motion to recuse (1)
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Kimberly Lalley1654 Elm RoadConcord, California 94519Telephone: (925)771-4341
Petitioner In Pro Se
THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF CONTRA COSTA
In the Matter of BRIANNA S., a Person Coming Under the Juvenile Court Law.______________________________________CONTRA COSTA COUNTY CHILDREN AND FAMILY SERVICES AGENCY,
Plaintiff ,
KIMBERLY LALLEY.,
Defendant.
Case No.: J12-00354
NOTICE OF MOTION AND DEFENDANT'S MOTION TO RECUSE JUDGE LOIS HAIGHT
(C.C.P. Section 170.1)
TO THE HONORABLE JUDGE OF THE SUPERIOR COURT AND ALL PARTIES
INTERESTED HEREIN:Defendant, Kimberly Lalley respectfully requests Judge Lois Haight recuse herself under
the California Code of Civil Procedures (CCP) Section (§)170.1 (a)(6)(C): “For any reason . . . A
person aware of the facts might reasonably entertain a doubt that the judge would be able to be
impartial.”
Defendant believes that any reasonable person aware of the facts and circumstances would
believe that Judge Haight is biased and prejudiced, and has ignored the law.
“The standard for disqualification provided in Code Civ. Proc., 170.1, subd. (a)(6)(C),
providing for disqualification for bias or prejudice where a person aware of the facts might
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reasonably entertain a doubt that the judge is able to be impartial, is fundamentally an objective
one. It represents a legislative judgment that,due to the sensitivity of the question and inherent
difficulties of proof, as well as the importance of public confidence in the judicial system, the
issue is not limited to the existence of an actual bias. Rather, if a reasonable person would
entertain doubts concerning the judge's impartiality, disqualification is mandated. To insure that
proceedings appear to the public to be impartial and hence worthy of their confidence, the
situation must be viewed through the eyes of the objective person. This standard indicates that
the decision is not based on the judge's personal view of his own impartiality, and also suggests
that the litigants' necessarily partisan views do not provide the applicable frame of reference.
Rather, the judge ought to consider how his participation in a given case looks to the average
person on the street. (emphasis added)”
INTRODUCTION
Judge Haight has been sitting on this case as filed by the plaintiff, CHILDREN AND
FAMILY SERVICES since March of 2012 and the case is active and ongoing and it has become
apparent that she is bias and already believes I am guilty and acts accordingly, even ignoring my
civil rights and the very law she is ruling on, even indicating I am being untruthful in my
Recantation of the 2002 case. She can not be objective in her decisions. The defendant requests
that a new judge be assigned from outside of this judges’ influence.
March 6, 2012 After hearing lies from the Petitioners Attorney and without giving myself
or my family the option to disagree and explain of the fraudulant and coerced allegations back in
2002, Even though we were trying to speak. Judge Lois Haight formed her own oppinion about
us and immediately detained my 2 year old daughter from us and declared there would be
absolutely no contact between my daughter and anyone with my mothers last name, even though
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my mother was her primary provider since birth.
Judge Haight had a few rude words to say and threw my mother out of the court room. I
have continually stated that the case in 2002 was fraudulent and that I had lied, and that I was
coerced to do so by Social Worker Marcy Williamson and my sister (Christi Walker.) I can
prove it but Judge Haight won't hear it. She believed the worker that day who said the recant was
all of a sudden due to them detaining my daughter that day.
My attorney Judith Lawrence will not defend me and when I told her I wanted a new
Attorney she laughed and said we will see about that! When I told the Judge the same thing
Judge haight rolled her eyes at me.
I have told the judge and my attorney both that I want my mom to be in the court room
with me and Judge haight kicks her out every time. She has filed papers to become a party to the
case, she has written letters that the judge says outright she won't even read. My daughter is
being abused and the Judge has some kind of obvious grudge against myself and my family.
Judge haight has made outright biased statements and slandered my family in the
courtroom. She has denied me the right to a propper defense and she is allowing my daughter to
be abused. I am tormented right in front of her by the social workers saying things like "we have
already found the perfect family to adopt Brianna", when Brianna has a loving and caring family
who Judge Haight has ripped completely out of her life.
I have told Judge Haight and everyone else that I lied to the court in 2002 and that my
parents are not abusers, that I was mad at them and that my sister and the social worker helped
me make up the story, but she refuses to believe it because she said that the workers are saints
in her eyes! That is Biased!
