1 1 SUPERIOR COURT OF THE STATE OF CALIFORNIA 2 FOR THE COUNTY OF LOS ANGELES 3 DEPARTMENT 85 HON. JAMES C. CHALFANT, JUDGE 4 SAMUEL A. PERRONI, ) ) 5 PETITIONER, ) ) 6 ) ) CASE NO. BS159430 7 VS. ) ) 8 MARK A. FAJARDO, ET AL, ) ) 9 RESPONDENT. ) ___________________________) 10 11 REPORTER'S TRANSCRIPT OF PROCEEDINGS THURSDAY, JANUARY 26TH, 2017 12 13 APPEARANCES: 14 (FOR PETITIONER) SANUEL A. PERRONI IN PRO PER 15 16 17 (FOR RESPONDENT) POLLAK, VIDA & FISHER BY: DANIEL P. BARER 18 ANNA L. BIERENBAUM 19 20 21 22 23 24 25 LISA C. RIDLEY OFFICIAL REPORTER 26 111 N. HILL STREET DEPT 2B 27 LOS ANGELES, CA 90012 28 COPYING RESTRICTED PURSUANT TO SEC. 69954(d) GOV. CODE 1 1 CASE NUMBER: BS159430 2 CASE NAME: PERRONI VS. FAJARDO 3 LOS ANGELES, CALIFORNIA THURSDAY, JAN. 26, 2017 4 DEPARTMENT 85 JAMES C. CHALFANT, JUDGE 5 REPORTER: LISA C. RIDLEY, CSR #5886 6 TIME: 11:20 A.M. 7 -- O0O -- 8 9 10 (THE FOLLOWING PROCEEDINGS WERE 11 HELD IN OPEN COURT:) 12 13 THE COURT: ALL RIGHT, BS159430, SAMUEL A. 14 PERRONI VERSUS MARK A. FARJARDO, ET AL., NUMBER 4 ON 15 CALENDAR. 16 YOUR APPEARANCES, PLEASE. 17 MR. PERRONI: SAM PERRONI, PETITIONER. 18 MS. BIRENBAUM: ANNA BIRENBAUM FOR RESPONDENT. 19 MR. BARER: DANIEL BARER ALSO FOR RESPONDENT. 20 THE COURT: THE RECORD SHOULD REFLECT THAT 21 MR. PERRONI HAS THE SERVICES OF A SEPARATE COURT 22 REPORTER WHOSE NAME IS. 23 CERTIFIED CART INTERPRETER: SUSIE PRICE. 24 THE COURT: OKAY. SO THIS IS HERE ON 25 MR. PERRONI'S TWO MOTIONS, A MOTION FOR WAIVER AND A 26 MOTION FOR ATTORNEY'S FEES. 27 WITH RESPECT TO THE MOTION FOR WAIVER, 28 IT IS BASED ON -- HE RAISES TWO ISSUES: ONE IS THAT THE COPYING RESTRICTED PURSUANT TO SEC. 69954(d) GOV. CODE 2 1 DEPARTMENT HAS WAIVED ANY PRIVILEGE WITH RESPECT TO 2 DOCUMENTS IN THE 1981 FILE BASED ON SERGEANT HERNANDEZ'S 3 RECENT DEPOSITION ON NOVEMBER 8TH, 2016, WHICH THE COURT 4 PERMITTED. 5 AND THE SECOND IS THAT HE ARGUES THAT 6 THE COURT SHOULD RECONSIDER ITS ORDER DENYING AN IN 7 CAMERA REVIEW OF THE 2011 DEPARTMENT FILES. 8 BOTH ARE DENIED. 9 WITH RESPECT TO THE 1981 FILE, I HAVE 10 ALREADY RULED IN THIS CASE. THE ONLY THING I HAVE 11 PERMITTED WAS FOR MR. PERRONI TO TAKE HERNANDEZ' 12 DEPOSITION AGAIN TO FIND OUT THE BASIS ON WHICH HE 13 CONCLUDED THAT THE AUTHORS, FINSTAD AND KASHNER, HAD 14 ACCESS AND WHAT THEY HAD ACCESS TO. 15 HE TOOK THAT DEPOSITION, AND BASICALLY, 16 IN THAT DEPOSITION, SERGEANT HERNANDEZ ONLY OFFERED 17 PERTINENT TESTIMONY AS FOLLOWS: THAT HE FOUND OUT HOW 18 THEY HAD ACCESS BASED ON A CONVERSATION WITH MISS 19 FINSTAD, WHICH OCCURRED AFTER THIS LAWSUIT WAS FILED 20 WHEN SHE SAID THAT SHE AND KASHNER HAD BEEN GIVEN ACCESS 21 TO PORTIONS OF THE FILE AND HAD TAKEN PLACE AT THE 22 HOMICIDE BUREAU AND SHE SAID SHE WAS GIVEN ACCESS TO 23 FIVE -- THE FIRST REPORT, RASURE, R-A-S-U-R-E, RASURE'S 24 SUPPLEMENTAL REPORT, THE NOTEBOOKS AND PHOTOS OF THE 25 SPLENDOUR. 26 SERGEANT HERNANDEZ NEVER SPOKE WITH 27 KASHNER ABOUT THE DOCUMENTS. 28 SO MR. PERRONI ARGUES WHAT I BELIEVE TO COPYING RESTRICTED PURSUANT TO SEC. 69954(d) GOV. CODE 3 1 BE UNWARRANTED INFERENCES FROM THIS TESTIMONY TO 2 CONCLUDE THAT THE AUTHORS WOULD, BOTH AUTHORS WERE GIVEN 3 ACCESS TO THE ENTIRE 1981 FILE AT THE HOMICIDE BUREAU. 4 HE ALSO ARGUES THAT THE DEPARTMENT COULD 5 HAVE GOTTEN DECLARATIONS FROM FINSTAD OR KASHNER, DIDN'T 6 DO SO, AND THEY HAD EXCLUSIVE CONTROL OF THIS EVIDENCE 7 AND DIDN'T PRESENT IT. 8 THE FACT OF THE MATTER IS HE HAS THE 9 BURDEN OF PROOF BY CLEAR AND CONVINCING EVIDENCE TO SHOW 10 WAIVER. THE DEPARTMENT DOESN'T HAVE TO SHOW ANY 11 EVIDENCE. 12 IT WOULD HAVE BEEN HIS JOB TO FERRET OUT 13 CONTACT INFORMATION FOR THESE AUTHORS, TAKE THEIR 14 DEPOSITIONS AND PRESENT IT. IT IS TOO LATE TO DO THAT 15 NOW. HE HAS NOT MET HIS BURDEN ON WAIVER. 16 AS FAR AS HIS ARGUMENT CONCERNING THE 17 2011 FILE, THAT WOULD BE WITHIN THE SCOPE OF THIS 18 HEARING ONLY IF THE HERNANDEZ DEPOSITION PRESENTED NEW 19 INFORMATION CONCERNING IT. THERE WAS NO INFORMATION 20 CONCERNING IT PRESENTED, ONLY MR. PERRONI'S ARGUMENT OF 21 SERGEANT HERNANDEZ'S LACK OF CREDIBILITY WHICH I DO NOT 22 AGREE WITH. 23 SO MOTION ON WAIVER IS DENIED. 24 ATTORNEY'S FEES ISSUE IS DISPOSED OF BY 25 THE FACT THAT MR. PERRONI REPRESENTED HIMSELF, ALTHOUGH 26 HE IS AN ATTORNEY, HE REPRESENTED HIMSELF, HE DID NOT 27 REPRESENT ANY CLIENT OTHER THAN HIMSELF, AND AN ATTORNEY 28 WHO IS PRO SE CANNOT RECOVER STATUTORY ATTORNEY'S FEES COPYING RESTRICTED PURSUANT TO SEC. 69954(d) GOV. CODE 4 1 IN CALIFORNIA. I AM NOT AWARE OF ANY CASE WHICH 2 PERMITTED AN ATTORNEY TO RECOVER ATTORNEY'S FEES FOR 3 HIMSELF OR HERS WHEN THEY ARE ACTING PRO SE. 4 THE GROSSMAN CASE IN DICTUM, AND I WAS 5 ABLE TO KNOW THAT IT WAS DICTUM BECAUSE WHAT THE COURT 6 OF APPEAL REALLY, THEY APPEAR TO BE UPSET WITH THE 7 SUPERIOR COURT JUDGE THAT WAS NOT FOLLOWING THEIR ORDER 8 AND THAT WAS THE REAL HOLDING. BUT IN DICTUM, THE COURT 9 OF APPEAL SAID IT WASN'T GOING TO ELEVATE FORM OVER 10 SUBSTANCE BY DENYING ATTORNEY'S FEES TO THE THREE 11 CLIENTS OF THE LAWYER JUST BECAUSE THE CPRA ACTION WAS 12 FILED IN THE LAWYER'S NAME. 13 MR. PERRONI HAS NO CLIENT THAT HE IS 14 REPRESENTING IN ANY OTHER LAWSUIT IN CONNECTION WITH 15 THIS CASE AND HE, HIS DECLARATION SAYS HE INTENDS TO 16 WRITE A BOOK ABOUT NATALIE WOOD USING IT FOR DOCUMENTS 17 HE HAS OBTAINED WHICH THE PUBLIC WILL SEE BUT THAT DOES 18 NOT MAKE THE PUBLIC HIS CLIENT. 