FILED ON 22 MAY 2000 BY KENDRICK MOXON FOR CST:

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA Second Appellate District Division Three Court of Appeal No. B 131378 (I.A.S.C. No. BC 175367) STEPHEN MITCHELL and KATHLEEN CAREY, Plaintiffs and Appellants, vs.

CHURCH OF SPIRITUAL TECHNOLOGY, Defendant and Respondent.

On Appeal from the Superior Court of the State of California for the County of Los Angeles, the Honorable Frances Rothschild BRIEF OF RESPONDENT CHURCH OF SPIRITUAL TECHNOLOGY Kendrick L. Moxon, SBN 128240
Moxon & Kobrin
3055 Wilshire Boulevard #900
Los Angeles, California 90010
Telephone: (2 13) 487-4468
Attorneys for Defendant and Respondent
CHURCH OF SPIRITUAL TECHNOLOGY INTRODUCTION Plaintiffs and Appellants Steven [sic] Mitchell and Kathleen Carey sued Defendant and Respondent Church of Spiritual Technology ("CST") and others for libel in the Los Angeles Superior Court. By this appeal, Mitchell and Carey, appearing in propria persona in this Court, as they did in the lower court, seek reversal of the order dismissing their claims against CST as a discovery sanction and evidently seek a reversal of the trial court's order sustaining CST's demurrer to their libel claim.

Their appeal is meritless. The trial court did not abuse its discretion with respect to either the discovery sanction or CST's demurrer. Indeed, the trial court exercised extraordinary patience and restraint in its handling of this case and came to its conclusions on the basis of sound judicial analysis within the framework of applicable law. The Appellants identify, and the record reveals, no basis upon which the findings and rulings of the trial court can be disturbed.

Mitchell and Carey also insist that the trial court was prejudiced against them. It was not, and they point only to rulings that went against them to argue that it was. They claim that their peremptory challenge filed months after the case was assigned to the Honorable Frances Rothschild was timely. It was not, and review of a denial of an untimely peremptory challenge is exclusively by writ, not appeal, The remainder of Mitchell's and Carey's arguments are as cryptic as they are unavailing. Nevertheless, it is clear that there is no basis in law or fact to do anything except to affirm the trial court's dismissal of Appellants' libel claim against CST in all particulars.

ISSUES ON APPEAL 1. Whether the trial court's dismissal of this action against CST as a discovery sanction was a proper exercise of that court's discretion?

2. Whether the trial court's sustaining of CST's demurrer to the First Amended Complaint was a proper exercise of that court's discretion?

3. Whether Mitchell and Carey are precluded from appealing the trial court's correct denial of Mitchell's and Carey's untimely, peremptory challenge under section 170.6 of the Code of Civil Procedure?

STATEMENT OF THE CASE The Appellants' Opening Brief offers this Court no guidance concerning the proceedings below. Accordingly, CST will endeavor to furnish this Court with that background as well as the facts that relate to the issues on appeal.

On July 29. 1997, Appellants Mitchell and Carey, along with a third plaintiff named Lisa Precious, filed a "Verified Complaint for Libel against David Miscavige, Michael Rinder, John/Jane Doe #1, a person, in the capacity of head of the L. Ron Hubbard Library," and "John/Jane Doe #2-99." (CT 1-27). The small portion of that original complaint that is devoted to plaintiffs' alleged claim asserts that they were libeled in a church publication which warned its congregation that plaintiffs were "tax protestors" who sought to involve others in illegal tax evasion schemes. The majority of that Complaint articulated largely incomprehensible legal theories to the effect that plaintiffs are not tax protestors and not engaged in illegal evasion because, in their view, they are not obliged to pay federal income tax.

Plaintiffs accomplished service on defendant Rinder, who responded with a timely demurrer and motion to strike on August 25, 1997. (CT 97-108). In that demurrer and motion to strike, then-defendant Rinder aptly characterized the Verified Complaint for Libel as follows:

Specifically abjuring the authority of, among other things, the California Code of Civil Procedure ([Paragraphs] 1, 8-12), "construing" this Court as the "seventeenth judicial district of" some unidentified "district court" ([Paragraph] 2), declaring the valid and controlling California Constitution to be the 1849 version of that charter as amended through 1878 but not thereafter ([Paragraphs] 6a, 6b), and alleging that the Internal Revenue Service "is a foreign entity" that "provides collection services for undisclosed foreign principals" and that persons not employed by the federal government have no obligation to pay federal income tax ([Paragraphs] 35-38), plaintiffs sue defendant Mike Rinder for libel in a church bulletin that warns a religious congregation that plaintiffs' refusal to recognize their legal obligation to pay federal income taxes is an illegal act.

