Cohen's Complaint and Judgment against Kelley Lynch and
Subsequent Litigation to
Recover Misappropriated Funds
State of California, County of Los Angeles, BC338322
Cohen's Complaint and Judgment against Lynch and Richard Westin
Singer-songwriter and poet Leonard Cohen employed Kelley Lynch as his business manager beginning in 1988. For 17 years, Cohen relied on Lynch to handle his affairs so he could focus on his recording career and other creative endeavors.
In late 1994, after a successful tour in support of his latest album release, Cohen chose to spend some time at the Mount Baldy Zen Center. He remained at the Zen Center until January 1999. During this period, Cohen assumed he could rely on his expected royalties from his song copyrights, his artist royalties and writer's royalties to provide sufficient income given his modest lifestyle. However, he was soon misled into believing that his royalty income was inadequate. This necessitated the sale of his underlying intellectual properties to Sony. The sale of Cohen's song copyrights was fairly straightforward and was completed in July 1997.
During this same period, Cohen was introduced to Neal Greenberg, an investment advisor and founding principal of Agile Group. Thereafter, Cohen transferred his investment portfolio from Dean Witter to Greenberg's Agile Group. Greenberg then introduced Cohen to Richard Westin, a tax professor and tax lawyer. Cohen believed he was hiring Westin and Greenberg to protect his retirement savings.
Under the guise of "saving taxes" and "estate planning," it was proposed that a trust be created as the vehicle for the transfer and eventual sale of Cohen's artist royalty assets. Cohen intended that the proceeds of the sale would fund his retirement years and inure to the benefit of his children. Cohen's primary concern with the plan was that it be both legal and safe. However, instead of a trust, Traditional Holdings, LLC, was formed. Cohen had no idea that his children would now have no rights to his assets which funded this limited liability company.
Lynch, through ownership and management of Traditional Holdings, began withdrawing funds from the company, without Cohen's knowledge or consent, through what she called "shareholder loans." Lynch's shareholder loan withdraws of approximately $3.5 million reduced the invested funds in the Traditional Holdings investment account from a starting value of $4.7 million in December 2001 to a little under $150,000 by October 2004.
(See numerous checks written by Lynch to herself from the Traditional Holdings account and deposited into Lynch's personal bank account.)
In mid-October 2004, an informant notified Cohen that his retirement savings had been dissipated. Thereafter, Cohen began his own review of his financial affairs and discovered irregularities in his bank accounts. Cohen fired Lynch in October 2004.
On August 15, 2005, Leonard Cohen and Leonard Cohen Investments filed a complaint against Lynch and Richard Westin. All of the above information was alleged in the complaint. Cohen and Leonard Cohen Investments argued:
1) Breach of fiduciary duty against Lynch and Westin;
2) Fraud against Lynch for misrepresentation and non-disclosure;
3) Breach of oral contract against Lynch;
4) Accounting against Lynch;
5) Conversion against Lynch;
6) Constructive trust, declaratory and injunctive relief against Lynch; and
7) Negligence against Lynch and Westin.
(See Complaint against Lynch and Westin)
On August 24, 2005, Leonard Cohen's former manager Lynch was served with the summons and complaint by means of substituted service at her residence of eight years on Mandeville Canyon Road in Los Angeles.
(See Proof of Service of Summons (p. 49))
On December 5, 2005, a request for entry of default was entered by the court, as Lynch had not entered an appearance or filed any response to Cohen's complaint.
(See Request for Entry of Default (p. 84))
On May 15, 2006, the court entered a judgment on behalf of Leonard Cohen and Leonard Cohen Investments against Lynch. Because Lynch never participated in the court proceedings during the nine months the case was pending, the court entered the judgment by default in the total amount of $7,341,345.
The judgment contained several additional provisions. It provided that:
- a constructive trust be imposed on the money and property that Lynch wrongfully took and/or transferred;
- Lynch was not the rightful owner of the assets in Traditional Holdings, Blue Mist or any other entity related to Cohen;
- Lynch return the "loans" she had taken as well as anything else she improperly procured from Cohen;
- Lynch be enjoined from conveying any rights or assets to any third party so as to frustrate Cohen's interests;
- Lynch be enjoined from exercising any alleged rights in any funds or property received from Cohen; and
- Cohen had no obligation or responsibility to Lynch.
(See Default Judgment)
A calculation of damages was made by Kevin L. Prins of Moss Adams, LLP, specialists in fraud investigations and forensic accounting. The judgment amount was established based on his audit.
(See Calculation of damages by Kevin L. Prins (p. 198))
Cohen's case as to Richard Westin was eventually resolved via a confidential settlement after mediation.
Lynch's Motion to Vacate Judgment, Court Transcript and Order
In December 2013, over seven years after the entry of the default judgment, Leonard Cohen's ex-manager Lynch filed a motion to vacate default judgment. Lynch claimed she had never been properly served with the summons and complaint and that a false proof of service was filed constituting fraud. Lynch also alleged that she did not participate in the original litigation because of Cohen's alleged "tax fraud." Lynch claimed that the Traditional Holdings transaction, as well as the structure and purpose of other entities, was created for an improper tax purpose. For these reasons, Lynch asserted that the default judgment should be void.
