Petition for Writ of Certiorari — Michael A. Weiss, Individually and as Executor of the Estate of Jane L. Marsh, Deceased, Petitioner v. Stephen D. Marsh, as Executor of the Estate of Monroe F. Marsh, Deceased, et al.

Supreme Court briefOct 9, 2018

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Text

No.___________

IN THE SUPREME COURT OF THE UNITED

STATES

ESTATE OF JANE L. MARSH, and MICHAEL WEISS

Petitioners.

vs.

STEPHEN D. MARSH and DAMON MARSH,

Respondents

___________________________

ON PETITION FOR A WRIT OF CERTIORARI TO

CALIFORNIA COURT OF APPEALS, DISTRICT 4, DIV 3

_______________________________________________________

PETITION FOR WRIT OF CERTIORARI

Michael A Weiss Bar # 175272

LAW OFFICE MICHAEL WEISS

63 Lakefront Irvine, California 92604

949-654-9919 Attorney for Petitioners

michael-weiss@msn.com

QUESTIONS PRESENTED

LIST OF PARTIES:

1. On the merits and as applied to the facts and evidence in

Stephen Marsh and Damon Marsh, Individually and as

this case did specified principles of fundamental justice,

Co-Executors of Estate of Monroe F. Marsh; and, Michael

including unclean hands, constitutionally prohibit the court

Weiss, Individually and as Executor of Estate of Jane L.

from affirming distribution of property not belonging in the

Marsh.

estate of Monroe F. Marsh.

TABLE OF CONTENTS

2. As a question of law could the court constitutionally deny

QUESTION PRESENTED

-i-

or ignore principles of fundamental justice by confirming

LIST OF PARTIES

-ii-

lack of standing under prior opinions without considering

JURISDICTION & STATUTORY BASIS

proffered material changes in law and facts occurring since

CONSTITUTIONAL CLAUSES & STATUTES

the time of opinions.

STATEMENT OF THE CASE

3. Was the U.S. Constitution Fourth Amendment infringed

ARGUMENT

upon by the pre-trial seizure of petitioners property due to

APPENDIX TABLE OF CONTENTS

lack of probable cause or mode of execution.

1. OPINION FILED 4-11-18 Granting Motion To

Page

Dismiss Appeal G054796

2. OPINION FILED 4-11-18 Granting Motion to

Dismiss Appeal G054553

2A ORDER FILED 7-11-18 S248967 re PR (G054796) 50

2B ORDER FILED 7-11-18 S248966 re PR (G054553) 50

11. Constitutional Clauses & Statutes Involved

3. ORDER FILED 7-21-17 Court will review

12. Time, Method & Manner of Raising &

motion to recall remittitur in G052082

Denying Federal Issues

in conjunction with appeals

4. ORDER FILED 12-14-17 G052082 re Remittitur

Recall Denied

5. ORDER FILED 7-21-17 G052208 re Remittitur

Recall Motion

6. ORDER FILED 12-14-17 G052208 re Remittitur

Recall Denied

7. ORDER FILED 7-21-17 G045474 re Remittitur

Recall Motion

8. ORDER FILED 12-14-17 G045474 re Remittitur

Recall Denied

9. ORDER FILED 4-26-18 G054796 Petition for

A. Unclean Hands re $640,000 cashier check

B. JLM Notice of Election to take Under Law

C. Ct Appeal Acknowledge Heir Could Pay

Mortgage

D. U.S. Constitution Rights

E. Unfairness Issue

F. Fundamental Principles

G. False Recitals in Orders

13. Other Materials Essential to

Understanding the Petition

A. Trust Deed Payoff Docs (Partials)

B. Community Earning Docs (Partials)

101

Rehearing Denied

10. ORDER FILED 4-26-18 G054553 Petition for

Rehearing Denied

iii

TABLE OF AUTHORITIES

Bollinger v. National Fire Ins. Co. of Hartford, Conn. (1944) 25

Cal.2d 399 [154 P.2d 399]. . . . . . . . . . . . . . . . . . . . . . . . . . . 28

CASES

2012 WL 385441. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

2014 WL 266-7709. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Borer v. Chapman (1887) 119 U.S. 587 [7 S.Ct. 342, 30 L.Ed.

532]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Briggs v. Brown (2017) 3 Cal.5th 808 [221 Cal.Rptr.3d 465]

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

2016 WL 658-1173. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Chambers v. Mississippi (1973) 410 U.S. 284 [93 S.Ct. 1038]. 16

2018 WL 173-7161. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

47 S.Ct. 616. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

5. Probate Code 11621.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Chapman v. Board of County Com’rs of Douglass County (1883)

107 U.S. 348 [17 Otto 348, 2 S.Ct. 62, 27 L.Ed. 378].. . . . . 39

City of Los Angeles v. City of San Fernando (1975) 14 Cal.3d

199 [123 Cal.Rptr. 1; 537 P.2d 1250]. . . . . . . . . . . . . . . . . . . 2

71 L.Ed. 1013. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Coburn v. Goodall, 72 Cal. 498 [14 P. 190, 193].. . . . . . . . . . . 32

93 L.Ed. 1282]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Code of Civ.Proc. 1908.5, Code of Civ.Proc. 456. . . . . . . . . . . 23

ASARCO Inc. v. Kadish (1989) 490 U.S. 605 [109 S.Ct. 2037,

104 L.Ed.2d 696]. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 15, 18

Abstract Investment Co. v. Hutchinson (1962) 204 Cal.App.2d

242. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Ashcroft v. Iqbal (2009) 556 U.S. 662 [129 S.Ct. 1937, 173

L.Ed.2d 868]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Bailey v. Taaffe (1866) 29 Cal. 422. . . . . . . . . . . . . . . . . . . . . 16

Barry v. Edmunds (1886) 116 U.S. 550 [6 S.Ct. 501, 29 L.Ed.

729]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Batson v. Kentucky (1986) 476 U.S. 79 [106 S.Ct. 1712, 90

L.Ed.2d 69]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Code of Civ.Proc. 456 Code of Civ.Proc. 430.80.. . . . . . . . . . . 23

Conley v. Gibson (1957) 355 U.S. 41 [78 S.Ct. 99, 2 L.Ed.2d 80].

Cox Broadcasting Corp. v. Cohn (1975) 420 U.S. 469 [95 S.Ct.

1029, 43 L.Ed.2d 328]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Creswill v. Grand Lodge Knights of Pythias of Georgia (1912)

225 U.S. 246 [32 S.Ct. 822, 56 L.Ed. 1074]. . . . . . . . . . 14, 18

De Garmo v. Goldman (1942) 19 Cal.2d 755 [123 P.2d 1]. . . . 12

DeMarco v. U.S. (1974) 415 U.S. 449 [94 S.Ct. 1185, 39

L.Ed.2d 501]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Douglas v. State of Ala. (1965) 380 U.S. 415 [85 S.Ct. 1074, 13

L.Ed.2d 934]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

In re Broderick’s Will (1874) 88 U.S. 503 [22 L.Ed. 599].. . . . 20

Eastern Bldg. & Loan Ass’n v. Ebaugh (U.S.S.C. 1902) 185 U.S.

