Amicus Curiae Brief Case No.

09-56073 Saturday, September 19, 2009

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT RICHARD I. FINE, Appellant and Petitioner, vs. SHERIFF OF LOS ANGELES COUNTY, et al, Appellees and Respondents AMICUS CURIAE BRIEF DANIEL HENRY GOTTLIEB Professor Emeritus in Mathematics Purdue University Visitor, UCLA 3516 VIA DOLCE MARINA DEL REY CA 90292

Case No. 09-56073 D.C. No. 2:09-cv-01914 JFW (CW)

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Table of Contents
Reason for Amicus Curiae Brief Collateral Estoppel Signs of Sophistry Honns Decision Fines Blogonaut Comment Honns Opinion Mitchell strains to stay on the DiFlores case. Mathematicians comment on Mitchells Strained Argument Three Paragraph Waldo Aggravated Ambiguity Count 17 Harsh and Severe Ability to be Impartial Marina Strand Colony II vs LA County et al Conclusion PROOF OF SERVICE 3 3 4 5 5 7 9 10 11 11 12 12 13 14 19 21

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Reason for Amicus Curiae Brief

Re Richard I. Fine vs California State Bar, Los Angeles County/Del Rey Shores Joint Venture, and Judge David Yaffe. Honorable Judges, Please forgive my use of the rst person. I am a property owner in the Marina Strand Colony II Homeowners Association, MSCII. It was MSCII vs County of Los Angeles and the party of interest, Del Rey Shores Joint Venture/Del Rey Shores Joint Venture North,which led to the contempt citation against our counsel, Richard I. Fine, by judge David Yaffe (Superior Court Case number BS109420). Also it was MSCII as well as the Coalition to Save the Marina whose causes were harmed by the disbarment of their counsel, Richard I. Fine, (State Bar Court Hearing Department Los Angeles, case number 04-O-14366). I am also a retired mathematics professor. I have been doing research and teaching in mathematics since 1962. I have published over 60 papers in various areas of mathematics: Point set and algebraic topology, combinatorics, robotics, math history, and mathematical physics. You can nd a summary of my work at my website .

Collateral Estoppel
The reason why I mention my mathematical expertise, is that I want to critique the doctrine of collateral estoppel, which I take to mean that one cannot re litigate already decided cases. This doctrine plays a major role in the Fine disbarment trial. It is an important doctrine needed to prevent endless litigation, but it rests on a very unstable foundation. In mathematics, it is known that if you have a false proposition, you can prove anything you want with it, both statements that are true and statements that are false. This is an abstract result, but we see it arising in the practice of mathematics where you use a result you think is true and suddenly there are many nice interesting consequences. This occurs with a rush of excitement, then a slow suspicion that it is too good to be true, then the painful search for the error itself or for a false implication. Finally a careful study of the false argument so that you never make that error again. I think the doctrine of collateral estoppel can lead to burst of unjust results when there is an originating incorrect judgement and that is what happened in the State Bar disbarment of Fine and also in the subsequent part of the MSCII vs Los Angeles County et al. I will tell the story in a historical manner from my perspective. The MSCII is west of the Shores Project, proposed by Del Rey Shores. Unknown to MSCII, the Shores had signed a lease with the County and planned to put 5 story
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apartments on the edge of Dell Alley less than 75 feet from my front door. Their buildings would be up to 100 feet tall. The Shores gained approval from the Design Control Board, without anyone of us knowing about the project. Then in December 2005, they published the Draft Environmental Impact Report, DEIR, and noticed us that they were going to ask the Regional Planning Commission for approval early in 2006. We were referred to Attorney Richard I. Fine, who said he could get us through the permit process in front of the regulatory boards and the Board of Supervisors, BOS, and that we would lose. Then he would set up an appeal for us, all for $25,000, The going rate was $250,000 and we would still lose. Mr. Fine said he needed help, the BOS could do what it wanted, but it had to have accurate information for their decision. Thus we should look for aws in the EIR. We should learn about sewers and shadows and trafc studies. We couldnt raise any issue in an appeal unless it was mentioned in our comments to the EIR. We engaged Fine as our counsel in late January. 2006. Two weeks later, unbeknownst to us, the State Bar issued its Notice of Disciplinary Complaint, NDC, against Fine in early February 2006. I started going to the public library where the Shores DEIR was kept and began by reading the trafc study because it had a large mathematical content to it. I learned the subject and found errors. Fine suggested I look at the shadow study; I found errors in that. Meanwhile, technology was changing rapidly, Google search became better and better. Google satellite maps became available to the public, and I was able to measure distances very accurately. I was able to search the countys ordinances and the Local Coastal Plan for the relevant laws. I found the counsel to the DCB failed to mention the ordinance that gave the DCB the duty to consider impacts of projects on scenic views and trafc and massing. When the DCB learned from the public their powers, they threatened to actually turn down projects. In response, County Staff found an inconsistency, which they were unable to explain clearly, and they got the BOS to remove most of the DCBs powers.

