III. The United States Supreme Court requires a three-prong test to establish jurisdiction over a non-resident defendant: Relatedness, Purposeful Availment and Reasonableness
A. Relatedness
“Where a forum seeks to assert specific jurisdiction over an out-of-state defendant who has not consented to suit there, this "fair warning" requirement is satisfied if the defendant has "purposefully directed" his activities at residents of the forum, Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774 (1984), and the litigation results from alleged injuries that "arise out of or relate to" those activities, Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984). n15.”
Burger King Corp. v. Rudzewicz, (1985)471 U.S. 462, 85 L. Ed. 2d 528, at 541.
As demonstrated above, Appellant’s allegations are based on an ongoing kickback scheme perpetrated by Respondents, executed in conspiracy with the other defendants. This scheme involved the payment of fees to Respondents in California, whereafter the purchased investment advisory services were created and distributed from California, resulting in the kicking back to Respondents from California of a substantial percentage of the commissions Appellant paid in California, based on the transactions Respondents recommended. Therefore, there is an overwhelming nexus between Appellant’s claims and Respondents’ activities and dealings in the State of California.
B. Purposeful Availment
“Jurisdiction is proper, however, where the contacts proximately result from actions by the defendant himself that create a "substantial connection" with the forum State. McGee v. International Life Insurance Co., supra, at 223; see also Kulko v. California Superior Court, supra, at 94, n. 7. n18 Thus where the defendant "deliberately" has engaged in significant activities within a State, Keeton v. Hustler Magazine, Inc., supra, at 781, or has created "continuing obligations" between himself and residents of the forum, Travelers Health Assn. v. Virginia, 339 U.S., at 648, he manifestly has availed himself of the privilege of conducting business there, and because his activities are shielded by "the benefits and protections" of the forum's laws it is presumptively not unreasonable to require him to submit to the burdens of litigation in that forum as well.”
Burger King Corp. v. Rudzewicz, (1985)471 U.S. 462, 85 L. Ed. 2d 528, at 2184 and 543.
“Specific jurisdiction may be asserted where the defendant has purposefully availed himself of forum benefits and the controversy is related to or arises out of the defendant's contacts with the forum. (Vons Companies, Inc. v. Seabest Foods, Inc., supra, 14 Cal. 4th at p. 446.) Sufficient minimum contacts for specific jurisdiction exist where a nonresident ‘deliberately has engaged in significant activities within a [s]tate or has created 'continuing obligations' between himself and residents of the forum.’ ( Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462, 475-476 [105 S. Ct. 2174, 2184, 85 L. Ed. 2d 528, 543].)”
Hall v. LaRonde 1997 Cal. App. LEXIS 633 at 5.
As Respondents themselves concede, they have purposefully availed themselves of doing business in the State of California: they contracted for the use of California infrastructure to accept commercial payments and distribute their services; they contracted for payments from Appellant’s California brokerage firm; and, finally, they have never denied that many of their clients were and are residents of the State of California. Therefore, Respondents have purposefully availed themselves of the rights and benefits of doing business in this State.
C. Reasonableness
“The Due Process Clause of the Fourteenth Amendment to the United States Constitution permits personal jurisdiction over a defendant in any State with which the defendant has "certain minimum contacts . . . such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.' Milliken v. Meyer, 311 U.S. 457, 463." International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). In judging minimum contacts, a court properly focuses on "the relationship among the defendant, the forum, and the litigation." Shaffer v. Heitner, 433 U.S. 186, 204 (1977). See also Rush v. Savchuk, 444 U.S. 320, 332 (1980).”
Calder v. Jones (1984) 465 U.S. 783; 79 L. Ed. 2d 804 at HR5.
Respondents could not have reaped the vast sums they did absent the undisclosed kickback scheme they perpetrated in California. These sums dwarfed their investment advisory revenues, which were also harvested in this State. Their services were distributed here, under an agreement specifically affirming that these distribution services were to be performed here, and that they would be governed by California law. They knowingly caused Appellant damage in this State, through these forum-related activities. For Respondents to venture that, though they did partake of these many and substantial forum benefits, knowingly and deliberately causing Appellant and residents of this State substantial damages in this same forum, they are now somehow nevertheless exempt from being called to book for their forum-related acts defies the imagination.
IV. Defendant Rea has committed the crime of perjury; Respondents should be sanctioned; damages should be awarded; and criminal charges against Defendant Christopher Rea should be referred to the District Attorney and the Attorney General
California Penal Code §118 provides:
§ 118. Perjury defined
(a) Every person who, having taken an oath that he or she will testify, declare, depose, or certify truly before any competent tribunal, officer, or person, in any of the cases in which the oath may by law of the State of California be administered, willfully and contrary to the oath, states as true any material matter which he or she knows to be false, and every person who testifies, declares, deposes, or certifies under penalty of perjury in any of the cases in which the testimony, declarations, depositions, or certification is permitted by law of the State of California under penalty of perjury and willfully states as true any material matter which he or she knows to be false, is guilty of perjury.