114 [22 S.Ct. 566, 46 L.Ed. 830]. . . . . . . . . . . . . . . . . . . . . 14

In re Marriage of Marsden (1982) 130 Cal.App.3d 426 [181

Cal.Rptr. 910]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Findlay v. Hinde (1828) 26 U.S. 241 [7 L.Ed. 128]. . . . . . . . . 29

In re Marriage of Moore (1980) 28 Cal.3d 366 [168 Cal.Rptr.

662, 618 P.2d 208].. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

First Nat. Bank of Guthrie Center v. Anderson (1926) 269 U.S.

341 [46 S.Ct. 135, 70 L.Ed. 295]. . . . . . . . . . . . . . . . . . . . . 32

In re Rose’s Estate (1889) 80 Cal. 166 [22 P. 86]. . . . . . . . . . . . 5

Fiske v. State of Kansas (1927) 274 U.S. 380 [47 S.Ct. 655, 71

L.Ed. 1108]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Kenaday v. Sinnott (1900) 179 U.S. 606 [21 S.Ct. 233, 45 L.Ed.

339]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

G054796 & G054553. Probate Code 11605. . . . . . . . . . . . . . . . 1

Laffan v. Naglee, 9 Cal. 662. . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Gardner v. Toilet Goods Ass’n (1967) 387 U.S. 167. [87 S.Ct.

1526, 18 L.Ed.2d 704]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Lujan v. Defenders of Wildlife (1992) 504 U.S. 555 [112 S.Ct.

2130, 119 L.Ed.2d 351]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Gladstone Realtors v. Village of Bellwood (1979) 441 U.S. 91

[99 S.Ct. 1601, 60 L.Ed.2d 66].. . . . . . . . . . . . . . . . . . . . . . 22

Martin v. Hunter’s Lessee (1816) 14 U.S. 304 [4 L.Ed. 97]. . . . 6

Matter of the Estate of Smith (1893) 98 Cal. 636 [33 P. 744]. . . 4

Goodfellow v. Barritt (1933) 130 Cal.App. 548 [20 P.2d 740]

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Maty v. Grasselli Chemical Co. (1938) 303 U.S. 197 [58 S.Ct.

507, 82 L.Ed. 745]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Gouled v. U.S. (1921) 255 U.S. 298 [41 S.Ct. 261, 65 L.Ed. 647].

McAllister v. Kuhn (1877) 96 U.S. 87 [24 L.Ed. 615].. . . . . . . . 8

Haynes v. State of Wash. (1963) 373 U.S. 503 [83 S.Ct. 1336, 10

L.Ed.2d 513]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

McCue v. Bradbury, 149 Cal. 108. . . . . . . . . . . . . . . . . . . . . . . 21

Haynes v. U.S. (1968) 390 U.S. 85 [88 S.Ct. 722, 19 L.Ed.2d

923]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

McLaughlin Bros. v. Hallowell (1913) 228 U.S. 278 [33 S.Ct.

465, 57 L.Ed. 835]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Hishon v. King & Spalding (1984) 467 U.S. 69 [104 S.Ct. 2229,

81 L.Ed.2d 59]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

N.L.R.B. v. Deena Artware, Inc. (1960) 361 U.S. 398 [80 S.Ct.

441, 4 L.Ed.2d 400]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Hormel v. Helvering (1941) 312 U.S. 552 [61 S.Ct. 719].. . . . 16

Nashville, C. & St. L. Ry. v. Wallace (1933) 288 U.S. 249 [53

S.Ct. 345, 77 L.Ed. 730]. . . . . . . . . . . . . . . . . . . . . . . . . 15, 17

vii

viii

Natural Soda Products Co. v. City of L. A. (1952) 109

Cal.App.2d 440 [240 P.2d 993]. . . . . . . . . . . . . . . . . . . . . . . 2

Snyder v. Com. of Mass. (1934) 291 U.S. 97 [54 S.Ct. 330, 78

L.Ed. 674]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Patrick v. Alacer Corp. (2011) 201 Cal.App.4th 1326 [136

Cal.Rptr.3d 669]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Stockwell v. McAlvay (1937) 10 Cal.2d 368 [74 P.2d 504]. . . 31

Payne v. Hook (1868) 74 U.S. 425 [19 L.Ed. 260]. . . . . . . . . . 19

Peck v. Jenness (1849) 48 U.S. 612 [12 L.Ed. 841]. . . . . . . . . 34

People v. Duvall (1995) 9 Cal.4th 464 [37 Cal.Rptr.2d 259]

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Sullivan v. Delta Air Lines, Inc. (1997) 15 Cal.4th 288 [63

Cal.Rptr.2d 74]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Swift & Co. v. Hocking Valley Ry. Co. (1917) 243 U.S. 281 [37

S.Ct. 287, 61 L.Ed. 722]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

The Haytian Republic (1894) 154 U.S. 118 [14 S.Ct. 992, 38

L.Ed. 930]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

People v. Engram (2010) 50 Cal.4th 1131. . . . . . . . . . . . . . . . 16

People v. Williams (1999) 21 Cal.4th 335 [87 Cal.Rptr.2d 412].23

Tulsa Professional Collection Services, Inc. v. Pope (1988) 485

U.S. 478 [108 S.Ct. 1340, 99 L.Ed.2d 565].. . . . . . . . . . . . . 18

Public Service Commission of Utah v. Wycoff Co., Inc. (1952)

344 U.S. 237 [73 S.Ct. 236, 97 L.Ed. 291].. . . . . . . . . . . . . . 4

U.S. v. Shotwell Mfg. Co. (1957) 355 U.S. 233 [78 S.Ct. 245, 2

L.Ed.2d 234]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Richardson v. Callahan (1931) 213 Cal. 683 [3 P.2d 927]. . . . 32

U.S. v. Stone & Downer Co. (1927) 274 U.S. 225.. . . . . . . . . . . 2

Richardson v. Ramirez (1974) 418 U.S. 24 [94 S.Ct. 2655, 41

L.Ed.2d 551]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

United States v. Atkinson (1950) 56 S.Ct. 391.. . . . . . . . . . . . . 15

Urie v. Thompson (1949) 337 U.S. 163. . . . . . . . . . . . . . . . . . . . 5

Sacramento S. F. L. Co. v. Whaley, 50 Cal. App. 125 [194 P.

1054, 1056]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Walsh v. McKeen (1888) 75 Cal. 519 [17 P. 673]. . . . . . . . . . . 26

Schware v. Board of Bar Exam. of State of N.M. (1957) 353 U.S.

