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OPPOSITION TO MOTION TO QUASH SUBPOENAS & MOTION FOR ANORDER TO COMPEL
1
MELISSA BALIN10153 Riverside DriveSuite 465Toluca Lake, CA 91602
Pro Se, Plaintiff.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES CENTRAL DIVISION
MELISSA BALIN Case No. LAM-13M00544Plaintiff, Plaintiffs, OPPOSITION TO
MOTION TO QUASHSUBPOENAS & MOTION FORAN ORDER TO COMPEL; &PETITION FOR WRIT OF
PROHIBITION, QUOWARRANTO, MANDATE OROTHER APPROPRIATESUMMARY JUDGEMENT.
v.
CITY OF LOS ANGELES
Defendant.
Plaintiff herein opposes the motion to quash subpoenas for appearance by LAPD Chief of
Police Charlie Beck and Commander Andrew Smith, submitted by City Attorneys
Carmen A. Trutanich, Carlos De La Guerra, and Jess J. Gonzalez, as one with no merit
and utterly frivolous. The Motion is loaded with untrue and irrelevant material,
representing mostly an attack on the Plaintiff and an attempt to prejudice the court against
the Plaintiff. The Motion is vague and does not present any specific recognized
justifiable reasons to quash the subpoena, and was intentionally and unethically submitted
by attorneys inappropriately, in the one remaining venue of Small Claims Court that does
not allow for the unfair advantage of attorney privilege within the allegedly invaginated
Los Angeles Superior Court System.
For the reasons set forth in Plaintiffs Opposition To Motion to Quash Subpoenas &
Motion For An Order To Compel (denoted as EXHIBIT A), the Attorneys for Real
Parties in Interests Motion should be denied as one without merit and frivolous; and
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attorneys Carmen Trutanich, Carlos De La Guerra, and Jess J. Gonzalez should be
sanctioned for their abuse of the courts time, when ALL parties know full well that
attorneys are not allowed to present or be heard in Small Claims Court. The Plaintiff, on
behalf of The Good People of California, request that the Court enter an order compelling
the Respondents to immediately produce the subpoenaed material and that a bench
warrant be issued by the Court for the testimonies of ALL Subpoeaned Public Servants,
should they fail to appear again.
ARGUMENT
1. Attorneys for the Defendant state that: A. Neither Chief Beck norCommander Smith have any connection with plaintiffs case nor are they
percipient witnesses to any events in plaintiffs case and B. Chief Beck is a
high level official and General Manager of the Los Angeles Police
Department (LAPD) with supervisory responsibility over more than 13,000
sworn and civilian personnel.
2. Attorneys for the Defendant claim that, It is Chief Becks responsibility toprotect the health, safety and welfare of the citizens of the City of Los
Angeles. They also claim, making an inferential leap that is understandable,
but incorrect, that To compel him to testify in this proceeding will distract
and remove him from these primary duties all to the detriment of the public
safety. It is indeed relevant and of material importance, if the policies and
orders of the Chief of Police are in fact, placing the public in danger of
continuing Constitutional violations; then his giving of testimony IS a primary
duty and keeping Chief Beck OR Commander Smith from testifying in ANY
court of law, would be the real detriment to public safety.
3. City attorneys Trutanich, De La Guerra and Gonzalez go on to perjurethemselves under oath, when they state to the Court, Real Parties in Interest
have no connection to the case whatsoever, they are not percipient witnesses
to any events in the case and do not possess information relevant to the
underlying case, except as to that which they may have learned from their
subordinates. This is patently untrue, as evidenced by multiple international
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television news cameras that were at the scene of the alleged International
Tort on November 29th and 30th, 2011, placing Chief Beck, Mayor
Villaraigosa AND Commander Smith as first-hand witnesses to the
unconstitutional military operation conducted against its own peacefully
assembled citizens exercising their First Amendment Rights as protected by
the Constitution, from inside the walls of City Hall itself (denoted as
EXHIBIT B).
4. City attorneys Trutanich, De La Guerra and Gonzalez, claim that Chief Beckand Commander Smith have no relevant testimony to offer, do not personally
know the plaintiff and the circumstances surrounding her Small Claims
lawsuit. The attached photograph of Chief Beck and the plaintiff taken the
first week of November 2011 (denoted as EXHIBIT C), and multiple
telephone conversations betweem the plaintiff and Commander Smith, would
indicate that they most certainly DID personally know the plaintiff and the
circumstances surrounding her Small Claims lawsuit.
5. The City Attorneys office, in an abuse of taxpayer resources of the ink andpaper to print such lies willfully and intentionally crafted to suppress evidence
of a malfeasance of Justice; in such a manner as is unbecoming a member of
the California State Bar, under the guise of acting under Color of Law, boldly
state, The subpoenas served on Chief Beck and Commander Smith
demonstrates a blatant example of plaintiffs abuse of the courts subpoena
power and should not be countenanced.
6. It is in fact, the City Attorneys offices bald and unapologetic perjury underoath, that should not be countenanced, and should be discouraged with an
appropriate order to compel discovery and sanctions against the
aforementioned City Attorneys for their interference In Justice For All in
orchestrated prosecutorial misconduct amounting to continuing violations of
the Constitution for the United States of America and The California State
Constitution of 1849, worthy of Federal investigation, just in case anybody in
Congress or the Department of Justice or that third governing body that are
supposed to provide a checks and balance for these sorts of things, is actually
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even reading this stuff to investigate and review any outstanding malfeasance
of justice allegations, in light of years of alleged tea party justice within the
Los Angeles Superior Court System under the recently-retired-amidst-
investigation, Supervising Clerk, John Clarke.
MEMORANDUM OF POINTS AND AUTHORITIES
Response to Point I of Motion To Quash Entitled INTRODUCTION AND
SUMMARY OF ARGUMENT:
Several of the assertions made by attorneys for the Real Parties In Interest are
intentionally untrue and designed to prejudice the court against the Plaintiff. The fact
that the Plaintiff has a work and home address in 2013 has no bearing on her address in
domicile at 200 North Spring Street, Los Angeles, California 90012 (Los Angeles City
Hall) for over 30 days in November 2011 with the complicit understanding of the
landlord/City of Los Angeles; nor does it refute the Plaintiffs claims of Tenancy-At-
Will, or wanton destruction of private property, in any way.
The statement, Plaintiff appears to be a self-styled member of We the People,
a fringe group of individuals who engage in demonstrations, protests, sit-ins and general
civil disobedience. (lines 11-13), is both unverified in any way whatsoever, and seems
designed to obfuscate facts, especially when there is no reason to believe that the
Plaintiffs reference to We The People, is not with regards to We The People, Of The
United States of America, as protected by the Constitution and its Bill of Rights.
They also state, After a significant period of time and millions of dollars of
damage to the lawn, City officials determined that it was time to clear the City Hall lawn
of the Occupy L.A. squatters due to a number public safety concerns [sic] not the least
which was a public health concern. While these are all certainly words in the English
language, it is their combined usage and order that make them gibberish. What is the
definition of a significant period of time, when then President of LA City Council and
current Mayor-elect, Eric Garcetti, said, Stay as long as you like...
It would appear their insouciant misusage of the word squatter, defined by
Merriam Webster as: (a) : one that settles on property without right or title or payment
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of rent or (b) : one that settles on public land under government regulation with the
purpose of acquiring title NEITHER of which are accurate to the factors at hand,
considering the attached copy of Resolution 33, (denoted as EXHIBIT D); will show
that the group known as Occupy LA and the Sovereign Nation of Freedom & Peace DID
INDEED HAVE EXPLICIT AND COMPLICIT PERMISSION TO BE ON THE CITY
HALL LAWN EXERCISING THEIR CONSTITUTIONAL RIGHTS TO PEACEABLY
ASSEMBLE.
Irresponsible use of a word such as squatter, with the malicious intent to incite
prejudice against the Plaintiff within the Courts, is not just slanderous libel, but a thinly
veiled attempt to ask the Court to overlook that there is an absence of evidence in support
of their claims in defense against Tenancy-At-Will; and therefore NO TRIABLE ISSUE
OF MATERIAL FACT AS TO AN AFFIRMATIVE DEFENSE FOR VIOLATING
CIVIL RIGHTS PROTECTED UNDER CALIFORNIA TENANCY-AT-WILL CASE
LAWS FROM HOMESTEADING TO MODERN DAY.