In response, Michelle Rice, Kory & Rice, LLP, attorneys for Cohen, argued that a California registered process server made six attempts to serve Lynch with the summons and complaint at her Mandeville Canyon Road residence but received no response from anyone within the home. On his seventh attempt, on August 24, 2005, a woman answered the door but would not identify herself. The process server left the summons and complaint with the unnamed female and indicated on his declaration of diligence: "Subject not in. Subserved on "Jane Doe" - White Female, 5'7", 135 lbs, blond hair, black eyes, co-occupant." On this same day, a copy of the summons and complaint was mailed to Lynch at the Mandeville Canyon address. Lynch never denied receiving the mailed summons and complaint.
The California Code of Civil Procedure provides a means of effective service of process if a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served. A summons may be served by leaving a copy of the summons and complaint at the person's dwelling house in the presence of a person apparently in charge, followed by mailing the documents to the same address. The process server's six attempts at unsuccessful service more than qualified as reasonable diligence. Further, it is not uncommon for a person answering the door to refuse to be identified. Therefore, it is an accepted practice to name such a female person as "Jane Doe." The courts have found this practice reasonably calculated to achieve actual service and therefore valid. Thus, the substituted service on Lynch was valid.
In addition, attorney Rice argued that there was ample evidence that Lynch had actual notice of the summons and complaint, confirming that service was effectuated on Lynch. On August 24, 2005, the day of substituted service of the summons and complaint on "Jane Doe" at Lynch's residence, Cohen's then attorney Edelman received an email from Lynch stating: "If you try to serve this fraudulent law suit on me one more time, I will hold you personally responsible for mental duress." Since Edelman had no prior contact with Lynch, there is only one reasonable explanation as to how and why Lynch contacted Edelman, Lynch must have read Edelman's name and contact information from the complaint left with "Jane Doe."
Finally, as to Lynch's allegation that the various corporate entities formed to hold Cohen's assets as part of Cohen's estate and tax planning, including Traditional Holdings, were formed for an improper tax purpose, Rice argued that the evidence indicates that Traditional Holdings, Blue Mist and Leonard Cohen Investments were all formed for a valid business purpose. Nothing precluded Lynch from raising this allegation when Cohen's original complaint was pending. Lynch has not demonstrated due diligence in raising this claim seven years after the judgment was entered.
(See Opposition to Motion to Vacate Default Judgment)
On January 17, 2014, the court found that Lynch's motion was not timely filed, that Lynch did not carry her burden of proof that the declaration of the process server was false or even questionable, and that she did not act with diligence in making her motion. The court indicated that Lynch's motion was not "even colorably meritorious."
(See Reporter's Transcript of Proceedings, January 17, 2014)
On January 17, 2014, the court issued an order denying Lynch's motion with prejudice.
(See Minute Order on Motion to Vacate Judgment)
Lynch's Motion for Terminating Sanctions, Court Transcript and Order
In May 2015, now nine years after the entry of the default judgment against her, Lynch once again attempted to attack Leonard Cohen's judgment with her motion for terminating sanctions. In this motion, Lynch argued that she was entitled to equitable relief from the judgment due to alleged misconduct on the part of Cohen and his attorneys, conduct which constituted fraud upon the court. The fraud, Lynch alleged, was once again the false proof of service of the summons and complaint. Lynch repeated her argument from the 2013 motion that she was not personally served with the original summons and complaint. She attached the same declarations to this motion that she used for her earlier motion. Lynch also included additional declarations in this motion. Some of these declarations, as with her previous ones, lacked the personal signatures of the declarants as required by the court.
Cohen's attorney Rice responded to Lynch's motion noting that Lynch was seeking the same relief as sought in her 2013 motion, namely to vacate the default judgment. Thus, her motion was actually one for reconsideration and she had failed to show any new or different facts, circumstances or law that could not have been presented in her 2013 motion.
(See Plaintiff's Opposition to Defendant's Motion for Terminating and Other Sanctions)
(See Plaintiff's Evidentiary Objections to the Declarations Filed in Support of Defendant's Motion for Terminating Sanctions)
On June 23, 2015, a hearing was held on Lynch's motion terminating and other sanctions. The court determined Lynch's motion was not a timely motion for reconsideration of her previous 2013 motion. Further, the court found that the remedy Lynch was seeking was not appropriate and her motion was "fundamentally flawed." The court denied Lynch's motion stating that she had not demonstrated there was extrinsic fraud and shown no basis to set aside the default judgment.
(See Transcript of June 23, 2015 hearing)
On June 23, 2015, the court entered an order denying Lynch's motion with prejudice.
(See Order on Plaintiffs' Opposition to Defendant's Motion for Terminating and Other Sanctions)
Cohen's Notice of Renewal of Judgment, Lynch's Motion to Set Aside the Renewal of Judgment, Lynch's Motion to Tax, Reduce and/or Strike Costs, Court Transcript, Orders
On July 13, 2015, a notice of renewal of judgment was filed with the court notifying Lynch of Cohen's intention to extend the period of enforceability of the judgment for another ten years. Added to the original judgment award of $7,341,345.00 were post-judgment interest and filing costs for a new judgment amount of $14,059,183.80.
(See Notice of Renewal of Judgment)
On July 28, 2015, Lynch filed a motion to set aside the renewal of judgment. Lynch reprised the same claims that were previously heard and rejected by the court on January 17, 2014 and June 23, 2015 on her motions. In addition, Lynch now claimed Cohen lacked standing to bring suit against Lynch because Cohen should have sued on behalf of Cohen's corporate entities. Further, Lynch alleged that the constructive trust established in the default judgment was not an appropriate remedy because the property held in trust belonged to Traditional Holdings and Blue Mist, entities over which the court did not have jurisdiction.