232 [77 S.Ct. 752, 1 L.Ed.2d 796]. . . . . . . . . . . . . . . . . . . . 13

Webb v. Webb (1981) 451 U.S. 493 [101 S.Ct. 1889, 68 L.Ed.2d

392]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Schweiger v. Superior Court (1970) 3 Cal.3d 507 [90 Cal.Rptr.

729]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Wells Fargo & Co. v. Taylor (1920) 254 U.S. 175 [41 S.Ct. 93,

65 L.Ed. 205]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Sefton v. Sefton (2012) 206 Cal.App.4th 875 [142 Cal.Rptr.3d

174]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Wiborg v. U S (1896) 163 U.S. 632 [16 S.Ct. 1127]. . . . . . . . . 15

Williams v. State of Georgia (1955) 349 U.S. 375 [75 S.Ct. 814,

99 L.Ed. 1161]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Wyoming Pacific Oil Co. v. Preston (1958) 50 Cal.2d 736 [329

P.2d 489].. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 29

1 JURISDICTIONAL BASIS

This petition is filed under U.S. Const. Art 3 Sec 2, 28

U.S.C. 1257 and Rule 12(4), 13(3), [and 24(a)(1)], re

[116 Cal.Rptr.3d 762]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

[22 Cal.Rptr. 309. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

[69 S.Ct. 1018. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

[84 P. 993]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

STATUTES

infringement of U.S. Constitutional rights, privileges and

immunities. The date of opinions sought to be reviewed is

4-11-18 in G054796 & G054553. Probate Code 11605 [App

11] provides that the distribution orders are conclusive on

Const. Art 6 Sec 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

rights of all interested persons. See also Richardson v.

U.S. Const. Art 3 Sec 2, 28 U.S.C.1257 and Rule 12(4), 13(3),

[and 24(a)(1)]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Ramirez (1974) 418 U.S. 24, 35 [94 S.Ct. 2655, 41 L.Ed.2d

551] [right to defend property and other rights incapable of

repetition]; ASARCO Inc. v. Kadish (1989) 490 U.S. 605,

618, 619 [109 S.Ct. 2037, 104 L.Ed.2d 696]; Cox

CITATION OF OPINIONS ENTERED IN THE CASE

Broadcasting Corp. v. Cohn (1975) 420 U.S. 469, 479 [95

2012 WL 385441; 2012 WL 384625; 2012 WL 606-3534;

S.Ct. 1029, 43 L.Ed.2d 328]. If the court determines the

2014 WL 266-7709; 2016 WL 658-1173; 2016 WL 657-6490;

opinions are final disposition of the entire case and

2016 WL 667-0443; 2018 WL 173-7161; 2018 WL 173-7177

controversy then review is sought of all the opinions listed

in G054796. A petition for rehearing was denied on 4-26-18

and a petition for equity relief was denied on 5-11-18. A

petition for review was denied by California supreme Court

civil cause was proper or not and expressly acknowledged

n 7-11-18.

consolidation wit the probate matter, refused to determine

CONSTITUTIONAL PROVISIONS AND STATUTES

See App 11.

the $640,000 reimbursement allegation; and directed Jane

L. Marsh to file any new pleadings in the court sitting in

STATEMENT OF THE CASE

probate according to probate practice. Rejected was

1. For review are the opinions in G054796 & G054553

petitioners Petition for Rehearing contention that the

dated 4-11-18 and they concern, among other things, two

appeals court had no subject matter jurisdiction in

petitions in probate for distribution. The initial appeal

G044938 due to violation of Calif. Const. Art 6 Sec 1 and

decision in G044938 and all subsequent opinions (except

Art 1 Sec 26 [App 11]; so, Jane L. Marsh immediately filed

appeal over granting probate of Monroe’s last will)

11 probate petitions, 9 of which the trial court held barred

concerned only questions of law concerning petitioners

by res judicata and dismissed the other 2 as punishment

rights, privileges and immunities, per City of Los Angeles

because Weiss violated the res judicata doctrine. Yet on

v. City of San Fernando (1975) 14 Cal.3d 199, 230 [123

subsequent appeals regarding them the new 11 probate

Cal.Rptr. 1; 537 P.2d 1250], Natural Soda Products Co. v.

petitions of Jane L. Marsh were never read by Justice

City of L. A. (1952) 109 Cal.App.2d 440, 446 [240 P.2d 993]

O’Leary as revealed by her opinion in G052082 p.6 that

and U.S. v. Stone & Downer Co. (1927) 274 U.S. 225, 231 &

Jane L. Marsh apparently never made a claim for

235, 47 S.Ct. 616, 71 L.Ed. 1013. G044938 concerned

reimbursement of the $640,000. And even when paragraph

whether the sustained first demurrer to Jane L. Marsh’s

14 of Jane L. Marsh’s Four Combined Petitions which did

make such claim was expressly pointed out to her in a

judgment in Code of Civ.Proc. 963 [today 904.1(a)(1)] as

motion to recall remittitur in G052082 (see App 3, 5, & 7)

meaning only those judgments known at common law as

she failed to acknowledge the inaccuracy of her previous

final judgments and that probate “orders” [listed today in

error in that regard or correct any other plain miscarriage

Probate Code Code of Civ.Proc. 904.1(a)(10) referring to

of justice by denying the motions to recall remittitur (no

those specified in Probate Code 1300 and 1303], were not

hard copies provided except App 4, 6 & 8) calling them all

final orders. In re Rose's Estate (1889) 80 Cal. 166, 169-170

frivolous as shown in the courts G054796 opinion. The

[22 P. 86] similarly defined final judgment as provided in

current appeal opinions determined petitioners never had

Code of Civ.Proc. 577. This Court will recognize the binding

standing since G052082 which itself relied on G044938;

effect of state court preclusion determinations as well as

and, will never in the future have standing. See Public

their built in state law limitations due to fraud and/or lack

Service Commission of Utah v. Wycoff Co., Inc. (1952) 344

of jurisdiction as provided in Code of Civ.Proc 1917 and

U.S. 237, 246-247 [73 S.Ct. 236, 97 L.Ed. 291 ]. That is why

Code of Civ.Proc 1916 [App 11]; but, may determine same

G054796 and G054553 might be deemed a final judgment.

is not an independent and adequate ground of decision and

Code of Civ.Proc. 577 [App 11] defines final judgment as

instead apply those fundamental principles of justice

the final determination of the rights of the parties. Rights

necessary to prevent and/or correct miscarriage of justice.

include procedural and substantive; but, the California

G054796 and G054553 are specified as grounded on law of

Supreme Court In the Matter of the Estate of Smith (1893)

the case doctrine; but, if they have the effect of a

98 Cal. 636, 640 [33 P. 744] interpreted the term final

permanent procedural or substantive bar then Urie v.