Lines 14 24 of the attorneys motion, essentially amount to a fairy tale of what
the LAPD desperately needs the Los Angeles Superior Courts AND the Court of Public
Opinion to believe in order to justify its unlawful acts of domestic terrorism against its
own citizens and their property. It is unclear to us why this conflagration of unmitigated
subjugation is being complacently dismissed as an issue of "illegal camping", when this
is clearly a globally relevant issue of an International Violation of Human Rights.
It is worth noting, that they fail to mention anywhere that the plaintiff was
hospitalized at the Good Samaratin Hospital, PRIOR to her formal arrest OR processing,
while being detained with the use of excessive force by LAPD Officer Winter, who
refused to divulge his badge number; and that Balin was later released into custody hours
after her photo was the top-of-fold cover of the LA Times (EXHIBIT E), with the
diagnosis of a threatened Miscarriage, citing instead only, The reasons are unclear why
she was not formally charged and prosecuted.
The City Attorneys erroneously state that, Though some complied with the
LAPDs orders, plaintiff was one of the recalcitrant occupiers who refused to disperse.
Plaintiff failed to disperse after a lawful order was made by the LAPD. When she did not
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obey the lawful order to disperse, she was taken into custody, processed and released
with a date to appear in court. This is a fictional narrative woven by City Attorneys in
an attempt to prejudice the Courts, as evidenced by the Plaintiffs repeated video
interactions with the LAPD throughout the evening, as a member of the media and
former producer of Police Officer of The Year for COURT TV, and the time of her
alleged arrest of 3:15 AM AT THE LOCATION OF FIRST & BROADWAY;
NOWHERE NEAR CITY HALL AND SEVERAL HOURS AFTER THE DISPERSAL
ORDER THEY ALLEGE THE JOURNALIST FAILED TO OBSERVE; on any other
planet, would appear to be prosecutorial misconduct and suppression of evidence worthy
of a phone call from the U.S. Justice Department; and granting of their incompetently
researched and filed Notions of Motions would send the wrong message of First
Amendment Freedom of Press case law, from here to both Oceans.
Not only did the plaintiff, Melissa Balin, comply with LAPDs unlawful orders,
Balin also identified herself as an International member of the media, and asked for
supervising officers to address the excessive force being used against her while she was
attempting to legitimately record the names and badge numbers of the arresting officers
of the OLA 292, in the event (as did indeed happen), that LAPD refused to provide
information or intentionally obstructed information regarding the arresting officers.
Balin also identified that she was pregnant and repeatedly begged for medical attention
after Officer Winter impaled the pregnant member of the media against the thorns of the
shrubbery (see EXHIBIT F). It was not until the Plaintiff Mic-Checked for medical
attention that an ambulance was finally summoned to the scene.
Mic-Checking during mass unlawful arrests, can be used as a process of a
crowd repeating the immediate and/or life-threatening needs of an arrestee; so that the
needs of one become recognized through the voices of many. During the MicChecking
that bounced from the arrestees to the legal observers across the street on the other side of
the police barricade, the plaintiff shouted, I am pregnant and begging for medical
attention and I am getting no response. Officer Winter was overheard saying How
does that make you feel. The plaintiff, then mic checked, I am pregnant and begging
for medical attention and getting no response and Officer Winter here just asked how
does that make me feel? That doesnt make me feel good and I think I am having a
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miscarriage. Can someone please get me some medical attention? This process went on
for several minutes before Balin received paramedic assistance and was finally taken to
the hospital. Willfully and intentionally withholding medical attention from a fetus for
several minutes can make the difference between life and brain death.
It is also worth noting, that the City Attorneys fail to mention that Balin begged to
be accompanied to the hospital and be guarded by a female officer instead of the sadistic
Officer Winter, and that instead, she was forced to urinate blood into a hospital bedpan
while shackled in front of the sadistic officer, while he told his supervising officers,
Wow, I didnt know she was really pregnant.
While the City Attorneys say only, The reasons are unclear why she was not
formally charged and prosecuted. She then filed the instant Small Claims matter against
the City of Los Angeles on January 16, 2013 for damage to an itemized list of her
personal property. They are wildly representing BOTH their involvement in
prosecutorial misconduct that amounted to stalking and the intentional and malicious
curtailment of the plaintiffs and 291 other peoples liberty that night in a manner far
greater than if they had remained in the criminal justice system; AND that they were in
the midst of their own unconstitutional Trial By Ordeal of the Plaintiff, as deemed
Cruel and Unusual Punishment in the 1600s, involving falsified criminal charges,
continuing mandamus, and suppression of evidence FOR MORE THAN FIFTEEN
MONTHS UNTIL CRIMINAL CHARGES AGAINST THE PLAINTIFF WERE
FINALLY DISMISSED, WITHOUT A SPEEDY OR FAIR TRIAL, ON FEBRUARY
25, 2013.
It is worth noting that much of the itemized list involves art by Internationally
Recognized Artists and Activists, such as Shepard Fairey, Mama Sunshine, SABER,
Richard Eastman, Dennis Peron, Will Palomares and Mark Celentano; being curated by
the Plaintiff, Melissa Balin, for the Sovereign Nation Of Freedom & Peace Museum &
Memorial To The Tongva People. Sublimating such priceless cultural items as an
itemized list of her personal property is BOTH PEJORATIVE AND RUDE as well as
yet another example of the City of Los Angeles flagrant violations of the Third and
Fourth Geneva Conventions, which specifically prohibit against wanton destruction of
civilian property with military use of force.
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It is worth noting that Melissa Balin was never actually formally arrested, and
instead was hidden from the other 291 Occupy LA raid-night arrestees; being held at the
Metro Detention Center instead of Van Nuys, and forced to stay in a top bunk (as deemed
unconstitutional treatment of pregnant women), when she should have been immediately
released on her own recognizance for a misdemeanor or infraction, and given the
opportunity to reclaim her personal and curated property.
NONE of the property was saved or properly preserved as evidence by LAPD and
was instead disposed of by Hazmat and City Sanitation Trucks (EXHIBIT G), and taken
to the LA City Dump; including but not limited to Melissa Balins personal and curated
property, which was protected by several signs statingTHIS IS A PRIVATE
RESIDENCE AS PROTECTED BY THE 4TH
AMENDMENT (see EXHIBIT H) and
in spite of phone and e-mail communications with LAPD PIO Commander Andrew
Smith (see EXHIBIT I), that they should get the City of Los Angeles to stop putting
trash on top of the personal belongings and cultural art of Los Angeles citizens,
including a hard drive with video and digital evidence and testimony stored on Civil
Rights Attorney Bruce Margolins firms laptop.
Response to Point II of Motion To Quash, Entitled A MOTION TO QUASH IS
THE APPROPRIATE MECHANISM TO TEST PROPRIETY OF A
SUBPOENA:
The attorneys for the Real Parties In Interest reference People v. Clinesmith
(1975) 175 Cal. App. 2d 911, 912-13 (emphasis added), that one who [contests] the right
to [it], its demands or their scope, [has] two options. He/she might refuse to comply;
or he/she might move to quash the subpoena. Upon the hearing of the matter, the court
may modify or quash the subpoena. It is worth noting that the Real Parties In Interest
REFUSED TO COMPLY IN FAILING TO APPEAR BEFORE THE COURT ON
APRIL 30, 2013 AND KNOWINGLY AND INTENTIONALLY IMPROPERLY
FILING A MOTION TO QUASH THE SUBPOENAS, as submitted by attorneys on
April 12, 2013 and scheduled to be heard on September 26, 2013 in a ruling by Los
Angeles Superior Court Judge Kenji Machida, that overlooked perjury on the part of the
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representatives for the City of Los Angeles, and might indicate a continued inability to be
impartial with regards to this case.
In a letter dated April 11, 2013 (EXHIBIT J), with a postmark date of April 12,
2013, signed by Chief Charlie Beck on behalf of Martin Bland, yet suspiciously similar to
the signature of Greyr Berberyan, a private attorney who represents the Los Angeles
County Sheriffs Department, it is erroneously inferred that the court-ordered fee waiver
is not applicable as it only relates to costs incurred within the Los Angeles Superiro
Court and not those incurred as a result of request associated with LAPD records or
personnel. This is not only untrue, but would be in direct violation of making public
records available and transparent for the People of California. LAPD officers are Public
Servants and giving truthful testimony in court is as much a part of their duty to protect
and serve the Constitution for the United States of America as well as the California State
Constitution of 1849, as jury duty and Jury Nullification, is the right and duty of all
citizens.
Regardless of whether or not the issue of the witness fees had been resolved, none
of the subpoenad officers made contact with the court or the plaintiff, with regards to
being put on call, NOR their failure to appear; and it would appear that certain members
of the LAPD and the LA County Sheriffs Department may think that they are So
Sovereign as to be Above the Laws of following a subpoena or a court order.