Cohen's attorney Rice countered that with her previously filed motions, Lynch had forfeited her right to further contest the court's jurisdiction, as she had now made a general appearance in the case. Further, as to Lynch's claim that Cohen should have sued on behalf of the corporate entities, Rice asserted that Lynch cannot restate Cohen's complaint for her own nefarious purposes. Cohen's claims against Lynch were that she breached fiduciary duties owed to Cohen personally by virtue of her employment as his personal manager, not as an officer or director of his corporate entities. Finally, the constructive trust was a properly imposed equitable remedy for Lynch's conversion of Cohen's assets. Lynch had wrongfully converted to her possession Cohen's money and property, from Traditional Holdings, Blue Mist and other personal accounts of Cohen and because of such wrongful conversion, Lynch holds the property of Cohen wrongfully taken and/or transferred as constructive trustee for the benefit of Cohen.
(See Plaintiffs' Points and Authorities in Opposition to Defendant's Motion to Set Aside July 13, 2015 Renewal of Judgment)
Also on July 28, 2015, Lynch filed a motion for order to tax, reduce and/or strike costs. Lynch requested that the interest sought in the renewal of the judgment be stricken on the grounds that the claimed damages and post-judgment interest were unreasonable, excessive, and not authorized by law. Also, Lynch once again raises allegations that the judgment itself is void due to lack of service of the summons and complaint, an allegation repeatedly rejected by the court.
Attorney Rice argued that Lynch was attacking the post-judgment interest in the renewal of the judgment not the costs. A money judgment automatically accrues interest by force of law, regardless of whether it explicitly declares as much. By statute, interest accrues on the principal amount of a money judgment at an annual rate of 10 percent.
(See Plaintiff's Points and Authorities in Opposition to Defendant's Motion to Tax, Reduce and/or Strike Costs)
On October 6, 2015, the court heard arguments on Lynch's motion to set aside renewal of the judgment. The court recognized that this was Lynch's third attempt to argue that she had not been properly served with the summons and complaint and her prior two motions had been denied by the court. The judge reiterated to Lynch: "You don't have to be personally served if I am persuaded that valid sub service was made, and I am so persuaded and have been." Thereafter, the court denied Lynch's motion.
The court then heard arguments on Lynch's motion to tax, reduce or strike costs and found that her motion was actually directed to post-judgment interest that had accrued and not costs. The calculation of post-judgment interest is statutory. The court denied Lynch's motion.
(See Transcript of October 6, 2015 hearing)
On October 6, 2015, the court entered an order denying Lynch's motion to set aside July 13, 2015 renewal of judgment with prejudice.
(See Order Denying Defendant's Motion to Set Aside Renewal of Judgment)
On October 6, 2015, the court entered an order denying Lynch's motion to tax, reduce and/or strike costs.
(See Order Denying Defendant's Motion to Tax, Reduce and/or Strike Costs)
Lynch's Appeal from Order Denying Her Motion for Terminating Sanctions and from an Order Granting Cohen’s Motion to Seal Portions of Lynch's Declaration attached to her Motion
Court of Appeal of the State of California, Second Appellate District, B265753
(Appealing Los Angeles County Super. Ct. No. BC338322)
Lynch appealed the Superior Court's order denying her motion for terminating of sanctions and a separate order granting Cohen's motion to seal portions of Lynch's declaration attached to her motion.
The Superior Court originally denied Lynch's sanctions motion because she had previously filed an identical unsuccessful motion a year earlier seeking the same relief, to vacate the default judgment alleging the service of the summons and complaint was defective. That motion to vacate the default judgment had been denied because the court determined Lynch had acknowledged that she resided at the address the process server said he visited and the evidence indicated that Lynch fit the description of the woman to whom the process server said he gave the summons and complaint. Further, Lynch had contemporaneous notice of the complaint, request for entry of default judgment, and entry of the judgment, yet failed to act in a timely fashion to have the judgment set aside. Thus, the Superior Court determined that the motion for sanctions was actually a motion for reconsideration of Lynch's unsuccessful motion to vacate the default judgment. Because the motion for reconsideration was untimely, it was denied.
The Court of Appeals agreed with the lower court's determination finding that even though Lynch used the word "sanctions" in the title of her motion and the appeal, the relief she really sought was an order vacating Cohen's 2006 default judgment entered against her, making her actual request for relief an untimely request for reconsideration of the previously denied motion to vacate. Further, Lynch failed to present any new or different facts, circumstances or law to justify reconsideration of her motion to vacate the default judgment. Therefore, the Court of Appeals denied Lynch's appeal of the denial of her motion for terminating of sanctions.
As to Lynch's appeal of the sealing order, the Court of Appeals reversed the lower court with respect to three of the documents that were previously sealed but affirmed the order as to the rest of the sealed material.