19 THEREFORE, HE CANNOT RETAIN ATTORNEY'S 20 FEES. THERE IS NO ENTITLEMENT. I DIDN'T ADDRESS THE 21 AMOUNTS OF THE FEES. 22 SO DEFENDANT -- THE THIRD ISSUE IS 23 COSTS. 24 MR. PERRONI HAS FILED A STATEMENT OF 25 COURT COSTS THAT IS VERIFIED, WHICH I THINK COMPLIED 26 WITH THE LAW. IT'S NOT ON THE OPTIONAL JUDICIAL COUNCIL 27 FORM WHICH IS USED ALMOST UNIVERSALLY IN CALIFORNIA 28 BECAUSE IT IS HELPFUL BECAUSE IT CATEGORIZES EXPENSES COPYING RESTRICTED PURSUANT TO SEC. 69954(d) GOV. CODE 5 1 FOR PURPOSES OF THE CODE OF CIVIL PROCEDURE SO THAT THE 2 PARTIES AND THE COURT CAN EVALUATE WHETHER OR NOT THE 3 EXPENSES ARE WARRANTED. 4 HE IS NOT REQUIRED TO USE THAT FORM, AND 5 I WOULD NOT DENY THIS MOTION BASED ON THAT. 6 BUT THE FACT IS HIS COST REQUEST IS 7 PREMATURE, AS THE RESPONDENTS POINT OUT, IT'S SUPPOSED 8 TO BE MADE AFTER ENTRY OF JUDGMENT AND THEN THEY HAVE 9 THE RIGHT TO MOVE TO STRIKE OR TAX COSTS. 10 SO SINCE THEY HAVE THAT RIGHT, THE 11 REQUEST IS PREMATURE, I AM GOING TO REQUIRE MR. PERRONI 12 TO USE THE JUDICIAL COUNSEL FORM FOR HIS COSTS AND 13 FOLLOW CALIFORNIA RULE OF COURT 3.1700. 14 SO THAT'S MY TENTATIVE ON THE THREE 15 SEPARATE REQUESTS. 16 HAVE YOU SEEN THE TENTATIVE? 17 MR. PERRONI: YES, YOUR HONOR, I HAVE SEEN IT. 18 THE COURT: DO YOU WISH TO BE HEARD? 19 MR. PERRONI: YES, YOUR HONOR. 20 THE COURT: GO AHEAD. 21 MR. PERRONI: I WAS READING VERY CAREFULLY 22 HERE, BUT I JUST WANT TO MAKE SURE THAT I HEARD YOU 23 CAREFULLY OR THAT YOU DIDN'T MISSPEAK, BUT WHEN I WAS 24 READING THIS TENTATIVE DECISION, OF COURSE, I COULD HAVE 25 MISSED THIS, BUT DID YOU SAY THAT YOU DENIED THE REQUEST 26 FOR THE IN CAMERA EXAMINATION FOR THE 2011 RECORDS? 27 THE COURT: TODAY OR PREVIOUSLY? 28 MR. PERRONI: WELL, TODAY. COPYING RESTRICTED PURSUANT TO SEC. 69954(d) GOV. CODE 6 1 THE COURT: YES. 2 MR. PERRONI: OKAY. I JUST WANT TO MAKE SURE 3 BECAUSE THE WAY I READ IT, IT WAS THAT YOU WERE DENYING 4 IT BECAUSE YOU HAD ALREADY DENIED IT AND I SUBMIT TO YOU 5 THAT THE RECORD SHOWS THAT YOU HADN'T DENIED IT. 6 THE COURT: OKAY. 7 MR. PERRONI: THAT IT IS STILL UP IN THE AIR. 8 THE COURT: OKAY. TELL ME ABOUT THAT. 9 MR. PERRONI: SO WELL, HERE'S THE THING ABOUT 10 THIS IN CAMERA THING. 11 THEIR CONTENTION IS THAT, THAT SOMEHOW 12 OR OTHER I AM SUPPOSED TO SHOW THAT THEIR EXEMPTION IS 13 UNWARRANTED TO BE ABLE TO GET AN IN CAMERA REVIEW. 14 AND THAT DOESN'T REALLY MAKE ANY SENSE 15 BECAUSE IF I SHOW THAT THEIR EXEMPTION IS UNWARRANTED, 16 THEN THEY DON'T HAVE AN EXEMPTION. 17 SO MY POINT IS THAT THE STATUTE IS VERY 18 CLEAR ON THIS, THAT THE PRIMA FACIE CASE I HAVE TO MAKE 19 IS THAT THEY ARE PUBLIC RECORDS. 20 AND I HAVE DONE THAT. 21 CLEARLY. 22 SO NOW WHEN THEY DECIDE TO RELY UPON THE 23 INVESTIGATORY EXEMPTION, THEN THIS COURT IS OBLIGED, 24 UNDER THE STATUTE, TO MAKE SURE THIS IS WHAT THE 25 WILLIAMS CASE SAID, TO MAKE SURE THAT WHAT THEY SAY IS 26 ACCURATE BECAUSE THE COURTS HAVE RECOGNIZED THAT THEY 27 CAN'T JUST SAY, "INVESTIGATORY RECORDS" AND THAT'S IT. 28 THAT'S WHAT THE WILLIAM CASE STANDS FOR. COPYING RESTRICTED PURSUANT TO SEC. 69954(d) GOV. CODE 7 1 THE COURT: ALL RIGHT. LET ME TURN TO THE 2 OTHER SIDE HERE FOR A MINUTE. 3 IS IT TRUE THAT I LEFT OPEN, I DON'T 4 HAVE ANY RECOLLECTION OF WHAT I DID OR DIDN'T LEAVE 5 OPEN, IS IT TRUE THAT I LEFT OPEN THE IN CAMERA REVIEW 6 ISSUE FOR THE 2011 FILE? 7 MS. BIRENBAUM: I DO NOT BELIEVE YOU LEFT IT 8 OPEN AT THE ORIGINAL HEARING. AT THE SECOND HEARING YOU 9 SAID, IF -- YOU SAID IT SPECIFICALLY IN THE HEARING, IT 10 IS IN THE TRANSCRIPT ON PAGE 3 -- THAT IF THERE IS GOING 11 TO BE AN IN CAMERA ON THE 2011, IT MUST BE BASED ON NEW 12 EVIDENCE, THE DEPOSITION OF DETECTIVE HERNANDEZ. 13 THE COURT: SO LET'S -- 14 MR. BARER: THAT WAS AT OUR HEARING. 15 THE COURT: WHAT EXHIBIT IS THAT? 16 MS. BIRENBAUM: WE JUST RECEIVED THIS 17 TRANSCRIPT FROM THE COURT REPORTER A DAY OR TWO AGO AND 18 WE DO HAVE A COPY IF YOUR HONOR WOULD LIKE IT. 19 DO YOU HAVE THE NOVEMBER 10TH 20 TRANSCRIPT, MR. PERRONI? 21 THE COURT: SHOW IT TO HIM. 22 MS. BIRENBAUM: THIS WAS, AS YOU RECALL, WE 23 HAD A SECOND COURT REPORTER COME IN FOR THE AFTERNOON 24 SESSION. 25 MR. PERRONI: I HAVE ONE. 26 MS. BIRENBAUM: WE HAD A BIT OF DIFFICULTY 27 OBTAINING IT. FINALLY RECEIVED IT YESTERDAY, I BELIEVE. 28 SO I AM HAPPY TO PROVIDE YOU MY COPY IF COPYING RESTRICTED PURSUANT TO SEC. 69954(d) GOV. CODE 8 1 YOU WOULD LIKE, YOUR HONOR. 2 THE COURT: OKAY, JUST HAND IT TO THE COURT 3 ATTENDANT. 4 WHAT PAGE? 5 MS. BIRENBAUM: PAGE 3, LINE 14, 15, 6 CONTINUING. 7 MR. PERRONI: JUDGE, THE REASON WHY I AM 8 HAVING A LOT OF DIFFICULTY WITH THIS IS BECAUSE I MADE 9 THE INITIAL REQUEST FOR IN CAMERA REVIEW OF ALL THE 10 RECORDS. THEN WE HAD MUCH DISCUSSION OVER THE 1981 11 RECORDS WHICH YOU GRANTED. YOU GRANTED IT BECAUSE OF 12 THE SAME REASON WHY I AM SUBMITTING THAT YOU GRANTED IN 13 THIS CASE. WE DIDN'T EVEN DISCUSS IT. AND AS FAR AS 14 THIS NEW EVIDENCE STUFF, I BELIEVE, FURTHERMORE, OR 15 FURTHER INTO THE TRANSCRIPT, LET ME SEE IF I CAN FIND IT 16 HERE, IN THE SEPTEMBER 27TH TRANSCRIPT, AT PAGE 34 AND 17 49. 18 THE COURT: SEPTEMBER 27TH. 19 MR. PERRONI: THAT'S WHERE WE DISCUSSED THE 20 1981 ARCHIVE RECORDS. 