Response to Point III of Motion To Quash, Entitled, THE SUBPOENAS SHOULD
BE QUASHED BECAUSE THE REAL PARTIES HAVE NO RELEVANT
TESTIMONY TO OFFER:
The attorneys for the Real Parties In Interest admit, She was not prosecuted for
reasons unknown to this writer. It would appear this is not the only thing unknown to
the writers. It would also appear that the writer does not know that Chief Beck and
Commander Smith (1) DO INDEED HAVE RELEVANT TESTIMONY TO OFFER, (2)
DO PERSONALLY KNOW THE PLAINTIFF, AND (3) DO INDEED PERSONALLY
KNOW THE CIRCUMSTANCES SURROUNDING HER SMALL CLAIMS
LAWSUIT. The Office of the City Attorneys misrepresentation of the true facts to the
Court and the Good People of California, while under a sworn oath to protect and serve
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the California State Constitution of 1849 and the Constitution for the United States of
America, demonstrates a blatant example of how their office regularly abuses its powers
against its own citizens under Color of Law, and should not be countenanced.
Response to Point IV of Motion To Quash, Entitled, REAL PARTIES SHOULD
NOT BE COMPELLED TO RENDER ANY TESTIMONY UNDER ANY
CIRCUMSTANCES IN THIS PROCEEDING:
Given that Chief Beck is proclaimed to be a high level official and General
Manager of the Los Angeles Police Department (LAPD) with supervisory
responsibility over more than 13,000 sworn and civilian personnel.; it is important to
send a clear message that NO officer of the law is themselves Above the Law in any way;
and failing to appear or showing Contempt of Court should not be tolerated by either the
highest OR lowest ranking official representing the great City of Los Angeles, and should
be discouraged with an appropriate order to compel requested documents and testimony,
immediately if not sooner.
CONCLUSION:
The Plaintiff, Melissa Balin, respectfully requests that the Motion to Quash Subpoenas be
denied pursuant to Code of Civil Procedure 1985 and 1987.1, and in the alternative, that a
Motion to Compel Discovery be ordered immediately to produce the requested
documents and digital files, as well as that the Court issue a bench warrant for the
appearance of both Chief Beck and Commander Smith should they fail to appear in front
of the Court again; and a Writ of Prohibition, Quo Warranto, Mandate, or Other
Appropriate Summary Judgement.
DATED: May 29, 2013
Respectfully submitted,
Melissa Balin
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By___________________________________________
MELISSA BALIN, Plaintiff
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POINTS & AUTHORITIES
CASES
Nuo v. County of San Bernadino (C.D. Cal. 1999) 58 F. Supp .2d
1127, 1134
Chapman v. California (1967) 386 U.S. 18
U.S. v. Russell 411 U.S. 423, 431-432, 93 S. Ct. 1637, 36 L. Ed. 2d
366 (1973)
People v. McIntire, 23 Cal. 3d 742, 748, 153 Cal. Rptr. 237, 591 P .2d
527 (1979)
People v. Thoi, 213 Cal. App. 3d 689, 695-696, 261 Cal. Rptr. 789
(1989)
People v. Wesley, 224 Cal. App. 3d 1130, 1138, 1142-1144, 274 Cal.
Rptr. 326 (1990)
People v. Ervin, 22 Cal. 4th
48, 85-86, 91 Cal. Rptr. 2d 623, 990 P .2d
547 (2000)
People v. Holloway, 47 Cal. App. 4th
1757, 1767, 55 Cal. Rptr. 2d 547
(1996)
Rochin v. California, 342 U.S. 165, 72 S. Ct. 205, 96 L. Ed. 183
(1952)
Boulas v. Superior Court, 188 Cal. App. 3d 422, 233 Cal. Rptr. 487
(1986)
Francis v. Resweber, 329 U.S. 459 (1947)
Robinson v. California, 370 U.S. 660 (1962)
Furman v. Georgia, 408 U.S. 238 (1972)
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Solem v. Helm, 463 U.S. 277 (1983)
Estelle v. Gamble, 429 U.S. 97 (1976)
Farmer v. Brennan, 511 U.S. 825 (1994)
Williams v. United States, 341 U.S. 97, 71 S. Ct. 576, 95 L. Ed. 774
[1951]
In re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967)
Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333, 102 L. Ed. 2d
281 (1988)
California v. Trombetta, 467 U.S. 479, 104 S. Ct. 2528, 81 L. Ed. 2d
413 (1984)
People v. Hitch, 12 Cal. 3d 641, 117 Cal. Rptr. 9, 527 P .2d 361
(1974).
People v. Hardy, 2 Cal. 4th
86, 165, 5 Cal. Rptr. 2d 796, 825 P .2d 781
(1992)
People v. Antick (1975) 15 Cal.3rd 79, 87
People v. Ceballos (1974) 12 Cal.3rd 470, 478
Tennessee v. Garner (1985) 471 U.S. 1, 12-15 [85 L.Ed.2nd 1, 10-12]
People v. Martin (1985) 168 Cal.App.3rd 1111, 1124
In re Jordan (1972) 7 Cal.3rd 930, 937-938, fn. 3
People v. Lopez (1963) 60 Cal.2nd 223, 248.
STATUTES
California State Cosntitution of 1849
California Government Code 11120, which states, We The People
Do Not Yield Our Sovereignty To The Agencies That Serve Us.
First Amendment of the Constitution for The United States of
America
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Miranda Warning, which states, You have the right to remain
silent. Anything you say can and will be used against you in a court of law.
You have the right to an attorney. If you cannot afford an attorney, one will
be provided for you. Do you understand the rights I have just read to you?
With these rights in mind, do you wish to speak to me?
Sixth Amendment of the Constitution for The United States of
America
Eighth Amendment of the Constitution for The United States of
America
Fourteenth Amendment of the Constitution for The United States of
America
Universal Declaration of Human Rights,Article 10, which states:
"Everyone is entitled in full equality to a fair and public hearing by an
independent and impartial tribunal, in the determination of his rights and
obligations and of any criminal charge against him."
International Covenant on Civil and Political Rights (ICCPR),
Articles 14 & 16, which is binding in international law on the 72 states that
have ratified it. Article 14(1) establishes the basic right to a fair trial, article
14(2) provides for the presumption of innocence, and article 14(3) sets out a
list of minimum fair trial rights in criminal proceedings. Article 14(5)
establishes the right of a convicted person to have a higher court review the
conviction or sentence, and article 14(7) prohibits double jeopardy. Article
14(1) states that: "All persons shall be equal before the courts and tribunals.
In the determination of any criminal charge against him, or of his rights and
obligations in a suit at law, everyone shall be entitled to a fair and public
hearing by a competent, independent and impartial tribunal established by
law. The press and the public may be excluded from all or part of a trial for
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reasons of morals, public order or national security in a democratic society,
or when the interest of the private lives of the parties so requires, or to the
extent strictly necessary in the opinion of the court in special circumstances
where publicity would prejudice the interests of justice; but any judgement
rendered in a criminal case or in a suit at law shall be made public except
where the interest of juvenile persons otherwise requires or the proceedings
concern matrimonial disputes or the guardianship of children."
American Convention on Human Rights,Articles 3, 4, 8, 9, and 10
California Rule of Court 1.1150 cited with regards to filming penal
codes
Local Rule 2.17 cited with regards to filming penal codes
Title 42, U.S.C., Section 14141 makes it unlawful for state or local
law enforcement agencies to allow officers to engage in a pattern or practice
of conduct that deprives persons of rights protected by the Constitution or
U.S. laws. This law, commonly referred to as the Police Misconduct Statute,
gives the Department of Justice authority to seek civil remedies in cases
where law enforcement agencies have policies or practices that foster a
pattern of misconduct by employees. This action is directed against an
agency, not against individual officers. The types of issues which may
initiate a pattern and practice investigation, include:
* Lack of supervision/monitoring of officers' actions;
* Lack of justification or reporting by officers on incidents
involving the use of force;
* Lack of, or improper training of, officers; and
* Citizen complaint processes that treat complainants as
adversaries.
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Under Title 42, U.S.C., Section 1997, the Department of Justice has
the ability to initiate civil actions against mental hospitals, retardation
facilities, jails, prisons, nursing homes, and juvenile detention facilities when
there are allegations of systemic derivations of the constitutional rights of
institutionalized persons.
