DAVIS & WOJCIK
A Professional LAW CORPORATION
November 21, 2002
Via Facsimile and regular mail to xxxxxxxxxxxx
The Honorable Sharon Waters
Riverside County Courthouse
4100 Main Street
Riverside, California 92501-3626
Re: Dezotell, Hoden and Wagoner 1v. Henson
Civil Case No. HEC 009673
Dear Judge Waters:
I represent Hilary Dezotell, Ken Hoden, and Bruce Wagoner, who were the plaintiffs to a civil action, seeking damages and injunctive relief against H, Keith Henson under Civil Code Section 52 1. A final judgment was entered against Henson in, that action, to October 2002.
As you may remember, those same plaintiffs were the victims of hate crimes by the same defendant (Henson) for which he was convicted under Penal Code §422.6 in a trial before Judge Wallerstein in April 2001. Penal Code §422.6 is essentially the criminal code parallel to CC 52 1 which was the basis of my clients' complaint.
After the criminal trial, Henson did not appear at his sentencing hearing as he had fled to Canada. He was sentenced to a term of 365 days subject to probation terms which he did not accept. Additionally, due to Henson's failure to appear, Judge Wallerstein issued a bench warrant which, is still outstanding.
Henson attempted to appeal his criminal conviction, but in February 2002, this court dismissed the appeal based upon the fugitive disentitlement doctrine. A copy of the minute order dismissing Henson's appeal is attached for your review.
Henson is now attempting to appeal the final judgment in the civil case. As you can see by the attached notice, he is still a fugitive living in Canada. I am writing to inform the court that Henson's fugitive status has not changed, therefore, he is not entitled to appellate relief.
It is well settled that courts have the inherent power to dismiss an action initiated by one who has refused to comply with the "legal orders and processes of the courts of this state." TMS, Inc. v. Aihara (2000) 71 Cal.App.4th 377, 379, 83 Cal.Rptr.2d 834, 835. This doctrine, called the "disentitlement doctrine" has been used in a variety of circumstances, but the "case for application of the doctrine is most evident where . . . the party is a fugitive who refuses to comply with court orders or make an. appearance despite being given notice and an opportunity to appear and be heard." Adoption of Jacob C.' (1.994) 25 Cal, App.4th 617, 624, 30 Ca1.Rptr.2d 591, 595 (where mother was barred from participating in a heating regarding, her parental rights where she was a fugitive with her abducted daughter).
This rule has been uniformly applied and followed by the California courts. Weeks v. Superior Court (1921.) 187 Cal. 620, 203 P. 93 (fugitive barred from entry of final divorce decree for disobeying trial count's order relating to custody of minor child); MacPherson v. MacPherson (1939) 13 Cal, 2d 271, 89 P.2d 382 (fugitive's appeal of contempt order in divorce case dismissed)
The Courts have also applied this fugitive disentitlement doctrine to appeals of civil judgments. Indeed, Estate of Scott (1957) 1.5(.1 Cal.App.2d 591:1, 310 P.M 46, is a case with facts analogous to those here. Scott was an action for appointment of a trustee for a missing woman's estate. While: the civil action was ongoing, the missing woman's husband was indicted by a grand jury on nine counts of forgery anal four counts of grand theft in connection with his missing Wife's property. He failed to appear at his sentencing and thus became a fugitive from justice. At the same time, an order appointing a trustee to the missing wife's estate was issued which the fugitive husband appealed from his position of hiding. The only relevant factual distinction between Scott and the case at bar is that Scott was a fugitive from a criminal indictment while Henson is a fugitive, from a criminal conviction
The issue before the Scott court was whether the appeal in the civil matter should be dismissed because the husband was a fugitive frown justice in the criminal action. The Scott court held yes, relying upon those principles set forth in MacPherson and Weeks:
"A party to an. action cannot, with right or reason, ask the aid and assistance of a court in hearing his demands while lie stands in an attitude of contempt to legal orders and processes of the courts of this state" . . . "It is contrary to the principles of justice to permit one who has flaunted the orders of the court to seek judicial assistance." Estate of Scott, 150 Cal.Aph.22d, at 594 (emphasis added).
As aptly stated by one appellate court:
"The [defendant's] attitude seems to be that if this case is decided in his favor it will be quite all right but if it is not so decided he will be out of reach of the court, so that no matter what is done or what decision is made, he will continue to do just as he has done iii the past, namely pay no attention whatsoever to any order of any court in California insofar as complying with airy such order is concerned."
Rude v, Rude (1957) 153 Cal.App.2d 243, 314 P.M 226 (where appeal of a husband, who was found in contempt of court and sentenced to jail, was dismissed because he was a fugitive from justice and "therefore he is not entitled to invoke the aid of this court").
Here, just as MacPherson Weeks, and Estate of Scott supra defendant is a fugitive from Justice who has no intention, of submitting himself to the jurisdiction of the court. Indeed, Defendant here, unlike defendants in the cases cited above, has flaunted his fugitive status to the world. As set forth in the cases cited above, defendant cannot now ask for aid and assistance from this court by way of his appeal while he continues to stand in an attitude of contempt of the legal processes and order of the Superior Court of this state. Accordingly, his appeal should not be considered.
You also should be informed that Henson is using his fugitive status to flout the order, of a federal district court. He is subject to a copyright permanent injunction issued by the United States District Court for the Northern District of California in Religious Technology, Center v. Henson, No. C-96-20271 RMW. However, in May 2002, he made an Internet posting in which he stated he could violate the injunction because of having fled the United States, with the result that he is outside the courts jurisdiction. In an order dated September 25, 2662, he was held in contempt on the basis that the content in that posting violated the injunction.
Mr, Henson should not be allowed to profit from his fugitive status and the Court should strike his notice of appeal based on his fugitive status as it previously ruled in Henson's attempt to appeal his criminal conviction.
Thank you for your review of this matter.
Very truly yours,
Robert A. Davis, Jr.
cc H Keith Henson