21 THE COURT: WHAT EXHIBIT IS THAT? 22 MR. PERRONI: EXCUSE ME, I'M SORRY, JUDGE, 23 THAT WOULD BE EXHIBIT A TO MY MOTION, AS THE SEPTEMBER 24 27 TRANSCRIPT. 25 LOOK AT PAGES 34 AND 49. 26 THAT'S WHERE ALL THIS STARTED WAS IN 27 SEPTEMBER. 28 THE COURT: PAGE 24? COPYING RESTRICTED PURSUANT TO SEC. 69954(d) GOV. CODE 9 1 MR. PERRONI: THEN IN NOVEMBER, WHEN WE WERE 2 TALKING ABOUT IT AGAIN, THAT'S WHEN YOU SAID, PUT IT 3 INTO A MOTION. 4 AND I DON'T BELIEVE THAT THE FULL RECORD 5 IN NOVEMBER SAYS, WELL, I AM ONLY GOING TO GRANT IT IF 6 YOU SHOW ME THAT HERNANDEZ ADDED NEW EVIDENCE TO THIS 7 BECAUSE THE ISSUE CONCERNING DETECTIVE HERNANDEZ WAS 8 EXCLUSIVELY ABOUT 1981, HAD NOTHING TO DO WITH 2011, 9 BECAUSE IT WAS ALL BASED ON WAIVER. 10 THE COURT: PAGE 49, I SAID. 11 SO HOUSEKEEPING, YOU TAKE THE DEPOSITION 12 OF HERNANDEZ ON THE TWO ISSUES I SAID YOU CAN DO, YOU 13 COME BACK FOR THE IN CAMERA HEARING WHERE I LOOK AT THE 14 SHERIFF'S FILE ONLY TO DECIDE WHETHER THEY ARE 15 INVESTIGATIVE RECORDS. 16 I HAD A TWO-PART QUESTION FOR YOU. THE 17 FIRST WAS HAVE I DECIDED THIS AND YOU SAY YES. AND THE 18 SECOND QUESTION IS WHAT IS YOUR RESPONSE ON THE ISSUE 19 OF, THAT MR. PERRONI HAS ARGUED, THAT YOU CAN'T TELL 20 WHETHER SOMETHING IS AN INVESTIGATIVE RECORD UNTIL THERE 21 IS AN IN CAMERA REVIEW? 22 THE PETITIONER AND THE COURT ARE NOT 23 REQUIRED TO ACCEPT THE REPRESENTATION THAT THE 2011 FILE 24 CONSTITUTES ALL INVESTIGATIVE RECORDS. 25 WHAT'S YOUR ANSWER TO THAT? 26 AND LET ME ADD, MR. PERRONI SEEMS TO BE 27 ARGUING AND THE SEPTEMBER TRANSCRIPT WOULD SEEM TO 28 SUPPORT THE NOTION THAT I WAS TALKING ABOUT -- I DON'T COPYING RESTRICTED PURSUANT TO SEC. 69954(d) GOV. CODE 10 1 KNOW WHETHER I WAS TALKING ABOUT ONLY THE '81 FILE OR 2 BOTH FILES WHEN I SAID: 3 "SO YOU CAN COME BACK 4 FOR THE IN CAMERA HEARING WHERE I 5 LOOK AT THE SHERIFF'S FILE ONLY AND 6 DECIDE WHETHER THEY ARE 7 INVESTIGATIVE RECORDS." 8 MR. BARER: YOUR HONOR, THAT WAS THE 1981 FILE 9 THAT YOU WERE TALKING ABOUT. WE WERE DISCUSSING -- WE 10 INITIALLY DISCUSSED BOTH THE 2011 AND 1981 FILES AND 11 EVENTUALLY MR. PERRONI REQUESTED AT THAT HEARING THE IN 12 CAMERA REVIEW OF THE 1981 FILE, IN WHICH WE WERE TALKING 13 ABOUT IN CAMERA REVIEW. 14 I ARGUED THAT MR. PERRONI HAD TO MAKE A 15 PRIMA FACIE SHOWING THAT, THAT RECORDS THAT SHOULD HAVE 16 BEEN DISCLOSED WERE BEING WITHHELD BEFORE THE COURT 17 WOULD HAVE AN IN CAMERA HEARING. 18 AND THE COURT POINTED OUT THAT THE 19 RECORDS THAT WERE BEING REQUESTED BY MR. PERRONI WERE, 20 BY DEFINITION, INVESTIGATIVE RECORDS. AND SO THAT, SO 21 THAT PRIMA FACIE SHOWING HAD NOT BEEN MADE. 22 IT THEN DECIDED TO -- IT THEN GRANTED 23 THE REQUEST TO REVIEW THE 1981 RECORDS. 24 THE COURT: SO THERE'S A DIFFERENCE BETWEEN AN 25 INVESTIGATORY RECORD AND INVESTIGATIVE FILE. 26 MR. BARER: YES. 27 THE COURT: AN INVESTIGATIVE FILE MAY INCLUDE 28 NON-PROTECTED DOCUMENTS. COPYING RESTRICTED PURSUANT TO SEC. 69954(d) GOV. CODE 11 1 YOUR ARGUMENT IS, THE 2011 INVESTIGATIVE 2 FILE, MR. PERRONI ONLY ASKED FOR DOCUMENTS THAT WOULD 3 NECESSARILY BE INVESTIGATIVE RECORDS AND THEREFORE 4 PRIVILEGED. THERE WAS NO REASON TO REVIEW THEM IN 5 CAMERA BECAUSE HE WAS ASKING FOR INVESTIGATORY RECORDS; 6 IS THAT RIGHT? 7 MR. BARER: TO MAKE CLEAR, WE ARE NOT 8 CONTENDING THAT WE HAVE MET THE HIGHER BURDEN OF SHOWING 9 THAT AN INVESTIGATORY FILE, WHICH CAN CONTAIN 10 NON-INVESTIGATORY RECORDS WHICH ARE STILL NOT SUBJECT TO 11 THE CPRA HAS BEEN MET. 12 WE ARE CONSENTING THAT THE EXCEPTION IN 13 SUBDIVISION (F) FOR INVESTIGATORY RECORDS, THE EXCLUSION 14 FOR THAT APPLIES. 15 AND SO THAT WAS WHY THE COURT REVIEWED 16 THE 1981 FILE IN CAMERA TO INSURE THAT WE WERE ONLY 17 WITHHOLDING INVESTIGATORY RECORDS. 18 THERE HAS BEEN NO PRIMA FACIE SHOWING OR 19 ANY SHOWING THAT THE 2011 FILE CONTAINS ANY 20 NON-INVESTIGATORY RECORDS THAT WE HAVE NOT ALREADY 21 TENDERED TO MR. PERRONI. 22 THE COURT: HIS ARGUMENT WOULD BE HOW AM I 23 SUPPOSED TO KNOW WHAT'S IN THE FILE WITHOUT THE JUDGE 24 REVIEWING IT IN CAMERA? 25 I THOUGHT YOUR ARGUMENT WAS, HE ONLY 26 ASKED FOR INVESTIGATORY RECORDS. 27 HE DID NOT ASK FOR THE INVESTIGATORY 28 FILE. COPYING RESTRICTED PURSUANT TO SEC. 69954(d) GOV. CODE 12 1 MR. BARER: HE ASKED FOR THE FILE, YOUR HONOR. 2 I'M PARAPHRASING YOUR HONOR'S RULING ON 3 THE RECORD IN THE, AT THE SEPTEMBER HEARING THAT THE 4 DOCUMENTS HE WAS ASKING FOR WERE INVESTIGATORY RECORDS 5 BY DEFINITION. 6 AND THAT WAS AFTER I ARGUED THAT THERE 7 HAD BEEN NO PRIMA FACIE SHOWING MADE THAT THE, THAT 8 WOULD WARRANT AN IN CAMERA REVIEW OF THE SHERIFF'S 9 DEPARTMENT RECORDS. 10 THE COURT: OKAY, SO LET'S -- LET ME START 11 OFF, WE HAVE ADDRESSED THIS NOW THREE TIMES. RIGHT. 12 THE FIRST TIME WAS IN SEPTEMBER. THE 13 SECOND TIME WAS ON NOVEMBER 10TH. AND NOW WE ARE ON 14 JANUARY 26TH. AND IT IS MY EXPERIENCE -- AND WE ARE 15 ADDRESSING THE SAME ISSUE EACH TIME, ALBEIT IN DIFFERENT 16 CONTEXT, DIFFERENT CIRCUMSTANCES. 17 I SEE NOTHING THAT MR. PERRONI HAS 18 REFERRED TO THAT INDICATES THAT I HAVEN'T RULED ON THIS 19 ISSUE. 20 MY EXPERIENCE IS THAT A JUDGE REVISITS 21 ISSUES DOWN THE ROAD REPEATEDLY AFTER HE, ME, AFTER HIS 22 RECOLLECTION BECOMES LESS CLEAR THAN IT WAS ORIGINALLY, 23 THAT'S WHEN MISTAKES ARE MADE. 24 I BELIEVE I HAVE MADE A RULING, 25 MR. PERRONI, ON THE 2011 FILE. I AM GOING TO STAND BY 26 IT. 27 MR. PERRONI: OKAY. SO YOUR RULING IS YOU ARE 28 DENYING THE REQUEST FOR IN CAMERA REVIEW? COPYING RESTRICTED PURSUANT TO SEC. 69954(d) GOV. CODE 13 1 THE COURT: TODAY, YES. 2 MR. PERRONI: ALL RIGHT. 