1 MEMORANDUM OF POINTS & AUTHORITIES

INTRODUCTION
2
This Motion seeks to put an end to James McGrath’s intentional and unrelenting pattern of
3

4 misconduct and litigation abuse. The misconduct in this case includes the excessive and knowing use of

5 perjured statements, false allegation of Breach of Fiduciary Duty, material misrepresentation of facts,
6 concealed evidence, and fraudulent misrepresentations. Counsel McGrath has severely undermined the
7
integrity of this Court and caused substantial prejudice and harm to Defendant Denise Mathre.
8
Dismissal is warranted where perjury and fraud upon the court is systemic and designed to
9
sabotage and enhance a case. Terminating sanctions, and other relief, would restore order and dignity
10

11 to the judicial process. No sanction short of dismissal is appropriate.

12 PROCEDURAL & FACTUAL

BACKGROUND
13

14
On or about October 20, 2020, James McGrath’s filed the “Petition for Accounting, Damages and

15 Breach of Fiduciary Duty”, in this matter. See Complaint on file. Defendant denies all allegations in

16 Counsels’ Complaint; contends that Counsel knows or should know, falsely purporting to be as if he is
17
representing and is the Counsel for the Charles D. Mathre and Lois L. Mathre Family Trust, 1992. Out of
18
three Trustees Defendant is the only Trustee that has looked after and managed the assets of the Trust.
19
Of the total of $1,372,141.22 on assets, Defendant has sold and distributed $1,202.141.22 in assets and
20
the last asset – the 51.89 acre vacant land parcel, valued at $170,000.00, is under contact, and while but
21

22 the sale has been interfered with Counsel’s interference in Contractual Relationships, contacting the

23 buyer, by contacting and harassing the Buyer, the Realtor, the Escrow officer, the Loan officer for
24
Vantex Mortgage, and even the President of Vantex Capital, Walter Payne. Defendant has attempted,
25
and filed, and Counsel has concealed and distracted Judicial Officer Andrea C. Sexton, from EVEN
26
reviewing the documents, and Compromised the Integrity of the Judiciary and deprive the Honorable
27

28

- 1 -
Memorandum of Points & Authorities
 1 Andrea Sexton, from seeing the facts, facts when reviewed will reveal Counsel McGrath is Committing

2 Fraud on the Court in Process.

3
It is ironic, that even in the complaint itself, Counsel acknowledges of a Purchase and Sale
4
agreement by and between the Trust and General Ventures, Inc.,, a successful and established retired
5
Real Estate Developer. Concealing and Suppressing that, from the Honorable Andrea Sexton, and
6

7
concealing that from her, Falsely stating that “we are still working on a settlement agreement”:. While it

8 is true that at each of the 4 former hearings, counsel has coerced us into signing this SHAM settlement

9 agreement, and since he insists that it be concealed from the court, we have refused to Sign it. And as a
10
result, he has ROBBED the court the ability to review, not his CONFIDENTIAL SHAM Settlement
11
Agreement, but the Purchase and Sale Agreement that has been signed by all three trustees, (Exhibit D)
12
and counsel has interfered with this Contractual relationship. Since no confidentiality will be breached
13

14
for revealing that to the Honorable J. Hemanson, as part of the 5 Documents already submitted for the

15 hearing on 07/09/21, filed on or about 06/20/21

16 Additionally, counsel has harassed and Rambo Lawyered, our Realtor, Josh Mettee, Orange Coast
17
Title Escrow Officer Bryan Berney, and Loan Officer Mike Zweig, of Vantex Mortgage , and he even
18
had the AUDACITY to call the CEO of Vantex Capital assets for which this BOGUS and FALSE
19
Petition has been filed.
20
The above facts alone, are sufficient for the Court to Dismiss the Petition. However, per rule
21

22 4.03(d) of Amador County, we are required to file the four documents, Motion, the Amended Motion,

23 Proposed Opinion and Order and Memorandum of Points and Authorities due to this being a separate
24
motion, because of the nature of the 60(d)3 Fraud On the Court Motion to dismiss. This Court has
25
jurisdiction over including with respect to the Defendant’s Motion to dismiss, and Amador Rule 4-03(d)
26
and California CCP 1005 and CCCP 1010, which were supplied to us by the Clerk of the Court, and
27
asked to quote the wording of the 4.03(d) on the Front of the Motion, Serve Counsel and Proof Of
28

- 2 -
Memorandum of Points & Authorities
 1 Service. We have filed the Proof of Service and Amador County Sherriff has been requested to Process

2 Serve the documents required to be served per Amador Court Rule 4.03(d). We will receive the Proof by
3
mail and File that immediately the day we receive it. We have also prepared, the Motion, the Declaration
4
and the Memorandum of Points and Authorities. Complaint. Exhibit 1: Proposed Answer to
5
Complaint, attached hereto and made a part hereof.
6

7
Defendant’s use of litigation tactics, Abuse of the Honorable Andrea C. Sexton’s court. and

8 egregious misconduct, harassment of our realtor, escrow officer, lender and BUYER, throughout these

9 proceedings, are addressed more fully in the declarations and exhibits attached hereto and made a part
10
hereof. See the Case History attached to our Motion to Dismiss in the Declaration. Some of the tactics
11
used have been memorialized in in our motions declarations, and Exhibits, emails substantiating
12
harassment and interference from each of the four parties hereinabove mentioned.
13

14
The five most important documents which are the Gravamen of the Complaint, which will settle

15 this case, was supposed to be heard on 7/09/21 were again concealed from Judge Andrea Sexton.