Signs of Sophistry
I began to recognize sophistry by certain signs. I looked in other EIRs for examples. I began naming the signs. For example, a 34 story condo building was proposed on Lincoln Blvd. just east of Marina del Rey. It is on the most congested road stretch in Los Angeles. Twenty ve percent of the exiting trafc was estimated going north, But the only exit from the condos forced trafc to move south on Lincoln. I looked for a description of how the north going trafc would eventually start going north. Finally I found an arrow on a key map which looked like a shhook. It was at an intersection on Lincoln. After some time I guessed it meant U-turns. The word U-turn was never mentioned in the EIR as far as I could see. Certainly not in the trafc study. None of the thousands of arrows in the trafc study, except one, looked like a shhook. The name Waldo came to mind. However the Waldos of sophistry are not always dressed in the same outt as occurs in the childrens puzzle, Find Waldo. Such an example of a Waldo is a three paragraph word queering Waldo. Word queering is taking two words with overlapping meanings in one context and quite
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different meaning in another context. The are mentioned as synonyms in one paragraph, and then used together in a paragraph with a quite different context where the result is a misleading assertion. For example, the notice of the meeting of the DCB stated in one paragraph that the wall would be replaced and in the third paragraph that so the dimensions of the building will remain the same imply the wall remains in the same place while the phrase ts in the existing footprint will be used to justify what actually happened; the wall was move ve feet into the right of way of Del Alley. Another Sign of Sophistry I call Coconut Roading, which is surreptitiously changing the wording of public documents. This is named after the type of this sophistry on the highest level of Federal laws. See the article by George Will: http:// www.washingtonpost.com/wp-dyn/content/article/2008/02/08/AR2008020802557.html

Honns Decision
When the State Bar Court published their decision in October 2007, I read the decision written over Judge Honns name. Now Honns opinion has signs of sophistry. He found he didnt believe Fine on anything, and yet he didnt seem to offer a specic untruth. At this time, there were blogs on the internet, and I found one which agreed with my take and which noted that usually in the opinion there is a clear statement of the parties positions. I was unable to nd a clear description of Fines position. Below is a paragraph of Honns that I regarded as a sign of sophistry. (my emphasis)

page 4 / 76 Matter of Fine State Bar 04-O-14366 Judge Honn

B. Credibility Determination This court has serious difficulty believing respondent. After carefully considering, among other things, respondent's demeanor while testifying; the manner in which he testified; the character of his testimony; his interest in the outcome in this proceeding; and his capacity to perceive, recollect, and communicate the matters on which he testified, the court finds that respondent's testimony in this proceeding repeatedly lacked credibility, if not candor.

Fines Blogonaut Comment

One blog which I found is Blogonaut. This is a legal blog which wrote an article implying Fine was a Bully while describing Honns decision. there are 14 comments on the article. The rst comment is Fines. It describes quickly what he thought was the proper evidence not included in the article. You can nd it in the link below. http://blogonaut-blogonaut.blogspot.com/2007/12/bar-court-recommendsdisbarment-for.html The part that I focused on was Fines fth and sixth points which I insert below.

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Fifth, it omitted to tell the reader that Commissioner Mitchell ordered the removal of approximately $1.6 million from the Di Flores Class Settlement Fund in violation of the Section 5, Paragraph 5.2 of the Stipulation of Settlement and Final Judgment (See Joint Trial Ex. 180), through approving the purchase of all claims held by Fine against Bruce E. Mitchell, the Superior Court and other judicial officers in the name of the class members for $40,000.00 with another $40,000.00 to be paid to defend the purchase in violation of Section 5, Paragraph 5.2 (b), approving $300,000.00 to be paid to specially appointed class bankruptcy counsel to defend the purchase in violation of Section 5, Paragraph 5.2(b) approving $1.6 million in attorneys fees to plaintiffs counsel on the condition that they would withhold 35% (or approximately $566,464.65) to fund the defense of the purchase" in violation of Section 5, Paragraph 5.2 (b), (of the $1.6 million of attorneys fees, the additional violations of the Stipulation of Settlement Section 5, Paragraph 5.2(a)(i)-(iv) were approximately $1,075,000.00 in Individual Fees and Costs in violation of Paragraph 5.2 (a)(i)-(iv) and approximately $301,342.22 in Attorney Fee Reserve Fund in violation of Paragraph 5.2 (a)(I)-(iv));

Sixth it omitted to tell the reader that Commissioner Mitchell, based upon the accounting presented by the Disbursing Agent for the March 13, 2006 hearing in the DiFlores case, illegally paid, Byron Moldo who is also the receiver and notice giver, an estimated $510,172.00 for performing attorneys work, acting as a receiver, and a notice giver in violation of Section 5, Paragraph 5.2(b) of the Stipulation of Settlement, illegally paid, Diane Karpman, of Karpman & Associates, an estimated $55,980.00 as an ethics expert to assist plaintiffs

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attorneys in violation of Section 5, Paragraph 5.2(b) of the Stipulation of Settlement, illegally paid, Bernard George Investigations an estimated $10,146.00 as an investigator to investigate Fine in violation of Section 5, Paragraph 5.2(b) of the Stipulation of Settlement, illegally paid, Joel Rudof an estimated $7,939.00 to contact Richard I. Fines clients in violation of Section 5, Paragraph 5.2(b) of the Stipulation of Settlement, illegally paid, Tovar & Cohen $800.00 to retain a medical expert for the Court in violation of Section 5, Paragraph 5.2(b) of the Stipulation of Settlement, and illegally paid, $768.00 to purchase a scanner for an unstated purpose in violation of Section 5, Paragraph 5.2(b) of the Stipulation of Settlement (See Joint Trial Ex. 180);

