Petition for Writ of Certiorari — Jason v. Roadway Express, Inc.

Supreme Court brief1989

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Text

Supreme Court, U.S,

89-6 8l J FILED

‘|! ocr 23 1ses

CIVIL NUMBER JOSEPH F. SPANIOL, JR,

CLERK

IN THE Lo ml

SUPREME COURT OF THE UNITED STATES

OCTOBER, 1989 TERM

TRENT JASON,

Petitioner,

Vs.

ROADWAY EXPRESS, INC.,

A. K. Aw Re. E. [I.,

D. B. A. ROADWAY EXPRESS,

A. K. A. ROADWAY,

A California Corporation; and

BOB MORRILL,

A. K. A. ROBERT MORRILL,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPERIOR COURT OF CALIFORNIA

IN AND FOR THE COUNTY OF SAN BERNARDINO

PETITIONER’S PETITION FOR CERTIORARI

Trent Jason, pro se

Petitioner

P.O. Box 2000-08

South Lake Tahoe

California 95705

1 (619) 544-1841

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER, 1989 TERM

TRENT JASON,

Petitioner,

vs.

ROADWAY EXPRESS, INC.,

A. K. Aw R. EW Ie,

D. B. A. ROADWAY EXPRES,

A. K. A. ROADWAY,

A California Corporation; and

BOB MORRILL,

A. K. A. ROBERT MORRILL,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPERIOR COURT OF CALIFORNIA

IN AND FOR THE COUNTY OF SAN BERNARDINO

Petitioner, Trent Jason, petitions

the Supreme Court of The United States

to issue a writ of certiorari to the

Superior Court of California, in and for

the County of San Bernardino in this case.

oo —-

a A a rN rl al a ee ee ee my ae Pe ee :

a & Pee

STATEMENT OF THE QUESTIONS INVOLVED

Whether the California State

Courts Erred In Denying Petitioner's

Right to Due Process of Law In The

Awarding of Attorneys’ Fees and Costs

To Respondents, As Sanctions Against

Petitioner Because:

The trial court failed, as a

legal requirement, pursuant

to California Code of Civil

Procedure, section 128.5, to

state the reasons why sanctions

apply so as to "recite in detail

the conduct or circumstances

justifying the order;"

The trial court failed, as a

legal requirement to that statute,

not to award sanctions until

“after notice and opportunity

to be heard;"

The trial court failed, as a

legal requirement to that statute,

s £ «

: .

_ ‘

\ .

, .

- -

+ he Pe ee eee

to state how the petitioner's

“*actions or tactics'" were

" meaning "(A)

"*frivolous''

totally and completely without

merit or (B) for the sole

purpose of harassing an opposing

party;"

The trial court failed, as to

California State and United

States Constitutional require-

ments of due process, to provide

any form of itemization of these

expenses or attorneys’ fees as

sanctions against petitioner;

with nothing in the record

existing of such itemization;

The trial court failed to conform

to the doctrine ét- stare decisis,

as the statement of decision and

order conflicts with published,

consistent, and uniform decisions

interpreting and defining the

» “4% «

relevant statute in this matter.

: 2. Whether the California State

Courts Erred In Granting Respondents'

Motion For Summary Judgment Through The

Trial Court's “Determination” that

Petitioner's Cause of Action Against The

Respondents For Fraud And Deceit Was

“Barred Under The Doctrine of Clean Hands"

Because The Decision Was Not Made In

Conjunction of The Law; Because None Of

The Essential Elements As Represented In

Published, Consistent, and Uniform

Decisions Were Met To Apply That Doctrine

In This Matter Because:

a. Petitioner's act was not

intertwined with Respondents'

act to bar relief;

b. Petitioner did not intend to

defraud, injure, or be prejudi-

cial to respondents, nor did

they argue such in their motion

- iii -

I eerie

for summary judgment against

petitioner;

Petitioner did not injure,

defraud, or act prejudicial to

respondents in petitioner's act;

Petitioner did not violate any

law, statute, code, or government

rule, regulation or ordinance;

Respondents actually profited

from petitioner's act;

The relative culpability of the

litigants was a highly relevant

matter before relief by petitioner

could be barred;

The trial court failed to comment

on, or even acknowledge petition-

er's legal authorities in the

formal opposition to respondents’

motion for summary judgment, nor

did the trial court provide any

legal authorities to support its

decision against petitioner.