Thompson (1949) 337 U.S. 163, 172-173 & FN 12 [69 S.Ct.

exception to the final judgment rule by themselves, and

1018, 93 L.Ed. 1282] which held law of the case doctrine

then only address the issue of law question presented to it

was not applicable and hence reached all federal questions

by petitioners.

determined by the court of appeals even those from prior

2. On February 04, 2010 petitioner Weiss purchased a

appeals; and Martin v. Hunter's Lessee (1816) 14 U.S. 304,

cashiers check which he loaned to his mother Jane L.

358-359 [4 L.Ed. 97] which held that review in the U.S.

Marsh (hereafter JLM) and she used it to acquire a

Supreme Court included the whole final case and

reconveyance deed after her husband Monroe died and

everything including two prior writs of error because the

defaulted under his trust deed. The February 04, 2010

lower court did not comply with remittitur directions, will

$638,963.86 Cashiers check shows it was purchased by

permit discretionary resolution of all the federal questions

Michael Weiss and is found in the current record on appeal

raised and decided by the court of appeals. That possibility

(hereafter ROA) which incorporated by reference all prior

raises the question whether the unfinished business under

ROA’s in all prior appeals. And see hereto App 13A, App

the opinion in G044938 which expressly left unresolved the

12A, and App 12C. The $638,963 cashiers check was

issue(s) regarding reimbursement of Jane L. Marsh’s

always accompanied with Monroe’s trust deed, the

$640,000 (rounded for simplicity) is now finished or must

assignment of said trust deed to MERS; MERS

await a final distribution decree and order releasing the co-

reconveyance deed; Jane’s Affidavit of Surving Spouse, Fed

executors. Alternatively this court may just exercise its

Ex bill for shipment to Financial Freedom, and Orange

discretion to review the distribution etc opinions as an

County Recorders office bill for Monroe’s death certificate

when those documents were filed as part of the ROA’s. The

determinations.] Jane L. Marsh has consistently from the

construction and effect of that cashiers check, as with other

beginning given notice that she has elected to take her

written instruments, was a question of law. The

rights and property interests under law including the

respondents brief in the current appeals contended the

irrevocable effect of same under federal law and not

$638,963 cashiers check was theirs free and clear and that

Monroe’s last will, see App 12B; and hence petitioners civil

presented a false and fictitious issue as did the appellate

claims, complaints and rights were diametrically different

opinions affirming the appeals. See G054796 Respondents

from the probate matter, see The Haytian Republic (1894)

Opening Brief p. 51 para c; and petitioners response in

154 U.S. 118, 129 [14 S.Ct. 992, 38 L.Ed. 930] and Code of

Opposition to Motion to Dismiss Appeal p. 39; See Swift &

Civ.Procedure 427.10 (see App 11); but, were nonetheless

Co. v. Hocking Valley Ry. Co. (1917) 243 U.S. 281, 288, 289

consolidated for all purposes.

[37 S.Ct. 287, 61 L.Ed. 722], and McAllister v. Kuhn (1877)

3. Unfair taking of petitioners property was revealed by the

96 U.S. 87, 89 [24 L.Ed. 615]. Respondents Motion to

following RT excerpts.

Dismiss Appeal in G054553 p. 10 and p. 36, and a virtually

G052208 RT OF 6-30-2015 [TO CONFIRM SALE OF REAL

identical motion in G054796, contended that lack of

PROPERTY]

standing was decided as a matter of law. See Ashcroft v.

[Pages 5:10-12; 6:19-23; 8:19-22; 19:26 thru 20:1; 21:10-

Iqbal (2009) 556 U.S. 662 [129 S.Ct. 1937, 173 L.Ed.2d 868]

13; and 24:14-20 and 23-25:4]

[ruling on demurrers and the like represent abstract legal

THE COURT: YOU DON'T HAVE STANDING. WHAT'S

determinations not classified as fact bound

THE BASIS FOR STANDING? MR. WEISS: THAT'S MY

$640, 000. MR. WEISS: BECAUSE JANE BORROWED

NO OPINION AS TO THE SUBJECT OR STATUS OF

640, 000 FROM ME TO PAY THE REVERSE MORTGAGE

ANY CLAIM BY JANE FOR REIMBURSEMENT FROM

ON THIS LAND. SHE WAS GIVEN A DEED, A

THE ESTATE FOR THE $633, 061 ALLEGED TO HAVE

RECONVEYANCE DEED. I CURRENTLY HOLD THE

BEEN USED BY JANE TO PAY OFF THE REVERSE

ORIGINAL OF THAT RECONVEYANCE DEED. THAT

MORTGAGE. " AFTER THIS OPINION CAME OUT,

DEED IS PART OF THE CHAIN OF TITLE. THEY

THERE WAS A MOTION TO REOPEN THE HEARINGS

DIDN'T EVEN OFFER TO PAY ME THAT 640, 000 THAT

AND TO MAKE THE CLAIM FOR REIMBURSEMENT.

I WORKED 30 YEARS AS AN ATTORNEY TO GET.

THERE WAS A CREDITOR'S CLAIM FILED AT THE

THAT'S MY MONEY. THAT HAS NOT BEEN PAID

BEGINNING THAT CLAIMED IN THE ALTERNATIVE,

BACK. I HAVE SUBROGATION RIGHTS UNDER JANE,

EITHER GIVE ME THE $640, 000 OR GIVE ME THE

MY MOTHER. MR. MAGRO: BUT-FURTHERMORE

TITLE. YES, THERE CERTAINLY HAS BEEN

..FURTHERMORE, WE WOULDN'T TAKE IT UNDER

DEMANDS FOR REIMBURSEMENT. THEY HAVE

ANY CIRCUMSTANCES. MR. WEISS: SHE LEFT

NEVER TENDERED THE 640 BACK, LET ALONE GIVE

EVERYTHING TO ME INCLUDING THIS $640, 000

ME THE 640 BACK.

MATTER. MR. WEISS: I DO HAVE THE COURT OF

G054796

APPEAL OPINION. AND I GAVE IT TO YOU IN THE

PROCEEDINGS TUESDAY, JANUARY 11, 2017

FORM OF THE OBJECTIONS. AND THIS IS THE

[PRELIMINARY DISTRIBUTION]

COURT OF APPEAL OPINION AT 938, "WE EXPRESS

REPORTER'S TRANSCRIPT OF

[Page 6:11-13 and 7:1-4]

NUMBER 2, JANE HAS HER OWN CREDITOR'S CLAIM

U.S. 298, 312 [41 S.Ct. 261, 65 L.Ed. 647] and De Garmo v.