Honns Opinion
It was obvious to me that Fine was making detailed accusations in plain language which could either be right or wrong and that it shouldnt be hard to determine which. So I decided to go to the State Bar in Los Angeles and read the transcripts of the trial Matter of Fine State Bar 04-O-14366 Judge Honn. There were seven volumes. In the end, I looked over the last ve and I bought the ve CDs and listened to the last ve days of the trial. I wanted to concentrate on the Counts which Honn found in favor of Fine. The most obvious ones were Counts 2 and 4. which charge Fine of accusing Mitchell of misappropriation of the DiFlores settlement monies without supplying evidence(Count 2) and that the accusations of misappropriations were false (Count 4). The judge combined the two Counts and found that the State Bar prosecutors had not proved their case. Nonetheless, Honn stated he really didnt believe Fine at all. I include the Counts 2&4 below with bold face emphasis mine Matter of Fine State Bar 04-O-14366 Judge Honn
Counts 2 & 4 false accusation of misappropriation. In counts 2 and 4, the State Bar charges respondent with engaging in acts of moral turpitude by falsely stating, in his seventh section 170.3 challenge (exhibit 45), that

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Commissioner Mitchell misappropriated Settlement fund monies in the DiFlores case. Rules of professional conduct that prohibit false statements impugning the integrity of judges . . . are not designed to shield judges from unpleasant or offensive criticism. . . . (In the Matter of Anderson (Review Dept. 1997) 3 Cal. State Bar Ct. Rptr. 775, 782, quoting Standing Committee v. Yagman (9th Cir. 1995) 55 F.3d 1430, 1437.) Thus, the State Bar Court cannot discipline an attorney for making a statement that attacks or impugns the honesty, motivation, integrity, or competence of a judicial ofcer (or other court ofcial) unless (1) the statement is a false statement of fact (as opposed to opinion) and (2) the attorney made the false statement knowing it was false or with reckless disregard for the truth. (In the Matter of Anderson, supra, 3 Cal. State Bar Ct. Rptr. at pp. 781-783.) Moreover, the State Bar must afrmatively prove, by clear and convincing evidence, the statements falsity. (Id. at p. 785.) Offensive and impugning Statements that are not capable of being proved true or false [e.g., rhetorical hyperbole] cannot support the imposition of discipline. Likewise, statements of opinion are not disciplinable unless they imply or are based upon a false assertion of fact. (In the Matter of Anderson, supra, 3 Cal. State Bar Ct. Rptr. at p. 786.) When an individual states an opinion or conclusion and discloses the factual basis for that opinion or conclusion, then the stated opinion or conclusion can only be read as the authors personal conclusion about the information presented, not as a statement of fact. ( Franklin v. Dynamic Details, Inc. (2004) 116 Cal.App.4th 375, 387.) That is because any unfounded, unjustied, or unreasonable opinion or conclusion will reveal its own lack of merit when the author discloses the factual basis for the opinion or conclusion. Thus, an attorney cannot be disciplined for offensive and impugning statements of opinions or conclusions (even if they accuse a judicial ofcer of criminal activity) if the underlying facts are disclosed and are true. (Standing Committee v. Yagman, supra, 55 F.3d at pp. 1439-1430; Franklin v. Dynamic Details, Inc., supra, 116 Cal.App.4th at p. 388.) This is true regardless of how reckless or outrageous the opinion or conclusion might be. Admittedly, respondents statement that Commissioner Mitchell misappropriated settlement fund monies is derogatory and impugns the commissioners integrity. In addition, it appears that respondent made the statement with reckless disregard for the truth. The State Bar, however, failed to carry its burden to afrmatively prove, by clear and convincing evidence, that the statement is false. Moreover, the State Bar failed to establish that the statement is an opinion or conclusion that is based upon a false assertion of fact. Accordingly, even though this court is condent that Commissioner Mitchell did not misappropriate any settlement monies in these cases, this court must dismiss counts 2 and 4 with prejudice for want of proof.

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15The

term misappropriation covers a wide range of conduct. At least in the context of attorney discipline, not all misappropriations involve moral turpitude, dishonesty, or corruption. (In the Matter of Hagan (Review Dept. 1992) 2 Cal. State Bar
16It

is not sufficient that the State Bar establish that respondents accusation of misappropriation is unsupported by any facts or that respondent mischaracterized his inflammatory accusations at the hearing in this proceeding. The State Bar must prove the accusation false.

This ends Honns description of his decisions on Counts 2&4. In the trial it was hard for Fine to get his evidence to be considered. During the trial Fine did mention some of the items in his Blogonaut Comment. He was not crossexamined on them, nor did the judge explain why he thought these specic assertions were untrue even though the State Bar didnt dispute them.

Mitchell strains to stay on the DiFlores case.

Fine vs Mitchell Appeal B153382A page 7/30 Judges Boren, Nott and Doi
As to Commissioner Mitchells authority to adjudicate the contempt, the order noted that pursuant to the rst stipulation executed by the parties Commissioner Mitchell was appointed and empowered to act as a temporary judge for all pretrial proceedings. The court concluded that [t]his litigation is still in pretrial proceedings. The Courts les reect the following: No trials have yet been held. The defendants entered into a global settlement, paid approximately $9 million into Court similar to an interpleader, and were dismissed. Now there are 494 plaintiffs who all have claims to that fund. None of those claims has received an individual nal value, and if claims cannot be resolved by further settlement procedures then they will have to go to trial. ...