3. Whether the California Supreme

Court Erred In Not Granting Petitioner's

Petition For Writ of Mandate Ordering The

Trial Court To Comply With The Law;

Considering That The California Supreme

Court Was Required To Do So Because:

a. The trial court is required to

make the performance of which

the petitioner is entitled to;

b. The establishment of abuse of

discretion by the trial court

existed and still exists in this

matter;

c. There is the showing, in one

aspect of this matter, that the

trial court violated the

Constitutional due process

rights of the petitioner;

d. There existed futility in

petitioner requesting the trial

court, along with the relevant

appellate court, to act in this

a Vv ~

matter, and there was no other

legal remedy when the California

Supreme Court denied petitioner's

petition for review;

The available procedural measures

on appeal were exhausted by

petitioner;

Petitioner had complied with all

the necessary requirements for

the issuance of the writ;

There was the procedural require-

ment of the California Supreme

Court to issue the writ;

The writ was necessary to compel

the trial court from preventing

the failure of justice;

The writ of mandate is necessary

to protect substantial rights, and

with which without, substantial

injury would occur;

The undisputed facts in this case,

supported by sufficient legal

—_

authorities, required the

California Supreme Court to

command the trial court to act.

All parties to this proceeding, and having

appeared in the lower courts, are listed

in this caption.

Petitioner's petition for writ of

certiorari is supported in the record by

Retired Associate Justice of the

[California] Court of Appeal sitting

under assignment by the Chairperson

[California Supreme Court Justice Malcolm

Lucas] of the [California] Judicial Council.

Also, California Supreme Court Associate

Justice Edward Panelli is of the opinion

that petitioner's petion for review in the

California Supreme Court should have been

granted.

TABLE OF CONTENTS

PAGE(S):

STATEMENT OF THE QUESTIONS INVOLVED i - vii

TABLE OF CONTENTS . . . , viii

TABLE OF AUTHORITIES, . . ~ , ix - xiv

REFERENCE TO LOWER COURT OPINIONS , 2-7

STATEMENT OF THE GROUNDS ON WHICH

THE JURISDICTION OF THIS COURT

IS INVOKED , ; : . 8 - 14

CONSTITUTIONAL PROVISIONS ; .

STATUTES , ; ; : : . 16 - 17

STATEMENT OF THE CASE ‘ : . 18 - 32

LEGAL ARGUMENT AND AUTHORITIES , . 33 - 65

APPENDIX:

A. STATEMENT OF DECISION . Al - A?

B. JUDGMENT BY COURT . . ., Ba = B6

C. NOTICE OF APPEAL ; . C1 - C9

D. OPINION OF APPELLATE MAJORITY . bi - D22

E. DISSENTING APPELLATE OPINION , E1 - E19

F. ORDER DENYING REVIEW, . re

G. ORDER DENYING WRIT OF MANDATE . c

AFFIDAVIT OF PROOF OF SERVICE

OF UNITED STATES. SUPREME COURT

- viii -

TABLE OF AUTHORITIES

PAGES(S):

CALIFORNIA STATUTES:

California Code of Civil 4, 7-9, 11,

Procedure, section 128.5 16, 17, 29,

33-38

California Code of Civil

Procedure, section 632 35

California Code of Civil

Procedure, section 1085 61

California Code of Civil

Procedure, section 1086 58, 61

California Code of Civil

Procedure, section 1094.5 65

CALIFORNIA CONSTITUTION:

California Constitution;

Article One, Section Seven 9, 38

UNITES STATES CONSTITUTION:

United States Constitution;

. Fourteenth Amendment, ag 15,

Section One . ‘ : 38, 57

TEXT AUTHORITIES:

American Jurisprudence,

[Second Edition, Volume 16, ]

section 311, pages 830-831 . 3S

American Jurisprudence,

[Second Edition, Volume 16A, ]

section 847, pages 1058-1059 . 39

American Jurisprudence,

[Second Edition, Volume 27, ]

section 138, Equity, pages . 49

American Jurisprudence,

[Second Edition, Volume 27, ]

section 144, Equity, page 681 . 50

California Jurisprudence,

[Third Edition, Volume 30, ]

section 29, Equity, page 522 . 51

Corpus Juris,

[Volume 38, ]

page 608 . . : : _

Witkin's California Procedure,

[Third Edition, Volume 9, ]

section 793, pages 766-767 ~ 42

Witkin's California Procedure,

[Third Edition, volume 9, ]

section 797, page 772 ; ~- 42

CASES:

Allen v. Los Angeles County

District Council of Carpenters

(1959) Si Cal.2d 805, sis;

337 P.2d 457 ° . : . 46

Atchinson, Topeka & Sante Fe

Ry. Co. v. Stockton Port. Dist.