(See Denial of Lynch’s appeal from the Order denying her Motion for Terminating Sanctions and reversal of Order Sealing Records with respect to three Exhibits attached to the Declaration filed by Lynch in support of her Sanctions Motion)
Cohen's Complaint, Writ of Possession and Default Judgment against Lynch for Recovery of Possession of Personal Property
State of California, County of Los Angeles, BC341120
Cohen's Complaint, Writ of Possession and Default Judgment against Lynch for Recovery of Possession of Personal Property
A year after Leonard Cohen terminated Lynch for cause, Cohen's attorneys filed an additional complaint against Lynch seeking to recover Cohen's personal property held in her possession. The complaint, dated October 11, 2005, indicated that Lynch, in her prior capacity as Cohen's business manager, continued to maintain in her possession many of Cohen's files and other items. Further, upon learning of her termination, Lynch vacated her office by removing property belonging to Cohen, which she held at her home. Though requested to return Cohen's property, Lynch refused and denied having possession of Cohen's files and other items. Cohen indicated the potential personal property in Lynch's possession included:
- Cohen's personal correspondence from 1960 to approximately 1995;
- Cohen's business correspondence from 1980 to 2004;
- a notebook of original watercolor drawings created by Cohen;
- Cohen's personal journals from 1960 to 1990, which contained his drawings, sketches, lyrics, poems, and other writings;
- Cohen's personal financial records from 1980 to 2004; and
- Cohen's original manuscript to the novel Beautiful Losers.
Cohen's attorneys requested the court issue an ex parte writ of possession for return of Cohen's personal property held by Lynch. Immediate action was required because Lynch's home was set for foreclosure and Cohen's attorneys, particularly Michelle Rice, feared that Cohen's property would be lost and/or sold off to collectors.
(See Summons and Complaint for Recovery of Possession of Personal Property)
The court issued the writ finding that Lynch had gained possession of Cohen's property through "feloniously taking." The court directed the Los Angeles sheriff's department to seize Cohen's personal property from Lynch's home. Lynch never responded to the complaint.
(See Ex parte Writ of Possession)
(See Notice of Defendant's Rights Accompanying Ex Parte Writ of Possession)
On October 18 and 24, 2005, the Los Angeles sheriff's department recovered from Lynch's home approximately 39 boxes of material belonging to Leonard Cohen.
In her biography I'm Your Man: The Life of Leonard Cohen, author Sylvie Simmons describes the execution of the writ of possession on Lynch's home conducted by attorney Rice and the sheriff's department:
Further, the boxes were found to include the following items:
- three of Cohen's original manuscripts;
- several of Cohen's personal journals, including some with sketches, drawings and poetry;
- original song lyrics (handwritten and typed);
- personal photographs of Cohen, his children, and his family members;
- Cohen's Canadian passport;
- an original tape recording of Cohen's single "Heart On";
- three PROCAN awards; and
- Cohen's personal correspondence, books and business-related documents.
The boxes were held by the sheriff's department and thereafter released to Cohen, with notice to Lynch.
(See Los Angeles Sheriff's Department Inventory, October 18 & 24, 2005)
(See Letter confirming release of Cohen's personal property to Cohen)
(See Letter to Lynch notifying her of release of property)
Since Lynch never responded to Cohen's complaint, she was declared in default by the court. Consequently, Cohen's attorneys requested the court enter a default judgment against Lynch decreeing that Cohen was the rightful owner of the property obtained pursuant to the writ of possession.
(See Plaintiff's Case Summary in Support of Default Judgment Against Lynch and Declaration of Cohen in Support of Default Judgment)
The judgement in favor of Cohen's possession of the property and against Lynch was thereafter entered.
The court on its own motion found that this case along with Cohen's complaint against Lynch to recover his misappropriated funds were related cases and should thereafter be heard by the same judge.
(See Court Order Regarding Related Cases)
Greenberg's Complaint against Cohen, Kory and Lynch; Cohen's Counterclaims;
and Dismissals by the Court
United States District Court for the District of Colorado, 05-V-1233-LTB-MJW
Greenberg's Complaint against Cohen, Kory and Lynch and Dismissal of Complaint against Kory
In 1997 Leonard Cohen sold a portion of the intellectual property rights to his music. The proceeds of the sale were distributed among three trusts and invested with Neal Greenberg's company the Agile Group. Thereafter, a second sale of Cohen's intellectual property was undertaken. This time the funds were transferred to a limited liability company, Traditional Holdings, which would serve as a deferred annuity that would begin paying out to Cohen in ten years. The funds from Traditional Holdings were invested with Greenberg's Agile Group. Lynch was charged with managing the invested funds.
Lynch began withdrawing funds from Traditional Holdings, without Cohen's knowledge or consent, through what she called "shareholder loans." Lynch's shareholder loan withdraws of approximately $3.5 million reduced the invested funds in the Traditional Holdings investment account from a starting value of $4.7 million in December 2001 to a little under $150,000 by October 2004.
(See numerous checks written by Lynch to herself from the Traditional Holdings account and deposited into Lynch's personal bank account.)
The Agile Group sent detailed statements of Cohen's investment, including all withdraws by Lynch and even warnings about the depletion of the investment principal. These statements were sent to Cohen's office. However, since Cohen was living on Mt. Baldy, they were intercepted by Lynch. Timothy Barnett of Agile Group did also provide email statements to Cohen which Cohen received and acknowledged. But these email statements failed to show any of Lynch's "shareholder loan" withdrawals and in fact, provided a balance that suggested the principal had not been depleted.