3 NOW, WOULD YOU LIKE FOR ME TO GO ON TO 4 SOME OTHER THINGS? 5 THE COURT: YOU CAN. 6 MR. PERRONI: ALL RIGHT. 7 WELL, AS I SAID IN HERE ONE TIME BEFORE, 8 I LEARNED A LONG TIME AGO, IF THE JUDGE HAS ALREADY MADE 9 UP HIS MIND OR HER MIND, I CAN ARGUE UNTIL THE COWS COME 10 HOME AND I AM NOT GOING TO CHANGE IT. SO I AM NOT GOING 11 TO SPEND A WHOLE LOT OF TIME ARGUING TODAY BECAUSE I 12 HAVE READ MY BRIEF ON WAIVER AND I DON'T THINK I COULD 13 SAY IT ANY BETTER THAN WHAT I SAID IT. 14 SO IF YOU READ MY BRIEF ON WAIVER AND 15 THE POINTS THAT I MADE AND YOUR RULING IS THAT MY 16 REQUEST FOR DISCLOSURE OF THE REMAINING RECORDS IN THE 17 1981 ARCHIVE FILE IS DENIED, THEN I CAN MOVE ON FROM 18 THAT SUBJECT. 19 THE COURT: TO PARAPHRASE YOUR STATEMENT, I 20 HAVE READ YOUR BRIEF ON WAIVER. I HAVE READ MY 21 TENTATIVE ON WAIVER. I DON'T THINK I COULD HAVE SAID IT 22 ANY BETTER AND I STAND BY MY TENTATIVE. 23 MR. PERRONI: GOOD. WE ARE BOTH REAL CLEAR 24 TODAY ON THAT. 25 ALL RIGHT. 26 I DO WANT TO SAY THIS, THOUGH, JUST TO 27 MAKE SURE THAT THE RECORD IS REAL CLEAR ON THIS AND I 28 THINK IT IS BASED ON THE SEPTEMBER 27 HEARING, BASED ON COPYING RESTRICTED PURSUANT TO SEC. 69954(d) GOV. CODE 14 1 THE ENTIRE CIRCUMSTANCES, THE WAY THIS HAS UNFOLDED, I 2 DON'T BELIEVE THAT I HAVE RECEIVED PROCEDURAL DUE 3 PROCESS AND A MEANINGFUL HEARING TO ENABLE TO PROVE TO 4 YOU THE WAIVER ISSUES BECAUSE OF FALSE AND MISLEADING 5 TESTIMONY. 6 SO I WILL LEAVE IT AT THAT AND MAKE SURE 7 THAT THE RECORD IS CLEAR THAT I HAVE RAISED PROCEDURAL 8 DUE PROCESS IN THESE PROCEEDINGS RELATING TO THE ENTIRE 9 CIRCUMSTANCE SURROUNDING THE WAIVER OF THE 1981 ARCHIVE 10 FILES. 11 THE COURT: OKAY. 12 MR. PERRONI: NOW, LET ME JUST SAY ONE THING 13 WITH RESPECT TO THE ATTORNEYS' FEES ISSUE. 14 AND THAT IS THIS: THERE IS ONLY ONE 15 CONDITION PRECEDENT TO THIS STATUTE. AND THAT IS THAT 16 THE PETITIONER PREVAILED, PERIOD. 17 THE COURTS HAVE SAID THAT THIS STATUTE 18 IS MANDATORY, PERIOD. 19 NO EXCEPTIONS, NO COURT HAS EVER 20 PROVIDED ANY OTHER EXCEPTIONS TO THIS STATUTE OTHER THAN 21 PREVAILING PARTY. 22 SO BASED ON THAT, JUDGE, BASED ON THAT, 23 IT SHOULD BE INCUMBENT UPON THE RESPONDENTS TO 24 DEMONSTRATE TO YOU LEGALLY THAT IN A CPR CASE, A PRO SE 25 PETITIONER CANNOT RECEIVE ATTORNEY'S FEES. THAT SHOULD 26 BE THEIR BURDEN. AND THEY HAVE NOT DONE THAT. 27 THEY HAVE CITED A CASE TO YOU THAT THE 28 GROSSMAN CASE ACTUALLY REJECTED BECAUSE IT WAS NOT A CPR COPYING RESTRICTED PURSUANT TO SEC. 69954(d) GOV. CODE 15 1 CASE. 2 SO I SUBMIT TO YOU THAT IN ALL 3 FAIRNESS -- 4 THE COURT: IT WAS A CPR CASE. 5 MR. PERRONI: NO. NO, THE TROPE CASE WAS NOT 6 A CPR CASE. 7 THE COURT: YES, BUT GROSSMAN WAS. 8 MR. PERRONI: GROSSMAN WAS. 9 BUT IN GROSSMAN, IT SPECIFICALLY SAID 10 THAT THE OTHER SIDE WAS RELYING ON TROPE AND THAT TROPE 11 WAS INAPPLICABLE BECAUSE IT WASN'T A CPR CASE. 12 NOW -- 13 THE COURT: THAT'S NOT QUITE WHAT IT SAID. 14 BUT IT DID SAY IT WAS INAPPLICABLE BUT NOT BECAUSE IT 15 WAS NOT A CPRA CASE. GROSSMAN SAID TROPE DIDN'T CONTROL 16 AND TROPE IS A CALIFORNIA SUPREME COURT CASE. SO IT 17 WOULD CONTROL IF IT WAS ON POINT, IF IT WAS APPLICABLE. 18 GROSSMAN SAID TROPE, AND THIS IS IN 19 DICTUM, GROSSMAN SAID TROPE WAS INAPPLICABLE BECAUSE THE 20 LAWYER IN GROSSMAN, IN FACT, HAD CLIENTS THAT IT WAS 21 REPRESENTING, ALBEIT IN OTHER CASES -- LAW FIRM, SORRY. 22 MR. PERRONI: ALL RIGHT. WELL, THAT'S YOUR 23 INTERPRETATION. MY INTERPRETATION IS THEY REJECTED THAT 24 CASE BECAUSE IT WAS NOT A CPR CASE. 25 AND THEY ALSO REJECTED A COUPLE OTHER 26 CASES THAT WERE CITED BECAUSE THEY WEREN'T CPR CASES. 27 AND I GUESS MY POINT IS THIS: THE 28 BURDEN TO SHOW YOU THAT THIS MANDATORY STATUTE THAT HAS COPYING RESTRICTED PURSUANT TO SEC. 69954(d) GOV. CODE 16 1 ONE CONDITION PRECEDENT HAS MORE CONDITION PRECEDENTS 2 AND THAT IS THAT I HAD TO PERSONALLY HIRE A CALIFORNIA 3 ATTORNEY AND PAY THAT ATTORNEY MONEY OUT OF MY POCKET TO 4 PROSECUTE THIS CPRA PETITION, IS A CONDITION PRECEDENT 5 TO THIS STATUTE. THAT SHOULD BE THEIR BURDEN UNDER THE 6 LAW. 7 IT SHOULDN'T BE THAT THE PETITIONER HAS 8 TO NOW APPEAL THIS ISSUE IN ORDER FOR AN APPELLATE COURT 9 TO DECIDE WHETHER YOU ARE RIGHT OR WRONG. WHAT I AM 10 SAYING IS THAT, IN ALL FAIRNESS, UNDER THE CPR STATUTE, 11 UNDER THE SCHEME OF THE CPR STATUTE, IT SHOULD BE THEM 12 TO CLEARLY CONVINCE YOU THAT THERE IS LEGAL AUTHORITY 13 THAT THERE ARE MORE CONDITIONS PRECEDENT TO A PREVAILING 14 PARTY. 15 THE COURT: ALL RIGHT. I LET THEM SPEAK A 16 MINUTE, BUT TWO POINTS. FIRST OF ALL, IT IS TRUE THAT 17 CPRA ATTORNEYS' FEES ARE MANDATORY UNDER THE STATUTE. 18 IT IS NOT TRUE THAT THE RESPONDENT HAS 19 THE BURDEN TO SHOW THAT ATTORNEY'S FEES HAVE BEEN 20 INCURRED. 21 IT IS THE PETITIONER'S BURDEN TO PROVE 22 AN ENTITLEMENT TO ATTORNEY'S FEES. 23 AS PART OF THAT SHOWING OF ENTITLEMENT 24 TO ATTORNEY'S FEES, THE PETITIONER MUST SHOW AT LEAST AN 25 ATTORNEY-CLIENT RELATIONSHIP. 