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POINTS AND AUTHORITIESIN SUPPORT OF KIMBERLY LALLEYS
MOTION TO RECUSE JUDGE HAIGHT
“The facts and circumstances prompting the challenge must be evaluated as of the time the
motion is brought and the evaluation of the challenge must not isolate facts or comments out of
context. The challenge must be to the effect that the judge would not be able to be impartial
toward a particular party.” Flier v Superior Court (1994, 1st Dist) 23 Cal App 4th 165, 28 Cal
Rptr 2d 383.
VIOLATION OF CIVIL RIGHTS
A claim under the civil rights act expressly gives the District Court Jurisdiction,no matter how
imperfectly the claim is stated." Harmon v. Superior Ct of the State of California, 307 F 2d 796,
CA 9(1962)
The original intent of the Equal Protection Clause in the Civil Rights Act was to give the
humblest and poorest the same civil rights as the most powerful and wealthy.
"There can be no sanction or penalty imposed upon one because of his exercise of
Constitutional rights." Sherar v. Cullen, 481 F 2d 946(1973)
"It is the duty of the courts to be watchful for the CONSTITUTIONAL RIGHTS of the
citizen, against any stealthy encroachments thereon." Boyd v. U.S., 116 US 616, 635, (1885)
Judge Haight has an overt bias attitude toward me and my family in her demeanor and
language, and then her detaining my child and denying her family may have been "retaliation
under color of law." It is a crime for one or more persons acting under color of law willfully to
deprive or conspire to deprive another person of any right protected by the"Color of law" simply
means that the person doing the act is using power given to him or her by a governmental agency
(local, State, or Federal).Enforcement of these provisions does not require that any racial,
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religious, or other discriminatory motive existed. Constitution or laws of the United States. (18
U.S.C. §§ 241, 242).
U.S.C. 42 §12203 The Equal Protection Clause, part of the Fourteenth Amendment to the
United States Constitution, provides that "no state shall ... deny to any person within its
jurisdiction the equal protection of the laws." “Prohibition against retaliation and coercion” (a)
Retaliation No person shall discriminate against any individual because such individual has
opposed any act or practice made unlawful by this chapter or because such individual made a
charge, testified, assisted, or participated in any manner in an investigation, proceeding, or
hearing under this chapter. (b) Interference, coercion, or intimidation. It shall be unlawful to
coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or
on account of his or her having exercised or enjoyed, or on account of his or her having aided or
encouraged any other individual in the exercise or enjoyment of, any right granted or protected
by this chapter.
The U.S. Supreme Court, in Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 1687 (1974)
stated that "when a state officer acts under a state law in a manner violative of the Federal
Constitution, he "comes into conflict with the superior authority of that Constitution, and he is in
that case stripped of his official or representative character and is subjected in his person to the
consequences of his individual conduct. The State has no power to impart to him any immunity
from responsibility to the supreme authority of the United States." [Emphasis supplied in
original].
"When any court violates the clean and unambiguous language of the Constitution, a fraud is
perpetrated and no one is bound to obey it." State v. Sutton, 63 Minn. 147 65 NW 262 30 LRA
630 AM ST 459
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"Fraud upon the court" has been defined by the 7th Circuit Court of Appeals to "embrace that
species of fraud which does, or attempts to, defile the court itself, or is a fraud perpetrated by
officers of the court so that the judicial machinery cannot perform in the usual manner its
impartial task of adjudging cases that are presented for adjudication." Kenner v. C.I.R., 387 F.3d
689 (1968); 7 Moore's Federal Practice, 2d ed.,p. 512, 60.23. The 7th Circuit further stated "a
decision produced by fraud upon the court is not in essence a decision at all, and never becomes
final." It is void.
"Judicial immunity is no defense to a judge acting in the clear absence of jurisdiction."
Bradley v. Fisher, US 13 Wall 335 (1871)
"Judges may be punished criminally for willful deprivation of...rights on the strength of 18
U.S.C. 242." Imbler v. Pachtman, US 47 L Ed 2d 128, 96 S Ct 37.
"Judges have no immunity from prosecution for their judicial acts." Bradley v. Fisher, US 13
Wall 335(1871)
THE RIGHT TO A FAIR AND IMPARTIAL JUDGEIS THE GROUNDS OF DUE PROCESS
At this time Defendant does not argue that the fact of Judge Haight rulings disqualify her. She
argues that particular statements, particular findings, and particular rulings of Judge Haight
reveal a biased and prejudiced mindset, and along with an ignoring of the law. Judge Haight’s
biased and prejudiced mindset may be clearly discerned by any reasonable person who has
knowledge of the facts, and the law. Any objective person can see the prejudice will be
directed towards the defendant thus: “In order to disqualify a judge, his/her prejudice must be
against a party [Kimberly Lalley] to the action; . . .” Evans v Superior Court (1930) 107 CA 372,
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290 P 662; Kreling v Superior Court (1944) 63 CA2d 353, 146 P2d 935.
