PAGES 1 - 17

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

BEFORE THE HONORABLE WILLIAM H. ORRICK

A. EDWARD EZOR, )
)
PLAINTIFF, )
)
VS. ) NO. 17-CV-5338 WHO
)
STATE BAR OF CALIFORNIA, ET AL., )
) SAN FRANCISCO, CALIFORNIA
DEFENDANTS. ) WEDNESDAY
) JANUARY 17, 2018
___________________________________)

TRANSCRIPT OF PROCEEDINGS OF THE OFFICIAL ELECTRONIC SOUND

RECORDING 2:06 P.M. - 2:30 P.M.

APPEARANCES:

FOR PLAINTIFF A. EDWARD EZOR, PRO SE

305 S. HUDSON AVENUE. SUITE 300
PASADENA, CALIFORNIA 91101

FOR DEFENDANT THE STATE BAR OF CALIFORNIA

180 HOWARD STREET
SAN FRANCISCO, CALIFORNIA 94105
BY: SUZANNE C. GRANDT, ESQUIRE

TRANSCRIBED BY: JOAN MARIE COLUMBINI, CSR #5435, RPR

RETIRED OFFICIAL COURT REPORTER, USDC
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1 WEDNESDAY, JANUARY 17, 2018 2:06 P.M.

2 (TRANSCRIBER'S NOTE: DUE AT TIMES TO COUNSELS' FAILURE TO

3 IDENTIFY THEMSELVES WHEN SPEAKING, CERTAIN SPEAKER

4 ATTRIBUTIONS ARE BASED ON EDUCATED GUESS.)

5 ---O0O---

6 PROCEEDINGS

7 THE CLERK: WE ARE HERE IN CASE NO. 17-5338, EZOR

8 VERSUS STATE BAR OF CALIFORNIA.

9 IF YOU WOULD PLEASE STATE YOUR APPEARANCES FOR THE

10 RECORD?

11 MR. EZOR: EDWARD EZOR, PLAINTIFF.

12 MS. GRANDT: SUZANNE GRANDT FOR THE STATE BAR OF

13 CALIFORNIA, ET AL., DEFENDANTS.

14 THE COURT: GOOD AFTERNOON.

15 MR. EZOR: GOOD AFTERNOON.

16 THE COURT: SO, MR. EZOR, TELL ME WHY COLLATERAL

17 ESTOPPEL DOESN'T APPLY? I CAN'T FIGURE OUT ANY WAY THAT YOUR

18 CASE IS ABLE TO PROCEED IN THIS COURT BECAUSE THE -- YOU DIDN'T

19 FOLLOW THE JURISDICTIONAL OBLIGATIONS THAT THE STATE BAR ACT

20 HAS FOR YOU TO PROCEED, AND YOU DIDN'T FILE THE PETITION FOR

21 WRIT IN SUPERIOR COURT WITHIN 90 DAYS OF THE TENTATIVE

22 DECISION. SO THAT'S WHAT I'M LOOKING AT. AND EXPLAIN --

23 EXPLAIN TO ME WHY THAT'S NOT THE WAY THAT I HAVE TO GO.

24 MR. EZOR: WELL, YOUR HONOR, IF I MAY DO SOME

25 READING? I HAVE A CONDITION KNOWN AS BRONCHIECTASIS, AND MY

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1 PULMONOLOGIST ADVISED THAT I TRY TO AVOID FORCED SPEECH, WHICH

2 MEANS THAT HE WOULD PREFER THAT I READ RATHER THAN OTHERWISE.

3 THE COURT: IT'S --

4 MR. EZOR: MAY I DO THAT?

5 THE COURT: IT'S FINE. YOU MAY ABSOLUTELY READ, BUT

6 WHAT I WANT YOU TO READ RELATES DIRECTLY TO MY QUESTION.

7 MR. EZOR: CERTAINLY.

8 THE COURT: I DON'T WANT TO JUST HEAR THE BRIEF YOU

9 ALREADY FILED OR ANYTHING LIKE THAT.

10 MR. EZOR: CERTAINLY.

11 THE COURT: BUT YOU COULD RESPOND --

12 MR. EZOR: WELL, WITH REGARD TO SUPPLEMENTAL

13 JURISDICTIONS, WHICH I THINK IS THAT TO WHICH YOU WERE

14 REFERRING, MY OPPOSITION STATES CLEARLY THAT THE U.S. FEDERAL

15 COURT, TO HEAR A CLOSELY-RELATED STATE LAW CLAIM AGAINST THE

16 PARTY ALREADY FACING A FEDERAL CLAIM DESCRIBED BY THE U.S.

17 SUPREME COURT AS, QUOTE, JURISDICTION OVER NON-FEDERAL CLAIMS

18 BETWEEN PARTIES LITIGATING OTHER MATTERS PROPERLY BEFORE THE

19 COURT.

20 THAT'S THE 28 USC SECTION 1367, AND IN -- AND THAT

21 PENDENT JURISDICTION DOES APPLY, WHICH IS THE VERY FAMOUS CASE

22 OF UNITED STATES MINE WORKERS OF AMERICA VERSUS GIBBS, WHICH

23 CITATION I HAVE ON PAGE 6 OF MY OPPOSITION. I KNOW YOU DON'T

24 WANT ME TO REPEAT.

25 THE COURT: YEAH, BUT MR. EZOR --

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1 MR. EZOR: BUT THAT'S IMPORTANT.