Fine vs Mitchell Appeal B153382A page 13/30 Judges Boren Nott and Doi
The record reects that the stipulation executed by the parties when the case was rst led empowered Commissioner Mitchell to conduct all pretrial proceedings. According to the order of contempt, Commissioner Mitchell views the proceedings occurring subsequent to entry of judgment in June 1999 as pretrial proceedings because no determination has yet been made concerning the amount of money each class member will receive, and thus a trial may be required in order to determine what allocation is to be made. Such an interpretation, we conclude, is strained. What the language of the stipulation executed by the parties when the case commenced makes clear is that when the class action lawsuit was initiated, the parties contemplated that unless settled, the case would proceed to trial, and Commissioner Mitchell could act as a temporary judge in connection with all pretrial proceedings. When the case settled, and an order of judgment was entered, the pretrial phase of the action ended, as did Commissioner Mitchells authority to act as a temporary judge pursuant to the rst stipulation.
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Mathematicians comment on Mitchells Strained Argument

This strained argument of Mitchells should disqualify him from hearing any case as a judge, ever. If a mathematician made a statement like that, even while proving a true proposition, it would end his career. Consider this, if a trial had been held and resulted in the same judgement, as the settlement, would the possibility of a trial between the different parties still be a reason for Mitchell to hang onto the case? Mitchells strained kind of reasoning is used wholesale by the lawyers and consultants in EIRs in California, and in regulatory hearings. Hopefully it has not spread to the Federal Courts.

Review Dept State Bar Matter of Fine Judges Remke, Epstein, Stovitz page 17 / 36
Counts 2 and 4: Counts 2 and 4 are based on the seventh section 170.3 challenge, wherein respondent alleged that Commissioner Mitchell misappropriated settlement funds in the DiFlores matter. Specically, count 2 alleges that the seventh challenge was frivolous because it was brought without any factual basis to support the allegation of theft and it was led for the purpose of harassment. Although that challenge was meritless, as discussed above, it is part respondents overall misconduct of repeatedly ling frivolous section 170.3 challenges for improper purposes. The facts in count 2 are not separate and apart from those used to support a nding of culpability under count 1, and thus, we dismiss count 2 with prejudice as duplicative of count 1. In count 4, the State Bar alleged that respondent violated section 6106 by ling the seventh challenge falsely alleging that Commissioner Mitchell misappropriated settlement funds when respondent knew or was grossly negligent in not knowing that the statement was false. Contrary to the hearing judges conclusion, we nd that the record amply establishes the falsity of respondents allegation of misappropriation. Respondent alleged that in a minute order Commissioner Mitchell solicits other counsel to advocate Commissioner Mitchells position in the appeal.., by offering them compensation from the Settlement Fund ..".. Based on his clearly erroneous interpretation of the order respondent contended in his seventh challenge that "Commissioner Mitchell has mis-appropriated [sic] the Settlement Fund monies to pay for his defense in the appeal." Because Commissioner Mitchell merely suggested that a response to the appeal was appropriate and that the responding party may be entitled to attorney fees, the Court of Appeal concluded that his allegations regarding Commissioner Mitchells handling of the settlement fund were false. (Fine v. Superior Court, supra, 97 Cal.App.4th at p. 670.) Based on our independent review of the record, we agree with this nding, and we
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conclude that respondent committed an act involving moral turpitude in violation of section 6106 as charged in count 4 by knowingly misrepresenting that Commissioner Mitchell misappropriated settlement funds.

Three Paragraph Waldo

Here we nd the review judges using the Sign of Sophistry of an irrelevant paragraph (Count 3) inserted between closely related paragraphs (Counts 2 & 4) to change Honn's ruling on Count 2 by relating it to Count 1. Count 4 is reversed by examining the record by nding the State Bar did actually prove that Fine made a false accusation. Apparently, Fine's use of the word misappropriated should have been replaced by 'is misappropriating', since Fine makes statements later, easily determined to be true or false, as to how exactly the funds monies were used for purposes other than paying the class members or their lawyers.

Aggravated Ambiguity
Commissioner Mitchell made a cameo appearance in Judge Honns courtroom on or about 11:11:30 on 1/25/2007 and announced that he was the complaining witness. He just walked into the Courtroom just before a lunch break and was asked who he was by Honn. Thus information contradicting sworn testimony was put on the record in an informal manner, not under oath, and not subject to cross examination. The cameo assertion that Mitchell was the complaining witness contradicts testimony given that the State Bar Initiated the investigation. From my reading of the trial there was evidence on both sides. Then there were two high ofcials from the State Bar in the courtroom at about 10:21:25 on 1/26/2007 and Fine said, let's ask them under oath to resolve this issue once and for all. Judge Honn refused to call the witnesses, saying he was relying on the pattern of Fine's actions and the issue of statute of limitations was not going sway him. So the principle that every accused has the right to face his accusers bites the dust. Also, the fact that Fine's clients might want to know the circumstances of why their lawyer was stripped from them was never considered. The sophistry described here needs a name. I will christen itAggravated Ambiguity. I will dene it by an ambiguity introduced by a cameo appearance which is easily resolved, but is consciously left unresolved in spite of protests from an interested party. I use the phase cameo appearance to refer to information entering a process in a way so that it can be used to prove a point exparte to some ofcial or interested party. An example of what I mean occurs in the State Bars Notice of Disciplinary Complaints, NDC. Count 3 makes a cameo
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appearance between Count 2 and Count 4. Judge Honn says Count 2 and Count 4 are the same, whereas the State Bar Review Court says that Count 2 is the similar to Count 1, and so it is a frivolous instead of a ling not providing evidence. This changes Fines status on Count 2 from not guilty to guilty. Another example of Aggravated Ambiguity is what the stipulation actually said. Was Mitchell really violating the agreement or not? Well, where's the copy of the stipulation? It's in exhibit 45. But exhibit 45 only contains some relevant parts, so the judge won't read it, because it's not the whole document. Then Fine says he has a copy, but it's not certied. Then Honn asks, why didn't you put in a certied copy in the record since it it is the foundation of your case? So Fine replies, well the Bar has a certied copy, why isn't it in the record? The answer comes back: You expect the prosecution to prove your case for you?(About 11:48:00 on 1/26/2007)