* * * While their pleading offers abundant political rhetoric, revisionist history and tortured constructions of law, it fails to state facts sufficient to constitute a cause of action against Mr. Rinder (or anyone else) for libel (or anything else). Plaintiffs have specifically alleged that the current laws of California -to which they decline to adhere--are nullities which do not form the basis for their supposed cause of action, and that they are defamed when their conduct is characterized as "criminal" because they do not regard federal income tax evasion as a crime. (CT 99).

The trial court to whom this case was originally assigned recused itself sua sponte on September 5, 1997 (CT 120) and the case was reassigned to the Honorable Frances Rothschild on September 11, 1997.

(CT 12 1). Ultimately, the hearing on Rinder's demurrer and motion to strike was set for November 6, 1997. (CT 142-145).

On September 23, 1997, David Miscavige, a named defendant, moved to quash service of process on him. (CT 122-141). Hearing on that motion was set for November 25, 1997, On October 21, 1997, plaintiffs filed a First Amendment to the Complaint, identifying "John/Jane Doe #1" as Respondent CST. (CT 146-155.).

A status conference was scheduled in the trial court for November 4, 1997. At that conference, the trial court acknowledged that there was a hearing on Rinder's demurrer set for November 6, but that November 6 was not a convenient date for the court. The court then attempted to have the parties mutually agree to a rescheduling of both the status conference and the demurrer hearing, but that effort was blunted by Mitchell, who engaged in the following exchange with the court:

MR. MITCHELL: For the record, is this court--is this courtroom in California, one of the states of the United States, as opposed to, say, an undisclosed federal area?

THE COURT: I'm not really here to answer your questions, sir, but what else do you have? Go ahead.

MR. MITCHELL: I have identified myself; Im now seeking to identify the venue.

THE COURT: Okay. Continue. Anything else you have to say, sir?

MR. MITCHELL: Your refusal to answer my question in the affirmative is taken as evidence to the fact that you consider the courtroom to be somewhere other than in California and that Department 1 has obviously erred in assigning the case. This court is therefore disqualified from hearing our case, as the venue is clearly stated on the face of our complaint. (RT 4- 5).

The trial court, without the participation of Mitchell, then continued the hearing on Rinder's demurrer and motion to strike to November 12, 1997, (CT 164-165).

On November 12, 1997, the scheduled hearing on Rinder's demurrer and motion to dismiss began with Mitchell presenting the trial court with a motion and an affidavit of "peremptory challenge," which Mitchell, in response to a question by the court, specifically identified as one brought pursuant to section 170.6 of the Code of Civil Procedure. (RT 10- 11). The court stated that it would take the matter under submission and offered Mitchell an opportunity to argue in support of disqualification. (RT 12). Mitchell then said in reference to the November 4, 1997 exchange quoted above:

This was my attempt having identified myself as one of the people of California and a plaintiff in propria persona to identify the nature of this venue as a California court.

Given that there are a number of indications in this courtroom that it is not, to wit: the court is seated in an elevated position wearing a black robe, neither of which is specified by state law; further too, that there are attorneys present in the courtroom which indicates that there are 14 amendment persons--there are persons seeking privileges and immunities under the 14th Amendment, and I was wondering if the court was confusing the plaintiffs with any of those. But it would be an indication that this is, in fact, an extension of a federal venue as opposed to a California court.

* * * It led me to wonder if, in fact, you were not presiding over a state venue. What venue is this? Who are you working for, and why is the language of your oath different in substance from the oath required of a California judge? (RT 12-14).

The entire matter--demurrer, motion to strike, and peremptory challenge--was taken under Submission. (RT 18). By minute order dated November 24, 1997, the trial court sustained the demurrer with twenty days leave to amend, specifically so the plaintiffs could plead "that they have not, in fact. violated the tax laws of any State or of the United States of America." (CT 167). In so doing, the trial court recognized the libel claim hinged on whether plaintiffs were, indeed.

in compliance with all applicable income taxation statutes and not engaged in criminal tax evasion. That same minute order took Rinder's motion to strike the complaint off calendar as moot and denied plaintiffs' peremptory challenge as untimely.