2 THE COURT: IN ORDER TO EXERCISE SUPPLEMENTAL

3 JURISDICTION, I HAVE TO HAVE JURISDICTION.

4 MR. EZOR: YES.

5 THE COURT: AND THE ACT THAT YOU'RE PURSUING ON THE

6 WRIT OF MANDATE REQUIRED THAT YOU FILE THE PETITION FOR THE

7 WRIT IN SUPERIOR COURT, NOT FEDERAL COURT, WITHIN 90 DAYS OF

8 THE FINAL DECISION, AND THAT'S WHAT I'M INTERESTED IN HEARING

9 ABOUT.

10 MR. EZOR: I UNDERSTAND, YOUR HONOR. AND I BELIEVE

11 THAT THE -- THERE IS AUTHORITY THAT THIS COURT DOES, IN FACT,

12 HAVE SUPPLEMENTAL OR ANCILLARY JURISDICTION.

13 THE COURT: BUT WHAT'S THE BASIS OF JURISDICTION?

14 MR. EZOR: THE VIOLATION OF MY -- OF DUE PROCESS

15 RIGHTS, WHICH I ALLEGE, IF YOU WILL, UNDER US -- 28 USC 1983.

16 I SUBMIT THAT MY COMPLAINT SUFFICIENTLY STATES -- EXCUSE ME --

17 CAUSES OF ACTION FOR VIOLATION OF CIVIL RIGHTS, FOR SURE,

18 DECLARATORY RELIEF, AND PETITION FOR WRIT OF MANDATE, WHICH I

19 AM ENTITLED TO DO UNDER 28 USC SECTION 1367.

20 AND I BELIEVE THE COURT -- THAT IS SUFFICIENT

21 AUTHORITY FOR THE COURT TO RETAIN JURISDICTION OVER THIS CASE

22 WITH RESPECT TO THE QUESTION THAT YOU POSED TO ME.

23 JUST GIVE ME ONE MOMENT BECAUSE I DID SOME SCRIBBLING

24 HERE.

25 AND, AGAIN, I REFER THE COURT TO PAGE -- ACTUALLY,

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1 PAGE 5 AND 6, THAT I SUED FOR VIOLATION OF MY CIVIL RIGHTS,

2 WHICH IS CLEAR, CLEAR AND WELL SUPPORTED, AND, ANCILLARY TO

3 THAT, THE COURT HAS JURISDICTION OVER THE -- WHATEVER MIGHT BE

4 TERMED STATE COURT JURISDICTION BY VIRTUE OF THE CITATIONS THAT

5 I CITED TODAY AND ON PAGE 6 OF MY OPPOSITION, AND AS WELL AS --

6 WELL, SECTION 1983. IT CLEARLY STATES IT MAY BE BROUGHT IN

7 FEDERAL COURT APPLYING BOTH FEDERAL STATUTES.

8 THE COURT: SO, MR. EZOR, I THINK I UNDERSTAND THAT

9 ARGUMENT, AND I UNDERSTAND THAT TO BE YOUR ONLY ARGUMENT

10 AGAINST THE MOTION THAT'S BEING BROUGHT BY THE STATE.

11 YOUR FAILURE TO PROCEED UNDER THE PROCEDURE THAT IS

12 OUTLINED UNDER THE ACT, I THINK, ACTS AS A WAIVER. I HAVE TO

13 GIVE PRECLUSIVE EFFECT TO THE STATE ADMINISTRATIVE DECISION.

14 AND YOU HAD THE OPPORTUNITY -- THE ADMINISTRATIVE

15 AGENCY ACTS IN A JUDICIAL CAPACITY, TAKES EVIDENCE UNDER OATH.

16 IT HAS AN ADVERSARY PROCESS. YOU WERE A PARTY TO IT. YOU

17 DECIDED NOT TO PURSUE YOUR RIGHTS. SO I LACK THE ABILITY TO

