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

In Re Brianna S. Case No. J12-00354NOTICE AND MOTION TO RECUSE JUDGE HAIGHT

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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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motion to recuse (1)

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