The parties next appeared on November 25, 1997 for the hearing on the motion to quash service of process filed by David Miscavige. Before any proceedings could commence on the motion to quash, Mitchell referenced the November 12, 1997 hearing, informed the trial court that according to the "doctrine of estoppel by silence," the court had admitted "that you are not a judge in California as one of the United States of America" (RT 2 1) and "that you do not consider this to be a court of record" (RT 22). He then told the court:

The fact of the matter is that there is not a lawful judge in this courtroom today. Whatever it is that you consider this place to be is not relevant.

I hereby inform you that the transcript of the record on November 12, 1997 and the transcript of any record developed here today will become evidence in a criminal investigation that will be pursued to resolve the presence of an impostor sitting on the bench in this courtroom.

(RT 22-23.).

Mitchell then quoted to the court the language of C.C.P. [Section] 803 concerning action by the Attorney General when a person usurps or unlawfully holds a public office, and informed the court that "it might mitigate your circumstances--and I would highly recommend that you simply get up and walk away from the bench." (RT 23). When the court attempted to proceed with the motion to quash, Mitchell attempted to read the court's oath of office into the record, and when the court instructed him not to do so, the following occurred:

MR. MITCHELL: In that case the plaintiffs have nothing more to say to you here today other than to state for the record that we reserve all rights and do not wish to abandon any complaint, motion, or argument for which we will await the presence of a lawful judge.

To the reporter, we are finished here today and I want to alert you that this transcript is now evidence in a criminal investigation.

Thank you very much.

(At 9:24 a.m., the plaintiffs leave counsel table) THE COURT: The record should reflect that while the hearing is proceeding on the motion to quash, the plaintiffs are voluntarily leaving the courtroom. (RT 24-25).

The court then granted Mr. Miscavige's motion to quash, and ordered that notice be given by counsel. (RT 25).

With Mr. Rinder's demurrer having been sustained and with Mr.

Miscavige's motion to quash having been granted, the plaintiffs turned their attentions toward Respondent CST. As noted above, on October 21, 1997, Mitchell, Precious, and Carey identified CST as John/Jane Doe #1 in their complaint. On or about October 28, 1997, a deputy sheriff appeared at the law offices of Sherman D. Lenske, the registered agent for service of process for CST, and stated that she had a summons to serve on Mr. Lenske. She was informed by the receptionist that Mr.

Lenske was not in the office and that the receptionist was not authorized to accept the attempted service. (CT 238).

Thereafter, the deputy returned and again Mr. Lenske was not in. She left a package addressed to Mr. Lenske on the reception desk which contained a copy of the original complaint and a copy of a summons indicating that it had been served "by personal delivery on 11-12-97."

(CT 238). There was no personal service ever effected on Mr. Lenske, and despite a subsequent proof of service (CT 180- 182) filed in February of 1999 to the contrary, no subsequently mailed copy of the summons and complaint were ever received by Mr. Lenske. (CT 238).

As noted above, on November 24, 1997, the trial court sustained Mr.

Rinder's demurrer to the complaint with twenty days leave to replead.

Plaintiffs did not amend the complaint within that twenty day period.

Indeed, plaintiffs never amended the complaint as to Mr. Rinder. See Appellants' Opening Br., p. 13 ("We did not amend the complaint as to Defendant MIKE RINDER."). Thus, whether or not there was adequate substituted service on CST's registered agent should have been merely a moot point. The complaint allegedly served on CST was not an operative pleading. Nevertheless, the service issue became the subject of numerous motions and arguments as plaintiffs attempted to secure a default judgment from CST, and CST attempted to vacate the clerk's entry of a default based upon the incomplete substituted service, The actual significance of that particular round of sparring between Appellants and CST is only that Appellants have attempted to resuscitate it in this appeal as "evidence" of the trial court's alleged bias against them. See Appellants' Opening Br., pp. 11-12. In reality, all that occurred was that by February of 1998, plaintiffs moved for entry of a default judgment against CST in the amount of $190,000,000 concurrently with CST's motions to vacate the clerk's entry of default and to quash service.

Those motions were resolved in a single minute order dated February 23, 1998 (CT 251-252), which: (1) denied CST s motion to set aside the default without prejudice to move for the same relief under C.C.P.