18 ADDRESS YOUR CASE.

19 AND IN ADDITION -- IN ADDITION TO LACKING

20 JURISDICTION AND TO GIVING COLLATERAL ESTOPPEL EFFECT TO WHAT'S

21 ALREADY HAPPENED IN A STATE PROCEEDING, THE 11TH AMENDMENT

22 WOULD PROTECT THE STATE BAR AND ITS OFFICIALS FROM ANY CLAIMS

23 FOR MONEY DAMAGES.

24 I JUST THINK UNDER ALL OF THOSE, FOR ALL OF THOSE

25 REASONS THERE'S NO POINT IN PURSUING THIS.

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1 MR. EZOR: YOUR HONOR, BESIDES THE VIOLATION OF CIVIL

2 RIGHTS, IN ONE CASE, WAS THE PREMATURE DISTRIBUTION OF FUNDS

3 SHORT OF THE TIME PERIOD THAT THE NOTICE OF INTENT TO DISBURSE

4 FUNDS SAYS FUNDS WILL BE DISBURSED, AND THE PURPOSE OF THAT IS

5 TO GIVE ME AN OPPORTUNITY TO DO WHAT THE COURT SEEMS I SHOULD

6 HAVE BEEN ABLE TO DO.

7 I DIDN'T GET AN OPPORTUNITY TO DO IT. THEY VIOLATED

8 MY DUE PROCESS. THEY PREMATURELY DISTRIBUTED FUNDS CONTRARY TO

9 THEIR OWN NOTICE AND CONTRARY TO THE STATUTE THAT SAYS I

10 HAVE -- THAT SAYS THERE IS A CERTAIN PERIOD OF TIME BY WHICH A

11 WRIT -- A MANDATE MAY BE BROUGHT. I MEAN, IT'S --

12 THE COURT: YOU HAD THE OPPORTUNITY TO PURSUE THAT

13 CLAIM IF YOU WANTED TO WITHIN THE 90-DAY PERIOD AFTER THE FINAL

14 DECISION. YOU DIDN'T DO THAT.

15 MR. EZOR: BECAUSE IT WAS A PREMATURE DISTRIBUTION.

16 THEY VIOLATED THEIR OWN RULES. AFTER, LIKE, TWO WEEKS

17 NOTWITHSTANDING THAT THEY HAVE -- THEY WON'T DISBURSE FOR 30

18 DAYS, THEY DISBURSED IT IN HALF THAT TIME, AND THAT'S ONE OF

19 THE REASONS I'M HERE.

20 NOW, MAY I ADDRESS THE 11TH AMENDMENT, YOUR HONOR?

21 THE COURT: SURE, GO AHEAD.

22 MR. EZOR: WHICH I BELIEVE, AGAIN, IS BROUGHT UP

23 CLEARLY ON PAGE 4. I MEAN --

24 YOUR HONOR, I THINK I LEFT SOME NOTES --

25 THE COURT: IF WHAT YOU WERE GOING TO DO WAS READ

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1 WHAT'S IN THE BRIEF --

2 MR. EZOR: YOU'VE RECEIVED AND READ THE OPPOSITION.

3 THE COURT: YES.

4 MR. EZOR: OKAY. I THINK I LEFT SOME NOTES ON THE

5 BENCH. MAY I?

6 THE COURT: SURE.

7 MR. EZOR: EXCUSE ME A MINUTE.

8 THANK YOU, YOUR HONOR. I'M SORRY.

9 AGAIN, THE 11TH AMENDMENT I REFER TO THE COURT -- AND

10 I KNOW THE COURT'S READ IT AND DOESN'T WANT A REPEAT, BUT PAGE

11 4 CLEARLY STATES IN MY OPPOSITION WHY I'M ENTITLED TO RELIEF --

12 RELIEF AND THAT I'M NOT BARRED FROM DAMAGES FOR EQUITABLE --

