The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS THAT PLAINTIFFS' MOTION FOR REMAND BE GRANTED OBJECTIONS DUE: 17 Days
On March 11, 2011, Defendant Eric Richard Eleson ("Defendant") filed a Notice of Removal. The notice purports to remove three petitions filed in Tuolumne County Superior Court in three separate cases that have each resulted in a final order.*fn1 Each petition seeks an order striking and releasing liens or other encumbrances on the property of public officers or employees as well as an ex parte request for an order to show cause why these liens or encumbrances should not be stricken and released. (Doc. 1, p. 8-11.)
One of the three state court actions Defendant seeks to remove, Boyack v. Eleson, CV56392, was filed on behalf of Judge Douglas C. Boyack. Judge Boyack's petition for expungement includes a declaration stating the following:
I received by mail a copy of a UCC Financing Statement (FORM UCC-1) Document No.: 11-7256536602 filed with the California Secretary of State on December 31, 2010, and a Financing Statement Addendum (Form UCC1Ad) Document No. 27482850008, attached hereto as Exhibit A. The respondent's UCC-1 Financing Statement was purportedly to perfect a security interest and effectuate a lien based on a "Security Agreement," "Consensual Contracts," and "Invoices." Respondent falsely stated in the Financing Statement that I signed or authorized these instruments and/or Financing Statement. There is, in fact, no contractual or other relationship that would give the respondent a security interest or lien against my assets or property.
I am aware that the respondent was imprisoned to 75 years to life after conviction for crimes prosecuted in the Tuolumne County Superior Court where I am employed as a Judge. I am also aware of two (2) recent cases in which the respondent filed similar Financing Statements, the first involving our Presiding Judge, Eric L. DuTemple (Tuolumne Superior Court Case No. CV55132) and the second involving our court's research attorney, Dana Matthews (Tuolumne Superior Court Case No. CV55133).
Both of those cases resulted in expungement of the respondent's fraudulent liens and $5,000 in civil penalties. (Doc. 1, p. 11; Doc. 5-1, Exhibit 1.) The remaining two actions Defendant seeks to remove were filed by Michael Knowles (Knowles v. Eleson, CV56401) (Doc. 1, p. 20-27; Doc. 5-1, Exhibit 9) and Donald Segerstrom, Jr. (Segerstrom v.Eleson, CV56402) (Doc. 1, p. 29-37; Doc. 5-1, Exhibit 5). Declarations of Plaintiffs Knowles and Segerstrom were included in these petitions and were similar to that of Judge Boyack.
All three matters came on regularly for hearing on March 9, 2011, and the Tuolumne Superior Court issued an order in Boyack v. Eleson, CV56392, providing as follows:
The hearing on the Order to Show Cause for the above-entitled matter came on regularly for hearing in Department One (1) of the above entitled court on March 9, 2011[,] before the Honorable William Polley, Judge of the Superior Court. Deputy County Counsel, Christopher Schimdt, appeared on behalf of the petitioner[,] and the respondent made no appearance.
The Court having considered the matter, all papers on file herein, and oral argument, finds that:
1. All notices have been given as required by law;
2. The petitioner is public official or employee;
3. The respondent filed a lien or encumbrance against the petitioner knowing it was false, with the intent to harass the petitioner or influence the petitioner in discharging his official duties in violation of California Government Code Section 6223;
4. The respondent's conduct was egregious, and after given the opportunity to respond to the petition, the respondent failed to file a response within the time required.
NOW THEREFORE, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED THAT:
1. The lien described as Uniform Commercial Code Financing Statement (Form UCC-1) Document No.: 11-7256536602 filed with the California Secretary of State on December 31, 2010; Financing Statement Addendum (Form UCC1Ad) Document No. 27482850008 is stricken, expunged, and the petitioner is released therefrom;
2. The California Secretary of State is directed to expunge or remove the above-described lien from its index; and
3. The respondent shall pay to the petitioner the sum of Five Thousand Dollars ($5,000.00) in civil penalties pursuant to California Code of Civil Procedure Section 765.040.
(Doc. 4, p. 13-14; Doc. 5-1, Exhibit 3.) Nearly identical orders were issued on March 9, 2011, in Knowles v. Eleson, CV56401 (Doc. 5-1, Exhibit 11), and ...