Sometimes you just have to sit back in open mouthed astonishment at the crooked lawyers and cult corrupted courts in Hemet.
Basic law say that after a case has gone to appeal the court of original jurisdiction has no authority over the case. But here we see the cult asking the judge who ruled against me in the civil case to effectively dismiss the appeal by denying me the right to even *file* an appeal. Be interesting to see if he takes the risk. It would make an interesting civil rights case against the judge, maybe even a RICO case.
The other not so obvious point mentioned here is the permanent injunction. This is a limited case. Courts in limited cases do not have the authority to issue permanent injunctions. The judge did it anyway at the cult's request in violation of California law. The injunction has been used to deny the first amendment rights of people to protest. (See Graham's report on the last time he was at gold base and note, after the injunction abuses in Clearwater, that nobody picketed gold even though a number of people drove by to and from Los Angeles.)
An additional point is that limited cases are not supposed to be for more than $25k. There would be a number of appealable issues if the appeal is not dismissed by the trial court.
Wojcik is of course the son of the judge who told James Harr that he was terrified of the cult.
My immigration lawyers here in Canada were pleased to get the information, but utterly boggled that some of the courts in the US have been so completely corrupted by a cult that was criminally convicted in Canada *and* the US.
Keith Henson
DAVIS & WOJCIK
A PROFESSIONAL LAW CORPORATION
ROBERT A. DAVIS Jr., Ca State Bar No. 160357 DEC
JOSEPH M. WOJCIK, Ca State Bar No. 177296
1105 E. Florida Ave.
Hemet, Ca 92542
Telephone: (909) 652-9000 "------------
Facsimile: (909) 658-8308
Elliot J. Abelson, Ca State Bar No. 41846
LAW OFFICES OF ELLIOT J. ABELSON
8491 West Sunset Boulevard, Suite 1100
Los Angeles, Ca 90069-1911
Telephone: (323)960-1935
Facsimile: (323)650-0398
Attorneys for Plaintiffs: Hilary Dezotell, Ken Hoden, and Bruce Wagoner
SUPERIOR COURT OF CALIFORNIA
COUNTY OF RIVERSIDE - HEMET BRANCH
HILARY DEZOTELL, KEN HODEN, and BRUCE WAGONER,
Plaintiffs,
v.
H. KEITH HENSON,
Defendant.
CASE NO. HECO09673
MOTION TO DISMISS DEFENDANT H. KEITH HENSON'S NOTICE OF APPEAL BASED ON THE DISENTITLEMENT DOCTRINE
Date: Time: Dept:
TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE that on 2003, at _:_ a.m., or as
soon thereafter as this matter may be heard in Department - of the above-entitled Court, Plaintiffs Hilary Dezotell, Ken Hoden and Bruce Wagoner, will and do hereby move this Court to Dismiss Defendant H. Keith Henson's "Notice of Appeal" on the following grounds:
Defendant is an admitted fugitive from justice, with an outstanding bench warrant
issued by the Honorable Judge Robert Wallerstein of the Riverside Superior Court for his arrest. Under the fugitive disentitlement doctrine, defendant is prohibited from initiating and pursuing his appeal in this action herein.
This motion is based on this notice of motion, the attached memorandum of points and authorities, the declaration of Joseph M. Wojcik, the Court's file herein, and such other and further evidence as may properly be presented to the Court at the hearing of this motion.
DATED: December 5, 2002 Respectfully submitted, DAIS & WOJCIK JOSEPH, N-, Attorney for Plaintiffs Hillary Dezotell, Ken Hoden and Bruce Wagoner
MEMORANDUM OF POINTS AND AUTHORITIES
The Plaintiffs submit the following points and authorities in support of their Motion to Dismiss Defendant's Notice of Appeal.
I. INTRODUCTION
Plaintiffs move to dismiss Defendants' Notice of Appeal because California case law is clear that Henson, a fugitive from justice, has no right whatsoever to seek "assistance of a court in hearing his demands while he stands in an attitude of contempt to legal orders and processes of the courts of his state." Estate of Scott (1957) 150 Cal.App.2d 590, 310 P.2d 46.