13 EQUITABLE AND DECLARATORY RELIEF, IF NOT MONETARY RELIEF, FROM

14 THE STATE BAR.

15 AS TO THE INDIVIDUAL AGENTS AND EMPLOYEES, I

16 CERTAINLY AM UNDER AUTHORITY. I AM ENTITLED TO MONETARY

17 DAMAGES FROM THE AGENTS OR EMPLOYEES OF THE STATE BAR.

18 LET ME POINT SOMETHING ELSE, TOO, YOUR HONOR. MY

19 COMPLAINT INCLUDES DEFENDANTS MORGENSTERN, WHO IS NOT A MEMBER

20 AS FAR AS I KNOW, OF THIS FUND; THE EXECUTIVE DIRECTOR OF

21 THE -- OF THE -- OF THE BAR WHO IS NOT A MEMBER OF THE FUND;

22 AND ANOTHER PERSON, I THINK GEORGE, WHO IS -- THERE ARE THREE

23 PEOPLE WHO ARE NOT MEMBERS OF THIS DECISION THAT WAS MADE TO

24 PREMATURELY DISBURSE FUNDS IN VIOLATION OF MY CIVIL RIGHTS --

25 OKAY? WHEREIN I ALLEGE THAT THERE WAS IMPROPER EX PARTE

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1 COMMUNICATION BETWEEN THOSE NON-MEMBERS AND MEMBERS OF THE FUND

2 THAT SOUGHT TO PREMATURELY DISBURSE THE FUNDS. AND I CLEARLY

3 ALLEGE THAT AND I THINK I HAVE AN OPPORTUNITY TO GO FORWARD AND

4 PROVE THAT, YOUR HONOR. I REALIZE I HAVE THE BURDEN. I'D LIKE

5 TO BE ABLE TO EXERCISE THE BURDEN.

6 WITH RESPECT TO YOUR CONCERN ABOUT ANCILLARY, MAY I

7 PLEASE HAVE AN OPPORTUNITY TO AMEND THE COMPLAINT TO MAYBE

8 ALLEGE MORE CLEARLY WHY I WOULD -- THE GROUNDS ON WHICH I

9 DISAGREE WITH THE COURT'S TENTATIVE RULING ON COLLATERAL

10 ESTOPPEL.

11 THE COURT: WELL, THAT WOULDN'T HELP ME. ARE THERE

12 OTHER FACTS THAT YOU RELY ON THAT YOU WOULD BE AMENDING YOUR

13 COMPLAINT TO ADD THAT WOULD -- THAT YOU THINK WOULD ALLOW YOU

14 TO PROCEED?

15 MR. EZOR: THE INDIVIDUALS WHO VIOLATED MY CIVIL

16 RIGHTS, YOUR HONOR, YES. AND I CAN BE MORE SPECIFIC IN WAYS

17 THAT THEY DID, AND I WOULD LIKE TO HAVE THE OPPORTUNITY TO

18 ASSERT THAT IN AN AMENDED PLEADING, WHICH I CAN DO RIGHT AWAY.

19 AND I WOULD LIKE --

20 I MEAN, THERE'S A LOT AT STAKE HERE, YOUR HONOR, AND

21 I BELIEVE I'VE SUFFICIENTLY PLED ALL THREE CAUSES OF ACTION.

22 AND WITH REGARD TO THE COURT'S CONCERN ABOUT COLLATERAL

23 ESTOPPEL, I WOULD LIKE AN OPPORTUNITY TO STATE SPECIFIC FACTS.

24 IT'S A NOTICED PLEADING, BUT I CAN STATE IN MORE SPECIFICITY,

25 IF THE COURT WOULD PLEASE GIVE ME AN OPPORTUNITY TO DO SO, WHY

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1 I'M NOT BARRED BY COLLATERAL ESTOPPEL, PLEASE.