16 That last attack on the Judiciary, was enough to see that it is not the measly $56,666.60 that is the
17
issue of this complaint, but the Integrity of the Judiciary is being compromised and the DIS-SERVICE
18
of Justice, has been Masterminded by Counselor McGrath, for his personal gain, as Revealed in his
19
SHAM Settlement Agreement. The settlement agreement has done defendant no harm, but is the main
20
instrument that reveals the Commitment of the Fraud Upon the Court, masterminded by Counsel
21

22 McGrath.

23 The most important and Critical Document, that has been concealed by Counsel is the Email
24
from Escrow Officer Bryan Berney. We ask the court to review the 6 line sentence, which has also been
25
inserted in the Stipulation, Exhibit C. Had that not been concealed at the 07/09/21 there have been no
26
need to file this motion, for Fraud Upon the Court. We came to a realization that it not about the three
27

28

- 3 -
Memorandum of Points & Authorities
 1 Trustees, we have each signed a PSA to Settle This case. It is the Judicary now being played, and Fraud

2 being committed. hearing on which would settle this case.

3
SPECIFICALLY the email from Orange Coast Title Company Escrow Officer Bryan Berney,
4
who stated that due to the calls made to his office by Counsel, Mr Berney stated, “Based on the
5
statements made by Counsel James McGrath “Orange Coast Title’s Underwriting and Legal Counsel
6

7
have advised that we can not engage in the Purchase and Sale of the asset, with the Trust having filed this

8 suit against Denise Mathre. We will be glad to entertain closing escrow, when the Trust transfers Title to

9 Denise, and Denise Transfers title to General Ventures, Inc., (since the Complaint Purportedly and
10
Allegedly has been filed by the Trust) that the Trust Transfer Title to Denise Mathre and Denise Mathre
11
to Buyer General Ventures and the Stipulation So Ordering the Distribution deliver the Stipulation to
12
Orange Coast title, with this two step process.
13

14
McGrath’s ultimate goal was, and still remains to this day, to defame Defendant, make false

15 allegations, discredit her with our lender, our realtor, our escrow office and ABOVE ALL our buyer.

16 Fortunately the buyer, has had to deal with a land sale of an estate in California City, where he learned
17
his Pro Se litigant experience to deal with a similar interference of contractual relationship by another
18
dishonest attorney for Trustes who owned the Land Development and the legal process of dealing with
19
trustees, and turned that 60 acre Parcel into an 180 Home Subdivision,, (Exhibit __)and in 2008 a 40 cre
20
Raw Land Parcel, into a Final Map and all Engineering infrastructure for a Truck Stop and Shopping
21

22 Center, with another Probate trustee, Paul Turner. Realtor Josh Mettee is now taken the Place of Paul

23 Turner, for the same Broker that handled acquisition of that Land Parcel, Appraised at $,1272,000. The
24
Buyer serves on the Board of Homeblessedness Foundation – a Foundation we established in 2016 when
25
my Dad was still alive, (Exhibit ??) to convert the Ranch into an OFF GRID Equestrian Therapy
26
Center. The $100,000 which was borrowed on this land parcel, same as how the $225,000 was borrowed
27
on the Residence, for the purchase of Building Materials and Workshop Equipment for Veterans Work
28

- 4 -
Memorandum of Points & Authorities
 1 Force Training Program. We hired the Services of General Ventures CEO, Tariq Faridi to help Develop

2 the Equestrian Village. (See Senator Bernie Sanders Letter Exhibit C).
3
Counsel McGrath’s goal has been to damage defendant’s existing relationships with our Lender
4
(We have paid $3250 interest on the loan, for $325,000 - $225,000 of it was used to Rehab the 486 Rich
5
Gulch Residence. Defendant distributed $83,333.50 to Trustee Mark Mathre and Trustee Debra Dahlen.
6

7
He has even outlined his SCHEME through his SHAM SETTLEMENT AGREEMENT, but

8 since he wants it to be CONFIDENTIAL, we want nothing to do with it. The Stipulation Prepared by

9 Counsel, Exhibit A the Sentence Requested by Orange Coast Title Exhibit B and the Modified
10
Stipulation Exhibit C with the Sentence inserted. And Of course the Purchase and Sale agreement,
11
which now, due to defendant adding value to the land, has been changed to $240,000 and distributes
12
$80,000 each instead of $56,666. The three Trustees have signed a Purchase and Sale and Agreement, for
13

14
a Sales Price, of %170,000 to $240,000.00, thereby making available $80,000 each to the trustees instead

15 of the $56,666.60 alleged in the Complaint.

16 For the Vacant Land Parcel, defendant added value to the Land by Adding Materials for four tiny
17
houses as the Models for the Equestrian Off Grid Village, at the cost of $110,000 - $27,500 each to
18
General Ventures, Inc, (Formerly Faridi Construction Ventures Consulting) , and serviced by us, not the
19
Trust. Defendant will request the Accounting And Damages part be taken into Consideration in the
20
Settlement of this case, which would require the Ordering of the Stipulation as well as a Closing
21

22 Statement, so as to Allocate the Costs incurred by Defendant to be shared equally by all three Trustees.

23 Exhibit 5: The Proposed Sham Settlement Agreement. NOT SIGNED.

24
On August 13, 2021 – we trust that Department 03, will have an opportunity to review the 5
25
Exhibits, and the Court Dismiss the Petition for Breach of Fiduciary Duty, and continue the hearing on
26
the Accounting and Damages, to a date past our hearing in Department 01 on the Fraud Upon the Court
27

28

- 5 -
Memorandum of Points & Authorities
 1 Motion 0n 09/21/21 as well as the Closing of Escrow subject to the Dismissal, the Signing of the

2 Agreement and a Decision by Judge Hermanson on our Motion for Fraud Upon the Court.
3
On June/____/2021, defendant filed 5 Documents that were to reviewed, by that are the
4
Gravamen of the Complaint and Settle this case. The documents were again not reviewed by the court
5
and another hearing is scheduled for 08/13/21.Unless the Plaintiff dismisses her motion voluntarily we
6

7
and the Judge grants the Petition, our Case will then be heard on 09/20/21 for Fraud Upon the court.