26 I HAVE NOT HELD THAT, AS YOU JUST SAID, 27 THAT THE PETITIONER MUST SHOW THAT HE, SHE OR IT HAS, IN 28 FACT, PAID FEES TO THEIR LAWYER. COPYING RESTRICTED PURSUANT TO SEC. 69954(d) GOV. CODE 17 1 I HAVE ONLY STATED THE STATUTE REQUIRES 2 THAT ATTORNEY-CLIENT RELATIONSHIP. 3 YOUR ARGUMENT, AS POINTED OUT BY BOTH 4 RESPONDENT AND MYSELF, WOULD MEAN THAT ANY PRO PER, AND 5 ALTHOUGH THE STATE OF CALIFORNIA WANTS US TO USE THE 6 TERM SELF-REPRESENTED LITIGANT, THE FACT IS IN CRIMINAL 7 LAW, AND YOU PRACTICE CRIMINAL LAW, EVERYBODY SAYS PRO 8 PER. THAT WOULD MEAN THAT ANY PRO PER WHO CAME IN AND 9 MADE A CPRA CLAIM WOULD BE ENTITLED TO ATTORNEY'S FEES 10 EVEN THOUGH, BY DEFINITION, THAT PERSON DID NOT HAVE AN 11 ATTORNEY. THAT IS NOT THE LAW AND WOULD MAKE NO PUBLIC 12 POLICY SENSE. 13 MR. PERRONI: THAT IS EXACTLY WHAT I AM 14 SAYING. 15 THAT IS BECAUSE THE SPIRIT AND THE 16 LEGISLATIVE HISTORY OF THIS STATUTE SAY THERE'S ONLY ONE 17 CONDITION PRECEDENT, THAT IS, THAT THE PETITIONER BE THE 18 PREVAILING PARTY. 19 THERE'S NOTHING IN ANY LANGUAGE OR THE 20 STATUTE, YOU SAY THAT I HAVE TO SHOW, I AM SHOWING, THE 21 STATUTE SAYS THAT YOU SHALL AWARD ATTORNEY'S FEES TO THE 22 PREVAILING PARTY, PERIOD. 23 THE COURT: IN ATTORNEYS' FEES THERE HAS TO BE 24 AN ATTORNEY. WHEN THERE IS A PRO PER, THERE IS NO 25 ATTORNEY. THE FACT THAT YOU ARE AN ATTORNEY IS 26 DISTINGUISHABLE. BUT YOUR ARGUMENT WOULD BE THAT ALL 27 PRO PERS IN CPRA CASES WOULD BE AWARDED ATTORNEYS' FEES 28 EVEN THOUGH THERE WAS NO ATTORNEY. COPYING RESTRICTED PURSUANT TO SEC. 69954(d) GOV. CODE 18 1 INDEED IT WOULD BE IMPOSSIBLE TO 2 CALCULATE. 3 I WANT MY ATTORNEY'S FEES TO BE BASED ON 4 THE BEST ATTORNEY IN CALIFORNIA CHARGING ME $1500 AN 5 HOUR -- I DON'T KNOW IF THEY CHARGE $1500. THERE ARE 6 SOME ATTORNEYS IN CALIFORNIA THAT CHARGE A THOUSAND 7 DOLLARS AN HOUR. 8 I WANT MY ATTORNEY'S FEES TO BE BASED ON 9 A THOUSAND DOLLAR AN HOUR ATTORNEY, EVEN THOUGH I DIDN'T 10 HAVE ANY ATTORNEY AT ALL. 11 IT WOULD BE AN IMPOSSIBILITY. 12 MR. PERRONI: BUT, JUDGE, SEE, THAT'S WHERE 13 YOU HAVE DISCRETION. 14 YOU HAVE DISCRETION IN DECIDING THE 15 AMOUNT OF THE ATTORNEY'S FEES. YOU JUST DON'T HAVE ANY 16 DISCRETION ON AWARDING THE ATTORNEY'S FEES. 17 THE COURT: I DO NOT AGREE. 18 LET'S HEAR FROM THE OTHER SIDE. 19 MR. BARER: YOUR HONOR, AS SEEMS TO BE THE 20 CATCH PHRASE THIS MORNING, I COULDN'T HAVE SAID IT ANY 21 BETTER THAN I SAID IN MY PAPERS AND YOUR HONOR SAID IN 22 THE TENTATIVE. UNLESS THE COURT HAS ANY QUESTIONS, I 23 WILL SIT DOWN ON THIS ONE. 24 THE COURT: NO, I DON'T. 25 YOU HAVE MADE THE RECORD. 26 MR. PERRONI: I HAVE MADE MY RECORD. 27 THE COURT: OKAY. LET'S ADDRESS THE COST 28 ISSUE. COPYING RESTRICTED PURSUANT TO SEC. 69954(d) GOV. CODE 19 1 SO WHAT I DON'T WANT TO DO -- 2 MR. PERRONI: WELL, JUDGE, IF THEY WANT A 3 FORM, I WILL GIVE THEM A FORM. 4 THE COURT: HERE'S WHAT I DON'T WANT TO HAVE 5 HAPPEN. I AM HAPPY FOR YOU TO GIVE THEM A FORM BUT THEN 6 I DON'T WANT YOU TO HAVE TO FLY OUT HERE FOR ANOTHER 7 HEARING ON A MOTION TO TAX YOUR COSTS. 8 MR. PERRONI: THANK YOU. 9 THE COURT: SO WHAT I WOULD LIKE TO DO IS HAVE 10 YOU FILE YOUR FORM, AND THEN I WANT, IF THEY OBJECT TO 11 ANY OF YOUR COSTS, I WANT YOU TO MEET AND CONFER AND I 12 DON'T KNOW HOW YOU CAN DO IT OVER THE TELEPHONE, RIGHT? 13 YOU ARE ABLE TO DO THAT, MR. PERRONI? 14 MR. PERRONI: WELL, I CAN -- I MEAN, I CAN -- 15 IF I DO A TELECONFERENCE, I CAN. IF I CAN SEE THEM, I 16 CAN DO IT OVER THE PHONE. 17 THE COURT: OKAY. 18 I DON'T WANT YOU TO HAVE TO FLY OUT, AT 19 LEAST UNLESS THE PARTIES ARE AT LOGGERHEADS OVER YOUR 20 COSTS. THEY HAVE CONCEDED THAT YOU ARE WHAT THEY CALL A 21 PARTIALLY PREVAILING PARTY, WHICH, AS FAR AS I AM 22 CONCERNED, IS GOOD ENOUGH FOR COSTS. YOU ARE ENTITLED 23 TO YOUR COSTS. IT'S ONLY A QUESTION OF HOW MUCH AND SO 24 IF YOU FILE YOUR STATEMENT OF COSTS ON THE MANDATORY 25 FORM ON A TIMELY BASIS, UNDER THE RULES OF COURT, I -- 26 AND THEY HAVE AN OBJECTION TO IT, I WANT A MEET AND 27 CONFER BEFORE ANY MOTION TO STRIKE OR TAX COSTS IS FILED 28 AND A HEARING IS SET. BECAUSE I AM TRYING TO AVOID YOU COPYING RESTRICTED PURSUANT TO SEC. 69954(d) GOV. CODE 20 1 FLYING OUT AGAIN FOR A COST HEARING WHICH MIGHT COST YOU 2 AS MUCH MONEY TO FLY OUT AS YOU WOULD BE AWARDED, FOR 3 ALL I KNOW. 4 MR. PERRONI: I CAN TELL YOU IT ALMOST WOULD, 5 BY THE TIME I GET A HOTEL AND PAY FOR CABS AND -- YEAH, 6 RIGHT. 7 AND I APPRECIATE THAT, I DO, VERY MUCH. 8 BECAUSE I WOULD RATHER NOT FLY OUT HERE FOR A HEARING ON 9 COSTS. 10 THE COURT: I AM SURE YOU LOVE CALIFORNIA BUT, 11 YOU KNOW, I AGREE. 12 MR. PERRONI: I DO LOVE CALIFORNIA. I DO LOVE 13 CALIFORNIA. I LOVE CALIFORNIA. I LOVE THIS COURT. I 14 LOVE YOU. I LOVE THE STAFF. I LOVE THE COURT 15 REPORTERS. I LOVE EVERYBODY. 16 THE COURT: GOOD. 17 I LIKE HAPPY LITIGANTS. 18 MS. BIRENBAUM: I HAVE ONE MATTER I WANT TO 19 ADVISE THE COURT OF BEFORE WE CONCLUDE THINGS. 20 IN PREPARING FOR THE POSSIBILITY OF THE 21 2011 FILE IN CAMERA REVIEW, DETECTIVE HERNANDEZ 22 DETERMINED THAT THERE WAS ONE MANILA ENVELOPE THAT 23 SHOULD HAVE BEEN IN THE 1981 REVIEW. IT IS AN 24 INVESTIGATORY RECORD. IT IS A SERIES OF LETTERS. 25 SO WE HAVE BROUGHT THEM AND DETECTIVE 26 HERNANDEZ FOR THIS COURT TO REVIEW TO MAKE SURE THAT IT 27 HAS BEEN A COMPLETE REVIEW. 28 AND HE CAN EXPLAIN TO YOU HOW HE MISSED COPYING RESTRICTED PURSUANT TO SEC. 69954(d) GOV. CODE 21 1 IT THE FIRST TIME. IT'S -- 2 THE COURT: I CAN'T DO IT NOW. 3 I CAN DO IT -- ARE YOU ABLE TO DO IT 4 NOW? 5 6 (INTERRUPTION IN 7 PROCEEDINGS.) 