On Wed, 02 Oct 2002 02:39:58 GMT, [email protected] (Keith Henson) wrote:
[BTW, if this reads like it was written by Rosen, it was. The locals admitted they were just stooges for Rosen and Moxon. I don't know if that makes them more scum or less. Also, I have not more than skimmed it, I am smack in the middle of too many other activities. In fact, another suit is about to be filed and served. This one may do a lot more than get their short in a knot. HKH]
DAVIS & WOJCIK A PROFESSIONAL LAW CORPORATION ROBERT A. DAVIS, JR., State Bar No. 160357 JOSEPH M. WOJCIK, State Bar No. 177296 1105 E. Florida Ave. Hemet, CA 92542 Telephone: (909) 652-9000 Facsimile: (909) 658-8308
LAW OFFICES OF ELLIOT J. ABELSON ELLIOT J. ABELSON, State Bar No. 41846 8491 West Sunset Blvd., Suite 1100 Los Angeles, CA 90069-1911 Telephone: (323) 960-1935 Facsimile. (323) 650-0398
Attorneys for Plaintiffs Hilary Dezotell, Ken Hoden, and Bruce Wagoner
SUPERIOR COURT COUNTY OF RIVERSIDE
FILED SEP 0 4 2002
SUPERIOR COURT OF CALIFORNIA
COUNTY OF RIVERSIDE - HEMET BRANCH
HILARY DEZOTELL, KEN HODEN, and BRUCE WAGONER,
H. KEITH HENSON,
CASE NO. HECO09673
PLAINTIFFS' NOTICE OF MOTION AND MOTION FOR A FINAL JUDGMENT, AN ORDER FOR INJUNCTIVE RELIEF, CIVIL PENALTIES AND FOR ATTORNEYS' FEES; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATIONS OF ELLIOT J. ABELSON AND JOSEPH W OJCIK
Civil Code ~ 52; 52.1 ] Request For Dismissal of Second and Third Causes of Action Filed Concurrently]
Time: 1:30pm Dept: H4
TO DEFENDANT, H. KEITH HENSON AND HIS COUNSEL OF RECORD:
PLEASE TAKE NOTICE that on 10/7/02 at 1:30 p.m. in Department H4 of the above-entitled Court, Plaintiffs will and do hereby move this Court for a final judgment and an order: (1) for permanent injunctive relief to be entered in favor of Plaintiffs and against Defendant; (2) for statutory civil penalties in the amount of $75,000 ($25,000 per plaintiff); and (3) for reasonable attorneys' fees in the amount of $23,666.65.
This motion is made upon the grounds that Plaintiffs have prevailed on their First Cause of Action for Violation of Civil Rights under Civil Code §52.1; thus they are entitled to statutory remedies of injunctive relief and civil penalties. Moreover, as the prevailing plaintiffs on their Civil Code § 52 cause of action, Plaintiffs are entitled to an attorney fee award as a matter of law. Engel v. Worthington (1997) 60 Cal.App4th 628, 630, 70 Cal.Rptr.2d 526, 527.
This motion is based upon this Notice of Motion, the Points and Authorities set forth below, the attached Declarations of Elliot J. Abelson and Joseph Wojcik, the complete files and records in this action, and such other and further evidence that may properly come to the Court's attention at the hearing.
DATED: September 4, 2002 Respectfully submitted,
DAVIS & WOJCIK
JOSEPH M. WOJCIK
Attorney or Plaintiffs
Hillary Dezotell, Ken Hoden and
HILARY DEZOTELL, KEN HODEN, and BRUCE WAGONER, Plaintiffs, v. H. KEITH HENSON, Defendant.