8 Counsel has acted in bad faith, from the very beginning, knowing the facts of the Total amount

9 of assets settled, and still falsely alleged breach of Fiduciary Duty, and with improper purpose in a
10
manner that degrades, offends, and jeopardizes the integrity of the judicial system. False
11
Allegations in the Petition for Breach of Fiduciary Duty, Concealment and Suppression of Facts that
12
establish Counsel’s Bad Faith, and the Same Documents reveal Defendant’s good faith. Counsel
13

14
allegations amount to perjured testimony have continuously been introduced into this case. When a

15 litigant's conduct abuses the judicial process, the United States Supreme Court has recognized dismissal

16 of a lawsuit as the remedy within the inherent power of the court. Chambers v. NASCO, Inc. (1991) 501
17
U.S. 32. Exhibit 4: Declaration of Defendant Denise Mathre; Exhibit 5: Declaration of Third Party
18
Beneficiary Tariq Faridi, CEO General Ventures; Exhibit 6: Emails from Josh Metter, Bryan Berney,
19
Mike Zweig, 7: Proposed Opinion and Order Exhibit 8: Declaration of Denise Mathre; Exhibit 9:
20
Declaration of General Ventures CEO Tariq Faridi; Exhibit 10: all attached hereto and made a part
21

22 hereof. Exhibits 1-5 (Named A-E) from the previous hearing, are referred hereto and incorporated

23 herein by this Reference.

24
LEGAL ARGUMENT
25
This Motion argues that Counsels’ fraud on the court forms the basis for dismissal WITHOUT
26
prejudice. (we still have accounting and Damages to argue as well as await, the outcome of the hearing
27
on 09/20/21 as well as outcome of the investigation by the Cal Bar for alleged litigation misconduct.
28

- 6 -
Memorandum of Points & Authorities
 1 COURT’S INHERENT POWER & AUTHORITY
TO DISMISS ACTION
2
Courts have inherent equitable powers to dismiss actions or enter default judgments for failure to
3

4 prosecute, contempt of court, or abusive litigation practices. See Roadway Express, Inc. v. Piper, 447

5 U.S. 752, 764, 100 S.Ct. 2455, 2463, 65 L.Ed.2d 488 (1980); Link v. Wabash R.R., 370 U.S. 626, 632, 82
6 S.Ct. 1386, 632, 8 L.Ed.2d 734 (1962); United States v. Moss-American, Inc., 78 F.R.D. 214, 216
7
(E.D.Wis.1978).
8
It is well-established that these equitable powers include the authority to dismiss an action for a
9
Fraud Upon the court, who engages in BAD FAITH dishonest conduct, obstructs the discovery
10

11 process, abuses the judicial process, or otherwise seeks to perpetrate a fraud on the court. See Link v.

12 Wabash Railroad Co. See also Aoude v. Mobil Oil Corp, 892 F.2d 1115, 1118 (1st Cir. 1989); McDowell
13 v. Seaboard Farms of Athens, Inc., 1996 WL 684140, 2-3 (M.D. Fla. 1996) (cases cited therein); Sun
14
World, Inc. v. Lizarazu Olivarria, 144 F.R.D. 384, 389 (E.D. Cal. 1992) (holding that, when a litigant
15
commits a fraud upon the court, “the inherent powers of the court support the sanction of dismissal and
16
entry of default judgment”); Pope v. Federal Express Corp., 974 F.2d 982, 984 (8 Cir. 1992) (dishonest
17

18 conduct that “threatens the integrity of the judicial process” is grounds for dismissal with prejudice);

19 Amway Corp. v. Shapiro Express Co., 102 F.R.D. 564, 569–70 (S.D.N.Y. 1984); Cox v. Burke, 706 So.2d
20 43, 47 (Fla. 5th DCA 1998); Kornblum v. Schneider, 609 So. 2d 138 (Fla. 4th DCA 1992); Figgie Int’l,
21
Inc. v. Alderman, 698 So. 2d 563, 567–68 (Fla. 3d DCA 1997); O’Vahey v. Miller, 644 So. 2d 550, 551
22
(holding that “the ultimate sanctions of dismissal or default are justified by the repeated presentation of
23
false testimony under oath”).
24

25 The United States Supreme Court held that a court need not endure the indignity of a fraud being

26 perpetrated upon it and concluded that a court possesses the “inherent power” to manage its affairs in
27 such a way as to ensure that cases are not resolved by vexatious or oppressive tactics, or through conduct
28
that skirts the legal obligations that bind all litigants and their attorneys to use the courts in a fair, honest,

- 7 -
Memorandum of Points & Authorities
 1 and open manner. The equitable power also allows a court to vacate its own judgment upon proof that a