8 9 THE COURT: SO YOU ARE TELLING ME THAT THERE 10 IS SOMETHING THAT SHOULD HAVE BEEN REVIEWED BY THE COURT 11 IN CONNECTION WITH THE 1981 INVESTIGATORY FILE THAT WAS 12 NOT GIVEN TO YOU? 13 MS. BIRENBAUM: YES. 14 THE COURT: OKAY. 15 MR. PERRONI: THIS IS THE PRECISE REASON WHY I 16 WANTED ALL THE FILES REVIEWED. BUT I HAVE NO OBJECTIONS 17 TO YOUR REVIEWING THINGS THAT YOU SHOULD HAVE REVIEWED 18 BACK WHEN YOU REVIEWED THEM. 19 THE COURT: ALL RIGHT. OKAY. 20 LET'S GO INTO CHAMBERS. 21 MR. PERRONI: JUDGE, LET ME ASK YOU SOMETHING, 22 BEFORE YOU GO, I HAVE A COUPLE OF OTHER LIKE 23 HOUSEKEEPING THINGS. YOU WANT ME TO WAIT UNTIL YOU 24 FINISH AND DO IT OR DO IT NOW? 25 THE COURT: LET'S DO IT NOW. WE WILL DO IT 26 NOW. 27 MR. PERRONI: OKAY. 28 AT THE RISK OF IRRITATING YOU AGAIN OVER COPYING RESTRICTED PURSUANT TO SEC. 69954(d) GOV. CODE 22 1 THIS, ALL RIGHT, I AM NOT GOING TO GO BACK AND REHASH 2 STUFF, BUT I HAVE COMBED THROUGH YOUR FILES SEVERAL 3 TIMES LOOKING FOR THE ORDERS ON THE EVIDENTIARY 4 OBJECTIONS THAT WERE MADE AND I CANNOT FIND ANYTHING 5 OTHER THAN MINUTE ORDERS THAT DON'T EVEN REFER TO THE 6 EVIDENTIARY OBJECTIONS. 7 THE COURT: I DON'T REMEMBER THE EVIDENTIARY 8 OBJECTIONS, BUT IF I MAY, IF YOU MADE THEM AND I TOLD 9 YOU THAT I RULED ON THEM, THEN I RULED ON THEM. AND 10 USUALLY I RULE RIGHT ON THE ORIGINAL FORM. THERE IS NO 11 SEPARATE DOCUMENT. 12 MR. PERRONI: WELL, HERE'S THE PROBLEM. IN 13 YOUR TENTATIVE RULING, THE ONE ON SEPTEMBER 27TH, YOU 14 SAID, AND YOU WILL REMEMBER THIS EXCHANGE, YOU SAID YOU 15 DREW THROUGH, YOU DREW THROUGH THE OBJECTIONABLE 16 MATERIAL. 17 AND I SAID, YOU MEAN YOU SCRATCHED IT 18 OUT? 19 AND YOU SAID, INTERLINEATED. 20 AND I SAID, WELL, IF YOU WOULD HAVE SAID 21 SCRATCHED OUT, I WOULD HAVE UNDERSTOOD YOU BETTER. 22 BUT ANYWAY, WHAT YOU SAID WAS YOU 23 INTERLINEATED. 24 WHAT I AM TRYING TO GET, THOUGH, IS 25 THIS: I UNDERSTAND THAT AND I CAN LOOK IN THE FILE AND 26 I CAN LOOK FOR ANY LINES DRAWN THROUGH THINGS. 27 BUT WHAT I AM TRYING TO GET AT IS THIS: 28 YOU KNOW, IN ARKANSAS, IF YOU MAKE AN OBJECTION AND YOU COPYING RESTRICTED PURSUANT TO SEC. 69954(d) GOV. CODE 23 1 DON'T GET A RULING, NO APPELLATE COURT IS GOING READ IT. 2 I AM JUST TRYING TO FIND OUT THAT, THAT 3 THERE WERE OTHER OBJECTIONS THAT DIDN'T HAVE ANYTHING TO 4 DO WITH DRAWING LINES THROUGH THINGS. 5 AND I AM JUST TRYING TO MAKE SURE THAT 6 THEY ARE DENIED. 7 THE COURT: I DON'T KNOW WHAT TO TELL YOU. I 8 DON'T JUST INTERLINEATE WHERE THE OBJECTION IS 9 SUSTAINED. 10 I WRITE "O" FOR OVERRULE, OR "S" FOR 11 SUSTAINED NEXT TO THE OBJECTION. 12 MR. PERRONI: WELL, BUT SO THE THING IS, WE 13 ALL SUBMITTED ORDERS AND WE CAN'T FIND THE ORDERS. 14 THE COURT: I MAY NOT HAVE FILLED IN YOUR 15 ORDERS, BUT IF I DIDN'T, THEN I WOULD HAVE JUST RULED ON 16 THE OBJECTION ITSELF BY MARKING "S" OR "O" IN MY 17 HANDWRITING AND I ALWAYS USE BLUE FELT PEN. AND SO YOU 18 CAN SEE, IF IT IS MARKED IN HANDWRITING, BLUE FELT PEN, 19 THAT'S ME. 20 IS THERE ANYTHING ELSE I CAN TELL YOU? 21 MR. PERRONI: ALL RIGHT. BUT YOU CAN'T MARK 22 "S" OR "O" BY AN OBJECTION. 23 THE COURT: WHY NOT? 24 MR. PERRONI: BY AN OBJECTION THAT A 25 DECLARATION IS IMPROPER BECAUSE IT VIOLATES DUE PROCESS 26 OF LAW. 27 THE COURT: IF THAT WAS YOUR OBJECTION, THAT 28 IS A GENERALIZED OBJECTION, WHICH I AM OVERRULING NOW. COPYING RESTRICTED PURSUANT TO SEC. 69954(d) GOV. CODE 24 1 MR. PERRONI: WELL, JUDGE, IT WASN'T 2 GENERALIZED IN THE OBJECTION. I MEAN, I LAID OUT THE 3 LAW. 4 THE COURT: I RULED ON THE OBJECTIONS. 5 I THINK I DID. I ACTUALLY HAVE NO 6 RECOLLECTION OF IT. THAT IS MY CUSTOM AND PRACTICE. 7 THAT'S HOW I DO THINGS. 8 SO WE NEED TO MOVE ALONG. 9 SO WHAT ELSE? 10 MR. PERRONI: OKAY. CAN WE DO IT THIS WAY, IF 11 THERE ARE NO "S'S" AND "O'S" IN THERE, ANY OTHER 12 OBJECTIONS THAT WERE MADE WERE OVERRULED? 13 THE COURT: I AM NOT GOING TO RULE ON 14 OBJECTIONS IN A SEPTEMBER MATTER. 15 NO. 16 SO YOU ARE GOING TO HAVE TO TAKE THE 17 RECORD AS YOU FIND IT AND YOUR APPELLATE REVIEW IS GOING 18 TO BE BASED ON THAT. 19 MR. PERRONI: OKAY, JUDGE, THEN, IN 20 CONJUNCTION WITH THIS HEARING, I FILED A RENEWED 21 OBJECTION TO DETECTIVE HERNANDEZ' DECLARATION. I 22 SUBMITTED AN ORDER. 23 THE COURT: YEAH, I DID NOT SEE THAT, NOR 24 WOULD I RULE ON THAT BECAUSE THAT IS NOT WITHIN THE 25 SCOPE OF THIS HEARING. 26 I AM NOT GOING TO GO BACK TO DETECTIVE 27 HERNANDEZ' DECLARATION SUBMITTED IN CONNECTION WITH THE 28 SEPTEMBER HEARING AND RULE ON OBJECTIONS. COPYING RESTRICTED PURSUANT TO SEC. 69954(d) GOV. CODE 25 1 NO. 2 MR. PERRONI: SO, NO, YOU ARE NOT GOING TO 3 RULE ON IT? 4 THE COURT: THAT IS CORRECT. IT IS UNTIMELY. 5 AND I AM NOT GOING TO RULE ON IT. 6 MR. PERRONI: OKAY. THEN I WILL TAKE THAT AS 7 A DENIAL. 8 ALL RIGHT. 9 SO BACK TO THE OLD OBJECTIONS, ARE WE -- 10 ARE WE JUST LOOKING FOR "S'S" AND "O'S" IN THE RECORD? 11 THE COURT: THERE'S TWO WAYS I DO IF THERE IS 12 AN OBJECTION AND THEN ON A SEPARATE DOCUMENT A PROPOSED 13 ORDER WITH BOXES TO CHECK "S," SUSTAINED OR OVERRULED, I 14 DO THAT IF I SEE IT. 15 IF I DON'T SEE THAT IN TIME, THEN I JUST 16 WRITE "S" OR "O" NEXT TO THE ORIGINAL OBJECTION. 