2 THE COURT: MS. GRANDT.

3 MS. GRANDT: WELL, WE BELIEVE THE BAR THINKS ANY

4 AMENDMENT WOULD BE FUTILE BECAUSE IT'S NOT CLEAR HOW IF HE

5 ADDED FURTHER ALLEGATIONS OF ANY POTENTIAL RIGHTS VIOLATIONS,

6 HOW THAT WOULDN'T ALSO FALL UNDER THIS JURISDICTIONAL BAR TO

7 HEARING THESE CLAIMS.

8 HE COULD HAVE BROUGHT THESE UP IN THE COURSE OF

9 SEEKING A WRIT TO THE SUPERIOR COURT, AS WELL AS THE FACT THAT,

10 YOU KNOW, THEY WOULD BE BARRED FOR OTHER GROUNDS SUCH AS WE

11 LAID OUT IN THE BRIEF, IMMUNITY BY THE 11TH AMENDMENT, AS WELL

12 AS JUDICIAL IMMUNITY.

13 HE MENTIONED THAT THERE WERE OTHER DEFENDANTS WHO ARE

14 NOT PART OF THE CSF, SUCH AS THE PROSECUTOR ON THE STATE BAR

15 CASE, MR. MORGENSTERN, AS WELL AS THE EXECUTIVE DIRECTOR --

16 IT'S ACTUALLY NOW THE FORMER EXECUTIVE DIRECTOR, ELIZABETH

17 PARKER.

18 BUT HIS ALLEGATION CONCERNING THOSE INDIVIDUALS ALL

19 DEAL WITH THESE DECISIONS THAT THE ADMINISTRATIVE BODY MADE,

20 THESE CLIENT SECURITY FUNDS DECISIONS. SO IN THAT SENSE THEY

21 WERE WORKING IN CONJUNCTION WITH THAT BODY, AND THEY'RE ALSO

22 ENTITLED TO JUDICIAL AND QUASI-JUDICIAL IMMUNITY, AS I'VE LAID

23 OUT IN THE BRIEF.

24 SO IT JUST DOESN'T SEEM TO ME WHAT ALLEGATIONS HE

25 COULD POSSIBLY ADD THAT WOULD GIVE THIS COURT JURISDICTION OVER

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1 THIS CASE OR WOULD WITHSTAND THE OTHER GROUNDS WE LAID OUT IN

2 THE BRIEF FOR DISMISSAL OF THE CASE.

3 THE COURT: ALL RIGHT.

4 MR. EZOR?

5 MR. EZOR: MAY I REPLY?

6 THE COURT: YEAH.

7 MR. EZOR: OKAY. THE FACT THAT I -- I HAVE GIVEN

8 THIS COURT, I BELIEVE, AUTHORITY WHY I AM WITHIN MY RIGHTS TO

9 ELECT THIS FORUM. I HAVE ALLEGED A REASONABLE BASIS TO SUE IN

10 FEDERAL COURT.

11 NOW, I KNOW THAT THE BAR LISTED OTHER STATE COURT

12 CASES THAT SUED THE COMMUNITY FUND AND NOT THE -- IN THE STATE

13 COURT CASES THAT HAVE SUED THE COMMUNITY FUND AND NOT THE STATE

14 BAR. THAT'S IRRELEVANT, YOUR HONOR. THIS IS A DIFFERENT CASE.

15 THAT IS A CASE, IF I MAY, OF FIRST IMPRESSION. THERE

16 IS EVIDENCE OF RETALIATION AND DISCRIMINATORY TREATMENT FOR THE

17 REASONS THAT I STATED, RATHER SKELETALLY, IN THE OPPOSITION,

18 BECAUSE I KNOW YOU DON'T WANT TO HEAR TOO MUCH ABOUT THAT.

19 OKAY? WHERE, BECAUSE OF -- ALL LED TO THE VIOLATION OF MY

20 CIVIL RIGHTS. THAT CERTAINLY GIVES THIS COURT JURISDICTION.

21 AND, AGAIN, BECAUSE OF THE -- THE ACTS OF THE FUND AND THE BAR

22 AND THE NON-MEMBERS OF THE FUND, BUT MEMBERS OF THE BAR GIVES

23 ME THE RIGHT -- AND I DO INCLUDE -- I DO INCLUDE A CAUSE OF

24 ACTION FOR -- FOR A PETITION DECLARATORY AND A PETITION FOR

25 WRIT OF MANDATES THAT I BELIEVE I'M ENTITLED TO DO THAT IN THIS