2 fraud has been perpetrated upon the court. “Courts have inherent power to fashion and impose
3
appropriate sanctions for conduct that abuses the judicial process.” Chambers v. NASCO, Inc.
4
This “historic power of equity to set aside fraudulently begotten judgments,” is necessary to the
5
integrity of the courts, for “tampering with the administration of justice in [this] manner ... involves far
6

7
more than an injury to a single litigant. It is a wrong against the institutions set up to protect and

8 safeguard the public.” Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 64 S.Ct. 997, 88

9 L.Ed. 1250 (1944). See also Universal Oil Products Co. v. Root Refining Co., 328 U.S. 575, 580, 66 S.Ct.
10
1176, 1179, 90 L.Ed. 1447 (1946).
11
The integrity of the litigation process depends on truthful disclosure of facts. Dismissal with
12
prejudice has long been available as the ultimate civil sanction against litigation misconduct. “A system
13

14
that depends on an adversary’s endless ability to uncover falsehoods is doomed to failure, which is why

15 this kind of conduct must be discouraged in the strongest possible way.” Cox v. Burke. The need for

16 the orderly administration of justice does not permit violations of due process. Phoceene Sous Marine,
17
S.A. v. U.S. Phosmarine, Inc., 682 F.2d 802, 805-06 (9th Cir.1982).
18
The California Supreme Court has recognized that California courts have inherent powers,
19
independent of statute, derived from two distinct sources: the courts’ “equitable power derived from the
20
historic power of equity courts” and “supervisory or administrative powers which all courts possess to
21

22 enable them to carry out their duties.” Bauguess v. Paine (1978) 22 Cal. 3d 626, 635 [150 Cal.Rptr. 461,

23 586 P.2d 942]. “Such power is part of the inherent power of the superior court (and of courts generally)
24
to control litigation before it, to prevent abuse of its process, and to create a remedy for a wrong even in
25
the absence of specific statutory remedies.” Western Steel & Ship Repair, Inc. v. RMI, Inc. (1986) 176
26
Cal. App. 3d 1108, 1116-1117 [222 Cal.Rptr. 556].
27

28

- 8 -
Memorandum of Points & Authorities
 1 The Peat, Marwick Court, in a highly relevant California decision on the inherent authority of

2 courts, affirmed that judges are empowered to act when a party seeks to take unfair advantage of “the
3
integrity of the judicial system.” This decision directly addressed the fact that a court’s inherent powers
4
include the authority to terminate a case for litigation misconduct. It is the responsibility of courts to
5
preserve the integrity of the adversary process and the fair and efficient administration of justice. Peat,
6

7
Marwick, Mitchell & Co. v. Superior Court, 200 Cal. App. 3d 272, 287 (1988).

8 Counsels’ serial misconduct cannot be remedied by any sanction other than a Dismissal of the

9 Petition for Breach of Fiduciary Duty. The misconduct, involves a deliberate and elaborate scheme of
10
perjury, fraudulent misrepresentations, and abusive tactics, and, clearly qualifies as a willful deceit that has
11
irreparably harmed the judiciary and the integrity of the Court itself. A Complaint has been filed with the
12
California Bar, and we have requested that Sanctions should be imposed to redress the misconduct that
13

14
severely undermines the integrity of the judicial system.

15

16

17
FRAUD UPON THE COURT
18
Fraud upon the Court, an equitable remedy, deals with the integrity of courts and justice. The
19
concept of fraud upon the court correctly challenges a preferential judicial legal principle: the finality of a
20
judgment. A “fraud on the court” as that term has been defined by the 9th Circuit is “an unconscionable
21

22 plan or scheme which is designed to improperly influence the court in its decision.” England v.

23 Doyle, 281 F.2d 304, 309 (9th Cir. 1960).

24
A party who is guilty of fraud or misconduct, in the prosecution or defense of a civil proceeding,
25
should not be permitted to continue to employ the very institution it has subverted to achieve his or her
26
ends. Carter v. Carter, 88 So.2d 153, 157 (Fla. 1956). Thus, egregious and irreparable misconduct should
27
result in the case being dismissed with prejudice. The power of a court to grant such relief not only
28

- 9 -
Memorandum of Points & Authorities
 1 deters improper actions by a party, but offers the defendant an opportunity to remedy the fraud through

2 appropriate and available sanctions.

3
The inherent power allows a court to vacate its own judgment upon proof that fraud has been
4
perpetrated upon the court. See Hazel-Atlas Glass Co. v. Hartford-Empire Co; Universal Oil Products
5
Co. v. Root Refining Co. It is a well-recognized principle that a court of general jurisdiction has the
6

7
inherent power to set aside a judgment obtained through fraud practiced upon the court. McKeever v.

8 Superior Court, 85 Cal.App. 381 [259 P. 373]; McGuinness v. Superior Court, 196 Cal. 222 [237 P. 42,

9 45, 40 A.L.R. 1110]. “There can be no question as to the inherent power of the court to set aside the
10
final decree if obtained by fraud.” Miller v. Miller, 26 Cal. 2d 119, 121 [156 P.2d 931].
11
To constitute fraud on the court, the alleged misconduct must “harm the integrity of the judicial
12
process.” Alexander v. Robertson, 882 F.2d 421, 424 (9th Cir.1989). Fraud upon the court should
13

14
embrace only that species of fraud which does or attempts to, defile the court itself, or is a fraud

15 perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner its

16 impartial task of adjudging cases that are presented for adjudication. Gumport v. China International
17
Trust and Inv. Corp. (In re Intermagnetics America, Inc.), 926 F.2d 912, 916 (9th Cir.1991) (quoting 7
18
James Wm. Moore et al., Moore's Federal Practice ¶ 60.33, at 515 (2d ed. 1978)). Fraud upon the court
19
includes both attempts to subvert the integrity of the court and fraud by an officer of the court.
20

21 7 J. Moore & J. Lucas, Moore's Federal Practice p 60.33, at 515 (2d ed. 1978) [hereinafter Moore], quoted

22 in Alexander v. Robertson, 882 F.2d 421, 424 (9th Cir.1989).