(See March 25, 2003 email statement from Barnett to Cohen showing a principal balance of $5,076,336 (p. 37))
(See May 23, 2003 email statement from Barnett to Cohen showing a principal balance of $5,073,135 (p. 41))
(See August 21, 2003 email statement from Barnett to Cohen showing a principal balance of $5,091,607 (p. 45))
(See September 24, 2003 email statement from Barnett to Cohen showing a principal balance of $5,101,443 (p. 49))
(See October 22, 2003 email statement from Barnett to Cohen showing a principal balance of $5,123,457 (p. 54))
(See November 26, 2003 email statement from Barnett to Cohen showing a principal balance of $5,166,900 (p. 59))
After Cohen filed suit in California against Lynch for the misappropriation of his funds, Cohen, through his representative Robert Kory, attempted to engage in a private negotiation with Greenberg and the Agile Group over the depletion of Cohen's investment account. The negotiations ended when Greenberg and Agile filed suit against Cohen, Kory and Lynch.
(See Amended Complaint and Jury Demand against Cohen, Kory and Lynch Part 1)
(See Amended Complaint and Jury Demand against Cohen, Kory and Lynch Part 2)
Since both Cohen and Lynch claimed ownership to the money remaining in the Agile Group investment account, approximately, $150,000, the court ordered that the funds be deposited with the court.
(See Order Permitting the Deposit of Interpleaded Funds into the Registry of the Court)
Robert Kory motioned the court for dismissal of all claims against him and the court agreed, finding that it had no personal jurisdiction over Kory.
(See Order dismissing all claims against Robert Kory)
In an effort to settle the matter with Greenberg and the Agile Group, Cohen motioned the court to compel arbitration. However, the motion was denied.
(See Press release regarding court's order denying Cohen's motion to compel arbitration)
Cohen's Counterclaims against Greenberg, Agile Group and Timothy Barnett
Cohen filed an answer to the Greenberg complaint and included several counterclaims including breach of contract, breach of fiduciary duty, fraud, negligent misrepresentation, professional negligence, aiding and abetting breach of fiduciary duty, aiding and abetting fraud, negligence, and accounting.
(See Cohen's answer and counterclaims against Greenberg, Agile Group and Barnett)
Cohen then motioned the court for dismissal of certain claims in Greenberg/Agile Group's complaint. On December 4, 2006, the court dismissed Greenberg/Agile Group's claim of interference with prospective business advantage finding there was no evidence that Cohen persuaded or intimidated prospective clients of Greenberg/Agile Group into rejecting their services. The court dismissed Greenberg/Agile Group's claim of civil extortion because nothing had been extorted by Cohen. The claim of civil conspiracy between Cohen and Kory was dismissed because Kory, as Cohen's agent, could not be held liable for a conspiracy with his principal when the agent acts within the scope of his authority and does not rise to the level of active participation in a fraud. Secondly, Greenberg/Agile Group suffered no damages. The claim that Cohen violated and conspired to violate the Colorado Organized Control Act was also dismissed because Greenberg/Agile Group suffered no damages.
(See Order dismissing certain claims against Cohen)
On April 29, 2008, Cohen filed a motion for summary judgment as to Greenberg/Agile Group's claims, including defamation/commercial disparagement, unjust enrichment, and interpleader. Further, Cohen requested that the declaratory judgment claim be dismissed as moot and that the injunctive relief sought by Greenberg/Agile Group should be denied because of their unclean hands.
(See Cohen's motion for summary judgment)
The court thereafter dismissed all claims by all parties.
(See "Boulder adviser Greenberg charged with fraud over $174 million. The SEC says the Boulder investment adviser misled investors when he put them in risky funds," The Denver Post, September 8, 2010.)
Cohen's Court Case against Lynch for Harassment and
Her Subsequent Arrest for Violation of the Protection Order
Cohen's Protection Order Obtained from the Colorado Court
County Court, Boulder, Colorado, C0072008C 000776
Leonard Cohen dismissed Lynch from her position as his business manager in October 2004. Almost immediately thereafter, Lynch began emailing Cohen several times each day. After Cohen filed his complaint against Lynch in August 2005 for her breach of fiduciary duties and conversion, Lynch increased her email campaign to 20-30 emails per day. She also began calling Cohen at his home leaving voicemail messages that were often accusatory and threatening. Cohen obtained a three-year restraining order in California against Lynch in 2005 because of the increasing menace, volume and venom in her emails and voicemail messages. That restraining order subsequently expired.
Lynch moved to Colorado in 2008. On August 19, 2008, Cohen sought and received a temporary protection order from the Colorado courts. Cohen sought the protection order on the basis of "stalking" and "threat of violence, stalking, slander, and harassment."
(See Verified Motion for Civil Protection Order (p. 16))
A hearing was held on September 2, 2008 as to whether the temporary order should be made permanent. At that hearing, Leonard Cohen's former manager Lynch appeared and agreed on the record to the entry of the permanent civil protection order.
(See Transcript of Hearing on Request to Make Civil Protection Order Permanent (p. 20))
(See Permanent Civil Protection Order)
In December 2008, Lynch attempted to have the protection order quashed. Her motion was denied by the court and it was noted: "The CT reminds the DEF that she agreed to the entry of the PPO on 9-2-08."
(See Court printout indicating denial of Lynch's Motion to Quash PPO (p. 59))
On October 1, 2009, the District Court for Boulder County, State of Colorado, issued a warrant for the arrest of Lynch (Criminal Action Number C0072009M-002691). The warrant was based on the investigation of Peace Officer Donna Teague. Investigator Teague was notified in May 2009 of emails from Lynch to Cohen in violation of the permanent protection order against Lynch issued by the court. Teague determined that the emails were in fact sent by Lynch and a warrant was issued. Said warrant is still outstanding in Colorado.