(1983) 140 Cal.App.2d 111, 116;

189 Cal.Rptr. 208 . .

. 36, 37

1A A A te

Auto Equity Sales, Inc. v.

Superior Court

C567) $7 Cal.2d 450, 456-457;

20 Cal.Rptr. 321, 369 P.2d

937 . : : : . 24

Bales v. Superior Court

ai. ’ ;

129 P.2d 685 , : ; . 63

Bradley Co. v. Bradle

al. 41, 242;

Ieee AG 4G .45, 49

Clark v. Standard Acc. Ins. Co.

(1941) 43 Cal.App.2d 563, sic

111 P.2d 353. . v2

Fegles v. Kraft

CISS5) 168 Cal.App.3d 812, 816;

214 Cal.Rptr. 380 . ; . 34

Fiberboard Paper Products

Corporation v. East Bay Union of

Machinists, Local 1304, United

Steel Workers of America AFI.-CIO

(19604) 227 Cal. APP. 2d 6/5, /28-

729. : ~ 44

Flora Crane Serv. Inc. v. Ross

(1964) 61 Cal.2d 199, 203;

37 Cal.Rptr. 425, 390 P.2d 193,60, 61

Hurtado v. Superior Court

Ca e 4, ;

114 Cal.Rptr. 106, 522 P.2d

666 > > >. . . . 56

In re Mgrriage of Flaherty

183 Cal. — 598, 646 P.2d

179 . ; : ; . 34

ee ort

Jeong Soon v. Beckman

C1 568) 234 Cal.App.2d 33, 36;

44 Cal.Rptr. 190 ‘

Keystone Driller Company v.

General Excavator Compan

(1933) 290 U.S. 240, BTSs

54 S.Ct. 146, 78 L.Ed. 293

Lavine v. Hospital of The Good

Samaritan

(1985) 169 Cal.App.3d 1019, Ls

215 Cal.Rptr. 708 ‘ °

Lesser v. Huntington Harbor

Corp.

CioBs) 173 Cal.App.3d 922, 935;

219 Cal.Rptr. 562 , °

Lewis Food Co. v. Fireman's

Ins. Co.

(1962) 207 Cal.App.2d 515, 524;

24 Cal.Rptr. 557 : ‘

Luke v. Baldwin Corp.

(1985) 16/7 Cal.App.3d 664, 668-

669; 213 Cal.Rptr. 654

May v. Board of Directors

(1949) 34 Cal.2d 125, 133-134;

208 P.2d 661 ° ‘

McCarthy v. Oakland

(1943) 60 Cal.App.2d 546, 552;

141 P.2d 4 ‘ ‘

Miramar Hotel Corp. v. Frank B.

Hall & Co.

(1985) 163 Cal.App.3d 1126, 1129-

1130; 210 Cal.Rptr. 114 , ;

Moriarty v. Carlson

(1960) 184 Cal.App.2d 51, 56;

7 Gal .Retr. 262 : + ,

- xii -

O'Brien v. Cseh

al.App.3d 957, 962;

196 Cal.Rptr. 409 ; : . 34

Pacific Idem. Co. v. Superior

Court

(1966) 246 Cal.App.2d 63, 72;

54 Cal.App. 470 ; ‘ . 69.

Palmer v. Fox

al.App.2d 453, 456;

_ 258 P.2d-30 ; , ; 35

Parker v. Bowron ~-

al. 544, 351;

254 P.2d 6 ‘ : : . 64

People ex rel. Younger v.

El Dorado Count

(1971) 5 Cal.3d 480, 491;

96 Cal.Rptr. 553, 487 P.2d

1193 . ; : : : . 64

Phelan v. Superior Court

(1950) 35 C f 2d 363, 366, 372;

al.

217 P.2d 951 : ;

Randone v. Appellate Dep't.

a . >

96 Cal.Rptr. 709, 488 P.2d 13 . 57, 59

Republic Molding Corporation v.

B. W. Photo Utilities

(1963) 319 F.2d 347, 349, . 22

State Farm Mut. Auto Ins. Co.

v. Superior Court

Cids6) 47 Cal.2d 428, 432;

Stone v. Lobsien

(1952) 112 Cal.App.2d 750, 758;

4 Be” oe > . : =

- x.iii -

‘| *

i |

. ‘

) x

; |

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as { ?

eee. ————

Ps ae ee ee i a Nm — =e = amas ee a 63 eee

Weisman v. Bower

Cal.App.3d 1231,

S237 ‘ ; ' ae

Western Union Tel Co. v.