23 There are evidently no maxims of the law more firmly established, or of more value in the
24
administration of justice, than those which were designed to prevent repeated “litigation” between the
25
same parties in regard to the same subject of controversy. However, according to United States v.
26
Throckmorton, 98 U.S. 61 (1878), there is an admitted exception to this general rule in cases where, by
27

28 reason of something done by the successful party to a suit, there was in fact no adversary trial or decision

- 10 -
Memorandum of Points & Authorities
 1 of the issue in the case. Where the unsuccessful party has been prevented from exhibiting fully his case,

2 by fraud or deception practiced on him by his opponent, as by keeping him away from court, a false
3
promise of a compromise; or where the defendant never had knowledge of the suit, being kept in
4
ignorance by the acts of the plaintiff; or where an attorney fraudulently or without authority assumes to
5
represent a party and connives at his defeat; or where the attorney regularly employed corruptly sells out
6

7
his client's interest to the other side,—these, and similar cases which show that there has never been a

8 real contest in the trial or hearing of the case, are reasons for which a new suit may be sustained to set

9 aside and annul the former judgment or decree, and open the case for a new and a fair hearing. See U.S.
10
v. Throckmorton. Relief has also been granted, on the ground that, by some fraud practiced directly
11
upon the party seeking relief against the judgment or decree, that party has been prevented from
12
presenting all of his case to the court.
13

14
There is no statute of limitations for bringing a fraud on the court claim. As the 7th Circuit Court

15 of Appeals explained: “a decision produced by fraud on the court is not in essence a decision at all and

16 never becomes final.” Kenner v. Commissioner of Internal Revenue Service, 387 F.2d 689, 691 (7th Cir.
17
1968).
18
Due to the irreparable prejudice accruing to Defendant by reason of the misconduct, interference
19
with the Court's adjudicatory function, the public interest in the integrity of the judicial system, dismissal
20
is warranted.
21

22 TERMINATING SANCTIONS

23 Defendant seeks sanctions for litigation abuses and misconduct. Counsels’ conduct warrants
24
dismissal sanctions under the Court’s inherent equitable power. California courts retain flexibility to
25
exercise historic inherent authority in modern circumstances, fashioning procedures and remedies as
26
necessary to protect litigants’ rights. See Board of Supervisors v. Superior Court (1994) 23 Cal.App.4th
27

28

- 11 -
Memorandum of Points & Authorities
 1 830, 848, 28 Cal.Rptr.2d 560; Cottle v. Superior Court (1992) 3 Cal.App.4th 1367, 1377-1378, 5

2 Cal.Rptr.2d 882.
3
Dismissal is an available sanction in extraordinary circumstances. Valley Engineers, Inc. v.
4
Electric Engineering Co., 158 F.3d 1051, 1057 (9th Cir. 1998). Dismissal is appropriate where a “pattern
5
of deception and discovery abuse made it impossible” for the district court to conduct a trial “with any
6

7
reasonable assurance that the truth would be available.” Anheuser-Busch, Inc. v. Natural Beverage

8 Distributors, 69 F.3d 337, 352 (9th Cir.1995).

9 According to the 9th Circuit, “extraordinary circumstances exist where there is a pattern of
10
disregard for Court orders and deceptive litigation tactics that threaten to interfere with the rightful
11
decision of a case.” Valley Engineers, Inc. v. Electric Engineering Co.
12
Terminating sanctions are appropriate when a party seeks to take unfair advantage; the integrity
13

14
of the judicial system is at risk; and as punishment or redress for grossly improper litigation behavior.

15 Federal courts, and their state counterparts, have a “well-acknowledged inherent power to levy sanctions

16 in response to abusive litigation practices.” DLC Mgmt. Corp. v. Town of Hyde Park, 163 F.3d 124,
17
135 (2d Cir. 1998). When the offending party has engaged in truly willful or bad faith egregious litigation
18
practices, the Supreme Court has affirmed that “outright dismissal of a lawsuit . . . is within the court's
19
discretion.” Chambers v. Nasco, Inc.
20
The court in Stephen Slesinger, Inc. v. Walt Disney Co. (2007) 155 Cal.App.4th 736, held that a
21

22 trial court has inherent power to impose a terminating sanction where a plaintiff's litigation abuse and

23 misconduct was deliberate and egregious. It is well settled that dismissal is warranted where a party has
24
engaged deliberately in deceptive practices that undermine the integrity of judicial proceedings: “courts
25
have inherent power to dismiss an action when a party has willfully deceived the court and engaged in
26
conduct utterly inconsistent with the orderly administration of justice.” Wyle v. R.J. Reynolds Tobacco
27
Company, 709 F.2d (9th Cir. 1983).
28

- 12 -
Memorandum of Points & Authorities
 1 In Hazel-Atlas Glass Co. v. Hartford Empire Co., the U.S. Supreme Court granted relief based