OTHER AUTHORITIES
LAPD Procedure Manual Volume 4 Section 296.01, which states,
During the performance of official duties, Department members shall
provide a business card to any person upon request, providing the action
does not interfere with the officers performance of his/her duty.
Abraham Lincolns words as entered again on public record
November 14, 2011: We the people are the rightful masters of both
Congress and the courts, not to overthrow the Constitution but to overthrow
the men who pervert the Constitution.
All Court Reporters Transcripts of Proceedings in Case
1CA16847-02 (NOT YET PROVIDED IN DISCOVERY)
All Videos forCase 1CA16847-02 as Provided by LA Sheriffs
Department
All Videos NOT YET PROVIDED OR ACCOUNTED FOR IN
DISCOVERY by LA Sheriffs Department forCase 1CA16847-02
Pitchess Motion filed by bar paneled attorney, Johnny Lai, in
September 2012
Surveillance Video Footage of Melissa Balins violation of due
process in public view from Clara Shortridge Foltz and Lynwood County
Jail NOT YET PROVIDED IN DISCOVERY (formally requested in writing
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by bar panel attorney, Johnny Lai, from Honorable Cecil Mills on October
16, 2012).
Title 18, USC, Section 4 states, Whoever, having knowledge of the
actual commission of a felony cognizable by a court of the United States,
conceals and does not as soon as possible make known the same to some
judge or other person in civil or military authority under the United States,
shall be fined under this title or imprisoned not more than three years, or
both.
Title 42, USC, Section 1986, states that Every person who, having
knowledge that any of the wrongs conspired to be done, and mentioned in
section 1985 of this title, are about to be committed, and having power to
prevent or aid in preventing the commission of the same, neglects or refuses
so to do, if such wrongful act be committed, shall be liable to the party
injured, or his legal representatives, for all damages caused by such
wrongful act, which such person by reasonable diligence could have
prevented; and such damages may be recovered in an action on the case; and
any number of persons guilty of such wrongful neglect or refusal may be
joined as defendants in the action; and if the death of any party be caused by
any such wrongful act and neglect, the legal representatives of the deceased
shall have such action therefor, and may recover not exceeding $5,000
damages therein, for the benefit of the widow of the deceased, if there be
one, and if there be no widow, then for the benefit of the next of kin of the
deceased. But no action under the provisions of this section shall be
sustained which is not commenced within one year after the cause of action
has accrued.
Title 42, USC, Section 1987 states, The United States attorneys,
marshals, and deputy marshals, the United States magistrate judges
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appointed by the district and territorial courts, with power to arrest,
imprison, or bail offenders, and every other officer who is especially
empowered by the President, are authorized and required, at the expense of
the United States, to institute prosecutions against all persons violating any
of the provisions of section 1990 of this title or of sections 5506 to 5516 and
5518 to 5532 of the Revised Statutes, and to cause such persons to be
arrested, and imprisoned or bailed, for trial before the court of the United
States or the territorial court having cognizance of the offense.
LAC/USC Medical Center Patient Rights (particularly rules 2, 11,
13, 14)
LACSD Use of Force Investigation Report for Case 1CA16847-02
Definition of PTSD as defined by The Mayo Clinic
Letter from Lael Rubin, Director of Bureau of Prosecution Support
Operations on behalf of Steve Cooley of the Los Angeles County District
Attorneys Office, to Zeke Perlo, Director of Indigent Criminal Defense
Appointments office dated June 22, 2012. The letter is regarding the
identification and disapproval of exculpatory evidence material to
defendants regularly being withheld by the Los Angeles County Sheriffs
Department.
Verified Petition for Writ of Mandate and Complaint For Injunctive
and Declaratory Relief filed on July 9, 2012 by ACLU attorney Jeffrey
Douglas against Steve Cooley and Sheriff Leroy Baca.
MC-500 Form- Media Request to Record or Broadcast
MC-510 Form- Media Request to Record or Broadcast
Formal Complaint and request for investigation with California
Commission on Judicial Performance, dated September 5, 2012 and received
September 19, 2012.
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Faretta Waiver Dangers and Disadvantages to Self-Representation
Civil Grand Jury Formal Complaint and request for investigation,
received November 7, 2012, including Appendix & Exhibits A R
8.204 section e 2C regarding Noncomplying briefs, which states, it is
not a fatal mistake to request an incorrect writ in the initial petition, so long
as the petition alleges facts sufficient to show that the petitioner is prima
facie entitled to one of the writs. The reviewing court can save a formally
defective petition by construing it to cure the defects.
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VERIFICATION
I, Melissa Balin, being first duly sworn, depose and say:
I am the Petitioner in the above-entitled action. I have read the
foregoing verified Opposition to The Notion of Motion To Quash
Subpoenas, and Motion To Compel, and Points & Authorities in Support of
a Petition for writ of prohibition, quo warranto, mandate, or other
appropriate immediate relief, and the facts alleged therein are within my
knowledge and I know them to be true, except as to matters therein stated on
information and belief, and as to those matters, I believe them to be true.
Dated May 29, 2013 Melissa Balin
(under sworn oath)
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Opposition To Motion To QuashList of Exhibits
EXHIBIT A City Attorneys Motion to Quash Subpoenas & Motion to Compel
EXHIBIT B Photos of Chief Beck and Commander Smith on the scene as firsthand
witnesses the evening of November 29 and morning of November 30,2011
EXHIBIT C photo of Chief Beck, Richard Eastman & Melissa Balin taken November
2011EXHIBIT D LA City Council Resolution 33
EXHIBIT E Cover of LA Times on November 30, 2011
EXHIBIT F Location of excessive force exerted on a handcuffed pregnant member ofthe media
EXHIBIT G photo of Hazmat wanton destruction of civilian property under Color of
LawEXHIBIT H 4
thAmendment Protection photos
EXHIBIT I e-mail correspondence with LAPD Commander Andrew Smith 12/08/11EXHIBIT J LAPD witness fees bill
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EXHIBIT C
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EXHIBIT D
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EXHIBIT E
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EXHIBIT F
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EXHIBIT G
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EXHIBIT H
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EXHIBIT I
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EXHIBIT J
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NOTICE OF MOTION FOR SUMMARY ADJUDICATION/JUDGEMENT &PETITITON FOR WRIT OF PROHIBITION, QUO WARRANTO, MANDATE, OROTHER APPROPRIATE IMMEDIATE RELIEF.
1
MELISSA BALIN10153 Riverside DriveSuite 465Toluca Lake, CA 91602
Pro Se, Plaintiff.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES CENTRAL DIVISION
MELISSA BALIN Case No. LAM-13M00544Plaintiff, Plaintiffs, NOTICE OF MOTION
AND MOTION FOR SUMMARYADJUDICATION/JUDGEMENT &PETITION FOR WRIT OFPROHIBITION, QUO
WARRANTO, MANDATE OROTHER APPROPRIATEIMMEDIATE RELIEF.
v.
CITY OF LOS ANGELES
Defendant.
TO THE ABOVE-ENTITLED COURT AND ALL PARTIES HEREIN:
PLEASE TAKE NOTICE THAT on June 11, 2013 at 1:30 PM, or as soon
thereafter as the Court deems the matter may be heard, in Department 90 of the above-
entitled Court, located at 11 North Hill Street, Los Angeles, California, 90012, Plaintiff,
MELISSA BALIN (hereinafter Balin), will and hereby does move the Court, pursuant
to Code of Civil Procedure (hereinafter CCP 437c), for summary
adjudication/judgement in favor of the MOVING PARTY and against the Defendant, The
City of Los Angeles (hereinafter City of Los Angeles), and for costs of suit incurred
herein and such other relief as may be just.
The motion is made on the grounds that a Summary Judgement based on theundisputed and uncontested cause(s) of action by the City of Los Angeles against Balin,
will further the interests of judicial economy, by reducing the time to be consumed in
trial, or significantly increase the ability of the parties to resolve the case by settlement.
CCP 437c(s)(2).
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ARGUMENT:
Please see the attached notarized Statement of Uncontroverted Facts which
shall also serve as a Declaration, (Points 1-39 and Exhibits A-W) in Support of the
Memorandum of Points and Authorities) that would clearly indicate TO ALL
PARTIES that this is a civil case governed by existing California Tenancy-At-Will
case law pertaining the following FIVE (5) ISSUES:
1) INDIGENOUS CITIZENS OF LOS ANGELES, INCLUDING BUTNOT LIMITED TO MELISSA BALIN, PUBLICLY IDENTIFYING
THEMSELVES AS MEMBERS OF THE SOVEREIGN NATION OF
FREEDOM & PEACE, DID NOT PAY RENT FOR THEIR
TENANCY OF THE CITY HALL LAWN.