[Section] 473; (2) denied plaintiffs' motion for entry of default judgment without prejudice to plaintiffs' filing an amended complaint within twenty days, citing specifically to the order sustaining Rinder's demurrer to that complaint and reiterating that it fails to state a cause of action; and (3) denied CST's motion to quash as untimely. As the court noted at the hearing, the practical effect of the rulings was that there was a technical default, but no judgment would be entered because the complaint failed to state a cognizable claim and that the plaintiffs had twenty days to file an amended complaint.

By minute order dated April 16, 1998, CST obtained relief from default, and was given twenty days to respond to plaintiffs' original Complaint. (CT 321). [FOOTNOTE 1] -------------------------------------------------------------- [FOOTNOTE 1] At the April 7, 1998 hearing leading to the April 16, 1998 minute order lifting CST's default, Mitchell again lectured the trial court at length concerning his peculiar view of its status and duties, among other things, declaring "as the people of California"

that the court was violating the law (RT 50) and that the court was acting "in the clear absence of all jurisdiction" (RT 57), and that the trial court's immunity is thereby pierced. (RT 57).

------------------------------------------------------------- CST's demurrer to that pleading was sustained with twenty days leave to amend on essentially the same basis that Rinder's demurrer had been sustained on November 24, 1997--that it failed to state it cognizable cause of action. (CT 372-373). [FOOTNOTE 2] -------------------------------------------------------------- [FOOTNOTE 2] On July 31, 1998, plaintiff Lisa Precious unilaterally submitted a request for dismissal of her claim with prejudice, accompanied by a declaration in which she stated that her estranged husband Mitchell had not paid state or federal income taxes for at least five years and that her co-plaintiff Carey had not paid federal or state income taxes in recent years. (CT 375-378).

------------------------------------------------------------- On August 7, 1998, Mitchell and Carey filed their First Amended Complaint (CT 379-508), a voluminous tome with dozens of pages of exhibits including, inter cilia, reported opinions, excerpts of nineteenth century session laws, and portions of the 1849 California Constitution. A significant point to this appeal is that the First Amended Complaint dropped both Mr. Rinder and Mr. Miscavige from the case, leaving only CST and John/Jane Doe 2-99 as party defendants, (CT 379 (caption), 381-382 (alleging defendants' identities)). Thus, as of that date, neither Mr, Rinder nor Mr. Miscavige was a party to this action, and there is no appeal pending from the dispositions, below as to them. [FOOTNOTE 3] ------------------------------------------------------------------ [FOOTNOTE 3] Moreover, neither the notice of appeal (CT 1704- 1705) nor the designation of record on appeal (CT 1706-CT 1719) nor the Appellants' Opening Brief was ever served on counsel for either Mr.

Rinder or Mr. Miscavige. That notice of appeal identifies this proceeding as an appeal from the judgment of dismissal entered on February 22, 1999 (CT 1685-1.686), which is exclusively a dismissal of CST. As such, the only Respondent is CST and the only relief being sought on appeal is as to CST. See Appellants' Opening Br., p. 26 ("The dismissal as a sanction must be reversed. The sustaining of the demurrer must be reversed and remanded back with instruction to order the Defendant/Respondent CHURCH OF SPIRITUAL TECHNOLOGY to answer the complaint.").

----------------------------------------------------------------- Meanwhile, on July 17, 1998, between the sustaining of CST's demurrer and plaintiffs' filing of their First Amended Complaint, CST served plaintiffs with demands for production of documents relating to the pivotal issues of whether plaintiffs were "tax protestors" and whether they paid or refuse to pay income tax. (CT 518-532). Both Mitchell (CT 537-540) and Carey (CT 541-544) served responses harkening back to their contention, first expressed in the original complaint, that the entire California Code of Civil Procedure is not valid California law because of some alleged defect in legislative procedure in 1872, declaring in identical words:

Therefore, the Plaintiff cannot be required to respond to any request brought pursuant to the Code of Civil Procedure. This Plaintiff, therefore, rejects Defendant CST's First Demand for Production of Documents. (CT 538, 542 ). [FOOTNOTE 4] ----------------------------------------------------------------- [FOOTNOTE 4] Clearly, Mitchell's and Carey's "rejection" of the validity of the Code of Civil Procedure is situational, rather than sincere. It was specifically on the basis of C.C.P. [Section] 170.6 that they filed an untimely peremptory challenge to the trial court (RT 10-11) and it was from C.C.P. [Section] 803 which Mitchell quoted when Mitchell accused the trial court of impersonating a judge. (RT 23).