Count 17
That's Aggravated Ambiguity, but with an ironic chaser. Count 17 concerns Misrepresentation to a court. Apparently Fine didn't list all the grounds a judge used for nding against Fine in a petition to a higher court. Honn ruled Fine not guilty on Count 17, saying Fines behavior is misconduct, but it doesn't rise to the level of moral turpitude. But I think it sure does rise to moral turpitude for a prosecutor to leave out exculpatory evidence. I imagine, based on the State Bar not proving Fines case and leaving out information in their document, that judge Honn had to let the State Bar and his statement be misconduct below the level of moral turpitude. And consistency required that Fines conduct had to be below the level of morel turpitude. The State Bar did not appeal Count 19, but the Review Court reversed Fines conviction on Count 17, probably not aware of the exposure of Honn and the prosecutors on this point. In any event, I thought the Review Court of Remke et al needed to reverse at least one count in Fines favor to show they were impartial, so I looked for Counts where Honn convicted and they reversed. and I found some. So comparing the State Bar Courts decision with the Review Courts decision, I think we can see the underlying mathematical result that a false proposition can prove anything reected in the real life world of the Law.

Harsh and Severe

When I rst read Judge Honns opinion, I thought it was full of sophistry with regard to Fines credibility. Then, as I read the the trial transcript, Honn

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comported himself so well, struggling to understand Fines motivation, that I found I couldnt believe that Honn wrote that opinion. In the trial, Honn said that Fine had abused the process, but that his credentials and career and comportment in his courtroom leads him to the conclusion that Fine should not be disbarred. His behavior with frivolous lings should be sanctioned. Honn begged the prosecution and Fine to come to an agreement. It never happened. The only point in the trial that I found where Judge Honn openly expressed his skepticism about Fines truthfulness was when Fine was reading some judges opinion. Honn interrupted Fine and accused Fine of reading a part of the opinion where the judge was quoting Fines own arguments. That reading may have been Judge Christiansons opinion, to which Honn referred to in his opinion below. page 13 / 72 Matter of Fine State Bar 04-O-14366 Judge Honn
The Judicial Council assigned Judge Ronald Christianson of the San Bernardino Superior Court to decide the question of Commissioner Mitchells disqualification under respondents first challenge. In a ruling filed on January 7, 2000, Judge Christianson held that Commissioner Mitchell was not disqualified from presiding over the DiFlores case. (Exhibit 21.) In his ruling, Judge Christianson found that, even though Commissioner Mitchells critique of respondents legal services as liability class counsel in DiFlores had been harsh and the measures taken severe, it has not been established that his actions were based on any improper motive. Certainly at some point a judges frustration with the conduct of an attorney might rise to the level of personal embroilment. However, taking the actions in this case within their appropriate context, neither personal bias nor embroilment have been established. Furthermore, Judge Christianson found that A person aware of the facts would not reasonably entertain a doubt as to Commissioner Mitchells ability to be impartial.

Ability to be Impartial
The last quoted sentence in the above paragraph has too many words in it, a sign of sophistry. Suppose the sentence meant: A reasonable person aware of the facts would not doubt Commissioners Mitchells impartiality. Then it is false if only one reasonable aware person did doubt Mitchells impartiality. I guess Fine is ruled out because he is implied to be not reasonable. But I also doubt Mitchells impartiality. So maybe those extra words change the meaning of the sentence. Now the question is: Does Mitchell have the ability to be impartial? Which I take to mean: If he really wants to, he can be impartial. Here again I doubt he has the ability to be impartial. My reason is, because he advanced the strained argument queering the contextual meaning of pretrial, he reveals himself as not intellectually honest, both to me and probably to any other mathematician. Intellectual honesty is a prerequisite to clearing your mind of pre
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existing beliefs and opinions when confronted with opposing facts. Hence I dont think he can solve difcult mathematical problems or be impartial in a case in which he has pre formed opinions. It is possible that brain research can experimentally prove my statement. See the article in the New York Times by John Tierney, A clash of Polar Frauds and those who Believe .