AS WELL AS A CLAIM TO TITLE. IT WAS JANE WHO

Goldman (1942) 19 Cal.2d 755 [123 P.2d 1]. Mr. Magro also

PAID THE $640,000 MORTGAGE. I WAS THE ONE WHO

told Judge Belz that he would get a order to carry out the

LOANED JANE $640,000. THEY NEVER REPAID THAT

sale notwithstanding appeal in order to prevent shennigans

640,000 YET THEY WENT AHEAD AND SOLD THE

in the appeals court by Weiss so that “we’ll” have a binding

PROPERTY AND NOW THEY WANT TO GIVE IT (the

sale and Mr Magro altered the terms of sale at the hearing

proceeds) TO THEMSELVES AND THEIR ATTORNEYS.

which was also unfair because prohibited by probate code

4. When Respondents attorney Mr. Magro told Judge Belz

statute. 6-30-15 RT 15:13 through 16:2 and 26:16-17. And

Furthermore-furthermore they would not sell the Irvine

Respondents deed to the purchasers never complied with

condo to petitioners for any price nor on any terms, he and

Probate Code 10314 [App 11].

the appeals court had a Probate Code 10313(a)(3) [App 11]

5. Probate Code 11621(a) [App 11] required respondents to

and U.S. Constitutional obligation to conduct an immediate

plead and later prove “at the hearing” that distribution can

inquiry into unfairness just as they did when Weiss told

be made without injury to any interested person or loss to

Judge Belz he loaned the $640,000 of Jane L. Marsh which

any creditor; but, the ten page 1-10-17 RT in G054796 &

respondents were distributing; but, they did not. Cf. Batson

G054553 shows that no evidence was introduced, admitted

v. Kentucky (1986) 476 U.S. 79, 95 [106 S.Ct. 1712, 90

or considered rather just “Petitions Approved.” The U.S.

L.Ed.2d 69], U.S. v. Shotwell Mfg. Co. (1957) 355 U.S. 233,

Constitution due process clause was also infringed because

242 [78 S.Ct. 245, 2 L.Ed.2d 234], Gouled v. U.S. (1921) 255

the appeal opinions are based on stale or no evidence. See

Schware v. Board of Bar Exam. of State of N.M. (1957) 353

not permitted and the Statute of Limitations ran.

U.S. 232 [77 S.Ct. 752, 1 L.Ed.2d 796], Barry v. Edmunds

7. The U.S. Constitution was violated because of plain error

(1886) 116 U.S. 550, 559 [6 S.Ct. 501, 29 L.Ed. 729],

when the court affirmed distribution of $640,000 of Jane L.

Creswill v. Grand Lodge Knights of Pythias of Georgia

Marsh’s separate money and more to her deceased

(1912) 225 U.S. 246, 261 [32 S.Ct. 822, 56 L.Ed. 1074],

husbands last will devisees. The appeal opinions rest upon

Fiske v. State of Kansas (1927) 274 U.S. 380, 385-386 [47

that courts erroneous interpretation of fundamental

S.Ct. 655, 71 L.Ed. 1108]; and Eastern Bldg. & Loan Ass'n

principles of law, see ASARCO Inc. v. Kadish (1989) 490

v. Ebaugh (U.S.S.C. 1902) 185 U.S. 114, 121 [22 S.Ct. 566,

U.S. 605, 617 [109 S.Ct. 2037, 104 L.Ed.2d 696] and

46 L.Ed. 830] [judicial notice is not evidential proof of fact].

Nashville, C. & St. L. Ry. v. Wallace (1933) 288 U.S. 249,

6. The respondent briefs said concerning the $640,000

264 [53 S.Ct. 345, 77 L.Ed. 730] because said constitution

(hereafter RB) in G052082 and G052208 at page 12 FN.1

required all judicial branches to do justice by administering

and RB in G054754 at page 14 FN.1 stated in part “the

proceedings pending before it in a manner consistent with

respondents recognize that in equity Jane Marsh

the ends of justice, meaning to apply the correct principle of

would have a claim for that amount...” See Haynes v.

law, or its implied exception if miscarriage would otherwise

U.S. (1968) 390 U.S. 85, 100-101 [88 S.Ct. 722, 19 L.Ed.2d

result, per Wyoming Pacific Oil Co. v. Preston (1958) 50

923] and Williams v. State of Georgia (1955) 349 U.S. 375,

Cal.2d 736, 740 [329 P.2d 489], Wiborg v. U S (1896) 163

390 [75 S.Ct. 814, 99 L.Ed. 1161]. Respondents therein

U.S. 632 [16 S.Ct. 1127], at p. 658, United States v.

opined in advisory fashion that alternative pleading was

Atkinson (1950) 56 S.Ct. 391, at p. 160 [if plain error was

committed in a matter so absolutely vital to a party; or,

8. Petitioners on numerous times, to the point of futility,

where the plain error otherwise seriously affects the

see Douglas v. State of Ala. (1965) 380 U.S. 415, 421 [85

fairness, integrity, or public reputation of a judicial

S.Ct. 1074, 13 L.Ed.2d 934], have raised their rights,

proceeding, such errors may be determined even though not

privileges and immunities under the U.S. Constitution

raised in courts below]; Chambers v. Mississippi (1973) 410

which were summarily denied. See App 12D.

U.S. 284 [93 S.Ct. 1038] at p. 302; Hormel v. Helvering

9. Petitioners, on numerous times, to the point of futility

(1941) 312 U.S. 552 [61 S.Ct. 719] [ordinary rules of

have complained of unfairness which were summarily

procedure do not require sacrifice of the rules of

denied. See App 12E.

fundamental (constitutional) justice]; Bailey v. Taaffe

10. Petitioners on numerous times, to the point of futility

(1866) 29 Cal. 422, at p. 423 [Orders like the present rest

have argued infringement of those fundamental principles

very much in the discretion of the Court below, and will not

which were summarily denied . See App 12F.

be disturbed by this Court unless the order is so plainly

11. Petitioners on numerous times, to the point of futility

erroneous as to amount to an abuse of discretion.];Briggs v.

have complained of false recitals in proposed orders which

Brown (2017) 3 Cal.5th 808, 860 [221 Cal.Rptr.3d 465]

were summarily denied. See App 12G.

[balancing act fairly included in state decision]; People v.

ARGUMENT AMPLIFYING RULE 10 (b) and (c)

Engram (2010) 50 Cal.4th 1131, 1146 & 1151 [116

REASONS FOR CERTIORARI

Cal.Rptr.3d 762]; and People v. Duvall (1995) 9 Cal.4th 464

12. The fundamental constitutional law petitioners raised

[37 Cal.Rptr.2d 259], at p. 482.

consists of those rules fundamental to the ends of justice

and justiciable controversy. Nashville, C. & St. L. Ry. v.

question see Creswill v. Grand Lodge Knights of Pythias of

Wallace (1933) 288 U.S. 249, 262 [53 S.Ct. 345, 77 L.Ed.

Georgia (1912) 225 U.S. 246, 259 [32 S.Ct. 822, 56 L.Ed.