2 on the introduction of fraudulent evidence. The Court explained that the inquiry as to whether a
3
judgment should be set aside for fraud upon the court focused on whether the alleged fraud harmed the
4
integrity of the judicial process: “Tampering with the administration of justice in the manner
5
indisputably shown here involves far more than an injury to a single litigant. It is a wrong against the
6

7
institutions set up to protect and safeguard the public, institutions in which fraud cannot complacently be

8 tolerated consistently with the good order of society. Surely it cannot be that preservation of the integrity

9 of the judicial process must always wait upon the diligence of litigants. The public welfare demands that
10
the agencies of public justice be not so impotent that they must always be mute and helpless victims of
11
deception and fraud.” The policy of finality is not absolute.
12
When the plaintiff has engaged in misconduct during the course of the litigation that is deliberate,
13

14
that is egregious, and that renders any remedy short of dismissal inadequate to preserve the fairness of

15 the trial, the trial court has the inherent power to dismiss the action. Such an exercise of inherent

16 authority is essential for every court to remain “a place where justice is judicially administered.” Von
17
Schmidt v. Widber (1893) 99 Cal. 511, 512, 34 p. 109, quoting 3 Blackstone Commentary 23.
18
PERJURY
19
Counsels willfully deceived the court and engaged in misconduct utterly inconsistent with the
20
orderly administration of justice, requirements of due process, and severe sanctions are the appropriate
21

22 remedy. His statement of Breach of Fiduciary duty is lying to the court, both by commission and

23 omission. He is the counsel for the Trust, or so he creates the Appearance. He also lists a total amount of
24
assets of the Trust, of $1.372.141.22. And only this $170,000.00 (under contract by Defendant, for
25
$240,000.00 only dishonest office of the court and a member of California will commit such perjury.
26
The court in Televideo Systems, Inc. vs. Heidenthal (9th Cir. 1987) 826 F.2d 915, 917) concluded
27
that the appellant’s “elaborate scheme involving perjury clearly qualifies as a willful deceit of the court”
28

- 13 -
Memorandum of Points & Authorities
 1 and noted that “it infected all of the pretrial procedures and interfered egregiously with the court’s

2 administration of justice.” The Court sanctioned Heidenthal not merely to punish him, but to enable the
3
court to proceed to hear and decide the case untainted by further interference and possible further
4
perjury on the part of Heidenthal.
5
Dismissal is an appropriate sanction for perjury because committing perjury is tantamount to
6

7
acting in bad faith. Arnold v. County of El Dorado, No. 2:10-CV-3119 KJM-GGH, 2012 WL 3276979,

8 at *4 (E.D. Cal. Aug. 9, 2012) report and recommendation adopted, No. 2:10-CV-3119 KJM-GGH

9 (E.D. Cal. Sep. 27, 2012).

10
California Penal Code Section 118 defines “perjury” as deliberately giving false information while
11
under oath. The U.S. Supreme Court concluded that “a witness testifying under oath or affirmation
12
violates this statute if she gives false testimony concerning a material matter with the willful intent to
13

14
provide false testimony, rather than as a result of confusion, mistake, or faulty memory.” United States

15 v. Dunnigan, 507 U.S. 87, 94 (1993). All perjured relevant testimony is at war with justice, since it may

16 produce a judgment not resting on truth. In re Michael, 326 U.S. 224, 228 (1945).
17
Counsel, has obstructed the judicial process by repeatedly providing false statements as reasons
18
to obtain continuance and DISRUPT the SERVICE of JUSTICE and through fraud upon the court by
19
misrepresentations, by concealing evidence, providing misleading and deceptive statements to the Court,
20
and even concealing both the Purchase and Sale Agreement and Counsel’s Own Stipulation, and
21

22 distracting Judicial Officer Andrea Sexton, who stated she has not had the time to review the case. Yes

23 FIVE hearing, and COUNSEL has successfully d

24
“In order to lawfully hold a person to answer on the charge of perjury under California Penal
25
Code section 118, evidence must exist of a “willful statement, under oath, of any material matter which
26
the witness knows to be false.” Cabe v. Superior Court, (1998) 63 Cal.App.4th 732. The statements
27
were material and used to affect the outcome of the proceedings and most certainly had the probability
28

- 14 -
Memorandum of Points & Authorities
 1 of influencing the outcome. In Ex Parte Davis, (1921) 52 Cal.App. 631 the Court held that: “The matter

2 sworn to need not be directly and immediately material. It is sufficient if it be so connected with the fact
3
directly in issue as to have a legitimate tendency to prove or disprove such fact by giving weight or
4
probability to the testimony of a witness testifying thereto, or otherwise.”
5
Perjury is a criminal offense and an affront to the judicial system. Sanctions should be imposed
6

7
to redress the misconduct that severely undermines the integrity of the judicial system. In the instant

8 matter, Counsels have engaged in a deliberate deception of this Court by the continuous presentation of

9 statements known to be perjured and through other means.

10
UNCLEAN HANDS
11
Defendant additionally argues that Counsels should be precluded from seeking relief due to its
12
own unclean hands. The underlying aim of the unclean hands doctrine is to promote justice by making a
13

14
plaintiff answer for his own misconduct. Kendall-lackson Winery, Ltd. v. Superior Court, 76 Cal. App.