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1 COURT, OR, AT LEAST AGAIN, IF YOU WOULD LIKE ME TO ALLEGE MORE

2 SPECIFICITY, I'D BE MORE THAN HAPPY TO DO THAT. I JUST THOUGHT

3 BY NOTICED PLEADING I DIDN'T HAVE TO DO THAT, BUT I AM WELL

4 EQUIPPED TO DO THAT, AND I WOULD LIKE THE OPPORTUNITY FOR THE

5 COURT TO GIVE ME THE OPPORTUNITY TO DO THAT.

6 THE COURT: ALL RIGHT. CAN YOU SPEAK TO THE SPECIFIC

7 FACTS THAT YOU WOULD ADD WITH RESPECT TO THE THREE PEOPLE WHO

8 YOU SAID WERE NOT PART OF THE STATE --

9 MR. EZOR: CERTAINLY. MR. MORGENSTERN, WHO IS NOT A

10 MEMBER.

11 THE COURT: WHOSE ROLE WAS?

12 MR. EZOR: PARDON ME?

13 THE COURT: WHOSE ROLE WAS WHAT? MR. MORGENSTERN --

14 MR. EZOR: MR. MORGENSTERN -- I'M GETTING TO THIS --

15 WAS THE STATE BAR PROSECUTOR IN MY STATE BAR DISCIPLINARY

16 TRIAL -- CASE, WITH JUDGE PLATEL. MR. MORGENSTERN, AFTER

17 THINKING THAT THE CASE WAS OVER -- I'LL SAY IT RIGHT NOW --

18 AFTER THINKING CASE WAS OVER, AND JUDGE PLATEL SAID, CASE IS

19 OVER, WAS OVERHEARD BY ME, BY THEN ATTORNEY MR. GREEN, AND BY

20 THE CASE ADMINISTRATOR WHEN JUDGE PLATEL GRANTED A CONTINUANCE

21 BASED ON HEALTH REASONS, HE WAS QUOTED AS SAYING -- AND HE DARE

22 NOT DENY IT -- "BULLSHIT," TO WHICH JUDGE PLATEL RESPONDED,

23 QUOTE, YEAH, "I THINK IT'S BULLSHIT, TOO, BUT I'M NOT A

24 DOCTOR." CLOSE QUOTE.

25 UNFORTUNATELY, THE BUTTON PUSHED THE ELECTRONIC

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1 RECORDING OFF BEFORE I COULD GET -- AND I DID GET AN AUDIO OF

2 THE HEARING -- BEFORE THAT COULD BE RECORDED. NOW, THAT'S ONE

3 THING.

4 WHAT DID I DO ABOUT IT? WELL, LET'S SEE. I

5 COMPLAINED TO THE COMMISSION ON JUDICIAL PERFORMANCE ONCE,

6 TWICE, AND I BELIEVE THREE TIMES. I WAS TOLD BY, I FORGET HER

7 NAME, BUT --

8 THE COURT: SO JUST FOCUS ON --

9 MR. EZOR: RETALIATION.

10 THE COURT: -- FACTS.

11 MR. EZOR: I HAVE SUED HIM, AND I HAVE SUED PLATEL.

12 I HAVE SUED STATE BAR. I HAVE A PENDING FEDERAL CASE IN THE

13 NINTH CIRCUIT AGAINST MR. MORGENSTERN, PLATEL, AND THE STATE

14 SUPREME COURT MEMBERS. IT'S AN ACTIVE FEDERAL CASE. THERE ARE

15 MOTIONS PENDING.

16 TWO --

17 THE COURT: WAS THERE A DECISION IN THAT CASE?

18 MR. EZOR: NO, THERE WAS A DECISION -- A TENTATIVE

19 DECISION. I'VE FILED TWO MOTIONS, NEITHER OF WHICH HAVE BEEN

20 RULED ON YET. AND I WILL BE GLAD TO SUPPLY THE COURT WITH

21 THOSE MOTIONS FOR THE COURT TO TAKE JUDICIAL NOTICE OF THOSE

22 MOTIONS. THAT IS PENDING, AND IT'S BEEN PENDING FOR QUITE A

23 WHILE BECAUSE THEY DON'T KNOW WHAT TO DO ABOUT IT.

24 NUMBER TWO, I HAVE FILED WITH THE STATE SUPREME COURT

25 VERIFIED --

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1 THE COURT: OKAY.