II. STATEMENT OF THE FACTS
On April 26, 2001, Defendant was convicted by a jury for violating California Penal Code § 422.6, for intimidating, threatening, and oppressing individuals on the basis of their religious beliefs.
After his conviction, Defendant was released on his own recognizance until his scheduled appearance for sentencing on May 16, 2001. However, prior to his sentencing date, Defendant fled to Canada.
On July 20, 2001, Defendant was sentenced in absentia to a term of 365 days subject to probation terms which he did not accept. Additionally, due to Henson's failure to appear, Judge Wallerstein issued a bench warrant which is still outstanding.
On July 30, 2001, plaintiffs filed their civil action, alleging violation of their civil rights pursuant to Civil Code § 52.1, which is essentially a parallel statute to the hate crime Henson was convicted under. Plaintiffs civil action included other causes of action for intentional and negligent infliction of emotional distress arising out of the very acts for which defendant was convicted.
On September 17, 2001, defendant entered his appearance and filed an Answer from an address in Canada.
In the meantime, Henson attempted to appeal his criminal conviction, but in February 2002, the Honorable Judge Sharon Waters of the Appellate Department of the
Riverside Superior Court dismissed the appeal based upon the fugitive disentitlement doctrine.
On June 14, 2002 Plaintiffs filed a Motion for Summary Adjudication of Liability on the first cause of action for violation of civil rights. Defendant filed an opposition and the motion was granted after a hearing on August 26, 2002.
On September 4, 2002, Plaintiffs filed a motion requesting a final judgment and an order: (1) for permanent injunctive relief to be entered in favor of Plaintiffs and against Defendant; (2) for statutory civil penalties in the amount of $75,000 ($25,000 per plaintiff); and (3) for reasonable attorneys' fees in the amount of $23,666.65.' That motion for final judgment was unopposed by Defendant and was granted by the Court on October 7, 2002. The final judgment was signed on October 7, 2002 and served on Defendant's counsel on October 15, 2002 and the permanent injunction was signed on October 8, 2002 and served on Defendant's counsel on October 9, 2002.
Defendant served his "Notice of Appeal" on November 14, 2002. On November 26, 2002, the Court sent Henson a Notice of Default for his failure to pay his filing fee giving him 15 days to cure said default. Henson cured the default on or about December 3, 2002. Thus, Plaintiffs are filing this motion to dismiss Henson's Notice of Appeal. IIl. ARGUMENT
A. Defendant's Notice of Appeal Should Be Stricken Pursuant to the
Disentitlement Doctrine
It is well settled that courts have the inherent power to dismiss an action initiated by one who has refused to comply with the "legal orders and processes of the courts of this state." TMS, Inc. v. Aihara (2000) 71 Ca1.AppAth 377, 379, 83 Cal.Rptr.2d 834, 835. This doctrine, called the "disentitlement doctrine," has been used in a variety of circumstances, but the "case for application of the doctrine is most evident where . . . the party is a fugitive who refuses to comply with court orders or make an appearance despite being given notice and an opportunity to appear and be heard." Adoption of.Jacob C.
Plaintiffs also dismissed their other causes of action.
(1994) 25 Cal.AppAth 617, 624, 30 Cal.Rptr.2d 591, 595 (where mother was barred from participating in a hearing regarding her parental rights where she was a fugitive with her abducted daughter ).
For example, a felon who flees from the jurisdiction of the court waives appellate review of the conviction. People v. Buffalo (1975) 49 Ca1.App.3d 838, 123 Cal.Rptr. 308 (holding that "courts have no jurisdiction over persons charged with crime, unless in custody actual or constructive. It would be a farce to proceed in a criminal cause, unless the Court had control over the person charged so that its judgment might be effective. 1-citation omitted]. We exercise our discretion to refuse to consider the appeal of one who is not answerable to court processes."Id. at 839, 123 Cal.Rptr. at 309.).
