happened, Henya and Lauren Spitzberg would be allowed             to  testify as to what they observed, and any other corroborative testimony would be presented by             competent witnesses such as Sam Consuegra, Thom Sharpe, Christopher Fairbanks, Julius Quinn Roberts, Leslie Spann, Heidi Feigin, Mark Flanagan, Officers Baden and Montalvo, Detectives      Gregozek, Defoe and Hoffman of the LAPD threat management unit,  through admissible evidence. Then, the person accused would present admissible evidence to refute the charge through any means            guaranteed by the due process clause etc.. The court would then assess credibility, make the inferences appropriate under the circumstances, and then render findings of fact. No one would questions the            validity or appropriateness of that fact-finding process.
            Furthermore, police reports containing contradictory statements by Notaro is glaringly absent from the file , and that by all logic would be filed along with the proof of service of the TRO filed by Detective Gregozek on May 27th 2008 when he personally filed it with the court. In no judicial context would any plaintiff  be allowed to opine as to whether or not she felt that after April 29th 2008 Spitzberg had “harassed” her on the interne. If Notaro has proof let her present it.  If Notaro can explain why Heidi Feigin is lying  to the investigator and if Sam and Julius et al were lying or why she can’t keep her story straight nor can her witnesses than Spitzberg would welcome a real hearing in which this all can be litigated according to the law.
The ultimately void and very destructive conclusion  reached by the Court in this case was the result of many factors but for the sake of this motion , Alisa Spitzberg, will permit the court to conclude that it has been defrauded  submits the declaration of Lauren Spitzberg, Henya Spitzberg, and the sworn affidavits of Sam Consuegra and Julius Quinn Roberts and the verbatim statements of Notaro and her witnesses in official documents. Therefore, the Court did not have credible, reliable evidence before it when it reached the decision as set forth in Order After Hearing filed on May 28th 2008 and because the the Court did not have the power to accept it as evidence.
B. IN CONSTRUING STATUTES WE MUST DETERMINE AND EFFECTUATE LEGISLATIVE INTENT
 The evaluation must comport to the requirements of the statute. If it doesn't, it cannot be accepted. The Court acted in excess of its jurisdiction by accepting the hearsay and hunches of Notaro and the now available and clearly deceptive testimony of her Witnesses. Therefore, the motion to set aside the judgment should be granted.
III.
CONCLUSION
Based upon the above, Spitzberg respectfully requests that the Court set aside the Judgment entered on May 28th 2008 or in the alternative, Spitzberg moves this Court for a full evidentiary  hearing for the purpose of  arriving at a judgment that furthers judgement. Similarly, any other Court or entity insisting to uphold such an illegal order would be in violation of the US Constitution and therefore all officers of the court now involved with prosecuting this void order will be at risk for such censure , and may be subsequently arrested for these violations of law.  Since a public servant must serve the law, and it was broken by the public servants in this case, they are acting as trespassers of the law, and
3. Grounds for this request are:
a. Fraud- see attached
b. Perjury-see attached
c. Lack of notice - in the light of the other problems with this order this is the most minimal but nevertheless it is curios. - see attached
d. Denial of due process.
4.  I have complied with the time limits for filing this request to set aside.  In late February of 2008, I was given access to the investigator reports that show the level of fraud and perjury on behalf of Mathilde Notaro, Stephanie Willen, Kevin Seccia, Brian Whitaker, and Michael Griffee.   The investigator reports and the precluded police reports (That were available to Notaro and her attorney at the time of the hearing) show that fraud and perjury and the denial of due process to the defendant make this order Void Ab- Initio. The defendant also request judicial notice that Allison Sievers, the attorney on record, knowingly and willfully gave in fraudulent affidavits to this court and purposely left out any evidence that was averse to Notaro. That evidence was plentiful and readily available to Sievers on May 28.2008, the date of the hearing.
My request is brought within 6 months after the date I discovered or reasonably should have discovered the fraud though void Ab- Initio is not subject to such time limitations.
 In Late February of 2008, I was given access to the discovery in the criminal matter that Notary brought by further malice and fraud.
  Request brought within 6 months after the date I discovered or reasonably should have discovered the perjury, court request brought within 6 months of the date:  Though the order is void Ab-Initio and can be challenged at any time the extent of the fraud and perjury was only known to Spitzberg in late February of 2008.
5. FACTS IN SUPPORT of relief requested are: ( See attached)  Notaro and all her witnesses lied to the court and the perjury of Notaro and Griffee was flagrant but apparently unnoticed by the court. The perjury of the others only becomes provable when in possession of the investigator reports (And, see attached)
a. Notaro’s attorney did not include adverse information that would have or at least should have altered the course of that “hearing.”  Notaro’s police report, affidavit, court testimony and statement to the investigator all observed in their entirety will show that Notaro et al have perjured themselves. Tom Sharpe does not live nor has he ever lived with the plaintiff nor has Christopher Fairbanks.
b. Notaro’s witnesses can be shown to have perjured themselves in light of recent discoveries.
c. Griffee it can be seen in lying right there in the hearing and this judge doesn’t appear concerned
6.   Contained in the attached declaration are the investigators reports, the police reports, the hearing testimony and a comparison thereof.
  I certify under penalty of perjury that the foregoing is true and correct. (28 U.S.C. § 1746)
                                                                                                                         Alisa Spitzberg

Dated:                                                 June 14, 2009                                                                                   
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Alisa Spitzberg,Henya Spitzberg, and Lauren Spitzberg 7513 Fountain Ave #203 Los Angeles, CA 90046 323-378-5801 In Pro Per   ...