2 MR. EZOR: -- VERIFIED ACCUSATION AGAINST

3 MR. MORGENSTERN. THIS IS ALL RETALIATION.

4 TO ANSWER YOUR QUESTION --

5 THE COURT: OKAY.

6 MR. EZOR: -- ONE WORD, IT'S RETALIATION. AND THAT'S

7 WHAT I WISH I WOULD BE ALLOWED TO SPECIFICALLY PLEAD, AND I

8 WILL DO IT. I WOULD DO IT AS SOON AS THE COURT WOULD ALLOW ME

9 TO DO IT AND SEE IT.

10 MS. GRANDT: YOUR HONOR, I JUST WANT TO CORRECT THE

11 RECORD. THE CASE HE'S REFERRING TO, I ACTUALLY NOW AM THE

12 ATTORNEY OF RECORD, NOW, IN THAT CASE, SO I CAN SPEAK TO THAT.

13 IT WAS DISMISSED IN THE DISTRICT COURT, AND NOW HE FILED AN

14 APPEAL, AND IT WAS ACTUALLY AFFIRMED ON APPEAL.

15 SO IT'S NOT PENDING RIGHT NOW. IT'S BEEN DECIDED.

16 THAT'S IN OUR BRIEFS ACTUALLY. IT'S IN THE BRIEF THAT SAID IT

17 WAS DISMISSED.

18 THE COURT: THAT'S WHAT I SAW, BUT --

19 MR. EZOR: THAT IS INCORRECT.

20 THE COURT: OKAY. MR. EZOR, HERE'S WHAT WE'RE GOING

21 TO DO.

22 MR. EZOR: THAT'S INCORRECT.

23 THE COURT: MR. EZOR, HERE'S WHAT WE ARE GOING TO DO:

24 I AM GOING TO LOOK AT THIS WHEN I GET OFF THE BENCH.

25 THERE ARE LIBERAL RULES WITH RESPECT TO AMENDING COMPLAINTS, ON

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1 THE ONE HAND. AND THERE ARE, I THINK, HUGE HURDLES FOR YOUR

2 CASE. I KNOW THAT YOU DON'T AGREE WITH THAT, AND EVENTUALLY

3 YOU MAY HAVE THE OPPORTUNITY OF CHECKING MY WORK IN THE COURT

4 OF APPEALS.

5 MR. EZOR: AND TRYING TO HURDLE THOSE HIGH HURDLES,

6 YOUR HONOR.

7 THE COURT: YES.

8 MR. EZOR: I KNOW. I DID TRACK IN SCHOOL.

9 THE COURT: THAT'S BETTER THAN I COULD DO.

10 MR. EZOR: OKAY.

11 THE COURT: BUT -- SO THE QUESTION IN MY MIND AS I

12 LEAVE THE BENCH IS WHETHER THERE IS -- I THINK THERE'S ANY

13 POSSIBILITY OF YOUR BEING ABLE TO PLEAD AROUND WHAT I THINK ARE

14 VERY SIGNIFICANT DIFFICULTIES IN YOUR CASE. BUT THAT'S WHAT

15 I'M GOING TO LOOK AT.

16 MR. EZOR: THANK YOU.

17 THE COURT: AND I HEARD YOUR REQUEST.

18 IF I DO ALLOW YOU TO AMEND, IT WOULD BE ON A VERY

19 SHORT TIME FUSE, AND I MIGHT JUST LOOK AT THE AMENDMENT THAT

20 YOU MAKE AND SUA SPONTE A MAKE RULING, RATHER THAN -- IF I

21 DON'T THINK THAT IT'S -- THAT IT CUTS MUSTER, BUT -- SO THAT'S

22 WHAT I'M GOING TO THINKING ABOUT WHEN I GET OFF THE BENCH.

23 MR. EZOR: YOUR HONOR, JUST FOR MY CLARITY, WOULD YOU

24 SAY AGAIN WHAT IT IS THAT THE COURT HAS A PROBLEM WITH, SO THAT

25 I CAN BE SURE AND ADDRESS THAT IN MY AMENDED PLEADING?

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1 THE COURT: THE FUNDAMENTAL PROBLEM IS THAT YOU

2 HAD -- THAT THERE IS AN ACT WHICH TELLS YOU THAT WHEN THERE --

3 ONCE THERE IS A FINAL DECISION, YOU'VE GOT 90 DAYS TO FILE A

4 WRIT IN SUPERIOR COURT, NOT FEDERAL COURT, AND THE 90 DAYS

5 LAPSED.

6 MR. EZOR: OKAY.

7 THE COURT: SO YOU DIDN'T -- YOU DIDN'T DEAL WITH

8 THAT.

9 THEN I GO BACK TO, OKAY, IS THERE A FINAL DECISION OF

10 THE AGENCY AND DID THAT AGENCY HAVE THE CAPACITY TO HAVE A FAIR

11 ADVERSARIAL PROCESS, ESSENTIALLY. SO THINGS LIKE: DOES IT ACT

12 IN A JUDICIAL CAPACITY, DID YOU HAVE THE OPPORTUNITY TO PRESENT

13 EVIDENCE, THOSE SORTS OF THINGS, ALL OF THOSE THINGS. THE

14 ADMINISTRATIVE AGENCY -- I'M REQUIRED TO GIVE THE STATE

15 ADMINISTRATIVE AGENCY DECISION PRECLUSIVE EFFECT. BUT I ALSO

16 HAVE PROBLEMS WITH THE 11TH AMENDMENT.

17 MR. EZOR: OKAY.

18 THE COURT: AND IMMUNITY. I JUST SEE A WELTER OF

19 ISSUES. I THINK THEY'RE PRETTY WELL LAID OUT IN THE STATE

20 BAR'S BRIEFS. SO YOU SHOULD LOOK AT THOSE AND ADDRESS THEM

21 DIRECTLY, IF I GIVE YOU THAT OPPORTUNITY, AND I WILL TRY TO GET

22 AN ORDER OUT PRETTY SOON.

23 MR. EZOR: OKAY. NOW, AGAIN, DO I UNDERSTAND -- AND

24 FORGIVE ME IF I'M --

25 THE COURT: OKAY.

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1 MR. EZOR: -- DENSE HERE -- THE COURT IS GOING TO