Commerical Pacific Cable Co.

a e >

171 P. 137 eae ea .

Wiley-v. Wile

C525) 59 Cal.App.2d 840, 842;

139 P.2d 950 ‘ . : .

Young v. The Young Holding Corp.

(1938) 27 Cal.App.2d 129, 152 . S51

-- xiv -

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER, 1989 TERM

TRENT JASON,

Petitioner,

Vs.

ROADWAY EXPRESS, INC.,

A. K. A. R. E. I.,

D. B. A. ROADWAY EXPRES,

A. K. A. ROADWAY,

A California Corporation; and

BOB MORRILL,

A. K. A. ROBERT MORRILL,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPERIOR COURT OF CALIFORNIA

IN AND FOR THE COUNTY OF SAN BERNARDINO

Petitioner, Trent Jason, petitions

the Supreme Court of The United States

to issue a writ of certiorari to the

Superior Court of California, in and for

the County of San Bernardino in this case.

ey a

REFERENCE TO LOWER COURT DECISIONS

On the instant case, the trial court

filed, after taking the respondents’

motion for summary judgment under

submission for two weeks, a “Statement of

Decision,™" on May 28, 1987, in the

Superior Court of California, in and for

the County of San Bernardino [, Desert

District]. Thereafter, this court then

filed its judgment by court on June 17,

1987. [See Exhibits "A" and "B" attached. ]

Petitioner appealed this decision and

filed a notice of appeal, along with notice

designating papers and records for

incorporation in record on appeal, to the

Court of Appeal for the Fourth Appellate

District, from Division Two, on June 12,

1987. [See Exhibit "C" attached. ]

Petitioner sought the reversal of the

decision, order, and judgment on three

counts:

The first count was that the

respondents’ arguments and evidnece in

their motion for summary judgment (which

was the basis for the trial court's

decision) does not support their defense

of the doctrine of clean hands to bar

petitioner's cause of action for fraud

and deceit against the respondents, and

therefore does not deny relief to petition-

er; nor does it warrant summary judgment

in favor of the respondents.

The second point raised was that the

trial court's ruling that petitioner's

cause of action was frivolous and totally

and completely without merit and ordering

summary judgment was also reversible

error, as petitioner not only had a triable

issue of fact, but also had the sufficiency

of the evidence to warrant the jury trial.

The third and final point raised was

that the trial court's decision and order

that petitioner pay attorneys’ fees and

costs, as sanctions in favor of respond-

ents, pursuant to section 128.5 of the

California Code of Civil Procedure, is

not supported by the facts, and, it also

violated petitioner's due process of law

rights.

Almost two years later, on May 9,

1989, the above stated appellate court

rendered a split decision on the matter.

The majority wrote its opinion in favor

of the respondents, and Retired Justice

Robert O. Staniforth, sitting under

assignment by the Chairperson of the

Judicial Council (California Supreme

Court Justice Malcolm Lucas) wrote an

opinion in favor of petitioner. [See

Exhibits "D" and “E" respectively

attached. |

The decision of the appellate

court became formally finalized on June

9, 1989, and whereupon, on that date,

petitioner filed a petition for review

Pate Jn

in the California Supreme Court.

While this petition for review was

before that Court, petitioner prepared

and thereafter also filed a petition for

writ of mandate on July 17, after having

served the trial court a copy of that

‘ petition; it being the respondent in that

proceeding.

Because of the amount of petitions

for review that are filed with the

California Supreme Court every week,

petitioner was notified by the staff. of

that Court that only five percent of all

such petitions are reviewed, and that,

therefore, petitioner would have almost

no chance of the matter being reviewed in

California's highest court.

Petitioner sought review in that

Court on the two mains issues brought out

in the appellate court's opinion.

The first point made was that in

applying summary judgment in relation to

the doctrine of clean hands, a substantial

error of law and facts exist because the

appellate court majority's opinion directly

conflicts with prior holdings of the

Supreme Court, along with published,

consistent, and uniform appellate court

rulings; which gives serious doubt of a

statement of law by the majority's opinion

because the ruling by it in this matter has

been acted upon in excess of its jurisdic-

tion by not following the doctrine of

stare decisis, and also by the majority's

failure to discuss prior Supreme Court

cases that were introduced to the appellate

court, and therefore, petitioner argued for

review both to secure uniformity of decision

and to settle an important question of law.