2) INDIGENOUS CITIZENS OF LOS ANGELES, INCLUDING BUTNOT LIMITED TO MELISSA BALIN, PUBLICLY IDENTIFYING
THEMSELVES AS MEMBERS OF THE SOVEREIGN NATION OF
FREEDOM & PEACE, LIVED IN DOMICILE FOR MORE THAN
THIRTY DAYS IN TENANCY ON THE CITY HALL LAWN.
3) INDIGENOUS CITIZENS OF LOS ANGELES, INCLUDING BUTNOT LIMITED TO MELISSA BALIN, PUBLICLY IDENTIFYING
THEMSELVES AS MEMBERS OF THE SOVEREIGN NATION OF
FREEDOM & PEACE, HAD THE IMPLIED (SINCE OCTOBER 1,
2011), ACTUAL (SINCE OCTOBER 12, 2011) AND
CONSTRUCTIVE (TO THE DATE OF THIS WRITING AS
PROTECTED BY THE FIRST AMENDMENT) CONSENT OF THE
LANDLORD OF CITY HALL AND THE SURROUNDING LAWN,
THE PUBLIC ENTITY CURRENTLY KNOWN AS THE CITY OF
LOS ANGELES, AS WELL AS THE PREVIOUS LANDLORDS
AND STEWARDS OF THE LAND, THE TONGVA PEOPLE.
4) THE CITY OF LOS ANGELES IS RESPONSIBLE FOR"EXTENSIVE DESTRUCTION AND APPROPRIATION OF
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PROPERTY NOT JUSTIFIED BY MILITARY NECESSITY AND
CARRIED OUT UNLAWFULLY AND WANTONLY"; IE:
THROWING THE PROPERTY OF ITS CITIZENS DIRECTLY
INTO THE CITY DUMP WITHOUT A WARRANT OR
ACKNOWLEDGEMENT OF THE PROPERTY AS EVIDENCE IN
A CRIME SCENE. (see EXHIBIT X) THIS IS CONSIDERED A
"GRAVE BREACH" OF THE THIRD AND FOURTH GENEVA
CONVENTIONS, PROVIDING THE LEGAL DEFINITION OF A
"WAR CRIME".
5) THE CITY OF LOS ANGELES IS RESPONSIBLE FORKNOWINGLY VIOLATING THE 1ST, 4TH, 5TH, 8TH, 9TH AND
10TH AMENDMENT RIGHTS OF ITS OWN CITIZENS.
There is no triable issue of material fact and Balin is entitled to judgment as a
matter of law. (Aguilar 11. Atlantic Rlchfield Co. (2001) 25 Gal/ith 826, 850).
To show that The City of Los Angeles does not have any evidence in support of
its affirmative defenses, Balin will need to demonstrate that she asked for this evidence
and got nothing of substance in response, as evidenced by the Declarations of LAPD
Custodian of Records, Michael Novak, (see EXHIBIT Y) on April 24, 2013. (Scheldlng
1/.Dt'muiddie (1999) 69 Cal.App.4th 64, 81 (we can infer nothing at all with respect to
questions which were neither asked nor answered); Weber -0. john Crane, Inc. (2006)
143 Cal.App.4th 1433, 1441-1442.
Factually devoid discovery responses like these can, by themselves, be enough
to shift the initial burden in a Motion for Summary Adjudication. (Andrews 1). Foster
I/Wteeler LLC. (2006) 138 Cal.App.4th 96, 101.) A discovery response that indicates the
answering party has no evidence demonstrates that there is an absence of evidence in
support of that partys claims. (Andrews at p. 106.) Since the defendant must disclose
the evidence supporting these defenses in response to discovery requests, if it fails to do
so, the logical inference is that it does not possess any evidence.
Pursuant to California Code of Civil Procedure sections 2030.030(a)(2) and
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2030.070(a), the Defendant should please identify any additional later-acquired or
supplemental information necessary to make a response to judicial Council Form
Interrogatory 15.1 correct and complete as of this date.
The opposition must produce admissible evidence that a triable issue of material
fact exists for each as to each of the affirmative defenses in a motion for summary
adjudication. (437c, subd. (b)(3) and 43'7c, subd. (f)(l).) This can include evidence not
disclosed in discovery, unless the failure to disclose was willful. (Biles u ExxonMobil
Corporation (2004) 124 Cal.App/ith 1315, 1329).
CONCLUSION:
For the foregoing reasons, the Court should GRANT the motion for summary
judgement. In the alternative, the Court should GRANT the motion for summary
adjudication on the FIVE ISSUES BEFORE THE COURT THAT DETERMINE THE
EXIGENT CIRCUMSTANCES OF TENANCY-AT-WILL, WHICH REMAIN
UNCONTESTED BY THE CITY OF LOS ANGELES.
DATED: May 29, 2013
Respectfully submitted,
Melissa Balin
By___________________________________________
MELISSA BALIN, Plaintiff
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POINTS & AUTHORITIES
CASES
Aguilar 11, Atlantic Rlchfield Co. (2001) 25 Gal/ith 826, 850
Scheldlng 1/.Dt'muiddie (1999) 69 Cal.App.4th 64, 81
Weber -0. john Crane, Inc. (2006) 143 Cal.App.4th 1433, 1441-1442
Andrews 1). Foster I/Wteeler LLC. (2006) 138 Cal.App.4th 96, 101
Biles v. ExxonMobil Corporation (2004) 124 Cal.App/ith 1315, 1329
Nuo v. County of San Bernadino (C.D. Cal. 1999) 58 F. Supp .2d
1127, 1134
Chapman v. California (1967) 386 U.S. 18
U.S. v. Russell 411 U.S. 423, 431-432, 93 S. Ct. 1637, 36 L. Ed. 2d
366 (1973)
People v. McIntire, 23 Cal. 3d 742, 748, 153 Cal. Rptr. 237, 591 P .2d
527 (1979)
People v. Thoi, 213 Cal. App. 3d 689, 695-696, 261 Cal. Rptr. 789
(1989)
People v. Wesley, 224 Cal. App. 3d 1130, 1138, 1142-1144, 274 Cal.
Rptr. 326 (1990)
People v. Ervin, 22 Cal. 4th
48, 85-86, 91 Cal. Rptr. 2d 623, 990 P .2d
547 (2000)
People v. Holloway, 47 Cal. App. 4th
1757, 1767, 55 Cal. Rptr. 2d 547
(1996)
Rochin v. California, 342 U.S. 165, 72 S. Ct. 205, 96 L. Ed. 183
(1952)
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Boulas v. Superior Court, 188 Cal. App. 3d 422, 233 Cal. Rptr. 487
(1986)
Francis v. Resweber, 329 U.S. 459 (1947)
Robinson v. California, 370 U.S. 660 (1962)
Furman v. Georgia, 408 U.S. 238 (1972)
Solem v. Helm, 463 U.S. 277 (1983)
Estelle v. Gamble, 429 U.S. 97 (1976)
Farmer v. Brennan, 511 U.S. 825 (1994)
Williams v. United States, 341 U.S. 97, 71 S. Ct. 576, 95 L. Ed. 774
[1951]
In re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967)
Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333, 102 L. Ed. 2d
281 (1988)
California v. Trombetta, 467 U.S. 479, 104 S. Ct. 2528, 81 L. Ed. 2d
413 (1984)
People v. Hitch, 12 Cal. 3d 641, 117 Cal. Rptr. 9, 527 P .2d 361
(1974).
People v. Hardy, 2 Cal. 4th
86, 165, 5 Cal. Rptr. 2d 796, 825 P .2d 781
(1992)
People v. Antick (1975) 15 Cal.3rd 79, 87
People v. Ceballos (1974) 12 Cal.3rd 470, 478
Tennessee v. Garner (1985) 471 U.S. 1, 12-15 [85 L.Ed.2nd 1, 10-12]
People v. Martin (1985) 168 Cal.App.3rd 1111, 1124
In re Jordan (1972) 7 Cal.3rd 930, 937-938, fn. 3
People v. Lopez (1963) 60 Cal.2nd 223, 248.
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STATUTES
California State Cosntitution of 1849
California Government Code 11120, which states, We The People
Do Not Yield Our Sovereignty To The Agencies That Serve Us.
First Amendment of the Constitution for The United States of
America
Miranda Warning, which states, You have the right to remain
silent. Anything you say can and will be used against you in a court of law.
You have the right to an attorney. If you cannot afford an attorney, one will
be provided for you. Do you understand the rights I have just read to you?