730]. Under such fundamental law every state statute

1074]; but, under ASARCO Inc. v. Kadish (1989) 490 U.S.

containing a rule of procedure, evidence, or even a rule of

605, 623 [109 S.Ct. 2037, 104 L.Ed.2d 696] the federal

substantive law must yield to the fundamental rules if

issues raised by a defendant in a state court are those he

miscarriage would otherwise result. Likewise any acts,

shows standing to continue pursuit of in the federal court.

orders or judgments of the judicial branch, must yield when

13. Under fundamental fairness principles in the U.S.

required by the ends of justice to prevent and/or later to

Constitution due process clause and California Probate

correct miscarriage of justice. Arbitrary substantive or

Code 39 [App 11] which provided in part: ”Fiduciary:

procedural decisions are unconstitutional whether coming

“Fiduciary” means personal representative” respondents

from judge, justice, or other public fiduciary such as the

were fiduciaries to all the interested persons such as those

respondents, when they produce a miscarriage of justice.

defined in probate code 48 [App 11] as a body or class of

Because the respondents had substantial state actor

persons. Probate commissions for personal representatives

assistance by the judges and justices involved, they are

and their attorneys are based on a specified percentage of

deemed state actors per Tulsa Professional Collection

the estate’s true value, see Payne v. Hook (1868) 74 U.S.

Services, Inc. v. Pope (1988) 485 U.S. 478 [108 S.Ct. 1340,

425 [19 L.Ed. 260] at p. 433. Respondents by knowingly

99 L.Ed.2d 565] making the U.S. Constitution applicable

concealing Jane L. Marsh’s $640,000 and other interests,

against them. Standing in state courts is a non federal

overvalued Monroe’s estate in order to knowingly receive

overvalued commissions as well as the $640,000 and all her

Cal.Rptr. 729] stated:

other property interests. As stranger to her husband she

{Page 3 Cal.3d 514} In Abstract Investment Co. v.

has no legal rights either under his will or otherwise. The

Hutchinson (1962) 204 Cal.App.2d 242 [22 Cal.Rptr. 309

public interest in probate distributions require

the court said "Although defendant bases his defense

vindication by this court. In re Broderick's Will

upon constitutional propositions and statutes seeking to

(1874) 88 U.S. 503 [22 L.Ed. 599].

insure equal protection under the law, such defense

14. The reason this court may look to the reporters

nevertheless has its foundation in equitable principles.

transcript (hereafter RT) in the ROA’s herein is because (1)

As the court stated in McCue v. Bradbury, 149 Cal. 108,

although the opinions themselves appear to adjudicate

at p. 113 [84 P. 993], ‘equity will refuse to enforce a

perfectly legal rights; they in fact were the product of

forfeiture at the instance of one who has obtained the

unconstitutional knowing concealment and

strictly legal right to it by fraud, deceit, or any

misrepresentation or other inequitable conduct and (2)

form of oppressive practice; and, upon the other

equity principles trump strictly legal rights because

hand, will relieve the innocent when such a

miscarriage of justice resulted. See DeMarco v. U.S. (1974)

forfeiture so secured is sought to be enforced.'

415 U.S. 449 [94 S.Ct. 1185, 39 L.Ed.2d 501], Webb v.

16. The respondents had previously filed a petition to sell

Webb (1981) 451 U.S. 493, 502 [101 S.Ct. 1889, 68 L.Ed.2d

the Irvine condo and petitioners were not permitted to file

392] concurring opinion re no evidence.

their objections then either as trial judge Belz likewise

15. Schweiger v. Superior Court (1970) 3 Cal.3d 507 [90

ruled on 6-30-15 that petitioners had no standing to

complain as shown in the 6-30-15 RT in G052082,

included general denial and affirmative defenses including

incorporated by reference in the records on appeal in

attack on jurisdiction at paragraphs 1 and 7. However

G054796 and G054553 as well as showing that no evidence

because (1) the facts and law had changed so did standing

was admitted to support the petition for confirmation of

(2) petitioners were existing parties to the record and there

sale as required by Probate Code 10310(b) [App 11]. Thus

was no final judgment in the consolidated cases and (3)

at the hearing on the petition to confirm sale of real

respondents have never plead or proved res judicata as

property; and, at the hearing for estate distribution no

required by Code of Civ.Proc. 1908.5, Code of Civ.Proc. 456,

present tense application of standing, whether as defined

Code of Civ.Proc. 430.80(a) [App 11] & People v. Williams

by this courts case law in Gladstone Realtors v. Village of

(1999) 21 Cal.4th 335, 344 [87 Cal.Rptr.2d 412], nor law of

Bellwood (1979) 441 U.S. 91, 100-101 [99 S.Ct. 1601, 60

the case, petitioners constitutionally protected property and

L.Ed.2d 66] [prudential or constitutional], Lujan v.

liberty interests were unconstitutionally seized and

Defenders of Wildlife (1992) 504 U.S. 555, 561 [112 S.Ct.

otherwise infringed upon. The RT of 1-10-17 shows Judge

2130, 119 L.Ed.2d 351] [burden on party invoking

Belz relied on some unidentified interlocutory order he

jurisdiction, not defending], nor under Probate Code 48

glanced at; and, admitted he knew nothing about the prior

[App 11], was applied by Judge Belz, nor later by the

appeal opinions, other than G052082 which was not

appeals court; rather past tense stale adjudications. Also

accompanied by any remittitur. The objections to the

see Objections to Preliminary Distribution Petitions in

distribution petitions properly plead surcharge as

G054796 at its AAO 14 & G054553 at its AAO 9, which

permitted by the probate code per Law Revision

Commission comment behind Probate Code 9650 re

community property monies (see App 13B) received by

Subdivision (c) and per Probate Code 9603 (App 12). The

them from Monroe during marriage to Jane; and, instead

new facts consisted of the fraudulent, mistaken,

filed waivers of accounting as part of their distribution

unconscionable, or otherwise unfair representations made

petitions by each of their family members who received

in the petitions for distribution and proposed orders by

part of the $821,000 given away by Monroe during

respondent that distribution could be made without injury

marriage without the prior written consent of Jane. See

to the interests of any interested persons or creditors.

McLaughlin Bros. v. Hallowell (1913) 228 U.S. 278, 287 [33

Respondents knew they sought distribution of the $640,000

S.Ct. 465, 57 L.Ed. 835]. Numerous new case law had

Jane L. Marsh used to pay off Monroe’s trust deed default

evolved, including but is not limited to: Patrick v. Alacer

because they sold the Irvine condo without reimbursing

Corp. (2011) 201 Cal.App.4th 1326 [136 Cal.Rptr.3d 669]

her; they knew they never filed any accounting in the case

cited in in G054796 ARB at p. 55; G052082-15 at p.3 paras

despite selling the Honolulu condo on $510,000 on 10-13-

2, 3, 37 and 38; G052082-36 p. 27 para 2 and p. 29 l ast

15 with all of Jane L. Marsh’s Moore-Marsden interests (In

paragraph; G052574-17 at p. 4 and p. 49; and the new case

re Marriage of Marsden (1982) 130 Cal.App.3d 426 [181 Cal.Rptr.

of Sefton v. Sefton (2012) 206 Cal.App.4th 875 [142

910] In re Marriage of Moore (1980) 28 Cal.3d 366 [168 Cal.Rptr.