Marina Strand Colony II vs LA County et al

Below is a timeline of the action against Fine in the case MSCII vs LA County et al. Most of it was excerpted from the timeline on the website Free Richard I Fine . It details the prosecution of Fine by the Shores Counsel after he was dropped from the case MSCII vs County et al, and its intimidating effect on his clients and Shores opponents. This adds credence to the theory that the Shores was behind the State Bar Complaint against Fine. It shows how difcult it is for the ordinary citizen to ght the combination of rich developers allied with the local government and hired unethical consultants. We need advocates such as Fine to defend our homes and to keep our legal process fair and open to all, I added more material on the outline concerning those events for which I have personal knowledge: The BOS hearing on December 16, 2009 and the effect of Fines disbarment and contempt conviction on MSCII.
01/2006 Fine represents MSCII 02/06/06 A California State Bar case against Fine (State Bar Court Case No. 04-O-14366) commenced on February 6, 2006, while Fine was opposing LA County and Del Rey Shores and the Epsteins before the LA County Regional Planning Commission on on behalf of clients Marina Strand Colony II Homeowners' Assoc. Sheldon H. Sloan, a lawyer for Marina Pacic Associates, a lessee of land from LA County in Marina del Rey, controlled by Jerry B. Epstein, and a co-defendant with LA County in the case of Coalition to Save the Marina et al v. LA County et al, who is also a member of the Board of Governors of the State Bar and incoming president, does not disclose that he has a nancial interest in Fine being removed from the case as counsel for the plaintiffs. January, 2007 LA Superior Court Judge Soussan G. Bruguera held the motion for reconsideration beyond the time period to maintain the right to receive a decision in the trial court while still being able to timely le an appeal in the case of Coalition to Save the Marina and Marina Tenants Association et al., v. County of Los Angeles.

Mathematics offers a way to get out of this type of problem. Fine should have led a timely appeal based on the statement, mathematically
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correct, that every statement in the Judges vacuous decision opposing the motion is false and every statement supporting the motion is true. This is not strained, it is mathematically consistent. Anything is true of any nonexistent thing.
05/15/07 Supervisors vote to approve Del Rey Shores' EIR, despite receiving political contributions from Epsteins near time of vote. 06/14/07 On June 14, 2007, Fine led a petition for writ of mandate in the case of Marina Strand Colony II Homeowners Association v. County of Los Angeles seeking to overturn the Supervisors' approval of an EIR in favor of the redevelopment of the Del Rey Shores apartment complex. The petition alleged that the EIR violated the California Environmental Quality Act (CEQA) and that LA County did not receive any positive nancial benet from the project as required by CEQA. David P. Yaffe was the judge assigned to the case. 10/10/07 Fine saves MSCIIs law suit after missing a ling date by one day by admitting it was his fault. Fine told me that he miscalculated by one day. An friend of Fines helped us get our case reinstated. Then we nally found a lawyer willing to take our case, Rose Zoia from Santa Rosa California. Ms. Zoia concentrated her arguments on the four inadequately done alternative projects in the Shores EIR. 10/12/07 State Bar orders Fine placed on "involuntary inactive enrollment". Fine left the Marina Strand case on October 12, 2007, as a result of the actions of California State Bar Court Hearing Department Judge Honn, who ordered Mr. Fine's Bar membership into "inactive" status, meaning he could no longer practice law. 01/08/08 On January 8, 2008, Judge Yaffe ordered that Fine, who was no longer the attorney for Marina Strand, pay sanctions of $1,000.00 and attorney's fees and costs to LA County and Del Rey Shores without having given Fine notice of the hearing and without Fine being present at the hearing. Fine was sent notice by mail on January, 23, 2008. Shortly thereafter, Fine made a "special appearance" in the Marina Strand case and moved to dismiss the January 8, 2008, order. Judge Yaffe took the motion "off calendar". On March 25, 2008, Fine served Judge Yaffe with a CCP 170.3 "Objection" based upon Judge Yaffe's admitting in a hearing on March 20, 2008, that he received payments from LA County. Judge Yaffe did not make any response to the Objection, which failure to respond automatically disqualied him on April 8, 2008, by operation of law under CCP 170.3(c)(4). Judge Yaffe, however, refused to leave the case relating to Fine. Fine told me that usually, a day late for ling a response is forgiven if it is a simple type of mistake. The law that the late ler must pay attorneys fees exists to prevent

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purposeful delay of the process. So to follow the letter of the law, harsh and severe, is permissible, but then it is not morel turpitude to remind the judge that he himself is violating a more important law, by asking him to recuse himself. In addition, Yaffe argued that Fine waited until Yaffe had made an adverse ruling against Fine before he mentioned recusal. But earlier Fine had to think of the interests of his clients, MSCII who would not have wanted their lawyer to irritate the judge. 06/02/08 In June, 2008, Judge Yaffe ruled against Marina Strand Colony on the issue of whether the new lease with Del Rey Shores, which was part of the project, would be of a nancial benet to LA County. At the contempt trial, it was shown that no evidence was presented in the "record" that a positive nancial benet to LA County would occur. R. J. Comer, counsel for Del Rey Shores, testied that he did not review the new lease and could not cite to any evidence showing a benet to the county. The "Draft Amended and Restated Lease Agreement" showed at section 4.4.1 that LA County was giving Del Rey Shores an $11,050,000 Lessee Credit plus accrued interest for the dedication of 54 low- and moderate-income apartments in the project. Under the Mello Act, Del Rey Shores was required to dedicate these apartments without any lessee credit. Also at the contempt trial, Fine questioned Judge Yaffe and got him to admit that he did not consider the fact that two of the four Supervisors who voted on the Shores project on 05/15/07 had accepted contributions from the Shores people, and so the vote was illegal. Yaffe said, how would I know? No one brought it up. However, Judge Yaffe ruled in favor of recirculating the Shores EIR to analyze the impact of the additional 25.000 cubic yards of waste material removal not mentioned in the DEIR. 10/10/08 Taxpayers win appeal in Sturgeon v. County of Los Angeles. Caselaw now conrms that payments to judges by counties are illegal under the California Constitution. 12/16/08 On December 16, 2008, Supervisors Antonovich and Knabe voted for the approval of the recirculated EIR for the Del Rey Shores Project, after having accepted campaign contributions from Del Rey Shores' developers. On December 16, 2008, Supervisor Gloria Molina also voted for the approval of the recirculated EIR for the Del Rey Shores Project, doing so after having accepted campaign contributions to the "Gloria Molina 'Yes' on Measure U etc." fund from Jerry B. Epstein - $1,250.00 on 10/8/08 and David Levine - $1,250 on 10/8/08, within six weeks of the vote. Supervisor Gloria Molina did not disclose those contributions prior to, or at the time of the hearing. Maximum contribution made by Jerry B. Epstein on 8/14/08 to Antonovich for $1,000. Contribution by David O. Levine on 8/15/08 to Antonovich for $1,000. Contribution by Marina Properties, LLC on 3/18/08 (an entity controlled by Jerry Epstein) to Knabe