----------------------------------------------------------------- Mitchell and Carey declined to meet and confer (CT 546), and so, on August 11, 1998, CST moved to compel. (CT 511-549). Mitchell and Carey responded (CT 550-574), arguing that the Code of Civil Procedure "was *specifically excluded* from this venue in the Plaintiffs' Verified Complaint due to the fact that it has never been lawfully enacted as one of the Statutes of California." (CT 551 (emphasis in the original)).

By minute order dated August 27, 1998, the trial Court granted CST's motion to compel, and ordered Mitchell and Carey to serve verified responses to the production demand without objection within ten days, to serve responsive documents within 15 days, and to pay a $250 sanction each. (CT 583). Mitchell and Carey then moved for a "Written Statement of Decision Disclosing Lawful Foundation" (CT 586-602) arguing that the trial court "ignores the indisputable and uncontroverted legal evidence that the California Code is not law" (CT 586) and accusing the trial court of bias because she served on a United States Commission that recommended to Congress (and Congress later adopted) that deadbeat dads be tracked by means of their social security numbers and plaintiffs are "expressly not welfare enumerated." (CT 589). That motion was denied. (CT 603).

Mitchell's and Carey's disregard for the laws of this state then continued. They both refused to appear for their regularly noticed depositions, reprising their contention that the Code of Civil Procedure is not the law of this state. (CT 657-668). They served "responses" to the document demand, not in the form ordered by the court, but in the form of further objections concerning the validity of the Code of Civil Procedure and the character of the documents sought. (CT 707-718). Accordingly, CST moved both to compel their depositions and for terminating sanctions for their failure to comply with the trial court's August 27, 1998 order regarding production of documents going to the core issues of the case.

On October 7, 1998, the trial court granted CST's motion to compel plaintiffs' depositions. (CT 1067). On October 15, 1998, the trial court issued a detailed order denying CST's motion for terminating sanctions without prejudice to renew should plaintiff fail to comply with the detailed instructions set forth in the October 15 order. (CT 821-823).

Both Mitchell (CT 924-1039) and Carey (CT 843-923) were deposed on October 13, 1998, and both efforts were exercises in obstruction where again, plaintiffs refused to respond to questions going to the critical issue of truth--i.e., whether they were in compliance with their statutory obligations to pay income taxes. Plaintiffs' refusal to respond to such deposition questions resulted in a further motion to compel. On November 10, 1998, the trial court issued a minute order: (a) granting in its entirety CST's motion to compel answers to deposition questions posed to Mitchell and to Carey; (b) ordering plaintiffs to do so without objection; and (c) sanctioning each plaintiff $500. (CT 13951396).

What followed was a dizzying array of motions and cross-motions which culminated in the dismissal of this action. That dismissal was accomplished by means of the trial court's December 4, 1998 minute order (CT 1502-1504), which granted CST's motion to dismiss as a sanction for plaintiffs' non-compliance with the August 27, 1998 (CT 583) and October 15, 1998 (CT 821-823) discovery orders concerning CST's request for production of documents. The court specifically stated that it had concluded that no further monetary or other sanctions will result in compliance and that "Plaintiffs claim that they are not subject to state and federal income tax laws, and therefore need not respond to discovery requests regarding income and expenses."

The same December 4, 1998 minute order also sustained, "as an alternate ground for dismissal," CST's demurrer to the First Amended Complaint based on plaintiffs' failure to allege that they have not violated state and federal tax laws because, as the court quoted from one of plaintiffs' briefs, "nor are We [Plaintiffs' capitalization] required to file and pay federal income tax or state income tax...."

(CT 1503).

Plaintiffs moved for reconsideration of the order of dismissal, but that motion was denied on January 12, 1999, for failure to demonstrate any new facts, circumstances, or law to support reconsideration. (CT 1639).

On February 19, 1999, the trial court issued a minute order denying plaintiffs' motion to sign and file a variety of proposed orders related to existing minute orders, and ordering CST to submit a judgment that states: "Judgment is entered for Defendant Church of Spiritual Technology and the above-entitled case is dismissed pursuant to this Court's Minute Order dated 12-4-99." (CT 1683). CST did so, and judgment was entered on February 22, 1999. (CT 1685), Plaintiffs then moved to vacate the judgment (CT 1690-1701), and that motion was denied by minute order dated March 8, 1999. (CT 1702), This appeal from the February 22, 1999 judgment in favor of CST followed. (CT 1704).

