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I am filing an appeal for judicial prejudice. I need to obtain

I am filing an appeal...
I am filing an appeal for judicial prejudice. I need to obtain some case laws to cite regarding a Judgment entered by Defendants who failed to serve Plaintiffs although filed a proof of service stating they did. Judge entered judgment stating Plaintiffs did not object assuming they were served. The Judgment entered prevents Plaintiffs from suing again but this settlement landlocks Plaintiffs parcels that are under a settlement agreement/judgment to sell and have to sue for additional causes of action because attorney failed to file an amended complaint. Plaintiffs refused to sign Defendants settlement agreement that did not conform to the clerk’s transcript but got it into the Proposed Judgment that was entered without allowing us to object.

Is there any case law for being denied a Settlement Conference Judge at the Mandatory Settlement Conference (MSC) who would have been shown evidence that Defendants small claims lawsuit was frivolous as was their last judgment entered against Plaintiff in small claims court who filed this unlimited lawsuit and consolidated Defendants second small claims lawsuit for $7,500. Defendants entire defense of this lawsuit has been based on Plaintiff being a member of this corporation’s gated community who is not a member (this evidence was an exhibit to the Status Report filed five months after settling the case when the Judge announced that he was setting the case for trial but Defendants had filed a motion to enforce settlement day before). Plaintiffs also proved that their attorney’s motion to withdraw that Plaintiffs were never allowed to object to because the Judge made rulings based on filed documents that contained false information to get those motions granted but judicially prejudiced Plaintiffs forcing them into a settlement.

Is there any case law where a Judge should not have heard the case because he had heard the first small claims lawsuit filed against Plaintiffs and entered Judgment and mentioned at the MSC that he remembered that lawsuit and this lawsuit was all about those fraudulent lawsuits. He went on to rule based solely on the documents filed by the attorneys that contained all false statements that Plantiffs motion to continue the trial in four weeks was denied and Plaintiffs attorney’s motion to withdraw forcing them into a bad settlement without a Settlement Conference Judge and judicially prejudiced Plaintiffs who had all of the evidence to prove their case at trial.
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Answered in 6 hours by:
10/3/2012
socrateaser
socrateaser, Attorney
Category: Business Law
Satisfied Customers: 39,498
Experience: Retired
Verified
I realize that you are looking for a case that will allow you to win the day on appeal. However, sometimes, when you realize that the case law is absolutely against you, it may propel you to some other argument.

In Marriage of Lemen (2nd Dist. App. 12/22/1980) 113 Cal.App.3d 769, the District Court of Appeals wrote: "After a Court makes a decision, and after a Court states the basis of its decision, to then say this Court is prejudiced by reason of the fact that it has heard the case, is not only ridiculous, but it's absurd.”

The point, obviously, is that an attempt to generalize a judge's position as prejudiced merely because he/she has heard a prior case on a similar issue and held against you, is likely to be viewed as frivolous, and that is the worst of all possible positions, because it permits the appellate court not only dismiss your appeal, but to sanction you for bringing the appeal. You need a different tack, or you're going to get slaughtered.

What you need to argue is not the law, but the facts, i.e., that the judge's rulings demonstrate actual prejudice or bias, and that the decisions injured you. This does not require case law citations. It requires a careful attention to the details of the case and the judge's conduct.

I suggest that you review Morongo Band of Mission Indians v. State Water Resources Control Board, 153 Cal.App.4th 202, 62 Cal.Rptr.3d 492 (Cal.App. Dist.3 07/12/2007). It contains a thorough discussion of the issue of actual bias in a judicial officer.

Hope this helps.

NOTICE: My goal here is to entertain while educating the public about the law. I hope my answer is useful and informative to you. During our conversation, the website may ask you to rate my answer. If you rate my answer lower than the middle rating, then the website retains your entire payment, and I receive nothing. It is entirely your choice as to how you rate my answer. However, because your payment to me is in the nature of a donation/gift, rather than as compensation for any services rendered, you are entitled to know how your rating affects the final distribution of your donation.