The disentitlement doctrine has been held to apply "with greater force in civil cases where an individual's liberty is not at stake." Conforte v. Commissioner (9th Cir. 1982) 692 F.2d 587, 589 (dismissal of appeal in civil tax proceeding because appellant was a fugitive from justice as a result of his criminal conviction for tax evasion); Broadway v. City of Montgomery, (5th Cir. 1976) 530 F.2d 657, 659 (appeal from summary judgment in civil rights action brought by fugitive dismissed under disentitlement doctrine; United States v. $129,374 in U.S. Currency (9th Cir. 1985) 769 F.2d 583 (fugitive barred from intervening in a civil forfeiture action under the disentitlement doctrine).
This rule has been uniformly applied and followed by the California courts. Weeks v. Superior Court (1921) 187 Cal. 620, 203 P. 93 (fugitive barred from entry of final divorce decree for disobeying trial court's order relating to custody of minor child); MacPherson v. MacPherson (1939) 13 Cal.2d 271, 89 P.2d 382 (fugitive's appeal of contempt order in divorce case dismissed)
The Courts have also applied this fugitive disentitlement doctrine to appeals of civil judgments. Indeed, Estate of Scott (1957) 150 Cal.App.2d 590, 310 P.2d 46, is a case with facts analogous to those here. Scott was an action for appointment of a trustee for a missing woman's estate. While the civil action was ongoing, the missing woman's
husband was indicted by a grand jury on nine counts of forgery and four counts of grand theft in connection with his missing wife's property. He failed to appear at his plea and thus became a fugitive from justice. At the same time, an order appointing a trustee to the missing wife's estate was issued which the fugitive husband appealed from his position of hiding:
The issue before the Scott court was whether the appeal in the civil matter should be dismissed because the husband was a fugitive from justice in the criminal action. The Scott court held yes, relying upon those principles set forth in MacPherson and Weeks:
"A party to an action cannot, with right or reason, ask the aid and assistance of a court in hearing his demands while he stands in an attitude of contempt to legal orders and processes of the courts of this state" . . . "It is contrary to the principles of justice to permit one who has flaunted the orders of the court to seek j udicial assistance." Estate of Scott, 150 Ca1.App.2d at 594 (emphasis added).
As aptly stated by one appellate court:
"The (defendant's] attitude seems to be that if this case is decided in his favor it will be quite all right but if it is not so decided he will be out of reach of the court, so that no matter what is done or what decision is made, he will continue to do just as he has done in the past, namely pay no attention whatsoever to any order of any court in California insofar as complying with any such order is concerned." Rude v. Rude (1957) 153 Cal.App.2d 243, 314 P.2d 226 (where appeal of a husband, who was found in contempt of court and sentenced to jail, was dismissed because he was a fugitive from justice and "therefore he is not entitled to invoke the aid of this court"). The only relevant factual distinction between Scott and the case at bar is that Scott was a fugitive from a criminal indictment while Henson is a fugitive from a criminal conviction.
Here, just as in MacPherson, Weeks, Estate of Scott, supra, defendant is a fugitive from justice who has no intention of submitting himself to the jurisdiction of the court. Indeed, Defendant here, unlike defendants in the cases cited above, has flaunted his fugitive status to the world. As set forth in the cases cited above, defendant cannot now ask for aid and assistance from this court by way of his appeal while he continues to stand in an attitude of contempt of the legal processes and order of the Superior Court of this
state.' Accordingly, his notice of appeal should be dismissed. IV. CONCLUSION
Based upon the foregoing points and authorities and arguments, Plaintiffs respectfully request that Henson's appeal be stricken entirely on the basis of the disentitlement doctrine.
Dated: December 5, 2002 Re s ectfu11y submitted,
Attorney for Plaintiffs Hillary Dezotell, Ken Hoden and Bruce Wagoner
DAVIS & WOJCIK
A PROFESSIONAL LAW CORPORATION
ROBERT A. DAVIS Jr., Ca State Bar No. 160357 JOSEPH M. WOJCIK, Ca State Bar No. 177296 1105 E. Florida Ave. Hemet, Ca 92542 Telephone: (909) 652-9000 Facsimile: (909) 658-8308
Elliot J. Abelson, Ca State Bar No. 41846
LAW OFFICES OF ELLIOT J. ABELSON
8491 West Sunset Boulevard, Suite 1100 Los Angeles, Ca 90069-1911 Telephone: (323)960-1935 Facsimile: (323)650-0398
Attorneys for Plaintiffs: Hilary Dezotell, Ken Hoden, and Bruce Wagoner
SUPERIOR COURT OF CALIFORNIA
COUNTY OF RIVERSIDE - HEMET BRANCH
HILARY DEZOTELL, KEN HODEN and BRUCE WAGONER,
Plaintiffs,
v.