With these rights in mind, do you wish to speak to me?
Sixth Amendment of the Constitution for The United States of
America
Eighth Amendment of the Constitution for The United States of
America
Fourteenth Amendment of the Constitution for The United States of
America
Universal Declaration of Human Rights,Article 10, which states:
"Everyone is entitled in full equality to a fair and public hearing by an
independent and impartial tribunal, in the determination of his rights and
obligations and of any criminal charge against him."
International Covenant on Civil and Political Rights (ICCPR),
Articles 14 & 16, which is binding in international law on the 72 states that
have ratified it. Article 14(1) establishes the basic right to a fair trial, article
14(2) provides for the presumption of innocence, and article 14(3) sets out a
list of minimum fair trial rights in criminal proceedings. Article 14(5)
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establishes the right of a convicted person to have a higher court review the
conviction or sentence, and article 14(7) prohibits double jeopardy. Article
14(1) states that: "All persons shall be equal before the courts and tribunals.
In the determination of any criminal charge against him, or of his rights and
obligations in a suit at law, everyone shall be entitled to a fair and public
hearing by a competent, independent and impartial tribunal established by
law. The press and the public may be excluded from all or part of a trial for
reasons of morals, public order or national security in a democratic society,
or when the interest of the private lives of the parties so requires, or to the
extent strictly necessary in the opinion of the court in special circumstances
where publicity would prejudice the interests of justice; but any judgement
rendered in a criminal case or in a suit at law shall be made public except
where the interest of juvenile persons otherwise requires or the proceedings
concern matrimonial disputes or the guardianship of children."
American Convention on Human Rights,Articles 3, 4, 8, 9, and 10
California Rule of Court 1.1150 cited with regards to filming penal
codes
Local Rule 2.17 cited with regards to filming penal codes
Title 42, U.S.C., Section 14141 makes it unlawful for state or local
law enforcement agencies to allow officers to engage in a pattern or practice
of conduct that deprives persons of rights protected by the Constitution or
U.S. laws. This law, commonly referred to as the Police Misconduct Statute,
gives the Department of Justice authority to seek civil remedies in cases
where law enforcement agencies have policies or practices that foster a
pattern of misconduct by employees. This action is directed against an
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agency, not against individual officers. The types of issues which may
initiate a pattern and practice investigation, include:
* Lack of supervision/monitoring of officers' actions;
* Lack of justification or reporting by officers on incidents
involving the use of force;
* Lack of, or improper training of, officers; and
* Citizen complaint processes that treat complainants as
adversaries.
Under Title 42, U.S.C., Section 1997, the Department of Justice has
the ability to initiate civil actions against mental hospitals, retardation
facilities, jails, prisons, nursing homes, and juvenile detention facilities when
there are allegations of systemic derivations of the constitutional rights of
institutionalized persons.
OTHER AUTHORITIES
LAPD Procedure Manual Volume 4 Section 296.01, which states,
During the performance of official duties, Department members shall
provide a business card to any person upon request, providing the action
does not interfere with the officers performance of his/her duty.
Abraham Lincolns words as entered again on public record
November 14, 2011: We the people are the rightful masters of both
Congress and the courts, not to overthrow the Constitution but to overthrow
the men who pervert the Constitution.
All Court Reporters Transcripts of Proceedings in Case
1CA16847-02 (NOT YET PROVIDED IN DISCOVERY)
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All Videos forCase 1CA16847-02 as Provided by LA Sheriffs
Department
All Videos NOT YET PROVIDED OR ACCOUNTED FOR IN
DISCOVERY by LA Sheriffs Department forCase 1CA16847-02
Pitchess Motion filed by bar paneled attorney, Johnny Lai, in
September 2012
Surveillance Video Footage of Melissa Balins violation of due
process in public view from Clara Shortridge Foltz and Lynwood County
Jail NOT YET PROVIDED IN DISCOVERY (formally requested in writing
by bar panel attorney, Johnny Lai, from Honorable Cecil Mills on October
16, 2012).
Title 18, USC, Section 4 states, Whoever, having knowledge of the
actual commission of a felony cognizable by a court of the United States,
conceals and does not as soon as possible make known the same to some
judge or other person in civil or military authority under the United States,
shall be fined under this title or imprisoned not more than three years, or
both.
Title 42, USC, Section 1986, states that Every person who, having
knowledge that any of the wrongs conspired to be done, and mentioned in
section 1985 of this title, are about to be committed, and having power to
prevent or aid in preventing the commission of the same, neglects or refuses
so to do, if such wrongful act be committed, shall be liable to the party
injured, or his legal representatives, for all damages caused by such
wrongful act, which such person by reasonable diligence could have
prevented; and such damages may be recovered in an action on the case; and
any number of persons guilty of such wrongful neglect or refusal may be
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joined as defendants in the action; and if the death of any party be caused by
any such wrongful act and neglect, the legal representatives of the deceased
shall have such action therefor, and may recover not exceeding $5,000
damages therein, for the benefit of the widow of the deceased, if there be
one, and if there be no widow, then for the benefit of the next of kin of the
deceased. But no action under the provisions of this section shall be
sustained which is not commenced within one year after the cause of action
has accrued.
Title 42, USC, Section 1987 states, The United States attorneys,
marshals, and deputy marshals, the United States magistrate judges
appointed by the district and territorial courts, with power to arrest,
imprison, or bail offenders, and every other officer who is especially
empowered by the President, are authorized and required, at the expense of
the United States, to institute prosecutions against all persons violating any
of the provisions of section 1990 of this title or of sections 5506 to 5516 and
5518 to 5532 of the Revised Statutes, and to cause such persons to be
arrested, and imprisoned or bailed, for trial before the court of the United
States or the territorial court having cognizance of the offense.
LAC/USC Medical Center Patient Rights (particularly rules 2, 11,
13, 14)
LACSD Use of Force Investigation Report for Case 1CA16847-02
Definition of PTSD as defined by The Mayo Clinic
Letter from Lael Rubin, Director of Bureau of Prosecution Support
Operations on behalf of Steve Cooley of the Los Angeles County District
Attorneys Office, to Zeke Perlo, Director of Indigent Criminal Defense
Appointments office dated June 22, 2012. The letter is regarding the
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identification and disapproval of exculpatory evidence material to
defendants regularly being withheld by the Los Angeles County Sheriffs
Department.
Verified Petition for Writ of Mandate and Complaint For Injunctive
and Declaratory Relief filed on July 9, 2012 by ACLU attorney Jeffrey
Douglas against Steve Cooley and Sheriff Leroy Baca.
MC-500 Form- Media Request to Record or Broadcast
MC-510 Form- Media Request to Record or Broadcast
Formal Complaint and request for investigation with California
Commission on Judicial Performance, dated September 5, 2012 and received
September 19, 2012.
Faretta Waiver Dangers and Disadvantages to Self-Representation
Civil Grand Jury Formal Complaint and request for investigation,
received November 7, 2012, including Appendix & Exhibits A R
8.204 section e 2C regarding Noncomplying briefs, which states, it is
not a fatal mistake to request an incorrect writ in the initial petition, so long
as the petition alleges facts sufficient to show that the petitioner is prima
facie entitled to one of the writs. The reviewing court can save a formally
defective petition by construing it to cure the defects.
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NOTICE OF MOTION FOR SUMMARY ADJUDICATION/JUDGEMENT &PETITITON FOR WRIT OF PROHIBITION, QUO WARRANTO, MANDATE, OROTHER APPROPRIATE IMMEDIATE RELIEF.
13
VERIFICATION
I, Melissa Balin, being first duly sworn, depose and say:
I am the Petitioner in the above-entitled action. I have read the
foregoing verified Notice of Motion For Summary Adjudication/Judgement
and Points & Authorities in Support of a Petition for writ of prohibition, quo
warranto, mandate, or other appropriate immediate relief, and the facts
alleged therein are within my knowledge and I know them to be true, except
as to matters therein stated on information and belief, and as to those
matters, I believe them to be true.
Dated May 29, 2013 Melissa Balin
(under sworn oath)
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EXHIBIT B
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EXHIBIT C
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EXHIBIT D
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EXHIBIT E
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EXHIBIT F
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EXHIBIT G
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EXHIBIT H
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EXHIBIT I
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EXHIBIT J
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EXHIBIT K
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EXHIBIT L
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EXHIBIT M
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EXHIBIT N
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EXHIBIT O
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EXHIBIT P
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1
Petition for a WRIT OF PROHIBITION, QUO
WARRANTO, MANDATE, OR OTHER
APPROPRIATE IMMEDIATE RELIEF
The People petition the Supreme Court to issue a Writ of Prohibition,
Quo Warranto, Mandate, or Other Appropriate Immediate Relief,
against all lower courts in the Case of #1CA16847-02 for the
following grounds:
1. The falsified contempt of court arrest of the identifiedmember of the media, Melissa Balin, in full public view at
the Clara Shortridge Foltz Criminal Justice Center at
approximately 12:15pm on November 14, 2011, was
unlawful and therefore there is no crime and no charges to
prosecute.