If you need to contact me again, please put my user id at the beginning of your question ("To Socrateaser"), and the system will send me an alert. Please Click the following link for IMPORTANT LEGAL INFORMATION. Thanks and best wishes!

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Customer reply replied 5 years ago

"To Socrateaser," Thank you for your response. Is there case law that I could cite to set aside the Judgment because Defendants presented a Proposed Judgment (no settlement agreement was ever signed) because they claimed to the Court that Plaintiffs were served with the Proposed Judgment but cannot prove they did claiming in their proof of service Paintiffs were served by Federal Express requiring a signature. The Court entered Judgment stating they are doing so because Plaintiffs did not object and therefore must agree to the Proposed Judgment but they would have objected because the Judgment prevents Plaintiff from filing another lawsuit to be able to sell parcents in this gated community that Defendants working with other members who are Defendants in the case Plaintiff agreed to sell parcels 10 years ago under a Settlement Agreement/Judgment. The property was appraised by an MAI appraiser in July 2007 for $700,000 and without access, can't be sold (Defendants in the other case have to acquire Plaintiffs parcels or they cannot legalize an illegal house they built without owning Plaintiffs parcels. In this case, Plaintiffs agreed to Civil Code Section 1542 waiver, that the Judge read on to the clerk's transcript "In a Civil Code 1542 waiver, that basically means that any claims that potentially could have arose out of the facts or situation presented in any of the pleadings in this case are waived. That means anything that has happened up to date, you can't bring a new claim in the future." The Judgement states we can never sue for "known or unknown claims" and we have to get the "unknown" removed from the Judgment with case law that Defendants deceived the Court into believing they served Plaintiffs so they can get that language in there that Plaintiffs attorney after settlement fought for five months before withdrawing. Defendants attorney is an insurance company attorney who does not want to represent Defendants because she knows Defendants maliciously prosecuted Plaintiffs and would have lost this case who were forced into this settlement with Defendants knowing full well that they would have to sue again for causes of action that Plaintiffs attorney failed to file in an amended complaint and on-going actions to keep Plaintiff from selling two parcels. Thank you!

You appear to have changed your question from one concerning judicial prejudice/bias, to one about the validity of an unsigned settlement agreement that the judge has apparently entered into the court based upon an assertion by the signing party that the nonsigning party agreed to its terms, either in or out of court.

Since I already answered your original question re judicial bias/prejudice, I would appreciate it if you would rate that answer positively and then open a new question on your new subject matter -- and I will be happy to entertain the new question, if it is directed to me.

Thanks in advance.

NOTICE: My goal here is to entertain while educating the public about the law. I hope my answer is useful and informative to you. During our conversation, the website may ask you to rate my answer. If you rate my answer lower than the middle rating, then the website retains your entire payment, and I receive nothing. It is entirely your choice as to how you rate my answer. However, because your payment to me is in the nature of a donation/gift, rather than as compensation for any services rendered, you are entitled to know how your rating affects the final distribution of your donation.

If you need to contact me again, please put my user id at the beginning of your question ("To Socrateaser"), and the system will send me an alert. Please Click the following link for IMPORTANT LEGAL INFORMATION. Thanks and best wishes!

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Customer reply replied 5 years ago

I would be happy to do so but please let me know if this needs to be done since this issue was brought up in my first question (see first paragraph) and since it was not answered, we asked it again. Let me know if you want me to resend as a separate question or if you need to answer that part of the first question before I do so. Thanks ever so much for your assistance!

I acknowledge that we have a difference of opinion as to whether or not you have asked a new question. If you want me to answer the second question, you will have to rate this Q&A positively, and then post your second question in a new Q&A session.

Thanks in advance.

NOTICE: My goal here is to entertain while educating the public about the law. I hope my answer is useful and informative to you. During our conversation, the website may ask you to rate my answer. If you rate my answer lower than the middle rating, then the website retains your entire payment, and I receive nothing. It is entirely your choice as to how you rate my answer. However, because your payment to me is in the nature of a donation/gift, rather than as compensation for any services rendered, you are entitled to know how your rating affects the final distribution of your donation.