Cal.Rptr.3d 174] was cited in G052082 Appellants Opening

662, 618 P.2d 208]), and all of petitioners personal property

Brief (hereafter AOB) at p. 10; and G052574-13 at p. 50.

inside; nor inventoried the debts Respondents owed

17. The hearing on the two distribution petitions etc.

Monroe’s estate by virtue of that part of the $821,000

involved distribution of more than $1,000,000, which was

over the 50% net value permitted under Probate Code

complaint is not to be dismissed because he has prayed

11632 [App 11], yet lasted only 3 minutes. The appeal court

for a judgment to which he is not entitled. 'Legal and

has shown favoritism on the side of the respondents and

equitable relief are administered in the same forum,

hostility on the side of Petitioner Weiss as evidenced by

and according to the same general plan. A party cannot

defamatory remarks and the fact that every sought after

be sent out of court merely because his facts do not

motion, pleading, report ete of Respondents ever filed

entitle him to relief at law, or merely because he is not

during the nine year history had been affirmed, see

entitled to relief in equity, as the case may be. He can

G052082 RT at page 13:9 “The co-executors have won every

be sent out of court only when, upon his facts, he is

time.”

entitled to no relief, either at law or in equity.'

18. Walsh v. McKeen (1888) 75 Cal. 519 [17 P. 673] stated:

*PAGE 521 As to the alleged change in the nature of

19. To the same effect of Walsh just cited are Hishon v.

King & Spalding (1984) 467 U.S. 69, 73 [104 S.Ct. 2229, 81

the action, an answer is found in the fact that we have

L.Ed.2d 59] and N.L.R.B. v. Deena Artware, Inc. (1960) 361

in this state but one form of civil actions for the

U.S. 398, 402 [80 S.Ct. 441, 4 L.Ed.2d 400].

enforcement or protection of private rights, (Code Civil

20. The three admissions regarding Jane’s $640,000 claim

Proc. ' 307.) *PAGE 522 An action does not now, as

in equity in Respondents Reply Briefs were misleading

formerly, fail because the plaintiff has made a mistake

because it was not a mere claim in equity; rather, it was a

as to the form of his remedy. If the case which he states

known fact by them (state of mind or knowledge of

entitles him to any remedy, either legal or equitable, his

justices irrelevant) to be her separate property

money which she paid pursuant to her right and duty to

associated memories therein. The statute of limitation

acquire the reconveyance deed per paragraphs 10 and 16 of

opinion of respondents was unconscionable per Bollinger v.

the trust deed (G054796 AAO 22 at its Ex 9 p. 798)

National Fire Ins. Co. of Hartford, Conn. (1944) 25 Cal.2d

containing joint and several duty terms. The state of mind

399 [154 P.2d 399] and Borer v. Chapman (1887) 119 U.S.

of the co-executors is not shielded by preclusion law if

587, 603 [7 S.Ct. 342, 30 L.Ed. 532].

miscarriage of justice would otherwise result. That

21. Wyoming Pacific Oil Co. v. Preston (1958) 50 Cal.2d 736

$640,000 was her separate property which she acquired

[329 P.2d 489] stated:

from Petitioner Weiss after Monroe died and was paid out

*PAGE 740 Despite the apparently mandatory

after Monroe’s death; and, hence never a part of Monroe’s

language of that section, this court has found many

estate. Once Monroe defaulted he no longer had any

"implied exceptions" where it was "impracticable and

contractual trust deed (G0 54796 AAO 22 at its Ex 9 p. 798)

futile" to bring the action to trial within the designated

interest in the real property itself and provided himself

five-year period. {Page 50 Cal.2d 741} As with the

with other contracting parties that the reconveyance deed

exercise of the court's other inherent and statutory

go to his heir or executor should she or he pay off his debt.

powers to dismiss actions the discretion permitted must

His executors could have bought it and filed a statement of

be "exercised in accordance with the spirit of the law

interest under the probate code statutes in the county

and with a view of subserving, rather than defeating,

recorders office; but, did not, and never wanted it as did,

the ends of substantial justice."

and do Petitioners today, because of happy family

22. Findlay v. Hinde (1828) 26 U.S. 241 [7 L.Ed. 128],

stated:

was initially assigned to it for all purposes with the same

*PAGE 247 Under these circumstances, we think the

direction as given in the Findlay case and Gardner v. Toilet

reversal should be general, as to all of the appellants,

Goods Ass'n (1967) 387 U.S. 167. 173 [87 S.Ct. 1526, 18

and the whole case opened. And we are the more

L.Ed.2d 704]. The appeal court is either unwilling or

inclined to adopt this course, because, so numerous, and

unable to entertain anything further from petitioners; or, is

so great, have been the irregularities in conducting the

biased in favor of respondents and against Petitioner Weiss

cause in the Court below, from its commencement to its

and desirous of imposing only more sanctions on him

termination, by decree; that it seems impracticable

should he revisit them. Respondents have distributed

that justice be done between the parties, without

everything in the Estate of Monroe Marsh including

sending the cause back, as to all the parties; with

property never belonging therein to themselves and their

directions, that the petitioners have leave, if asked by

family members. Respondents motion to dismiss the

them, to amend their bill, and make the proper parties;

appeals violated their obligations to do justice and have not

and to proceed de novo in the cause, from filing such

served the ends of justice but their own personal ends.

amended bill.

24. Stockwell v. McAlvay (1937) 10 Cal.2d 368 [74 P.2d

23. Petitioners contend a nine year running of

impracticability and futility of further approach in the

504], stated:

{Page 10 Cal.2d 372} Since appellants prevented

lower court to proceed further exists and hence the need to

respondent's attempt to have the present issues tried

send Jane L. Marsh’s civil cause back to Judge Bank’s who

therein, appellants cannot now assert that the former

action is a bar to this action.

that while assignees of a lease hold as tenants in

25. Respondents argument ever since the opinion in

common, they are jointly and severally liable on

G044938 was that they hear the same thing over and over

covenants to repair and to deliver up at the end of the

again; but, the reply of Petitioners was that it was they

term. *PAGE 689 Sacramento S. F. L. Co. v. Whaley,

who prevented them from ever starting their case in the

50 Cal. App. 125, 130 [194 P. 1054, 1056], seems to be

first place. See First Nat. Bank of Guthrie Center v.

exactly in point, the court said: “We do not understand

Anderson (1926) 269 U.S. 341, 346 [46 S.Ct. 135, 70 L.Ed.

that that phrase or expression, as it is used in section

295] and Conley v. Gibson (1957) 355 U.S. 41, 42 [78 S.Ct.