15 4th 970, 978-79 (1999). This doctrine arises from long-standing legal principles rooted in fairness. As the

16 U.S. Supreme Court noted regarding the unclean hands doctrine, “This maxim is far more than a mere
17
banality. It is a self-imposed ordinance that closes the doors of a court of equity to one tainted with
18
inequitableness or bad faith relative to the matter in which he seeks relief. That doctrine is rooted in the
19
historical concept of a court of equity as a vehicle for affirmatively enforcing the requirements of
20
conscience and good faith.” Precision Instrument Mfg. v. Automotive Maint. Mach. Co. 324 U.S. 806,
21

22 814 (1945).

23 The clean hands doctrine allows courts to refuse relief to any plaintiff who has acted inequitably.
24
Judicial integrity, justice, and the public interest form the basis for the doctrine. The defense of unclean
25
hands arises from the maxim, “‘He who comes into equity must come with clean hands.’” Blain v.
26
Doctor’s Co. (1990) 222 Cal.App.3d 1048, 1059. The doctrine demands that a plaintiff act fairly in the
27
matter for which he seeks a remedy. He must come into court with clean hands, and keep them clean, or
28

- 15 -
Memorandum of Points & Authorities
 1 he will be denied relief, regardless of the merits of his claim. Precision Co. v. Automotive Co; Hall v.

2 Wright (9th Cir. 1957) 240 F.2d 787, 794-795.

3
California has long recognized the maxim that “No one can take advantage of his own wrong.”
4
(Civ. Code. § 3517.) “He who comes into equity must come with clean hands.” See Wilson v. S.L. Rey,
5
Inc. (1993) 17 Cal. App.4th 234, 244; Kendall-Jackson Winery, Ltd v. Superior Court. The doctrine
6

7
promotes justice and prevents “a wrongdoer from enjoying the fruits of his transgression.” Precision Co.

8 v. Automotive Co.; Keystone Co. v. Excavator Co. (1933) 290 U.S. 240, 245. See also London v. Marco,

9 229 P.2d 401, 402 (Cal. Dist. Ct. App. 1951)(misleading statements made to the court constitutes unclean
10
hands); Lazaro v. Lazaro (In re Marriage of Lazaro), No. A107473, 2005 WL 1332102, at *3 (Cal. Ct.
11
App. June 6, 2005) (finding that presenting false testimony in a court proceeding goes to the core of the
12
unclean hands doctrine).
13

14
Under the “unclean hands” doctrine, a party is barred from relief if he has engaged in any

15 unconscientious conduct directly related to the transaction or matter before the court. Burton v.

16 Sosinsky (1988) 203 Cal. App. 3d 562, 573 [250 Cal.Rptr. 33]; California Satellite Systems, Inc. v. Nichols
17
(1985) 170 Cal. App. 3d 56, 70 [216 Cal.Rptr. 180].
18
The authority to dismiss a lawsuit for litigant misconduct is a creature of the “clean hands
19
doctrine” and is applicable to both equitable and legal damages claims. Buchanan Home & Auto Supply
20
Co v Firestone Tire & Rubber Co., 544 F.Supp. 242, 244-245 (D SC, 1981). See also Mas v Coca-Cola
21

22 Co., 163 F.2d 505, 507 (CA 4, 1947).

23 Counsel McGrath has come before this Court with unclean hands. Counsel has engaged in
24
extreme and abusive misconduct. He have taken advantage of Defendant due to the fact that she has
25
been self-represented since the Complaint in this matter was filed. Counsel has interfered in our
26
Contractual Relationship with the Buyer Realtor Escrow Officer and Lender, Court should not aid or
27

28

- 16 -
Memorandum of Points & Authorities
 1 reward Counsel for his egregious misconduct. McGrath’s very presence before this Court is the result of

2 his own wrongful conduct, retaliation, fraud, and inequity.

3
CONCLUSION
4
Based on the foregoing, Defendant Denise Mathre respectfully requests that the Court Dismiss
5
the Petition for Breach of Fiduciary duty and the causes of Damages and Accounting be continued. And
6

7
the Trust be so ordered to Provide that Accounting. Counsel McGrath has filed this Petition on behalf of

8 the trust, and the Trust should determine the Damages and Accounting, and allow 30-90 days past the

9 closing of escrow, since an Escrow Closing Statement will contain all the costs Defendant has incurred in
10
the management and improvement of the 51.89 Acre Vacant Land Parcel.
11
We pray the court grant such other or further relief as the Court may deem just and appropriate.
12
That would include, but is not limited to, in the alternative, permitting Defendant to be heard on the
13

14
actual merits of the case, and referring this matter to Department 03, where the alleged Fraud Upon the

15 Court is being heard on 09/20/21. Additionally, defendant asks this Court to look at, review and opine

16 about the findings, both of False Allegations by Counsel Mcgrath, and Misconduct, and await the
17
Completion of the investigation by the California Bar, and order defendant to file with the court, the
18
Findings and Sanctions the bar may impose upon Counsel. The bar has copies of Litigation documents,
19
except this Memorandum and our one Page Motion Filed, where the clerk notified as that based on if
20
within 26 days we did not file an Amended Motion with Amador Court Rule 4.03(d)stated on the front
21

22 page of the motion, with Service Upon Counsel McGrath., Filing Proof Of Service, and included with

23 the Motion, submit, Defendant’s Declaration, Memorandum of Points and Authorities and a Proposed
24
Opinion and Order. Amador County Sherriff will serve these Rule 4.03(d) required documents, our
25
Request to Serve is attached, and upon receipt of the Proof of Service, which comes from the Sherriff to
26
Us in the mail, We will file the same, the Day it is received. 5:pm August 4th, and then file the ,
27