The second point was that in applying

the award of attorneys’ fees and costs as

sanctions in favor of respondents, substan-

tial error of law and facts also exist because

the appellate court majority's opinion

= a

directiy conflicts with the laws written

by the California Legislature in relation

to sanctions pursuant to the statute

involved (California Code of Civil

Procedure, section 128.5); besides all of

the so many recently published, consistent

and uniform appellate court rulings which

have interpreted and highly defined that

code. Sufficient case law was brought

forth by petitioner to reverse the award

of sanctions, but, instead, in complete

disagreement with not only petitioner, but

also with the dissenting opinion of

Justice Staniforth, who wrote an eleven

page dissenting opinion, the majority

ignored those legal authorities.

On July 20, 1989, the California

Supreme Court denied petitioner the

review of this matter; along with the

denial of the writ of mandate upon the

trial court, which was denied on September

27, 1989.

STATEMENT OF THE GROUNDS ON WHICH THE

JURISDICTION OF THIS COURT IS INVOKED

The date of the statement of decision

and the date, immediately thereafter, of

the judgment sought to be reviewed are

May 28, 1987, and June 17, 1987, respective-

ly. These two items can be seen in the

attached exhibits labeled "A" and "B" in

the appendix, hereinafter.

No order respecting a rehearing

existed, nor any order granting an extension

of time has occured in this matter.

The statutory provision believed to

confer on this Court's jurisdiction to

review the judgment in question by writ of

certiorari is California Code of Civil

Procedure, section 128.5, in conjuntion

with the Fourteenth Amendment of the United

States Constitution and Article One, Section

Seven of the California Constitution, along

with the judicial policy of stare decisis.

se # «

The instant case comes betore the

United States Supreme Court in hopes to

rectify the substantial and serious errors

made in the lower, California Courts in

’ denying petitioner due process rights

mandated by state statute (California Code

of Civil Procedure, section 128.5), by

the California Constitution (Article One,

Section Seven), by the United States

Constitution (Fourteenth Amendment), and

by the judicial policy of stare decisis.

considering that the United States

Supreme Court has previously ruled in

relation to the aspect of the application

of the doctrine of clean hands - of which

the California Courts did not apply in

this matter. In relation to sanctions

against petitioner, the Constitutional

rights of due process of law have been so

seriously violated that those rights are

questions that fall within the jurisdiction

e §.«

of the federal judicial system, and, in

this matter, the jurisdiction of the

United States Supreme Court for resolution.

The fundamental guaranty of due process

of law under the Fourteenth Amendment of the

United States Constitution is absolute in

America. Everyone in this country is

entitled to the protection of those funda-

mental principals of liberty and justice.

The power to deprive a person of property

can not be delegated to the state government

except by compliance of its requirements.

The state owes each individual that process

which can be identified as due under the

Federal Constitution.

Due process is required in this matter

because a decision of the state implicates

an interest with the protection of the

Fourteenth Amendment. The laws operate on

all persons alike and cannot subject

petitioner to the arbitrary exercise of the

powers of the government. Under this

- 10 -

guaranty, not only must a statute (as with

California Code of Civil Procedure, section

128.5 in this matter) embrace all persons

in like situations, but the classification

must be natural and reasonable, to secure

petitioner, as a citizen of this country,

against any arbitrary and capracious

depriviation of one's rights, whether it

relates to his life, liberty, or, in this

matter, to his property.

The act which is contrary to

embracing all persons in like situations,

but, instead, upon a particular person or

his rights and privileges is actually a

sentence than a law, and one which condems

without a hearing; as petitioner alleges

has occured in this matter. The purpose

of due process was to ensure the fair and

orderly administration of the laws, and

the protection of petitioner against having

the government, inclusive of the judicial

branch, impose burdens upon petitioner

- 42 «

except in accordance with the laws of the

land; inclusive of that applicable statute.

The effect of the state court's decision

and order in its judgment was to take

petitioner's property and give it to

another contrary to settled usages and

modes of procedure, without notice and

opportunity for a hearing.

Beyond the statutory and Constitutional

provisions relating to this matter, the

denteten vat stare decisis also applies as a

matter of federal jurisdiction, because,

while stare decisis is not a rule of law,

but a matter of judicial and public policy,

it thereby has the similar affect of law.

The rationale behind these policies is the

need to promote certainty, stability, and

predictability of the law, especially where

the Supreme Court has already rendered a

decision applicable to the matters such as

these before the United States Supreme

Court.