California Penal Code §126 provides:
§ 126. Punishment for perjury
Perjury is punishable by imprisonment in the state
prison for two, three or four years.
Respondents have thus far successfully supported their motion to quash and dismiss by nothing less than outright perjury. This Court should refer criminal charges of perjury to both the San Francisco District Attorney and the Attorney General against Defendant Christopher Rea, who has willfully falsified statements of fact before the Superior Court.
In view of the extremely damaging nature of Respondent perjury in previous proceedings, this Court should take decisive action against Respondents. Through their many false statements under oath, the Respondents have sought, thus far successfully, to avoid not only Appellant’s claims, but also those of thousands of member of the General Public. Rea’s statements are not some minor omission or oversight; they are deliberate, patentedly false statements concerning material issues crucial to this inquiry, made so that Respondents might avoid and obstruct the justice of the courts of this State.
Furthermore, the Court should sanction counsel to Respondents for his role in supporting Rea’s perjured statements. See Ex. IV, p.94, 1 and fn.1.
V. Conclusion
As demonstrated above, due to their continuous contacts with the State of California, the overwhelming nexus between Appellant’s allegations and these forum-related contacts, and their clear purposeful availment of the rights and benefits of doing business in this State, it is far more than merely fair and reasonable under Constitutional due process to subject Respondents to jurisdiction in this State; it is self-evident. Indeed, Respondents’ motion to quash and dismiss demonstrated more than anything else a single quality: their appetite for blatant perjury before the Courts of this State.
Respondents’ motion to quash and dismiss should be reversed in its entirety. The Court should sanction Respondents, and award Appellant both his costs of appeal and damages – and criminal charges against Defendant Rea should be referred to the District Attorney and the Attorney General.
DATED: July 15, 2003
_____________________________
Olivier L. F. Asser
Appellant in propria persona
MOTION TO DISQUALIFY THE HON. RONALD E. QUIDACHAY FROM FURTHER PROCEEDINGS
For the reasons enumerated below, and pursuant to California Codes of Civil Procedure §§170.1(a)(2) and 170.1(a)(6)(C), Appellant hereby moves to disqualify the Hon. Ronald E. Quidachay from further proceedings in this action.
California Code of Civil Procedure §170.1(a)(2) provides:
170.1. (a) A judge shall be disqualified if any one or more of the following is true:
(2) The judge…gave advice to any party in the present proceeding upon any matter involved in the action or proceeding.
During the consolidated hearings of March 13, 2003 before his Court, Judge Quidachay stated to defense counsel representing Brokerage Defendant Manhattan Beach Trading, Inc. (“MB Trading”), Ms. Deana La Barbera as follows:
“She hasn’t even been here before, but she’s heard me say that to all of the other young lawyers in these cases, if the ruling is in your favor it’s usually better not to say anything unless you ask questions, and we won’t. Those of us who have been around a while, we’ve heard that one before. Anyway, nothing else on that.”
Reporter’s Transcript, p.11, 12.
Judge Quidachay thereby provided counsel to the Defendant, MB Trading, on an important matter pending before the Court, advice concerning representation of the defense of a party to the proceedings. The giving of advice to defense counsel such as the above is barred under the above Code, and grounds for disqualification.
Judge Quidachay made the following, additional statement:
“I think you should probably tell us on the record why that is not applicable in this particular instance.”
Reporter’s Transcript, p.19, 5.
Here, the judge is not making a ruling, but is rather instructing counsel to Individual Defendant Philip Berber to make a particular argument. This, rather than merely making an observation himself, is advice, likewise barred under §170.1(a)(2), and grounds for disqualification.
Furthermore, all four of Judge Quidachay’s law and motion orders are now before this Court. Appellant respectfully requests the Court view the record of previous proceedings and make a determination whether the evidence amounts to prejudice against Appellant and/or his and the General Public’s claims. If the determination is affirmative, then Judge Quidachay should be disqualified pursuant to California Code of Civil Procedure §170.1(a)(6)(C), which provides for judicial disqualification in the event that:
6) For any reason…(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 in the proceeding may be grounds for disqualification.
In view of the facts presented to this Court, there are grave questions concerning the impartiality of Judge Quidachay. He has repeatedly ignored key facts and key law, thereby compelling Appellant to seek reversal of each and every order he has issued in this action related to defendant motions, two of which, those of Defendants Philip Berber and Christopher Rea/Trading Places, raise serious questions whether or not Judge Quidachay has disregarded the commission of perjury before his Court.
For the foregoing reasons, the Hon. Ronald E. Quidachay should be disqualified from all further proceedings in this action.
DATED: July 15, 2003
_____________________________
Olivier L. F. Asser
Appellant in propria persona |