28

- 17 -
Memorandum of Points & Authorities
 1 Finally, Defendant Mathre requests that the Court SO ORDER the STIPULATION originally

2 submitted, so that we may close escrow, and distribute the funds. A dismissal of this Petition for the
3
Reasons submitted, will also needed to be delivered to Orange Coast Title Company, as well as the
4
Stipulation with the changes inserted by Defendant. so as to enable the by Counsel McGrath, but
5
repeatedly, at 5 hearings, been concealed from the Court’s review. We pray the court order that the
6

7
Counsel, deliver the Opinion and Order as well as the Stipulation for Distribution of Sale Proceeds, to

8 Realtor, Escrow Officer Lender and General Ventures CEO, Tariq Faridi.

10

11

12
Dated: August 3rd, 2021 __________________________________
13 Denise Mathre
14
Pro Se

15

16

17

18

19

20

21

22

23

24

25

26

27

28

- 18 -
Memorandum of Points & Authorities
 1 MOTION EXHIBITS
Case No. 20PRT01931
2 Attachments of 5 Items Request by the Clerk of the Court Exhibits 1-5 Below
3

4
Exhibit 1: Amened Motion
5

6 Exhibit 2: Defendant’s Declaration Proposed Answer to Complaint.

7
Exhibit 3: Proposed Opinion and Order
8
Exhibit 4: : Memorandum of Points and Authorities
9

10 Exhibit 5: Declaration of General Ventures CEO Tariq Faridi, Third Party Beneficiary
11
NAMES OF FIVE EXIHIBITS SUBMITTED AND ON FILE FOR 07/09/21 HEARING
12 List of Exhibits From the filing on 00/00/2021 for the 07/09/21 Hearing – Never Reviewed
13
Exhibit A: Stipulation for Distribution of Sale Proc
14 Exhibit B : Bryan Berney Email.
15 Exhibit C: Stipulation for Distribution of Sale Proc WITH Exhibit B Wording Added
Exhibit D: Purchase and Sale Agreement. (Exhibit D)
16
Emails From Mile Zweig Loan Office.
17
Exhibit 6: Emails From Josh Mettee Realtor.
18 Exhibit 7: Emails between Tariq Faridi and James McGrath.
19 Exhibit 8: Appraisal for $234,000 on Vacant Land Parcel

20

21

22
.
23

24

25

26

27

28

- 19 -
Memorandum of Points & Authorities
 1 EXHIBIT 1

2 AMENDED MOTION 2.03 (D)PROPOSED ANSWER TO COMPLAINT

3

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

- 20 -
Memorandum of Points & Authorities
 1 EXHIBIT 2

2 OPINON AND ORDER

ALLEGATIONS & STATEMENTS
3

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

- 21 -
Memorandum of Points & Authorities
 1 EXHIBIT 3

2 MEMOARANDUM OR POINTS AND AUTHORITIES

3

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

- 22 -
Memorandum of Points & Authorities
 1 EXHIBIT 4

2 DECLARATION OF DEFENDANT DENISE MATHRE

3

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

- 23 -
Memorandum of Points & Authorities
 1 EXHIBIT 5

2 DECLARATION OF THIRD PARTY BENEFICIARY

GENERAL VENTURES CEO TARIQ FARIDI
3
DETAILS OF TARIQ FARIDI LAND DEVELOPMENT IN CAL CITY
4
CLOSING STATEMENTS OF GENERAL VENTURES LAND DEVELOPMENT OF THE
5 ESTATE OF CYRIL VANCE IN KETTLEMENT
6

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

- 24 -
Memorandum of Points & Authorities
 1
EXHIBIT 6
2 EMAILS FROM MIKE ZWEIG
3

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

- 25 -
Memorandum of Points & Authorities
 1 EXHIBIT 7

2 EMAILS FROM JOSH METTEE

3

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

- 26 -
Memorandum of Points & Authorities
 1 EXHIBIT 8
EMAILS FROM BRYAN BERNEY
2

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

- 27 -
Memorandum of Points & Authorities
 1 EXHIBIT 9
JAMES MCGRATH
2

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

- 28 -
Memorandum of Points & Authorities
 1
EXHIBIT 10
2 -
3

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

- 29 -
Memorandum of Points & Authorities
 1

2 EXHIBIT 11
3

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

- 30 -
Memorandum of Points & Authorities
 1 CERTIFICATE OF SERVICE FROM AMADOR COUNTY SHERRIF

2 I, ___________________, certify as follows:

3
1. At the time of service I was over 18 years of age and not a party to this action.
4
2. My Office address is: ____________, Jackson, California 95642
5
3. The electronic service address from which I served the documents is
6

7
4. On August, 03, 2021, I served the following documents:

8 NOTICE OF AMADOR COURT RULE 4.03(D)

NOTICE OF MOTION to DISMISS
9 PROPOSED OPINION AND ORDER
MEMORANDUM OF POINTS & AUTHORITIES
10
DECLARATIONS & EXHIBITS
11
5. I served the documents on the person below, as follows:
12
a. Name of person served: James McGrath
13 (Attorney of record for Charles D. and Lois L. Mathre Family Trust 1992)
14
b. Office address where person was served:
15
665 New York Ranch Road.
16 Suite 3
Jackson, California 95642
17

18 c. Electronic service address where person was served: jamcgrath@aol.com

19 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and
correct.
20

21
Executed on August 03, 2021 .

22

23 ____________________________________
Denise Mathre
24

25

26

27

28

- 31 -
Memorandum of Points & Authorities