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for $1000. The law forbids contributions being made within one year of a vote on a subject in which the donor has an interest in the outcome.

Also at that hearing, Shores Counsel R. J Comer misleadingly implied, under oath, that the exported amount of material from the Shores project would not exceed the 100.000 cubic yard threshold of exported material which triggers an application for a conditional Use Permit. Thus 92,000 cy of originally exported material and 25,000 cy of new exported material would not exceed 100,000 cy of total exported material. So much for the integrity of the Shores lawyers
11/03/08 to 01/08/2009 Fine's contempt trial. Meanwhile, in the Marina Strand case, Judge Yaffe both presided as the judge and appeared as an adverse witness in the "contempt" proceedings against Fine which began November 3, 2008, with an order to show cause containing 16 counts. The "contempt" proceeding was based upon allegations of actions occurring after Judge Yaffe entered the January 8, 2008, void order in the Marina Strand case. The charges included, but were not limited to, refusing to respond to questions at a judgment enforcement hearing, making false statements in pleadings, making motions for reconsideration of the court's January 8, 2008, order, directly and indirectly attacking the integrity of the LA Superior Court and the court [Judge Yaffe], attacking the integrity of the State Bar Court, attacking the integrity of Del Rey Shore's counsel, and holding himself out to practice law in violation of B&P Code 6126 and 6127, despite the fact he had been placed on involuntary inactive status by the State Bar of California. On the rst day of trial, Judge Yaffe testied, as an adverse witness called by Fine, that he had received the LA County payments, that he knew that LA County had cases before him, that he did not disclose the payments on his Form 700 Statement of Economic Interests required to be led with the State of California under the Political Reform Act, that he was a State of California employee and an elected state judge under the California Constitution, that he did not have any employment contract with LA County or agreement or arrangement to provide services to LA County, that he reported the LA County payments as "income" on his tax returns, that he did not put the LA County payments into his "campaign contributions account" for his judicial elections, and that other than making a decision regarding the recirculation of the EIR in the Marina Strand case, he could not name any case in the last three (3) years where he decided the case against the interests of LA County. After seven days of trial, Judge Yaffe held Fine "not guilty" on 14 counts and "guilty" on 2 counts, one of which was refusing to answer questions at a judgment enforcement exam regarding the unlawful order to pay attorney's fees, and the second of holding himself out to practice law. Yaffe made these rulings despite the illegality of the January 8, 2008, order, and the testimony at trial of counsel Joshua L. Rosen that they were not relying on the January 8, 2008, order to enforce the judgment, that there was no other order in evidence for Fine to pay fees or costs, the fact that the California Supreme Court had not ordered Mr. Fine "inactive," and neither statute relied upon "State Bar orders".
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01/16/2009 From the Los Angeles Times

L.A. County's chief land use planner is fired

Bruce W. McClendon says he thinks he was terminated in retaliation for blowing the whistle on county supervisors' aides. By Garrett Therolf January 17, 2009 Bruce W. McClendon, the chief land use planner for Los Angeles County, was fired Friday by the county's chief executive. McClendon said he was called to a meeting with William T Fujioka and told he was terminated from his $191,028-a-year job as head of the Department of Regional Planning. Security officers later escorted him out of the building. Fujioka said Friday that personnel rules barred him from publicly disclosing the reason behind McClendon's termination, which was effective immediately. McClendon held the job for two years and will receive severance pay for the equivalent of six months of work, Fujioka said. McClendon, reached by telephone, said he believed he had been fired in retaliation for blowing the whistle on county supervisors' aides. He said he had given Fujioka information that showed that aides to the county supervisors routinely sought to improperly influence decisions on whether to permit development plans. "It was illegal, and they can go to jail for doing it," said McClendon, 62. He said his meetings with Fujioka in recent weeks made it clear that he was likely to be red. He said he recently began consulting with attorneys in preparation for ling a whistle-blower retaliation lawsuit. ...