If you need to contact me again, please put my user id at the beginning of your question ("To Socrateaser"), and the system will send me an alert. Please Click the following link for IMPORTANT LEGAL INFORMATION. Thanks and best wishes!

socrateaser
socrateaser, Attorney
Category: Business Law
Satisfied Customers: 39,498
Experience: Retired
Verified
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Customer reply replied 5 years ago

 


"To Socrateaser," Thank you for your response. Is there case law that I could cite to set aside the Judgment because Defendants presented a Proposed Judgment (no settlement agreement was ever signed) because they claimed to the Court that Plaintiffs were served with the Proposed Judgment but cannot prove they did claiming in their proof of service Paintiffs were served by Federal Express requiring a signature. The Court entered Judgment stating they are doing so because Plaintiffs did not object and therefore must agree to the Proposed Judgment but they would have objected because the Judgment prevents Plaintiff from filing another lawsuit to be able to sell parcents in this gated community that Defendants working with other members who are Defendants in the case Plaintiff agreed to sell parcels 10 years ago under a Settlement Agreement/Judgment. The property was appraised by an MAI appraiser in July 2007 for $700,000 and without access, can't be sold (Defendants in the other case have to acquire Plaintiffs parcels or they cannot legalize an illegal house they built without owning Plaintiffs parcels. In this case, Plaintiffs agreed to Civil Code Section 1542 waiver, that the Judge read on to the clerk's transcript "In a Civil Code 1542 waiver, that basically means that any claims that potentially could have arose out of the facts or situation presented in any of the pleadings in this case are waived. That means anything that has happened up to date, you can't bring a new claim in the future." The Judgement states we can never sue for "known or unknown claims" and we have to get the "unknown" removed from the Judgment with case law that Defendants deceived the Court into believing they served Plaintiffs so they can get that language in there that Plaintiffs attorney after settlement fought for five months before withdrawing. Defendants attorney is an insurance company attorney who does not want to represent Defendants because she knows Defendants maliciously prosecuted Plaintiffs and would have lost this case who were forced into this settlement with Defendants knowing full well that they would have to sue again for causes of action that Plaintiffs attorney failed to file in an amended complaint and on-going actions to keep Plaintiff from selling two parcels. Thank you!

I believe that you are continuing to focus on the idea that there must be case law that will definitively cause an appellate court to rule in your favor. This track is practically guaranteed to cause you to lose your argument. You must try to show the appellate court that the judge acted in a manner which demonstrated on the record, a particular bias against you. Appellate courts are routinely bombarded by pro se litigants who think that by reciting case law precedent that they can defeat their opponent. The problem with this theory is that appellate court judges will not be "schooled" by a pro se layperson -- and it won't matter how much case law precedent you attempt to present to the court.

The only argument that will get the court's attention is facts in the record of the judge's conduct that shows a prejudicial tack against you.

That said, the most important case precedent concerning unsigned settlement agreements is Levy v. Superior Court (1995) 10 Cal.4th 578. The ruling generally requires that a party sign any final settlement agreement that is to be entered as a judgment, unless the party has agreed to its terms in open court.

If you agreed to the settlement in open court, then you have a very big uphill battle to get that settlement set aside. You would have to show in the record, that you did not actually agree, or that you were coerced or tricked into the agreement,. There is no amount of case law that can overcome this point, so I'll repeat it once more: you must defeat the entry of judgment based upon the facts in the court record, and show that you were actually prejudiced by the court, or otherwise coerced into making the agreement.

Hope this helps.

NOTICE: My goal here is to entertain while educating the public about the law. I hope my answer is useful and informative to you. During our conversation, the website may ask you to rate my answer. If you rate my answer lower than the middle rating, then the website retains your entire payment, and I receive nothing. It is entirely your choice as to how you rate my answer. However, because your payment to me is in the nature of a donation/gift, rather than as compensation for any services rendered, you are entitled to know how your rating affects the final distribution of your donation.

If you need to contact me again, please put my user id at the beginning of your question ("To Socrateaser"), and the system will send me an alert. Please Click the following link for IMPORTANT LEGAL INFORMATION. Thanks and best wishes!

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socrateaser
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Category: Business Law
Satisfied Customers: 39,498
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