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Kimberly Lalley 1654 Elm Road Concord, California 94519 Telephone: (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 Case No.: J12-00354 Under the Juvenile Court Law. ______________________________________ NOTICE OF MOTION AND DEFENDANT'S MOTION CONTRA COSTA COUNTY CHILDREN TO RECUSE JUDGE LOIS HAIGHT AND FAMILY SERVICES AGENCY, Plaintiff , KIMBERLY LALLEY., Defendant. (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 my mother

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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 AUTHORITIES IN 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, religious, or other discriminatory motive existed. Constitution or laws of the United States. (18 U.S.C.
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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 "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

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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 JUDGE IS 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 Haights 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, 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

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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 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

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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 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.

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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 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

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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. 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.

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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 defendants 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 defendants 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 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 Lalley Petitioner, in pro se

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