CASE NO. HECO09673
PROPOSED] ORDER GRANTING PLAINTIFFS' MOTION FOR SUMMARY ADJUDICATION OF FIRST CAUSE OF ACTION FOR VIOLATION OF CIVIL CODE §52.1
On August 26, 2002, Plaintiffs' motion for summary adjudication as to Plaintiffs' First Cause of Action for violation of Civil Code §52.1 came on regularly for hearing before this Court in Department H-4, the Honorable Commissioner Barry A. Reimer presiding. Appearances by the parties were as follows: Joseph M. Wojcik of Davis & Wojcik and Elliot J. Abelson appearing on behalf of Plaintiffs Hilary Dezotell, Ken Hoden, and Bruce Wagoner, and Karen Novorr appearing on behalf of Defendant, H. Keith Henson.
After full consideration of the evidence, and the separate statements submitted by each party and the inferences reasonably deducible therefrom and the authorities
submitted by counsel, as well as oral argument by counsel, and being fully informed, the Court makes the following determinations for the reasons specified. I.
To establish collateral estoppel from a criminal conviction, a party must show:
"1. The prior conviction must have been for a serious offense so that the defendant was motivated to fully litigate the charges;
2. There must have been a full and fair trial to prevent convictions of doubtful validity.from being used;
3. The issue on which the prior conviction is offered must of necessity have been decided at the criminal trial; and
4. The party against whom collateral estoppel is asserted was a party or in privity with a party at the prior trial."
McGowan v. City of San Diego (1989) 208 Ca1.App3d 890, 895, 256 Cal.Rtpr. 537, 539.
Here, the Plaintiffs have established through uncontroverted facts that the four points of collateral estoppel have been met.
The Court finds that the issues to be decided in Count 1 of Plaintiffs' complaint are identical to the issues in the Riverside Superior Court criminal jury trial of People v. Henson, HEM 14371, wherein Defendant was convicted on April 26, 2001 of violating Penal Code § 422.6. The legal elements of Penal Code § 422.6 and Civil Code § 52.1 appear to be identical (except that one is a public offense and the other is a civil wrong). The Defendant in this action was the same defendant who was found guilty in the criminal proceeding.
The judgment of the prior criminal proceeding is final upon the merits, as the Defendant's appeal has been dismissed.
The public offense was serious in that the Defendant was convicted of violating constitutional and civil rights and received a one-year jail sentence. Defendant was represented by counsel in the criminal matter and it was litigated fully before a jury. The Defendant had the opportunity to or did cross-examine all the witnesses in that criminal proceeding, three of whom are Plaintiffs herein. II.
The Defendant's factual contentions are not addressed as they are not directed to the accuracy of the criminal trial proceeding. Defendant's evidentiary objections as to the trial transcripts are overruled as the transcripts submitted by Plaintiffs were not offered for the truth, but for the proposition that the relevant issues were litigated fully to sustain the evidentiary burden of collateral estoppel. Further, the Court finds that Evidence Code § 1292 does not apply.
The Court has found no legal authority, nor was any presented by the Defendant, that a victim of a crime cannot assert collateral estoppel against the criminal defendant, nor does the Court find any public policy considerations preventing such an assertion against a criminal defendant.
Implicit in the jury verdict is a finding of truth as to all material elements to be proved.
Plaintiffs' cause of action against Defendant for interfering with Plaintiffs' constitutional protected rights of association and free exercise of religion stands adjudicated based on the verdict in the prior criminal proceeding, thus Plaintiffs are entitled to summary adjudication upon Count 1 of their complaint herein as there is no triable issue as to any material fact as to the First Cause of Action, for violation of Civil Code § 52.1.
IT IS HEREBY ORDERED:
That the motion for an order granting summary adjudication be, and hereby is, granted in favor of Plaintiffs Hillary Dezotell, Ken Hoden, and Bruce Wagoner and against Defendant, H. Keith Henson finding him liable with respect to the First Cause of Action of Plaintiffs' complaint for violation of Civil Code § 52.1 and that this adjudication shall be carried into any final judgment subsequently entered in this action. Dated: , 2002
Barry A. Reimer, Commissioner of the Riverside County Superior Court