1462, was intended to be or is restricted in its meaning

99, 2 L.Ed.2d 80] both holding it’s a federal question

to such physical benefit only as may directly accrue to

whether pleading stated or could be amended to state

the land from the covenant, but that it means also any

viable federal question.

covenant which affects the title to real property or any

26. Richardson v. Callahan (1931) 213 Cal. 683 [3 P.2d 927]

interest or estate therein of the covenant. While, under

stated:

the statutory law of this state a mortgage does not vest

*PAGE 688 In California as early as Laffan v.

in the mortgagee an estate or interest in the mortgaged

Naglee, 9 Cal. 662, 675, a covenant was held to run with

land, yet the mortgage affects the mortgagor’s title. A

the land, which read in substance: “...lessee may have

covenant in a mortgage providing for the removal of the

the liberty of buying it, in preference to any one else.” In

lien of the mortgage from certain specified portions of

Coburn v. Goodall, 72 Cal. 498 [14 P. 190, 193], held

the land mortgaged is a covenant for the unfettering,

pro tanto, of the title, and is, therefore for the direct

p. 810), another form of contract, contained two covenants

benefit of the land.”

running with the land the first acknowledging Jane L.

27. Monroe F. Marsh’s trust deed contract language at

Marsh rights under law to perform under his trust deed in

paragraphs 10 and 16 created joint and several obligations

the event he defaulted and the second giving Petitioner

to remove the lien from the property so Jane L. Marsh as

Weiss the right of first purchase. Both the trust deed and

heir repaid the underlying obligation and received a

last will were publicly filed giving the respondents, courts,

reconveyance deed because of her acceptance of the

and the world, notice of the covenants running with the

obligations and her performance as obligor. If petitioners

land and estopping all of them from denying it. See App

had no property interest they alternatively claimed an

12C. Respondents unfairly, unconscionably, or

equitable lien on the Irvine condo which Probate Code 7000

fraudulently, persuaded the court of appeals that it was

recognized by providing that the rights of any devisees

Petitioner Weiss who was trying to wrest money out of

were “subject to” the rights of others under the law. No

Monroe’s estate, instead of their unconstitutional seizure of

statute in the Probate Code authorized the court of appeals

money and other property interests belonging to

to wrest that equitable lien or other interests in the Irvine

Petitioners. See Haynes v. State of Wash. (1963) 373 U.S.

condo or petitioners separate property or other community

503, 515-516 [83 S.Ct. 1336, 10 L.Ed.2d 513] any i ssues

interests in the separate property of Monroe away, per Peck

essential to federal question is reviewable, else federal law

v. Jenness (1849) 48 U.S. 612, 620, 623, 625-626 [12 L.Ed.

frustrated by distorted fact finding.

841]. The last will of Monroe (G054796 AAO 22 at its Ex 8

28. Concealment by respondents was fatal to the integrity

of the distribution proceeding upon appeal and the rights of

property to those entitled to it, not convert it unto

Petitioners especially due to the lack of standing ruling.

themselves. Maty v. Grasselli Chemical Co. (1938) 303 U.S.

Without Petitioner Weiss present to finish his oral

197, 201 [58 S.Ct. 507, 82 L.Ed. 745] [purpose of pleading is

presentation to Judge Belz they had public fiduciary

to do justice], Borer supra p. 599-600; and Kenaday v.

fairness disclosure obligation which they did not honor to

Sinnott (1900) 179 U.S. 606, 615 [21 S.Ct. 233, 45 L.Ed.

the appeals court.

339]. The respondents before receiving leters of

29. The 6-30-15 RT at 12: 22-26 of the sale of the Irvine

administration swore to uphold the laws, and the laws

condo proceeding reveals Judge Belz admitting ‘all I know

include the U.S. Constitution.

is that we are here today for a sale of the real property,’

31. Snyder v. Com. of Mass. (1934) 291 U.S. 97 [54 S.Ct.

and Mr Magro stating “I know this court doesn’t have time

330, 78 L.Ed. 674], stated:

for it” 14:11-12. The same may be said as to him on the 1-

*Page 105 Massachusetts is free to regulate the

10-17 distribution proceeding see RT 5:22-24 “The equities

procedure of its courts in accordance with its own

of this are such that it says timed out; 6-8 through 7:6 in

conceptions of fairness unless in so doing it offends some

spite of lack of remittitur there is no standing...this probate

principle of justice so rooted in the traditions and

matter....its over with,” despite complaint of inconsistency

conscience of our people as to be ranked as

with ends of justice 4:24-26.

fundamental.

30. Respondents had fiduciary duties to all creditors and

32. The respondents have on countless times unfairly

other persons interested in Monroe’s estate to distribute

argued everything was res judicata despite their knowledge

of Judge Schulte’s express statement to the contrary, see

trial and appellate orders opinions based on them; or other

G048211 RT at page 48:6-17, that Jane L. Marsh rights

orders and opinions. The issue was whether the seizures by

under the law were reserved for another day because she

respondents were unreasonable under 4th Amendment due

was only deciding whether or not Jane L. Marsh violated

to lack of probable cause; or, because of mode and manner

the no contest clause in Monroe’s will. The respondents

of seizure (ie use of known unlawful authority by way of

knew the opinion in G044938 expressly left open the

summons). Although available respondents never sought

$640,000 reimbursement issue and that the court of

any pre-seizure determination.

appeals never came back to that issue to express or uphold

WHEREFORE Petitioners pray the court grant a

a final resolution in the G044938 appeal per Sullivan v.

hearing on their petition for writ of certiorari or for such

Delta Air Lines, Inc. (1997) 15 Cal.4th 288 [63 Cal.Rptr.2d

other relief the court deems necessary and proper such as a

74], at p. 307-309 & FN 12 and Goodfellow v. Barritt (1933)

GVR (Grant Certiorari, Vacate and Remand) or for a decree

130 Cal.App. 548, 564, 566-568 [20 P.2d 740].

similar to that in Chapman v. Board of County Com’rs of

33. The show of authority for pre-trial seizure required

Douglass County (1883) 107 U.S. 348, 360-361 [17 Otto

under the U.S. Constitution Seizure Clause, as contrasted

348, 2 S.Ct. 62, 27 L.Ed. 378], Sweiger supra., or Wells

with the Due Process Clause re post trial judgments, was

Fargo & Co. v. Taylor (1920) 254 U.S. 175, 189 [41 S.Ct. 93,

the Summons which accompanied the respondents

65 L.Ed. 205].

petitions, including but not limited, their Petition for

Respectfully Submitted

Probate, as well as the opinion in G044938; all subsequent

By_______________

Michael Weiss, Attorney for

Petitioners

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.