H. KEITH HENSON,
Defendant.
CASE NO. HECO09673
DECLARATION OF JOSEPH M. WOJCIK IN SUPPORT OF MOTION TO DISMISS DEFENDANT, H. KEITH HENSON'S, NOTICE OF APPEAL BASED ON THE DISENTITLEMENT DOCTRINE
Date: Time: Dept:
I, Joseph M. Wojcik, declare:
1. I am a Partner in the Law Firm of Davis & Wojcik and am licensed to practice law in the State of California.
2. 1 am one of the attorneys responsible for the representation of the plaintiffs HILARY DEZOTELL, KEN HODEN, and BRUCE WAGONER in this action. Accordingly, the following facts are within my personal knowledge and I could and would competently testify to them.
3. On April 26, 2002, defendant H. Keith Henson (hereinafter referred to as "HENSON"), was convicted by a jury in the Hemet Superior Court for violation of penal code section 422.6 (intimidating, threatening, and oppressing the plaintiffs on the basis of their religious beliefs). A true and correct copy of the court docket verifying the I conviction is attached hereto as Exhibit "A".
4. Pursuant to Exhibit "A" HENSON was released on his own recognizance until l his scheduled sentencing on May 16, 2001 which was later continued to July 20, 2001.
5. Pursuant to Exhibit "A" prior to sentencing HENSON applied for refuge/asylum in Canada. Consequently on July 20, 2001 HENSON was sentenced in abstencia to a term of 365 days. In addition, the Honorable Robert Wallerstien issued a bench warrent for HENSON's arrest.
6. According to Exhibit "A", on or about August 15, 2001, HENSON filed a notice of appeal.
7. On or about February 27, 2002 the Honorable Sharon Waters dismissed HENSON's appeal based on the fugitive disentitlement doctrine. A true and correct copy of the minute order dismissing HENSON's appeal along with a letter previously sent by our office detailing the history of this case is attached as Exhibit "B".
8. On July 30, 2001, the plaintiffs filed a civil action alleging violation of their civil rights pursuant to Civil Code Section 52.1 which is essentially a parallel statute to Penal Code Section 422.6.
9. On June 14, 2002, the plaintiffs filed a motion for summary adjudication of r liability on the first cause action (Civil Code Section 52.1). HENSON filed an opposition and, after a contested hearing, the motion was granted on August 26, 2002.
10. On September 4, 2002 the plaintiffs filed a motion requesting a final judgment and an order for: 1) Permanent injunctive relief to be entered in favor of plaintiffs and against the defendant; 2) For statutory civil penalties in an amount of $75,000.00 ($25,000.00 per
each plaintiff); and 3) Reasonable attorney fees in the amount $23,666.65. Plaintiffs also requested that the remaining causes of action be dismissed.
11. The motion for final judgment was unopposed by the defendant and was granted by the court on October 7, 2002. The final judgment was signed on October 7, 2002 and served on defendant's counsel on October 15, 2002.
12. The permanent injunction was signed on October 8, 2002 and served on defendant's counsel on October 9, 2002.
13. As of the date of this notice there remains a bench warrant for HENSON'S arrest and he remains a fugitive in Canada.
15. It is for the above reasons we are respectfully requesting the Court to apply the disentitlement doctrine and dismiss HENSON's appeal as a result thereof.
I declare under penalty of perjury under the laws of California that the foregoing is
true and correct, and that this declaration was executed 4onecember 5, 2002 at Hemet, Califomia.
J~os D oi cla
oseph M. ojcik, eclarant