(See Warrant for Arrest upon Affidavit)
On December 16, 2016, Lynch filed a motion with the Colorado court requesting that the civil protection order issued against her on behalf of Cohen be dismissed due to Cohen's death a month earlier. In their written response, attorneys for Cohen argued that Colorado law requires that before the court will consider a modification of a protection order, the restrained party must submit a fingerprint-based criminal history record check to the court. Lynch failed to do so. Further, Cohen's attorneys pointed out that Lynch was still a fugitive from justice in Colorado due to the outstanding warrant of October 1, 2009, which had never been resolved. In 2012 Lynch was convicted in California for violations of the protection order and was currently the subject of a criminal complaint for further violations of the order. Therefore, under Colorado law, the protection order could not be modified or dismissed. Finally, Cohen's attorneys argued that despite the fact that Cohen was deceased, his business and personal affairs remain ongoing and are being managed by the representatives included in the protection order.
Attorneys Robert Kory and Michelle Rice, as affected and interested parties, also filed a response to Lynch's motion to dismiss the protection order. They argued that at the September 2, 2008 hearing in Colorado attended by Lynch, wherein she voluntarily agreed that the temporary protection order be made permanent, she specifically asked if the offices of Robert Kory were included in the protection order. The court advised her that the stay away order included Kory's offices. Therefore, the protection order remains relevant beyond Cohen's death.
(See Reply to Motion to Dismiss Protection Order)
(See Response to Motion to Dismiss Protection Order by Kory and Rice)
On January 17, 2017, the Colorado court entered an order denying Lynch's motion to dismiss the protection order because Lynch failed to comply with the Colorado statute requiring that the restrained party provide the court a fingerprint-based criminal history record check before any dismissal of the protection order be considered.
(See Order: Reply to Motion to Dismiss Protection Order)
Additionally, on January 25, 2017, the court ordered Lynch to stop sending emails to the clerks and staff of the court and required that she file any further pleadings electronically. This order was the result of numerous emails Lynch sent to the court staff between January 24 and 25, 2017.
(See Order: Emails from Defendant from Jan 24 thru Jan 25 2017)
Cohen's Registration of the Protection Order in California
Superior Court of California, County of Los Angeles, BQ033717
Despite Colorado's permanent protection order requiring that Lynch have "no contact of any kind" with Cohen and specifically, that Lynch not contact Cohen by "phone, mail, e-mail, text message or through third parties," Lynch's emails to Cohen did not abate. If fact, the emails grew more threatening and violent. The voicemail messages did stop for a period while Cohen was on the road touring in 2009 and 2010. However, by the end of 2010 through 2011, Lynch left Cohen 30 voicemail messages and sent approximately 1500 emails.
Since Cohen's ex-manager Lynch had returned to California, attorney Rice from Kory & Rice, LLP, attorneys for Cohen, domesticated the Colorado permanent civil protection order in California on May 25, 2011. California's order provides that it is permanent and acknowledged that the "out-of-state restraining order is registered, valid, and enforceable in California."
(See Register Out-of-State Restraining Order)
Lynch's Arrest and Conviction on Violations of the Protective Order
Superior Court of California, County of Los Angeles, 2CA04539
On January 25, 2012, a seven count criminal complaint was filed against Lynch by the Los Angeles City Attorney's Office for Lynch's violations of Cohen's permanent protection order. Lynch was arrested on March 1, 2012 for violation of the California registered protective order. Lynch was charged with:
Two counts of violation of Penal Code 273.6(a) - Violation Of A Restraining Order
Any intentional and knowing violation of a protective order...is a misdemeanor punishable by a fine of not more than one thousand dollars ($1,000), or by imprisonment in a county jail for not more than one year, or by both that fine and imprisonment.
Four counts of violation of Penal Code 653m(b) - Other and Miscellaneous Offenses
Every person who, with intent to annoy or harass, makes repeated telephone calls or makes repeated contact by means of an electronic communication device, or makes any combination of calls or contact, to another person is, whether or not conversation ensues from making the telephone call or contact by means of an electronic communication device, guilty of a misdemeanor. Nothing in this subdivision shall apply to telephone calls or electronic contacts made in good faith or during the ordinary course and scope of business.
(See Kelly Lynch booking photo taken after her arrest for violation of the protective order.)
(See Berkeley Crime News prints notice of Lynch's arrest.)
(See Criminal Charges against Lynch listed.)
At Lynch's arraignment hearing, bail was set at $15,000. Thereafter, a bail hearing was held on March 23, 2012, to consider additional violations of Penal Code 273.6, violation of a restraining order.
At the hearing, Cohen testified as to the number of emails he received between December 15, 2011 and February 29, 2012, approximately 800 emails, plus voicemail messages. A binder was offered into evidence. It contained five inches of paper and thousands of pages of emails covering the dates January 19 to January 21, 2012.
Further Cohen stated: "I receive phone calls that are slurred that are inflicted with alcohol, that are ugly, that are menacing, an atmosphere over the past six years of 15 to 20 e-mails a day vowing to take me down, vowing to humiliate me, vowing to bring me to some sort of fictions justice she's construed I deserve. Yes, that creates an atmosphere of fear."
The court determined that Lynch's emails were not just an annoying amount of paper and attention getting but contained positive physical threats. Further, the court indicated that with the volume of communication here, one had to be concerned with the mental stability of a person who would go to these lengths. The court concluded that there comes a moment when there is a break and something tragic can happen.