ARGUMENT Based upon the foregoing, although Appellants' Opening Brief is obscure in this regard, this appeal presents this Court with the issues of whether the trial court properly exercised its discretion in dismissing this case as to CST alternatively as a discovery sanction and upon the sustaining of CST's demurrer to the First Amended Complaint. Appellants' Opening Brief devotes much of its attention to Mitchell's and Carey's persistent efforts to redefine the law of this state and to their assertion that the trial court was biased against them, and while no proper issue for review by appeal is presented by those contentions, CST will address them briefly in the ensuing argument.

I. THE TRIAL COURT WAS WHOLLY JUSTIFIED IN DISMISSING MITCHELL'S AND CAREY'S CLAIM AGAINST CST AS A DISCOVERY SANCTION.

Clinging assiduously--or perhaps, conveniently, see footnote 4, ante--to their contention that the entire California Code of Civil Procedure is a nullity, both Mitchell and Carey steadfastly refused to meet their discovery obligations in this case. The trial court--which, throughout all the proceedings below, maintained its composure and decorum in addressing Appellants' procedural defiance and intemperate outbursts--patiently attempted to compel Mitchell and Carey to meet their discovery obligations and to comply with the sequence of orders by which the trial court carefully defined the discovery obligations which they ultimately chose to ignore. There is no basis in law or fact upon which to criticize, let alone reverse, the ultimate dismissal of Mitchell's and Carey's case against CST as a discovery sanction.

"The propriety of a discovery sanction award is ordinarily reviewed using the abuse of discretion standard." Argaman v. Ratan (1999) 73 Cal. App. 4th 1173, 1176, 86 Cal. Rptr.2d 917, 919. On appeal, there is a presumption that the trial Court's discretion was properly exercised. and "the burden and responsibility is on the appellant to affirmatively establish an abuse of discretion." Mesler v. Bragg (1990) 219 Cal. App. 3d 983, 991, 268 Cal. Rptr. 522, 526.

Specifically in this regard:

The power to impose discovery sanctions is a broad discretion subject to reversal only for arbitrary, capricious, or whimsical action. Only two facts are absolutely prerequisite to imposition of the sanction:

(1) there must be a failure to comply ... and (2) the failure must be wilful....

R & S Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal. App. 4th 486, 496, 89 Cal. Rptr. 2d 353, 360 (affirming a terminating sanction).

It is beyond question that Mitchell and Carey wilfully failed to comply with specific discovery orders of the trial court. Initially, they "rejected" CST's document production demand addressing the core issues of their libel claim on the ground that it was promulgated under provisions of the Code of Civil Procedure, a code which they insist does not carry the force of law. (CT 537-540 (Mitchell), CT 541-544 (Carey.)). CST then attempted to meet and confer with Mitchell and Carey regarding the production demand, but Mitchell and Carey declined. (CT 546). When CST moved to compel, Mitchell and Carey again responded that the Code of Civil Procedure "was specifically excluded from this venue in the Plaintiffs' Verified Complaint due to the fact that it has never been lawfully enacted as one of the Statutes of California." (CT 551 (emphasis deleted)).

In granting CST's motion to compel, the trial court specifically ordered Mitchell and Carey to serve verified responses to the production demand without objection within ten days and to serve responsive documents within 15 days. The court also ordered Mitchell and Carey to pay a $250 sanction. (CT 583).

Mitchell and Carey each served "responses" to the document demand, but not in compliance with the court's order. Their responses were essentially further objections concerning the validity of the Code of Civil Procedure and the character of the documents sought. (CT 707-718). CST then moved for terminating sanctions for their failure to comply with the trial court's order regarding production of documents which the trial Court denied. In denying that motion, however, the court rendered a detailed order specifically giving Mitchell and Carey another opportunity to comply with the original order and stated that if they continued to fail to comply, CST could bring a renewed motion for terminating sanctions (CT 82 1-823).

[FOOTNOTE 5] ---------------------------------------------------------------- Footnote [5] It should also be noted that Mitchell and Carey's discovery abuse was not confined to resisting document discovery and orders thereon. CST was compelled to obtain an order requiring both Mitchell and Carey to attend their depositions (CT 1067) and, after they did appear, another order compelling them to respond to questions addressing the core issues of their complaint. The latter order also sanctioned Mitchell and Carey $500 each. (CT 1395-1396).