2. The Los Angeles County Sheriffs Department knowinglywithheld medical attention, legal counsel, and a call to her
mommy, from a pregnant woman, for more than 53 hours,
purposefully misspelling Balins name in the files, in order
to thwart the efforts of bail bondsmen and attorneys
searching for the unlawfully incarcerated journalist, thereby
shackling and detaining her unconstitutionally, in violation
of the pregnant womans Sixth, Eighth and FourteenthAmednment rights; protected against cruel and unusual
punishment, excessive bail, and in flagrant and continuing
violation of her due process of law, and that of her
miscarried unborn fetus, for which there is no remedy.
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2
3. Melissa Balin had repeated correspondence with InternalAffairs beginning in December 2011, acknowledging that
they had yet to assign any of her multiple arrests for her
known association with the Occupy movement, for
investigation, and assuring she would be assigned an
investigator soon. To this date of petition, over ONE
YEAR LATER, there has yet to be an investigator assigned
or an investigation launched into the evidentiary allegations
of excessive force, falsified arrest reports, and politically
motivated selective prosecution by Los Angeles City
Attorney, Carmen Trutanich (who has been lying to the
good people of Los Angeles with impunity since April 2011
as confirmed by http://thetrufacts.com/) to make a lesson
out of Melissa Balin and any potential Occupy Sympathizers
with jail time; for ANY of the Melissa Balins three arrests
over the thirty day period by Los Angeles County Sheriffs,
LAPD, AND Long Beach PD, resulting in the unlawful
termination of her first pregnancy; or her continuing
unconstitutional harassment and deprivation of her right to
life, liberty and the pursuit of happiness; by law enforcement
officers in Los Angeles County, including, but not limited
to, FIVE detentions WITHOUT PROBABLE CAUSE in a
24 HOUR period as recent as the One Year Anniversary of
Occupy LA the weekend of October 1, 2012 by NHPD,
LAPD AND General Public Safety, and an ONGOING
criminal investigation being conducted by Public
Information Officer Andy Smith and the LAPD for Balins
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3
First Amendment protected chalking on public sidewalks, as
evidenced in the Los Angeles Times.
4. [W]here police take matters in their own hands, seizevictims, beat and pound them until they confess, there
cannot be the slightest doubt that the police have deprived
the victim of a right under the Constitution. It is the right of
the accused to be tried by a legally constituted court, not by
a kangaroo court" (Williams v. United States, 341 U.S. 97,
71 S. Ct. 576, 95 L. Ed. 774 [1951]
5. Melissa Balins right to due process as protected by theSixth and Eighth Amendments of the Constitution for The
United States of America, has been continuously and
willfully violated in full public view FOR OVER ONE
YEAR, through being withheld exculpatory evidence
material to her defense, continuing mandamus, and being
most recently neglected ANY legal counsel appointed by the
courts from October 19, 2012 until November 26, 2012.
WHEREFORE, the Petitioner, while not particularly religious,
Prays for the California State Supreme Court to issue a Writ of
Prohibition, or other appropriate injunctive and declaratory
IMMEDIATE RELIEF against the lower Superior courts of Los
Angeles County from any and all charges in Case 1CA16847-02 and
any and all other potential charges looming from Filmmaker Melissa
Balins exercising of Freedom of Expression, Freedom of Speech, and
Freedom of Press, in 2011 and 2012 as is protected under the First
Amendment of the Constitution for the United States of America.
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4
In light of the irreparable damage being caused by continuing
kangaroo court proceedings at the very location of Balins
unconstitutional arrests, and exacerbated Post Traumatic Stress
Disorder, as diagnosed by Balins primary physician Dr. Keith
Kauhanen of the Motion Picture Health Center; from the documented
threatening statements and continuing lies under oath made by
members of the Los Angeles County Sheriffs Department, from
December 3, 2011; including, in front of bar panel attorney Johnny
Lai on multiple occasions as documented in his Pitchess motion, until
as recently as November 7th
, 2012 in front of bar panel attorney Mark
Lowerre; Balin faces long-term debilitating mental health concerns
and is currently in fear for her life and the immediate safety of her
family.
In light of continued threatening confrontations by the very
Sheriffs deputies involved in Balins initial assault and kidnapping
coordinated by the Bad Lieutenant Watch Commander Mack, who
continues to carry a badge and gun and work on active duty without
any further investigation, other than the LACSD Use of Force Report
that HE SIGNED OFF AND APPROVED HIMSELF, at the Clara
Shortridge Foltz Criminal Justice Center, in spite of perjuring himself
under oath as witnessed and testified to by officers of the courts, in the
Pitchess motion filed by bar paneled attorney, Johnny Lai, and
witnessed in full public view by the good People of California, the
Petitioner Prays for a Stay from any further proceedings to take place
at the scene of the crime itself, the Clara Shortridge Foltz Criminal
Justice Center, and requests that any and all future proceedings be
held by the Supreme Court itself, or an otherwise LEGALLY
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CONSTITUTED COURT, essentially issuing a WRIT OF QUO
WARRANTO against any and all proceedings being held at the
currently corrupt kangaroo court named after the woman who
introduced the very concept of the Public Defender.
WHEREFORE, Melissa Balin suffers irreparable professional,
physical, emotional, and financial, material damage from her
unconstitutionally impeded access to observe as a member of the
media, as flagrantly demonstrated under the strictest of scrutinies;
during her own one year-long unconstitutional trial by ordeal (a
process internationally deemed a cruel and unusual punishment in the
1600s), the Petitioner Prays for injunctive and declaratory relief from
any future unconstitutional detentions, unlawful searches or seizures
without cause, arrests, impeded access to observe, and/or prosecutions
under Color of Law; and Prays for a Writ of Mandate against any and
all future threats to Melissa Balins life and/or safety, and the life
and/or safety of Melissa Balins immediate family members, made by
law enforcement officers or officers of the court; and that any and all
complaints by Melissa Balin be assigned to an FBI Special Agent In
Charge in order to be handled immediately and with grave seriousness
for investigation with regards to any and all allegations of police,
sheriff, and/or prosecutorial misconduct as well as any and all
suspicions of malfeasance of justice.
WHEREFORE, The Faretta Waiver outlines the Dangers and
Disadvantages to Self-Representation, including but not limited to,
that if I am permitted to represent myself it will be necessary for me,
WITHOUT THE ASSISTANCE OF A LAWYER OR THE COURT,
to follow all the technical rules of substantive law, criminal procedure,
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and evidence., and WHEREFORE, the Petitioner has not met all of
the qualifications to take the State Bar, but has taken a sworn oath as
one of only fourteen declared political candidates running for Mayor
of Los Angeles, and WHEREFORE, the Petitioner appears more
respectful of the Court and familiar with the California State Bar
Rules of Professional Conduct than many of the prosecutors of Los
Angeles County, and is California State Identified Highly Gifted with
an IQ of over 160 (California qualifying Stanford Binet exam taken
by Melissa Balin in 1980 and internationally recognized by MENSA
in 2005), and WHEREFORE, the Petioner has clearly not been
afforded adequate, competent, OR effective counsel for the duration
of the continuing violation of her due process, with no other recourse
or remedy than to read for the law under the fleeting elevator
mentorship of barred attorneys that Melissa Balin as a defendant
could not afford to hire for proper representation, for MORE THAN
ONE YEAR; the Petitioner Prays that the courts will bestow the
defendant, Melissa Balin, with the privileges and authority of a bar
panel attorney as is within the Courts authorities, if only for the
ability to represent herself in this case only, WITH THE
ASSISTANCE OF LAWYERS AND THE COURT, for the
purposes of her own representation, even if limiting the full privileges
of a barred attorney with regards to any other cases or the ability to
give legal advice to anyone else, now or in the future.
In light of the irreparable damage of the miscarriage of Melissa
Balins first pregnancy, for which there is NO remedy, the Petitioner
also Prays for an immediate investigation into the continuing cruel
and unusual punishment of pregnant women currently incarcerated in
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Los Angeles County in the hopes of saving the unborn children of
Lynwood who currently have no ability to petition the courts on their
own behalf.