The court found no grounds to release Ms. Lynch on her own recognizance. The court raised Lynch's bail to the bail schedule, $25,000.
(See Lynch's voice mail message #1.)
(See Lynch's voice mail message #2, June 12, 2011.)
(See Lynch's voice mail message #3, June 20, 2011.)
(See Lynch's voice mail message #4.)
(See Bail Hearing Transcript)
On April 12, 2012, Lynch was convicted after a jury trial of five counts of violating a court order (Penal Code 273.6(a)) and two counts of making annoying telephone calls and sending annoying emails (Penal Code 653m). (Two counts of violation of Penal Code 653m were dropped prior to trial.)
In their sentencing report, the deputy city attorney, on behalf of the People of the State of California, argued that Lynch "poses a serious safety risk to the community at large in general, and to all the people mentioned in her letters, emails and voicemails in particular." Further, the deputy city attorney noted recent letters sent by Lynch to criminal defense attorney Bruce Cutler which implied a long-standing relationship between the two, when in reality no relationship exists. Thus, the deputy city attorney concluded that Lynch seemed to have an undiagnosed mental health issue.
Based on the mental health evaluation of Dr. Baca, the People recommended five years probation with one year in a locked mental health facility. If Lynch was unwilling to do this, the people did not feel she was a good candidate for probation and recommended that Lynch be sentenced to the maximum of five years incarceration.
(See People's Proposed Sentencing Memorandum)
(See Letters to Criminal Defense Attorney Bruce Cutler from Lynch (p.11))
(See Letter to the Court from Criminal Defense Attorney Bruce Cutler (p.54))
(See Emails to District Attorney Steve Cooley from Lynch (p.48))
(See Letter to the Court from District Attorney Steve Cooley (p.56))
(See Evaluation of Lynch by Sandra G. Baca, Psychologist (p. 58))
At a sentencing hearing on April 17, 2012, the court first denied Lynch's motion for a new trial due to newly discovered evidence because the motion contained no new evidence, just a promise of some new evidence. Further, the court was convinced that it would not render a different result even if admitted on retrial.
Cohen made a victim impact statement in which he stated:
"This eight-year ordeal of harassment of my family, my friends, my associates and myself was designed specifically to avoid or postpone the inevitable day of reckoning with the IRS, the day when she will be bound to account for the taxes she has neglected to pay on the stolen money that she received and failed to report.
"Immediately upon a forensic analysis of the theft by Moss Adams, a highly respected firm in this city, we submitted a theft loss amendment to the IRS, and this was the considered basis of their refund to me, a refund for the taxes I had paid on the stolen monies that I did not receive.
"Ms. Lynch herself, her former tax attorneys (whom she fired), her accountant who resigned, the IRS, and two courts of law, one in California, a federal court in Colorado, have long been in possession of the very same and very public forensic reports which the public defenders dared to assert we withheld, and offered this fictional withholding as justification for Ms. Lynch's daily obscenities, death threats and menacing fantasies of revenge. Ms. Lynch is in full possession of the forensic analysis. She just doesn't like it and she has gone to unacceptable lengths to ignore, discredit, threaten and vilify any person who, or institution, that has affirmed it."
The court found that the evidence here was a long unrelenting barrage of harassing behavior on the part of Lynch that spanned a number of years and was vile. No person should be subjected to that kind of targeting by anyone. Lynch had shown no remorse nor glimmer of acknowledgement of wrongdoing for her behavior. There was no confidence whatsoever that a protective order would be effective in this case because past protective orders have done nothing. The only thing that caused Ms. Lynch to cease her behavior was an inability to engage in the behavior, and when she was incarcerated the behavior stopped. The maximum sentence Lynch could face was a jail term of five years for the five counts of 273.6(a). The 653m counts would merge because the conduct that forms the basis for those is the same conduct.
The court ordered five years of summary probation, during that five-year period Lynch would serve 18 months in the county jail with credit for time served. The statute required she undergo domestic violence counseling while jailed. The court also ordered a year of anger management, alcohol counseling and psychiatric counseling. The court ordered protective orders for Kory, Rice and Bruce Cutler.
(See Sentencing Hearing)
(See Protective Order for Michelle Rice)
(See Protective Order for Robert Kory)
Lynch's Appeal of Her Criminal Conviction of Violations of the Protective Order
Appellate Division of Superior Court of California, County of Los Angeles, BR 050096 and BX 001309
Lynch appealed her criminal conviction claiming that her voicemail messages left for Cohen and her emails messages sent to him admitted as evidence against her at trial had not been properly authenticated. Further, Lynch argued that her telephone calls and emails were protected by the First Amendment and were also for a legitimate business purpose.
The appellate court found that Cohen's recognition of Lynch's voice on the telephone messages and his identification of Lynch as the sender of the emails was sufficient to allow authentication. Further, the court rejected Lynch's First Amendment argument because Lynch's conduct of making repeated telephone calls and sending thousands of emails to annoy Cohen was not constitutionally protected. Finally, the court determined that it was within the province of the jury to disbelieve Lynch's testimony that the calls and emails had a legitimate business purpose.
The court disagreed with Lynch's claim that she was denied her right to call a witness because she was aware of the witness long before trial yet failed to secure his attendance. The court rejected Lynch's claim that she was never served with the California restraining order because service was not required. Lynch also alleged prosecutorial misconduct but the court noted that Lynch failed to object to any misconduct at her trial nor request a jury instruction to disregard the purported impropriety.