---------------------------------------------------------------- Despite the court's explicit warning, Mitchell and Carey continued to stonewall on document discovery. Accordingly, CST renewed its motion for terminating sanctions which the trial court granted on December 4, 1998, (CT 1502-1504). In dismissing the case., the trial court specifically found non-compliance with its two previous orders regarding document discovery (CT 583, CT 821-823) and specifically stated that it had concluded that no further monetary or other sanctions will result in compliance. See R & S Creative, Inc. v.

Creative Cotton, Ltd., supra, at 496, 89 Cal. Rptr. 2d at 361 ("terminating sanctions are to be used... only when the trial court concludes that lesser sanctions would not bring about compliance of the offending party.").

The facts are clear. The trial court addressed Mitchell's and Carey's repeated, stubborn failure to comply with discovery and discovery orders methodically and properly within the bounds of the law.

Mitchell and Carey misused the discovery process by their failure to respond to an authorized method of discovery, by their unmeritorious objections based on their eccentric view of the validity of the Code of Civil Procedure, and by disobeying court orders to provide discovery. C.C.P. [Section] 2023 (a)(4, 5, 7). Such misuse, under these circumstances, justified the imposition of a terminating sanction, Id. [Section] 2023 (b), (d)(4)(C). Mitchell and Carey have done nothing to sustain their burden of demonstrating to this Court that the trial court abused its discretion, and the dismissal of the case as a discovery sanction should be affirmed.

II. THE TRIAL COURT WAS WHOLLY JUSTIFIED IN SUSTAINING CST'S DEMURRER TO THE FIRST AMENDED COMPLAINT WITHOUT LEAVE TO AMEND.

The trial court exercised equally sound discretion in its alternative ground for dismissal of this action, its sustaining of CST's demurrer to the First Amended Complaint without leave to amend. Mitchell's and Carey's only purported cause of action was premised entirely on their assertion that a church bulletin warning parishioners of the illegality of plaintiffs' tax evasion schemes was libelous because plaintiffs have concluded that they have no obligation to pay federal income tax.

Such a claim for libel is legally impossible because nothing can ever change the fact that plaintiffs are obliged to pay federal income taxes. Pursuant to the power of Congress "to lay and collect taxes"

under both Article I, Section 8 of the United States Constitution and the Sixteenth Amendment, section I of the Internal Revenue Code imposes a tax on the income of "every individual," see 26 U.S.C.

[Section] I(c), "who is a citizen or resident of the United States."

Treas. Reg. [Section] 1.1-1 (a)(1); see United States v. Collins ( IOth Cir. 1990) 920 F.2d 619, 620, cert. denied (1991) 111 S.Ct. 2022.

Indeed, the very premise upon which Mitchell and Carey based their libel claim--that federal tax laws do not apply to resident United States citizens--has been held to be sufficiently frivolous to warrant sanctions against counsel, In re Becraft (9th Cir. 1989.) 885 F.2d 547, 548-49, and even against pro se litigants such as plaintiffs, Lovell v. United States (7th Cir. 1984) 755 F.2d 517, 520, merely for asserting it. The Becraft court characterized Mitchell's and Carey's proposition as "wholly meritless," "patiently frivolous," "utterly without merit," "revisionist history theor[y] that [has] absolutely no basis in law." and an argument that "flies in the face of unambiguous, firmly established law." In re Becraft, supra, at 549-50. The Lovell court described the same and similar propositions as "frivolous" and "patently absurd." Lovell v. United States, supra, at 519.

Here, the trial court repeatedly pointed out specifically to plaintiffs that they would have to allege that they paid their taxes in order to maintain their libel claim. When the court gave them leave to do so after sustaining the Rinder demurrer, Mitchell and Carey did not amend their complaint within the time allowed. When CST demurrred to that same complaint, the same result followed, but when Mitchell and Carey did amend their complaint, they danced around the issue by cloaking it in terms of having no obligation to pay taxes. Finally in sustaining CST's demurrer to the First Amended Complaint, the trial court quoted from one of plaintiffs' briefs their contention that they are not required to file and pay federal income tax or state income tax. (CT 1503). No amendment could possibly have saved plaintiffs' claim under such circumstances.

On an appeal following a demurrer sustained without leave to amend, the appellant bears the burden of demonstrating either (1) the demurrer was sustained erroneously as a matter of law on the facts pleaded, or (2) the court abused its discretion by failing to grant leave to amend.

Kroll & Tract v. Paris & Paris (1999) 72 Cal. App.4th 1537, 1541, 86 Cal. Rptr.2d 78, 81.