17 IF I RULED ON THEM, AND I HAVE NO REASON 18 TO PROVE I DIDN'T, THAT'S HOW I WOULD DO IT. I CAN'T DO 19 ANY MORE FOR YOU. 20 IT IS LATE IN THE MORNING, I AM NOT 21 GOING TO REVISIT THAT ISSUE ANY MORE. 22 I AM GOING TO GO INTO CHAMBERS WITH THE 23 CUSTODIAN AND RESOLVE WHAT I BELIEVE TO BE THE LAST 24 ISSUE AND THEN WE ARE DONE. 25 MR. BARER: YOUR HONOR, THERE IS, 26 UNFORTUNATELY, ONE OTHER ISSUE. THIS IS AN ORDER TO 27 SHOW CAUSE RE FILING OF A PROPOSED JUDGMENT. AND WE DID 28 FILE A PROPOSED JUDGMENT WHICH MR. PERRONI OBJECTED TO COPYING RESTRICTED PURSUANT TO SEC. 69954(d) GOV. CODE 26 1 AND SUPPLIED HIS OWN PROPOSED JUDGMENT SO THE LAST THING 2 THIS MORNING IS PROBABLY TO SIGN ONE OF THE JUDGMENTS. 3 THE COURT: THE JUDGMENT IN THIS CASE? 4 MR. BARER: YES. 5 THE COURT: WELL, I DON'T KNOW THAT I GOT TWO 6 DIFFERENT JUDGMENTS. 7 IN FACT, I DON'T KNOW -- I GOT A 8 JUDGMENT FOR SANCTIONS WHICH I DON'T KNOW WHAT THAT'S 9 DOING HERE. 10 I DON'T KNOW THAT I HAVE SEEN ANY 11 JUDGMENT IN THE LAWSUIT. 12 MR. BARER: WE LODGED OUR JUDGMENT JANUARY 13 20TH, 2017. WE INTENDED TO LODGE IT WHEN WE FILED 14 MS. BIRENBAUM'S DECLARATIONS ABOUT MR. PERRONI'S 15 OBJECTIONS IN DECEMBER BUT I FOUND OUT IN PREPARING FOR 16 THIS HEARING IT HADN'T BEEN LODGED YET. SO I DID LODGE 17 IT JANUARY 20TH. I HAVE A FILE STAMPED COPY. 18 THE COURT: I DON'T HAVE A JUDGMENT FROM 19 EITHER PARTY. I ONLY HAVE THE JUDGMENT ON SANCTIONS AND 20 MR. PERRONI'S OBJECTION TO THE JUDGMENT ON SANCTIONS. 21 MR. PERRONI: JUDGE, JUST SO YOU KNOW, I 22 OBJECTED TO THIS JUDGMENT AND I SUBMITTED MY OWN 23 JUDGMENT. 24 THE COURT: I DON'T HAVE EITHER ONE OF THEM. 25 MR. PERRONI: AND YOU DON'T HAVE EITHER ONE. 26 ALL RIGHT. WELL, MAYBE WHEN YOU GO OUT 27 TO -- 28 THE COURT: YOU CAN LOOK FOR THEM WHILE I AM COPYING RESTRICTED PURSUANT TO SEC. 69954(d) GOV. CODE 27 1 IN CHAMBERS. 2 MR. PERRONI: WE WILL COME BACK AND TALK ABOUT 3 JUDGMENTS. 4 5 (FURTHER PROCEEDINGS HELD 6 IN CHAMBERS, REPORTED BUT 7 NOT TRANSCRIBED HEREIN 8 PURSUANT TO COURT ORDER) 9 10 (THE FOLLOWING PROCEEDINGS WERE 11 HELD IN OPEN COURT:) 12 13 THE COURT: SO I HAVE REVIEWED THE ADDITIONAL 14 MATERIAL IN CHAMBERS IN THE PRESENCE OF THE CUSTODIAN, 15 DETECTIVE HERNANDEZ. 16 HE HAS NO OBJECTION TO ME REVEALING THAT 17 THEY CONSIST OF LETTERS, CITIZEN LETTERS, ALL OF THEM, 18 WITH THE POSSIBLE EXCEPTION OF THE LETTER THAT I THINK 19 IS A CITIZEN LETTER THAT PURPORTS TO BE A TELEPHONE 20 TRANSCRIPTION BETWEEN TWO CITIZENS, THAT IS ALL THAT'S 21 IN HERE. AND I PREVIOUSLY RULED THAT THESE KINDS OF 22 MATERIALS ARE INVESTIGATORY RECORDS, IS THAT RIGHT? 23 MR. BARER: YES, YOUR HONOR. 24 THE COURT: I WANT TO BE CONSISTENT WITH MY 25 RULING. 26 SO THEY WILL NOT BE ORDERED DISCLOSED. 27 OKAY. 28 WHERE DO WE STAND ON THE JUDGMENT? COPYING RESTRICTED PURSUANT TO SEC. 69954(d) GOV. CODE 28 1 I AM GOING TO ORDER THESE RETURNED TO 2 THE CUSTODIAN. 3 WHAT'S THE ISSUE? 4 MR. PERRONI: YOUR HONOR, IS THAT WITH THE 5 SAME STIPULATION THAT THEY BE KEPT TOGETHER AS THEY ARE 6 IN CASE THE COURT OF APPEALS WANTS TO SEE THEM? 7 THE COURT: KEPT WITH THE 1981 FILE. THAT'S 8 WHERE THEY BELONGED IN THE FIRST PLACE, YES. 9 OKAY. SO WHAT'S THE ISSUE ON THE 10 JUDGMENT? 11 MR. BARER: WE SUBMITTED A FAIRLY SIMPLE 12 JUDGMENT. MR. PERRONI OBJECTED TO IT AND SUBMITTED A 13 MORE COMPLEX JUDGMENT. IT IS JUST WHATEVER YOUR HONOR 14 WANTS TO, WANTS TO SIGN OR ADD OR SUBTRACT. 15 THE COURT: THOSE COMPLEX JUDGMENTS ARE RARELY 16 APPROPRIATE. 17 MR. PERRONI: JUDGE, WITH THE COURT'S 18 PERMISSION, I WOULD LIKE TO SHOW YOU MY COMPREHENSIVE, 19 SO-CALLED COMPREHENSIVE JUDGMENT HERE. 20 THE COURT: I DON'T KNOW WHY, WHAT'S WRONG 21 WITH YOUR OBJECTION TO -- YOU DON'T HAVE ANY OBJECTIONS 22 TO IT. IT SAYS "NOTICE OF OBJECTIONS" BUT THERE'S NO 23 OBJECTIONS. 24 MR. PERRONI: WELL, FOR ONE THING, FOR ONE 25 THING, YOUR HONOR, AND I WAS HESITANT TO SAY THIS IN A 26 PLEADING, BUT THE JUDGMENT CLEARLY VIOLATES A SETTLEMENT 27 AGREEMENT THAT I HAD WITH THE CORONER IN CONNECTION WITH 28 WHAT THE JUDGMENT WAS SUPPOSED TO SAY. AND FOR THE COPYING RESTRICTED PURSUANT TO SEC. 69954(d) GOV. CODE 29 1 COURT'S PERMISSION, LIKE I SAID, THIS IS A CONFIDENTIAL 2 SETTLEMENT AGREEMENT, BUT FOR THE COURT'S BENEFIT, IT 3 SAID: 4 "THE JUDGMENT ON THE 5 PETITION PROCEEDING WILL REFLECT 6 PRIOR TO PETITIONER AND 7 CORONER'S --" EXCUSE ME, LET ME 8 START OVER. QUOTE, "THE JUDGMENT 9 ON THE PETITION FOR SAVING WILL 10 REFLECT THAT PRIOR TO THE 11 PETITIONER AND CORONER, RESPONDENT 12 ENTERING INTO THIS SETTLEMENT 13 AGREEMENT, PETITIONER WAS THE 14 PREVAILING PARTY ON THE PETITION AS 15 TO THE PRODUCTION OF MILLER 16 REPORT." 17 NOW, THE JUDGMENT DOESN'T SAY THAT. AND 18 I OBJECT TO IT. 19 THE COURT: HERE'S WHAT WE ARE GOING TO DO. 20 IT IS LUNCHTIME. YOU ARE GOING TO GO OUTSIDE AND YOU 21 ARE GOING TO WORK TOGETHER TO COMPILE A JUDGMENT. 22 IT SHOULD, WHATEVER THE SETTLEMENT 23 AGREEMENT SAYS, IT SHOULD SAY THAT. I AM NOT GOING TO 24 INCLUDE YOUR PARAGRAPH 3 THAT SAYS ALL RULINGS AND 25 EVIDENTIARY OBJECTIONS MADE ARE HEREBY ADOPTED. THAT 26 DOESN'T BELONG IN A JUDGMENT SO YOU KNOW WHAT THE RULING 27 IS. MEET AND CONFER ON THE JUDGMENT NOW WHILE 28 MR. PERRONI IS HERE. COPYING RESTRICTED PURSUANT TO SEC. 69954(d) GOV. CODE 30 1 IF YOU FAIL TO AGREE, YOU WILL EACH 2 SUBMIT ONE FINAL JUDGMENT AND I WILL SIGN THE ONE I 3 THINK IS BETTER. 