It is well stated in CCP 170.1 (a) (6) (C) a person aware of the facts might reasonably
entertain a doubt that the judge would be able to be impartial. Bias or prejudice towards a lawyer
[a pro per is acting as a lawyer] in the proceeding may be grounds for disqualification. The
previous corresponding statute--Sec. 170, subdivision (a)(5)--which was repealed in 1984, had
been construed to require bias in fact, with the enactment of Sec. 170.1, however, a party seeking
to disqualify a California judge for cause was no longer required to prove that the judge was
actually biased. The test to be applied in evaluating recusal and disqualification of judges was
clearly stated many years ago in Berger v United States (1921) 255 U.S. 22:
Does the [Declaration] of Prejudice [executed defendant] give fair support to the charge of a
bent of mind that may prevent or impede impartiality of judgment (225 U.S.) In the case United
Farm Workers of America v Superior Court (1985, 4th Dist) 170 Cal App 3d 97, 216 Cal Rptr 4.
The average person looking at this situation would see a bias by Judge Haight toward the
defendant based on unsupported fabricated and provable subordinated perjury by witnesses
brought to March 6, 2012 hearing, Judge Haight is only willing to listen to the Children and
Family Services Department, and she accepts everything they say as truth , and allowed to
influence her as was apparent in her bias demeaner and attitute when incarcerating my 2 year old
daughter.
Code Civ. Proc., § 170.1, subd. (a)(6)(C) (Judge disqualified if person aware of facts might
reasonably entertain doubt that judge would be impartial) makes the disqualification standard
fundamentally an objective one. It represents a legislative judgment that due to the sensitivity of
the question and inherent difficulties of proof as well as the importance of public confidence in
the judicial system, the issue is not limited to the existence of an actual bias. Rather, if a
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reasonable man or woman would entertain doubts concerning the judge's impartiality,
disqualification is mandated. To ensure that the proceedings appear to the public to be impartial
and hence worthy of their confidence, the situation must be viewed through the eyes of the
objective person. The reason for the objective standard of proof is the difficulty in showing that a
judge is biased unless the judge so admits. In addition, public perceptions of justice are not
furthered when a judge who is reasonably thought to be biased in a matter hears the case.
(emphasis added)” Catchpole v Brannon (1995, 1st Dist) 36 Cal App 4th 237, 42 Cal Rptr 2d
440.
The charges being brought by the Plaintiff, Children and Family Services are unproven, and
more often than not in perjurious, and unverified statements, and appear to include civil and
federal criminal charges for conspiracy pursuant to Penal Code 142, and 18 USC §§ 241 and
242, which indicate serious criminal implications. No reasonable person could think that a
commissioner, judge or anyone working under them could possibly conduct themselves in a fair
and impartial manner considering they are facing possible criminal charges which would bring
jail time or a long probation period with these charges originating from the plaintiff.
There can be no doubt that the conduct of Judge Haight demonstrates, both objectively and
subjectively, that Judge Haight is biased and prejudiced against the defendant in this case, to the
point she ignored the law of a fraudulant judgments, and that any reasonable person would
believe that to be the case. She has listened to the subrogated perjury (PENAL CODE SECTION
118-131) of Children and Family Services who are seeking retaliation against me for not
continuing the story their coworker told me to tell and for blowing the whistle. Judge Haight and
Children and Family Services are so called In Bed Together trying to cover up thier illegal
actions. The reporting party for both cases in 2002 as well as in 2012 are the same person, My
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sister who has a personal grudge against myself or my mother. But Judge Haight allowed it, and
it most certainly impressed Judge Haight, and now she can obviously have no valid, unbiased
ability to be impartial, or discern fact from fiction.
RECUSE JUDGE HAIGHT AND VOID JUDGMENT
When deciding a void judgement challenge a judge may only look at the judgment roll record;
she may not retry the case and allow for any "new testimony, or witnesses, etc." Federal
decisions addressing void state court judgments include Kalb v. Feuerstein (1940) 308 US 433,
60 S Ct 343, 84 L ed 370; Ex parte Rowland (1882) 104 U.S. 604, 26 L.Ed. 861:
"A judgment which is void upon its face, and which requires only an inspection of the
judgment roll to demonstrate its wants of vitality is a dead limb upon the judicial tree, which
should be lopped off..." People v. Greene, 71 Cal. 100 [16 Pac. 197, 5 Am. St. Rep. 448].
When a statute authorizes a prescribed procedure and the court acts contrary to the authority
conferred, the court exceeds its jurisdiction. (People v. American Contractors Indemnity Co.,
(2004), 33 Cal.4th at p. 661.)