There is no serious contention that the court committed an error of law. Only a falsehood can be libelous, and plaintiffs cannot convert the assertion that their failure to pay tax is a criminal act by making the patently frivolous contention that they are not obliged to do so. It is equally clear that there was no abuse of discretion in the trial court's decision not to give Mitchell and Carey yet another chance to plead that they pay their taxes. They failed to do so on two prior occasions despite the court's specific instruction to do so to salvage their claim.

It certainly cannot be said that the trial court acted the least bit unreasonably, and "[r]eversible abuse exists only if there is no reasonable basis for the court's action." Gilbert v. National Corporation for Housing Partnerships (1999) 71 Cal. App. 4th 1240, 1250, 84 Cal. Rptr.2d 204, 210. When the court's specific guidance to plaintiffs was repeatedly met with sanctionable misstatements of law, it was no abuse of discretion to sustain CST's demurrer without leave to amend.

III. THERE IS NO APPEAL FROM THE TRIAL COURT'S DENIAL OF MITCHELL'S AND CAREY'S PEREMPTORY CHALLENGE UNDER C.C.P. [Section] 170.6 AS UNTIMELY.

Mitchell's and Carey's contention that the trial court should have recused itself in response to their peremptory challenge is simultaneously meritless and not a proper subject for an appeal. There is certainly no bias in the trial court's refusal to accept Mitchell's and Carey's contentions that they have no obligation to pay federal income tax, that the Code of Civil Procedure is not the law of California, that the Los Angeles Superior Court is actually the seventeenth judicial district of some unspecified district court, that the trial court was an impostor because she wore a black robe and sat an an elevated bench, or that a commission of which the trial court was a member advocated a sensible procedure involving social security numbers and the plaintiffs consider themselves "not welfare enumerated." Rejection of the ludicrous does not equal bias.

Plaintiffs' peremptory challenge under C.C.P. [Section] 170.6 was properly rejected as untimely. This case was assigned for all purposes to the Honorable Frances Rothschild on September 11, 1997. (CT 121).

Mitchell and Carey filed their peremptory challenge on November 12, 1997. (CT 156). The challenge was plainly untimely under the explicit terms of Section 170.6, which requires a peremptory challenge to a judge assigned for all purposes to be made within ten days after the notice of the assignment.

Mitchell's and Carey's attempt in their Opening Brief to recharacterize their peremptory challenge as one for cause rather than one brought under section 170.6 is just another of their forays into revisionist history. On November 12, 1997, when Mitchell and Carey filed their peremptory challenge and presented it to the court during a hearing, Mitchell responded to the court's inquiry into the basis of the challenge expressly by stating that it was brought under section 170.6. (RT 10- 11). It was and is a peremptory challenge, and it was not timely.

Finally, there is no appeal from the trial court's rejection of plaintiffs' untimely peremptory challenge. C.C.P. [Section] 170.3 (d).

[A]ppellate court review of a judicial disqualification determination (whether disqualification is denied or granted) may be sought only by petition for writ of mandate filed within 10 days of notice of the decision... The ruling is not reviewable on appeal. This bar to review applied to [section] 170.6 peremptory challenges, as well as to [section] 170.1 challenges for cause.... Thus, there is no basis for a post judgment appeal based upon statutory disqualification grounds.

W. Wegner, R. Fairbank & N. Epstein, CALIFORNIA PRACTICE GUIDE: CIVIL TRIALS AND EVIDENCE, [Paragraph]:269 (citations omitted and emphasis supplied.)

Mitchell and Carey are thus foreclosed from appealing the trial court's denial of their untimely peremptory challenge on any basis.

CONCLUSION The trial court acted with patience and courtesy under extremely trying conditions created by Mitchell and Carey. It acted completely within its discretion in dismissing the plaintiffs' claim against CST as a discovery sanction and, alternatively, in sustaining CST's demurrer to the First Amended Complaint without leave to amend. All other assertions made by Appellants to this Court are meritless or untimely or both.

The judgment of the trial court, therefore, should be affirmed in every particular, and CST should be awarded its costs in connection with this frivolous appeal.

Dated: May 22, 2000 Respectfully submitted, MOXON & KOBRIN By:___[SIGNATURE: Kendrick L. Moxon/(illegible:"qmp"?)]_______ Kendrick L. Moxon Attorneys for Defendant and Respondent CHURCH OF SPIRITUAL TECHNOLOGY

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