January 27, 2009 The BOS raties their December 16 decision to permit the Shores development. Their Final Actions and Supporting papers were not in order. For example:

The nal hearing was on January 27,2009. The covering letter was written by Raymond Fortner. He signed it, but the letter referred to a different project. This was never publicly corrected, and the Final Action, aka Minutes, never appeared on line or were sent to the testiers. What is going on here? In a strangeparallelwith Bruce McClendon, Fortner soon resigned form his chief County counsel ofce. Where is the Final Action? (Note: There was no posted Final Action on the BOS website for several months, before it appeared with no
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explanation of the delay. This paragraph was copied from my letter assisting the Auditor-Controllers investigation of the Bruce McClendon ring.)
Sometime before the January 27, 2009 The MSCII, on the advice of their new counsel Rose Zoia, led an appeal to the portion of Yaffes June 2, 2008 decision appealing those portions of his rulings that were found against us. At the hearing, the judge had already made his decision. He told the Shores lawyers that a 28% increase in exported material was too much an increase without having studied its impact. He told our lawyer that the County wanted to use the Marina as a cash cow, and so any alternative project would earn less than the maximum income, and therefore the alternative projects did not meet the goal of the proposed project. After the BOS re certied the EIE, Zoia suggested we should appeal that re certication. The MSCII board of directors declined to do so. They mentioned this in passing at a general meeting of the association. I said that they did not meet the conditions of the Judges order, and I said I would deliver a letter to the Judge. I wrote up a document on my website which gives a more complete description of the issues. Click on the rst link there to nd my letter to Yaffe. His law clerks took it in to him and then returned it. The Judge would not accept it. I learned several months later, to my amazement, that a judge gives an order, and is not concerned whether it is followed or not. Later, the Appellate Court denied our appeal, ruling that our appeal was moot since we did not appeal the BOS re certication of the EIR.
02/23/09 "CA Supreme Court Orders Disbarment of Attorney Richard I. Fine" 03/04/09 Final Contempt Hearing before Judge Yaffe. Fine held in contempt after prosecution by R.J. Comer and Joshua L. Rosen (originally the attys for the Epsteins), after agreement with Judge Yaffe that they now also represent him and the superior court. FINE HANDCUFFED AND ESCORTED AWAY BY THREE UNIFORMED AND SIX PLAINCLOTHES "WARRANT DETAIL" SHERIFF'S DEPUTIES.

Conclusion In view of the jailing of Richard Fine, and the timeline above, a predictable chain of events occurred. The success of the Shores has lowered the standards of the EIRs. The consultants are creating EIRs with Baldos instead of Waldos. The errors are obvious. You no longer need to have a table of Sun elevations and azimuth angles and use trigonometry to show the shadow studies are wrong. All you need to know is that there is no such day as October Solstice, a day that was the most critical day for the shadow study per the EIR, so they show the shadows for every hour on that mythical October day. The trafc study does not include an important intersection right in front of my condo on any of their trafc trip maps,
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and uses tables which implies a great improvement in the LOS at most intersections. The haul route for the trucks of the Woodne & Neptune projects and the Shores becomes ambiguous on the Noise Impact study on pages with simultaneously crossed out and underlined words. The original document is not specied and in fact there is no original document. there does not seem to be an intension of requesting a Conditional Use Permit for exporting more than 100,000 cubic yards of material. the lawyers representing this project are the same ones who participated in the Contempt action against Fine, seeking to destroy him and misrepresenting the necessity for the Shores Project to apply for an Off-Site transport Grading CUP. The lawyers for the Shores are also the lawyers for the Neptune & Woodn projects. Their success in December translates into even more extravagant behavior in the current EIRs, with the knowledge they can get away with anything. So the Shores strategy of destroying the career of Fine through disbarment and bankruptcy has succeeded in frightening away local lawyers and intimidating homeowners such as Marina Strand colonies I, II, III, IV and environmental groups such as the Coalition to Save the Marina. And their actions after the disbarring of Richard Fine as well as their inuence at the beginning of the process, and the Aggravated Ambiguity of who started the Bar investigation of Fine and why point to the people who benetted most from the proceedings against Fine.

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PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES

I am Dan Gottlieb. My mailing address is __________________________.

On September ____, 2009, I served the foregoing document described as

AMICUS CURIAE BRIEF

on interested parties in this action by depositing a true copy thereof, which was enclosed in a sealed envelope, with postage fully prepaid, in the United States Mail, addressed as follows:
Richard I. Fine Inmate ID # 1824367 c/o Men's Central Jail

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441 Bauchet Street Los Angeles, CA 90012 RichardIFine@gmail.com Counsel for Appellant Sheriff of Los Angeles County (Leroy D. Baca): Aaron Mitchell Fontana Paul B. Beach LAWRENCE BEACH ALLEN & CHOI, PC 100 West Broadway, Ste. 1200 Glendale, CA 91210-1219 Counsel for Appellants Judge David P. Yaffe and LA County Superior Court: Kevin M. McCormick BENTON, ORR, DUVAL & BUCKINGHAM 39 N. California Street P.O. Box 1178 Ventura, CA 93002 Ninth Circuit Court of Appeals: Molly Dwyer, Clerk of Court U.S. Court of Appeals for the Ninth Circuit 95 Seventh Street San Francisco, CA 94103 Case No. 09-56073 Richard I. Fine v. Sheriff of Los Angeles County, et al. Dr. Fine's Support Team: FreeRichardFine@gmail.com

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Dated this_______ day of September, 2009 Respectfully submitted

: By __________________________________ Daniel Henry Gottlieb

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