Lynch's conviction was affirmed.
(See Appellant's Opening Brief (p. 196))
(See Respondent's Brief (p. 214))
(See Appellate Opinion on Conviction)
Lynch also filed a petition for writ of habeas corpus. Lynch's petition was denied.
The court found that the evidence presented at Lynch's trial showed that Lynch called Cohen dozens of times and sent him thousands of emails. Many of the calls and emails contained threats to Cohen's personal safety and directed profane insults at him, and the calls and emails continued even after a Colorado protection order was registered in California. Lynch testified at her trial and admitted she made the calls and sent the emails, but asserted they were made and sent for the legitimate business purpose of trying to obtain financial information from Cohen so she could prepare her tax returns regarding income she received while working for him.
The petition is denied for failure to provide any documentary evidence to support her arguments. The petition is also denied because none of Lynch's numerous arguments warrant granting relief. In arguing ineffective assistance of counsel, Lynch did not demonstrate in her petition that "there is a reasonable probability that but for counsel's unprofessional errors, the results of the proceedings would have been different." The proof at trial of Lynch's guilt was extremely strong. Given the content of the calls and emails, and the implausibility that they were made and sent for a legitimate business purpose, there is no reasonable probability of a different outcome with respect to her conviction. Lynch's arguments regarding false evidence and violation of due process fail due to insufficient showing of prejudice.
(See Opinion and Order Denying Writ of Habeas Corpus)
Lynch's Motion to Set Aside/Vacate California Registration of Colorado's Permanent Protection Order
Superior Court of California, County of Los Angeles, BQ033717
Lynch filed a motion to vacate the California registration of the Colorado permanent protection order. She argued that the California registration wrongfully modified the Colorado order into a domestic violence order. Also, the registration was void and unenforceable because no hearing was held and the California registration was never personally served on her. But Rice, attorney for Cohen, argued that the form registering out-of-state protection orders specifically provided that no hearing was required and the form was mandatory when registering an out-of-state order issued under the anti-stalking laws of the issuing state. Colorado issued its protection order on behalf of Cohen under their anti-stalking laws. Further, California law provided no notification of the act of registration of the foreign order was required.
(See Plaintiff's RJN in Support of Opposition to Vacate PPO)
At a hearing held on September 1, 2015, Lynch appeared along with Cohen's attorney Rice.
The court found Lynch's motion was not filed within six months of the entry of the order or Lynch's knowledge of entry of the order. Therefore, the motion was untimely filed. The motion was also based on grounds that were or could have been raised during the criminal proceedings against Lynch. Therefore, the issues either had already been adjudicated or they had been waived because of Lynch's failure to raise them. Finally, the court found that the registered protection order was under California law.
The court determined that "there is an order. It's been upheld by an appropriate court after elaborate and full due process proceedings." Thereafter, the court denied Lynch's motion.
(See Transcript of 09 01 2015 Motion to Set Aside Domestic Violence Order)
On September 9, 2015, the court entered an order denying Lynch's motion to set aside the California registration of Cohen's Colorado permanent protection order.
(See Order Denying Motion to Set Aside DV Order)
Lynch's Arraignment on Violations of the Protective Orders
Superior Court of California, County of Los Angeles, 6CJ03685
On December 6, 2016, a Misdemeanor Complaint was filed against Lynch based on her numerous alleged violations of the California protective orders entered on behalf of Leonard Cohen, Michelle Rice and Robert Kory. The complaint enumerated 16 counts of violations by Lynch. One count in the complaint was documented by a police report filed by Cohen regarding Lynch's numerous emails sent to him on July 27-29, 2016 and a letter contained in a white envelope delivered to him from Lynch. Additional counts included Lynch's repeated emails and phone calls to Rice and Kory including calls threatening to inflict injury on Rice and Kory and members of their families. Upon the execution of the complaint, a warrant was issued for the arrest of Lynch.
(See Misdemeanor Complaint against Lynch)
(See Los Angeles Police Investigative Report dated September 1, 2016)
On January 13, 2017, Lynch appeared before the court on the Misdemeanor Complaint alleging violations of the protective orders entered on behalf of Leonard Cohen and his attorneys Kory and Rice. Lynch requested an adjournment of her arraignment in order that she might seek legal counsel. The city attorney informed the court of her concern that any delay in the arraignment would result in further emails by Lynch to the victims Kory and Rice. Further, Lynch allegedly had made death threats against people related to the case but outside the court's jurisdiction. The city attorney noted that she feared for the safety of the community. The court issued protective orders on behalf of Kory and Rice (Cohen had passed away on November 7, 2016) and rescheduled Lynch's arraignment for January 26, 2017.
(See Transcript of Lynch arraignment January 13, 2017)
Lynch entered a plea of not guilty at her arraignment on January 26, 2017.
Lynch appeared before the court without counsel on August 1, 2017 for a preliminary hearing. An amended misdemeanor complaint was filed adding an additional violation of the protective order. Also, by order of the court, further violations of the protective orders entered on behalf of Kory and Rice were added to the complaint for a total of 31 counts against Lynch. Lynch was arraigned and entered a plea of not guilty to the additional counts. A pretrial hearing, motion and bail review are scheduled for September 8, 2017.
(See Amended Misdemeanor Complaint against Lynch)
(See Minute Order dated August 1, 2017)