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8
ARGUMENTS
Under California law, an officer is not lawfully performing
her duties when she detains an individual without reasonable
suspicion or arrests an individual without probable cause. (Nuo v.
County of San Bernadino (C.D. Cal. 1999) 58 F. Supp .2d 1127,
1134.) The arrest of identified member of the press, Melissa Balin,
was unlawful. Judge Korn told the officers to remove the woman
from the courtroom, NOT to remand the woman into custody, as is
evidenced in court transcripts, revised and conflated Sheriff reports,
and video evidence. Another audience member WAS remanded into
custody by Judge Korn at the same time that Melissa Balin was asking
if she was being arrested (approximately 7:51 minutes into video
discovery), making it further clear that the Court NEVER found
Melissa Balins behavior to be contemptuous, and that Sheriff
Deputies acted outside of their scope of jurisdiction in a malicious and
willful manner so as to falsely detain, kidnap and imprison a pregnant
member of the media; rather than allow Balin to file a formal
complaint against them with their supervisor, Sheriff Leroy Baca.
The Misdemeanor Complaint warrant, which was not submitted
until November 16, 2011, cites a violation of P.C. 166 (a)(1), which
states: (a)Except as provided in subdivisions (b), (c), and (d), every
person guilty of any contempt of court, of any of the following kinds,
is guilty of a misdemeanor:
(1)Disorderly, contemptuous, or insolent behavior
committed during the sitting of any court of justice, in the
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immediate view and presence of the court, and directly tending
to interrupt its proceedings or to impair the respect due to its
authority.
According to Masinter 355 So.2d 1288, the power to jail for
contempt is given "on the assumption that it will be judiciously and
sparingly employed".
Due process requires dismissal when the governments conduct
is so grossly shocking that it violated that fundamental fairness,
shocking to the universal standard of justice mandated by the Due
Process Clause of the Fifth Amendment. (U.S. v. Russell, 411 U.S.
423, 431-432, 93 S. Ct. 1637, 36 L. Ed. 2d 366 (1973)).
The federal courts have long recognized outrageous
government conduct as a viable defense, based on a violation of the
due process clause (Greene v. U.S., 454 F .2d 783 (9th
Cir. 1971))
Examples of such outrageous conduct have occurred when law
enforcement agents used a friend to induce a defendant to commit a
crime [citations], physical abuse (Rochin v. California, 342 U.S. 165,
72 S. Ct. 205, 96 L. Ed. 183 (1952)); and interference with attorney-
client relationship (Boulas v. Superior Court, 188 Cal. App. 3d 422,
233 Cal. Rptr. 487 (1986)).
In U.S. v. Russell, 411 U.S. 423, 431-436, 93 S. Ct. 1637, 36 L.
Ed. 2d 366, 93 (1973), the Supreme Court recognized that situations
may arise where the conduct of law enforcement agents is so
outrageous that due process principles would absolutely bar the
government from invoking judicial process to obtain a conviction.
Although no California court has directly found on this ground, the
courts have recognized there can be situations in which the
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governments conduct in investigating, arresting or prosecuting a
defendant is so outrageous a conviction would deny the defendant due
process of law. (People v. Wesley, 224 Cal. App. 3d 1130, 1138,
1142-1144, 274 Cal. Rptr. 326 (1990); People v. Ervin, 22 Cal. 4th
48,
85-86, 91 Cal. Rptr. 2d 623, 990 P .2d 506 (2000); People v.
Holloway, 47 Cal. App. 4th
1757, 1767, 55 Cal. Rptr. 2d 547 (1996))
California cases have treated this defense as viable. (People v. Thoi,
213 Cal. App. 3d 689, 696, 261 Cal. Rptr. 789 (1989)) As the
California Supreme Court observed in People v. McIntire, 23 Cal. 3d
742, 748, 153 Cal. Rptr. 237, 591 P .2d 527 (1979), sufficiently gross
police conduct could conceivably lead to a finding that conviction of
the accused would violate his constitutional right to due process of the
law.
The courts have identified four factors that should be
considered in determining whether due process principles had been
violated by outrageous police conduct: (1) whether the police
manufactured a crime which otherwise would not likely have
occurred, or merely involved themselves in an ongoing criminal
activity [citations]; (2) whether the police themselves engaged in
criminal or improper conduct repugnant to a sense of justice
[citations]; (3) whether the defendants reluctance to commit the
crime is overcome by appeals to humanitarianism instincts such as
sympathy or past friendship, by temptation of exorbitant gain, or by
persistent solicitation in the face of unwillingness [citation]; and (4)
whether that record reveals simply a desire to obtain a conviction with
no reading that the police motive is to prevent further crime or protect
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the populace. (People v. Wesley, 224 Cal. App. 3d 1130, 1142, 274
Cal. Rptr. 326 (1990))
It is important to note that police are only required to Mirandize
a suspect if they intend to interrogate that person under custody.
Arrests can occur without the Miranda Warning being given. If the
police later decide to interrogate the suspect, the warning must be
given at that time. Their vigilance to this rule means less chance of a
case being overturned in court due to poor procedure on their part.
If the individual indicates in any manner, at any time prior to or
during questioning, that he or she wishes to remain silent, the
interrogation must cease. If the individual states that he or she wants
an attorney, the interrogation must cease until an attorney is present.
At that time, the individual must have an opportunity to confer with
the attorney and to have him or her present during any subsequent
questioning. Melissa Balin begged continually for OVER TWO
HOURS for BOTH medical attention AND legal counsel, while
Sergeant Dancel #402115 continuef to interrogate her WITHOUT
MIRANDA WARNING. It is worth noting that this exculpatory
video evidence that was INDEED most material to the defense, was
DENIED REPEATEDLY BY SERGEANT LUCAS #230303 AND
OTHER DEPUTIES UNDER OATH AS EVEN EXISTING, until it
was finally handed over in discovery in JULY OF 2012 WITHOUT
ANY EXPLANATION FOR THE DENIAL OF ITS EXISTENCE
NOR THE DELAY IN DELIVERY TO THE DEFENSE.
In Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947),
the Supreme Court assumed arguendo that the Cruel and Unusual
Punishments Clause applied to the states through the Due Process
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Clause of the Fourteenth Amendment. In Robinson v. California, 370
U.S. 660 (1962), the Court ruled that it did apply to the states through
the Fourteenth Amendment.
In Furman v. Georgia, 408 U.S. 238 (1972), Justice Brennan
wrote, "There are, then, four principles by which we may determine
whether a particular punishment is 'cruel and unusual'."
* The "essential predicate" is "that a punishment must not by
its severity be degrading to human dignity," especially torture.
* "A severe punishment that is obviously inflicted in wholly
arbitrary fashion."
* "A severe punishment that is clearly and totally rejected
throughout society."
* "A severe punishment that is patently unnecessary."
Justice Brennan also wrote that he expected no state would pass
a law obviously violating any one of these principles, so court
decisions regarding the Eighth Amendment would involve a
"cumulative" analysis of the implication of each of the four principles.
In this way, the United States Supreme Court "set the standard that a
punishment would be cruel and unusual, [if] it was too severe for the
crime, [if] it was arbitrary, if it offended society's sense of justice, or if
it was not more effective than a less severe penalty."
In the case of Solem v. Helm, 463 U.S. 277 (1983), the
Supreme Court held that incarceration, standing alone, could
constitute cruel and unusual punishment if it were "disproportionate"
in duration to the offense. The Court outlined three factors that were
to be considered in determining if the sentence is excessive: "(i) the
gravity of the offense and the harshness of the penalty; (ii) the
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sentences imposed on other criminals in the same jurisdiction; and
(iii) the sentences imposed for commission of the same crime in other
jurisdictions."
Estelle v. Gamble, 429 U.S. 97 (1976), established the principal
that the deliberate failure of prison authorities to address the medical
needs of an inmate constitutes "cruel and unusual punishment".[1] It
held that "deliberate indifference to serious medical needs of prisoners
constitutes the 'unnecessary and wanton infliction of pain'...proscribed
by the Eighth Amendment."
In the case of Farmer v. Brennan, 511 U.S. 825 (1994), Justice
Blackmuns opinion states, Where a legislature refuses to fund a
prison adequately, the resulting barbaric conditions should not be
immune from constitutional scrutiny simply because no prison official
acted culpably. [...] The responsibility for subminimal conditions in
any prison inevitably is diffuse, and often borne at least in part, by the
legislature. Yet, regardless of what state actor or institution caused
the harm and with what intent, the