Polk v. County of Contra Costa

Filing 47

ORDER ; denying 28 Motion to Strike ; denying 34 Motion ; denying 36 Motion ; denying 42 Motion for Extension ; denying 43 Motion to Continue signed by District Judge Anthony W. Ishii on 3/21/14. (Nazaroff, H)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SUSAN MAE POLK,

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Appellant,

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v.

CASE NO. 1:12-CV-0290 AWI
BANKRUPTCY CASE NO.
09-14047-A-7
ORDER

COUNTY OF CONTRA COSTA,
(Docs. 28, 34, 36, 42, and 43)

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Appellee.

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Appellant Susan Mae Polk was convicted of murder in state court in 2007. She was

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provided legal representation by Appellee Contra Costa County. Appellee sought to recover the

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cost of the representation by putting a lien on real property owned by Appellant. The property was

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sold and Appellee received the relevant proceeds on February 2, 2008. Appellant challenged

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Appellee‟s right to the proceeds, but the state courts ultimately found in favor of Appellees on July

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11, 2011.

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Meanwhile, Appellant filed for bankruptcy on May 4, 2009 and received her discharge on

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August 13, 2009. After the state court confirmed Appellee‟s rights to the proceeds, Appellant

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reopened her bankruptcy to challenge Appellee‟s claims. The bankruptcy court found in favor of

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Appellee on January 31, 2012. Appellant filed the current appeal, electing to have the matter

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heard before a district court judge. The matter has been fully briefed and the court has determined

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that no hearing is necessary.

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Appellee has made a motion to strike. Appellant has made a motion for sanctions and a
number of motions relating to a hearing.

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I. Motion to Strike

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Appellee seeks to strike certain of Appellant‟s exhibits and addendums, arguing that they

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are not part of the record on appeal. Doc. 28. Appellant acknowledges that much of the objected

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to materials are not part of the record but asserts that two documents are. Specifically, Appellant

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claims Exhibits E and F (Doc. 17, 108-112) are part of the record as ER 212-215 (Doc. 24, Part 4,

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Excerpts of Record Volume 4, 55-58). However, an examination of the documents show that they

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are two separate handwritten versions of the same substantive text; they are not photocopies of

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each other. The court does not accept Exhibits E and F as part of the record on appeal, but will

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refer to ER 212-215 for the substance.

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The other materials were not part of the bankruptcy proceedings and are not part of the

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record on appeal. Fed. Rule Bankr. 8006 governs and generally, “The rule does not permit items

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to be added to the record on appeal to the district court if they were not part of the record before

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the bankruptcy court.” Zer-Ilan v. Frankford, 337 F.3d 436, 443 (5th Cir. 2003), citations omitted.

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“[A] district court functions as a[n] appellate court and applies the standard of review generally

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applied in federal court appeals.” In re Webb, 954 F.2d 1102, 1103-4 (5th Cir. 1992).

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“Documents or facts not presented to the district court are not part of the record on appeal.” United

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States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990), citations omitted. “Papers submitted to the

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district court after the ruling that is challenged on appeal should be stricken from the record on

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appeal.” Kirshner v. Uniden Corp. of America, 842 F.2d 1074, 1077 (9th Cir. 1988). “[A]bsent

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extraordinary circumstances, federal appellate courts will not consider rulings or evidence which

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are not part of the trial record.” International Business Machines Corp. v. Edelstein, 526 F.2d 37,

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45 (2nd Cir. 1975), citations omitted; see e.g. Colmenar v. INS, 210 F.3d 967, 972 n.5 (9th Cir.

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2000) (in challenging a denial of application for asylum on the basis that the Immigration Judge

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acted improperly, “a petitioner is entitled to present evidence outside the record in order to show

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that he was prejudiced by the lack of a full and fair hearing”). Appellant has not argued any form

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of extraordinary circumstance.

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However, courts may take judicial notice of facts outside the record on appeal. See United
States v. Mills, 2014 U.S. App. LEXIS 2818, *15 n.2 (5th Cir. Feb. 14, 2014); Niagara Mohawk
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Power Corp. v. Chevron U.S.A., Inc., 596 F.3d 112, 124 n.12 (2nd Cir. 2010). Appellant

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specifically requests that the materials other materials she submits be considered for judicial

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notice. Doc. 29, Appellant‟s Opposition, 3-5. Thus the exhibits are not stricken from the record,

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but they will only be considered insofar as certain facts as argued in Appellant‟s briefing are

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relevant and validly subject to judicial notice.

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II. Motion for Sanctions

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Appellant seeks to sanction Appellee under Fed. Rule Civ. Proc. 11 for making false

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statements to the court in Appellee‟s opening brief. Doc. 34, Appellant‟s Brief, 4. However,

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Appellant‟s objections go to the substance of the appeal; she disagrees with Appellee‟s

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characterization of the facts in this case. As “relief sought,” Appellant stated “I am seeking a turn

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over order of equity seized by the county from the forced sale of my home under false pretenses:

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1. that I provided the county with a „consensual lien‟ against my home; and 2. that the county

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provided me with a defense in criminal proceedings and was therefore entitled to recoup its costs.”

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Doc. 34, Appellant‟s Brief, 2. Appellant then summarizes the alleged misstatements as “the false

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claims that I (a) provided the county with a „consensual lien‟ which (b) therefore constituted a

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„security interest‟ and (c) the state court‟s award in the partition action of $193,233.04, based on

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the „consensual lien,‟ was therefore entitled to „full faith and credit‟ under the full faith and credit

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statute, 28 U.S.C. § 1738, because (d) the state court‟s order was „valid.‟” Doc. 34, Appellant‟s

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Brief, 3-4. Appellant is pro se and may not understand that these are the factual and legal issues to

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be contested in the main appeal; that Appellee does not agree with Appellant‟s facts and

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interpretations is not sanctionable. Appellee provides evidence and legal support for its positions.

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For example, to substantial the lien/security interest, Appellee cites to a deed of trust Appellant

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signed on September 2, 2005 in favor of the Contra Costa Superior Court and recorded with the

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Contra Costa County Recorder Office on September 8, 2005. Doc. 24, Part 3, Excerpts of Record

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Volume 3, 6-8; ER 110-112. There are no grounds for sanctions.

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III. Motion for Court Hearing

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The court has read the parties‟ papers and determined that no hearing is necessary. Doc.

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41. Thus, Appellant‟s motions for telephonic court hearing, legal materials during the hearing,

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extension of time, and continuance of hearing date are moot. Docs. 36, 42, and 43.

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IV. Order

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Appellee‟s motion to strike is DENIED.

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Appellant‟s motion for sanctions is DENIED.

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Appellant‟s motions for telephonic appearance, extension of time, and continuance are

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DENIED.

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IT IS SO ORDERED.
Dated: March 20, 2014
SENIOR DISTRICT JUDGE

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