4 AND YOU CAN DO THAT BY FRIDAY OF THIS 5 WEEK -- NO, THAT'S TOMORROW. YOU CAN DO THAT A WEEK 6 FROM FRIDAY. THAT WOULD BE FEBRUARY 3RD. SO MEET AND 7 CONFER NOW. IF YOU AGREE ON A FORM, GIVE IT TO ME AFTER 8 LUNCH. GIVE IT TO THE CLERK AND I WILL SIGN IT AFTER 9 LUNCH. 10 IF YOU DON'T AGREE, SUBMIT DUELING 11 JUDGMENTS, I GUESS, WITH A DECLARATION EXPLAINING WHY 12 YOU THINK YOURS IS BETTER BY FRIDAY, FEBRUARY 3RD. I 13 WILL SIGN THE ONE THAT I THINK IS APPROPRIATE. 14 MR. PERRONI: ALL RIGHT. AND FOR THE COURT'S 15 BENEFIT, I TRIED TO DO THAT BEFORE WE GOT HERE BUT -- 16 THE COURT: I DON'T WANT YOU TO HAVE TO COME 17 BACK. SO YOU MEET AND CONFER NOW, SOMEWHERE IN THIS 18 COURTHOUSE. 19 MR. PERRONI: MAY I ASK ONE OTHER THING? 20 THE COURT: YES. 21 MR. PERRONI: ALL RIGHT. THIS HAS TO DO WITH 22 THE JUDGMENT. 23 AND I KNOW I CAN TALK TO THEM ABOUT IT. 24 BUT I WANT TO ASK YOU ABOUT IT, TO BEGIN WITH, ONCE 25 AGAIN, SO THAT I WON'T HAVE TO FLY OUT HERE OVER A 26 MOTION, SECTION 6259(C) OF THE ACT SAYS THAT I AM TO 27 FILE A PETITION WITH THE COURT OF APPEALS WITHIN 20 DAYS 28 FROM RECEIPT OF THE NOTICE OF THE ORDER DENYING ANY COPYING RESTRICTED PURSUANT TO SEC. 69954(d) GOV. CODE 31 1 REQUEST I MAKE FOR PUBLIC RECORDS. 2 IT ALSO SAYS THAT IT CAN BE EXTENDED UP 3 TO 20 DAYS WITH THE COURT'S PERMISSION FOR JUST CAUSE. 4 NOW, I CAN FILE A MOTION AND I WILL FILE 5 A MOTION. 6 THE COURT: WHAT DO YOU WANT? DO YOU WANT 40 7 DAYS? IS THAT WHAT YOU WANT TO FILE YOUR PETITION? 8 MR. PERRONI: WHAT I WOULD LIKE TO HAVE IS 35 9 DAYS FROM THE TIME I RECEIVED THE NOTICE BECAUSE OF 10 THIS -- TWO REASONS: I HAVE TO TRY TO NAVIGATE MY WAY 11 THROUGH THE COURT OF APPEALS' RULES AND MAKE SURE THAT 12 THIS PETITION IS FILED CORRECTLY. 13 AND NUMBER 2, I CAME HERE FROM MEXICO 14 WHERE I LEFT MY FAMILY AND I AM GOING BACK TO MEXICO AND 15 THEY ARE NOT GOING TO LEAVE FOR TWO WEEKS. IT IS GOING 16 TO BE VERY HARD FOR ME IN MEXICO TO TRY TO DO THE THINGS 17 I NEED TO DO TO GET THIS THING FILED WITHIN 20 DAYS. 18 SO THAT'S WHY I AM ASKING FOR AN 19 ADDITIONAL 15 DAYS. 20 THE COURT: ISN'T IT 20 DAYS FROM JUDGMENT? 21 MR. BARER: I DON'T HAVE THE STATUTE IN FRONT 22 OF ME, YOUR HONOR. I BELIEVE IT WOULD PROBABLY BE TWO 23 OTHER DAYS FROM NOTICE OF ENTRY OF THE JUDGMENT. 24 THE COURT: NORMALLY THAT'S WHAT IT IS. IT IS 25 NOT A DENIAL OF AN ORDER AT A HEARING, IT IS ENTRY OF 26 JUDGMENT. BUT I DON'T WANT TO GIVE YOU LEGAL ADVICE. 27 20 DAYS FROM TODAY IS FEBRUARY 15TH. 28 YOU WANTED UNTIL WHEN? COPYING RESTRICTED PURSUANT TO SEC. 69954(d) GOV. CODE 32 1 MR. PERRONI: WELL, THAT WOULD BE -- IF YOU 2 STARTED FROM TODAY, THAT'S WHAT I AM WORRIED ABOUT. I 3 DON'T KNOW WHEN THIS CLOCK STARTS. 4 THE COURT: I CAN'T GIVE YOU LEGAL ADVICE. 5 MR. PERRONI: IF YOU START IT FROM TODAY, THAT 6 WOULD BE, LET'S SEE, THE 26TH OF JANUARY. THAT WOULD BE 7 ONE, TWO, THREE, FOUR -- 8 THE COURT: NO, TODAY IT'S FEBRUARY 15, TRUST 9 ME. I HAVE GOT A CALENDAR HERE THAT TELLS ME WHAT 20 10 DAYS IS. 11 MR. PERRONI: 33, IT WOULD BE MARCH THE 2ND, 12 THURSDAY, MARCH THE 2ND. 13 THE COURT: THAT'S WHAT YOU WANT AS AN 14 EXTENSION TO? 15 MR. PERRONI: IF YOU COULD GIVE ME THAT, I 16 WOULD BE MOST APPRECIATIVE. 17 THE COURT: MARCH THE 2ND? 18 MR. PERRONI: MARCH THE 2ND. 19 THE COURT: OKAY. 20 ANY OBJECTION TO THAT? 21 MR. BARER: NO OBJECTION TO REASONABLE 22 EXTENSIONS OF TIME. 23 THE COURT: ALL RIGHT. SO YOU HAVE UNTIL 24 MARCH THE 2ND. 25 YOU ARE EXTENDED TO MARCH THE 2ND, 26 THROUGH AND INCLUDING MARCH THE 2ND. ALL RIGHT. 27 MR. PERRONI: THANK YOU, SIR. 28 THE COURT: OKAY. COPYING RESTRICTED PURSUANT TO SEC. 69954(d) GOV. CODE 33 1 ANYTHING ELSE? 2 OKAY. 3 EVERYBODY WAIVE NOTICE? 4 DO YOU WANT TO WAIVE NOTICE? 5 MR. BARER: I THINK WE SHOULD GIVE NOTICE. 6 MS. BIRENBAUM: WE WILL GIVE NOTICE. 7 THE COURT: RESPONDENT TO GIVE NOTICE. 8 YOU HAVE TO MEET AND CONFER ON THE 9 JUDGMENT. 10 MR. PERRONI: WELL, THAT'S ONE MORE PROBLEM. 11 I AM AFRAID AT THIS POINT IN TIME TO 12 WAIVE ANYTHING ELSE. 13 THE COURT: OKAY. THEY ARE GOING TO GIVE 14 NOTICE. 15 MR. PERRONI: BECAUSE I DON'T KNOW, AGAIN, ALL 16 THE RULES IN THE APPELLATE COURT. 17 THE COURT: THEY ARE GOING TO GIVE NOTICE. 18 RESPONDENT TO GIVE NOTICE. 19 ALL RIGHT. MEET AND CONFER. 20 THANK YOU. 21 MR. PERRONI: BYE. 22 23 (THE PROCEEDINGS IN THE ABOVE- 24 ENTITLED MATTER WERE CONCLUDED.) 25 26 27 28 COPYING RESTRICTED PURSUANT TO SEC. 69954(d) GOV. CODE 34 1 SUPERIOR COURT OF THE STATE OF CALIFORNIA 2 FOR THE COUNTY OF LOS ANGELES 3 DEPARTMENT 85 HON. JAMES C. CHALFANT, JUDGE 4 SAMUEL A. PERRONI, ) ) 5 PETITIONER, ) ) 6 ) ) CASE NO. BS159430 7 VS. ) ) 8 MARK A. FAJARDO, ET AL, ) ) 9 RESPONDENT. ) ___________________________) 10 11 REPORTER'S CERTIFICATE 12 STATE OF CALIFORNIA ) ) SS 13 COUNTY OF LOS ANGELES) 14 I, LISA C. RIDLEY, OFFICIAL REPORTER OF THE 15 SUPERIOR COURT OF THE STATE OF CALIFORNIA, FOR THE 16 COUNTY OF LOS ANGELES, DO HEREBY CERTIFY THAT THE 17 FOREGOING PAGES, 1 THROUGH 33, COMPRISE A TRUE AND 18 COMPLETE TRANSCRIPT OF THE PROCEEDINGS HELD IN 19 DEPARTMENT 85 ON THURSDAY, JANUARY 27TH, 2017. 20 DATED THIS 30TH DAY OF JANUARY, 2017. 21 __________________________________ LISA C. RIDLEY, OFFICIAL REPORTER. 22 23 24 25 26 27 28 COPYING RESTRICTED PURSUANT TO SEC. 69954(d) GOV. CODE