JUDGE HAIGHT ILLEGALLY INCARCERATED BRIANNA STONE AGE 2
In the March 6, 2012 order to detain and incarcerate my 2 year old daughter where there was
no abuse or risk there of, based only on a fraudulant case back in 2002 which the petitioners
were involved themselves in defrauding the court and using that fraud to continue their
involvement in an innocent familys life should be void. All proceedings founded on the
fraudulent judgment are themselves regarded as invalid. A fraudulant judgment is regarded as a
nullity, and the situation is the same as it would be if there were no judgment. It is attended by
none of the consequences of a valid adjudication. It has no legal or binding force or efficacy for
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any purpose or at any place. ... It is not entitled to enforcement. 30A Am Jur Judgments '' 43, 44,
45. Henderson v. Henderson, 232 NC 380, 100 SE2d 227. See Restatement, Judgments, ' 8.
Judge Haight then became quite rude, not hiding her bias toward me when she said with a
curled lip and venomous implications in her tone, "Read my lips, THERE WILL BE
ABSOLUTELY NO CONTACT BETWEEN BRIANNA AND ANYONE WITH DIANNA
ELLIOTT'S LAST NAME...'" In this ruling she made a number of fact findings and mixed fact
and law findings that were simply contrary to the evidence, or, the lack of evidence, presented by
CFS and their Attorney, in unsubstantiated, corrupted and incompetent testimony to alleged
facts heard in subrogated perjury that were never true and based on a previous trial they never
attended.
When a judge does not follow the law, i.e., they are a trespasser of the law, the judge loses
subject-matter jurisdiction and the judges’ orders are void, of no legal force or effect. The U.S.
Supreme Court, in Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 1687 (1974)
JUDGE HAIGHT'S ORDER IS VOID
Void judgments lack jurisdiction and can legally be ignored as they neither bind, nor bar
anyone. Obviously a judgment, though final and on the merits, has no binding force and is
subject to collateral attack if it is wholly void for lack of jurisdiction of the subject matter or
person, and perhaps for excess of jurisdiction, or where it is obtained by extrinsic fraud. 7
Witkin, Cal. Procedure, Judgment, 286, p. 828.)
CCP Section 473 permits a trial court, on noticed motion, to set aside void judgments and
orders. Courts also possess inherent power to grant such relief. Reid v. Balter (1993) 14
Cal.App.4th 1186, 1194.
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PRO PER PLEADINGS
"Pleadings in this case are being filed by Plaintiff In Propria Persona, wherein pleadings are
Propria, pleadings are not to be held to the same high standards of perfection as practicing
lawyers. Haines v. Kerner 92 Sct 594, also See Power 914 F2d 1459 (11th Cir1990), also See
Hulsey v. Ownes 63 F3d 354 (5th Cir 1995). also See In Re: HALL v. BELLMON 935 F.2d
1106 (10th Cir. 1991)."
It is held that a pro-se pleading requires less stringent reading than one drafted by a lawyer
(Puckett v. Cox 456 F2d 233 (1972 Sixth Circuit USCA). And, Justice Blackin, Conley v.
Gibson, 355 U.S. 41 at 48 (1957) "The Federal Rules rejects the approach that pleading is not a
game of skill in which one misstep by counsel may be decisive to the outcome and accept the
principle that the purpose of pleading is to facilitate a proper decision on the merits." According
to Rule 8(f) FRCP and the State Court rule whichholds that all pleadings shall be construed to do
substantial justice."
CONCLUSION
Any reasonable person looking at the current bench in the defendant’s case would see bias
and prejudice against the defendant, and, the ignoring of the law by Judge Haight.
Therefore, the defendant respectfully requests that Judge Haight and anyone under her
supervision be disqualified under CCP 170.1(a)(6)(C) et seq. Defendant requests that the
Presiding Judge of the Superior Court of California, Martinez, Contra Costa County, the
Honorable Judge Diana Becton, assign the defendant’s case to another department within her
court, or in the alternative ask the Judicial Counsel to assign an independent Judge to this case.
In the best interest and for respect of the court this request for disqualification must be
granted. The California legislature made reasonable decisions in these rules for disqualification
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and the rules must be followed.
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DECLARATION OF KIMBERLY LALLEY
I, Kimberly Lalley declare I am a resident in California and I am the defendant in this
matter and declare that the foregoing is true and correct under penalty of perjury under the laws
of the state of California, and can and will testify to such in any court or hearing. Executed in the
state of California, in the County of Contra Costa, California.
July 15, 2012 _______________________Kimberly LalleyPetitioner, in pro se
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