2 CONSIDER TO ALLOW ME TO AMEND AS I REQUESTED, OR YOU ARE GIVING

3 ME THAT OPPORTUNITY?

4 THE COURT: I AM NOT -- THE FIRST THING THAT YOU SAID

5 IS CORRECT.

6 MR. EZOR: OKAY.

7 THE COURT: I AM SKEPTICAL OF YOUR ABILITY TO PLEAD

8 AROUND THIS AND -- BUT WHEN I GET OFF THE BENCH, I WANT TO GIVE

9 THIS ONE MORE SCOUR OF THINKING, BECAUSE YOU DO -- THERE IS A

10 LINE, A STRONG LINE OF ALLOW- -- CASES THAT ALLOW LIBERAL

11 AMENDMENT OF PLEADINGS --

12 MR. EZOR: YES.

13 THE COURT: -- PARTICULARLY FOR PEOPLE WHO ARE

14 REPRESENTING THEMSELVES, EVEN THOUGH YOU ARE A LAWYER AND I

15 HAVE SOME EXPECTATIONS FOR YOU THAT I WOULDN'T HAVE FOR THE

16 NORMAL PRO SE. BUT, ANYWAY, I WILL -- I'LL TAKE A LOOK AT ALL

17 OF THAT.

18 MR. EZOR: OKAY.

19 THE COURT: -- AND TRY AND GET AN ORDER OUT AS SOON

20 AS I CAN.

21 MR. EZOR: WOULD THE COURT -- WOULD THE COURT

22 CONSIDER POINTS AND AUTHORITIES IN THE INTERIM --

23 THE COURT: NO.

24 MR. EZOR: -- TO HELP YOU MAKE THAT DECISION?

25 THE COURT: ABSOLUTELY NOT.

JOAN MARIE COLUMBINI, CSR, RPR

RETIRED OFFICIAL COURT REPORTER, USDC
510-367-3043
 17

1 MR. EZOR: OKAY.

2 THE COURT: ALL I'M -- YOU'VE HAD THE OPPORTUNITY TO

3 DO YOUR POINTS AND AUTHORITIES. WHAT I'M INTERESTED IN IS

4 WHETHER THERE ARE ANY FACTUAL ALLEGATIONS THAT YOU CAN MAKE

5 THAT COULD GET AROUND WHAT I THINK ARE THESE DIFFICULT HURDLES

6 FOR YOU.

7 MR. EZOR: OTHER THAN WHAT'S IN THE OPPOSITION AND

8 THE COMPLAINT AND TODAY'S ORAL ARGUMENT? OKAY.

9 THE COURT: ALL OF THOSE -- NONE OF THOSE THINGS HAVE

10 MADE ME THINK THAT THERE'S ANYTHING THAT I HAVE AN ABILITY TO

11 DEAL WITH.

12 MR. EZOR: ALL RIGHT.

13 THE COURT: SO, I'M JUST -- AND ALTHOUGH YOU SO FAR

14 HAVEN'T ARTICULATED ANYTHING THAT WOULD MAKE ME SCRATCH MY

15 HEAD, YOU DID SAY THAT YOU REALLY WANT TO AMEND, AND SO THAT'S

16 THE THING I'VE GOT TO THINK ABOUT.

17 MR. EZOR: I'M CONFIDENT I CAN AND QUICKLY.

18 THE COURT: ALL RIGHT. SO THAT'S WHERE I -- THAT'S

19 WHERE I SIT. THANK YOU FOR COMING IN, AND I'LL GET AN ORDER

20 OUT AS SOON AS I CAN.

21 MR. EZOR: THANK YOU, YOUR HONOR. THANK YOU FOR --

22 MS. GRANDT: YOUR HONOR --

23 MR. EZOR: THANK YOU FOR MAKING US THE ONLY SHOW SO I

24 CAN CATCH MY PLANE BACK TO BURBANK TIMELY.

25 (PROCEEDINGSII ADJOURNED AT 2:30 P.M.)

JOAN MARIE COLUMBINI, CSR, RPR

RETIRED OFFICIAL COURT REPORTER, USDC
510-367-3043
1 CERTIFICATE OF TRANSCRIBER

3 I CERTIFY THAT THE FOREGOING IS A TRUE AND CORRECT

4 TRANSCRIPT, TO THE BEST OF MY ABILITY, OF THE ABOVE PAGES OF

5 THE OFFICIAL ELECTRONIC SOUND RECORDING PROVIDED TO ME BY THE

6 U.S. DISTRICT COURT, NORTHERN DISTRICT OF CALIFORNIA, OF THE

7 PROCEEDINGS TAKEN ON THE DATE AND TIME PREVIOUSLY STATED IN THE

8 ABOVE MATTER.

9 I FURTHER CERTIFY THAT I AM NEITHER COUNSEL FOR,

10 RELATED TO, NOR EMPLOYED BY ANY OF THE PARTIES TO THE ACTION IN

11 WHICH THIS HEARING WAS TAKEN; AND, FURTHER, THAT I AM NOT

12 FINANCIALLY NOR OTHERWISE INTERESTED IN THE OUTCOME OF THE

13 ACTION.

14

15

16 JOAN MARIE COLUMBINI

17 JANUARY 26, 2018

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JOAN MARIE COLUMBINI, CSR, RPR

RETIRED OFFICIAL COURT REPORTER, USDC
510-367-3043