5 eit hel

It is the policy of the courts not

to deviate from a rule affecting the public

where that rule is established by precedent,

especially where it is thereafter reinforced

by published, consistent, and uniform

decisions interpreting and defining applic-

able laws.

Decisions made by the United States

Supreme Court are final and authoritative

declarations and binding on all state courts,

inclusive of the supreme court of any given

state. The right to such a binding is

authoritatively supported under the supremacy

clause of the United States Constitution.

The, United States Supreme Court ruled

over a half century ago on the applicability

of the clean hands doctrine, and the issues

surrounding it, inclusive of establishment

of the elements which must exist to sustain

it as an affirmative defense to bar relief

from a plaintiff. The elements have been in

existence for centuries, stemming from

— 26 «=

ee 7m RP PEE NEY ESN RD Ti EM

English law which the United States adopted,

through the courts, which outlined those

essential elements; all seven of which

petitioner brings forth in this petition

[See Statement of the Questions Involved,

wae tet ete

Point a" through "g" and the legal |

authorities brought forth in the argument

amplifying those reasons relied on.]; but

of which each had to have existed before

the doctrine of clean hands could have

applied as an affirmative defense; but of

where the trial court and majority's

opinion of the appellate court did in fact

allow it to be wrongfully applied.

— ee A ee ee

CONSTITUTIONAL PROVISIONS

UNITED STATES CONSTITUTION;

FOURTEENTH AMENDMENT, SECTION ONE

"All persons born or naturalized in the

United States, and subject to the

jurisdiction thereof, are citizens of the

United States and of the State wherein

they reside. No State shall make or

enforce any law which shall abridge the

privileges or immunities of citizens of

the United States; nor shall any State

deprive any person of life, liberty, or

property without due process of law; nor

deny to any person within its jusidiction

the equal protection of the law."

STATUTES

CALIFORNIA CODE OF CIVIL PROCEDURE, SECTION

128.5; AS AMENDED IN 1985 [UNDERLINE

INDICATES CHANGES OR ADDITIONS BY AMENDMENT)

"(a) Every trial court may order a

party* * *the party's attorney, or both

* * *to pay any reasonable expenses,

including attorneys; fees, incurred by

another party as a result of bad-faith

actions or tactics that are frivolous or

soley intended to cause unnecessary

delay.* * *This section also applies to

judicial arbitration proceedings under

Chapter 2.5 (commencing with Section

1141.10) of Title 3 of Part 3.

(b) For purpose of this- section:

(1) “Actions or tactics" include,

but are not limited to, the making or

imposing of motions or the filing and

service of a complaint or cross-

complaint. The mere filing of a

» 2 -«

complaint without service thereof on

an opposing party does not constitute

“actions or tactics" for purposes of

this section.

(2) "Frivolous" means (A) totally

and completely without merit or (B)

for the sole purpose of harassing an

opposing party.

section shall not be impcsed except on

notice contained in a party's moving

or responding papers; or the court's <q

own motion, after notice and opportun-

ity to be heard. An order imposing

expenses shall be in writing and shall

recite in detail the conduct or

circumstances justifying the order.

(d) The liability imposed by this

section is in addition to any other

liability imposed by law for acts or

omissions within the purview of this

section." [Emphasis ofiginal. ]

s £2 «

“— le

STATEMENT OF THE CASE

(INCLUDING FACTS MATERIAL TO THE CONSIDERA-

TION OF THE QUESTIONS PRESENTED; THE STAGE

IN THE PROCEEDINGS IN THE COURTS AT WHICH

FEDERAL QUESTIONS SOUGHT TO BE REVIEWED

WERE RAISED; THE MANNER OF RAISING THEM;

THE WAY IN WHICH THE COURTS PASSED THEM;

AND PERTINENT SUMMARY OF SPECIFIC PORTIONS

OF THE RECORD WITH SPECIFIC REFERENCES T0

Asbeahe y" IN THE RECORD WHERE THE MATTER

In July of 1985, petitioner Trent Jason

responded to newspaper advertisements for

the employee position of dockworker at

Respondent Roadway Express, Inc.'s freight

terminal located in the incorporated City of

Adelanto, California, in San Bernardino

County, in the State of California. The

advertisements promised a wage rate of

eleven dollars an hour.

The employment position advertised also

stated "Now Hiring,™ but actually entailed

five different employee applicant meetings

with Respondent Roadway Express, Inc.'s

employees, agents, representatives, and (in

one instance) doctor; taking a duration of

» £6 «

six weeks to be processed inclusive of

traveling about one hundred miles in each

direction, to and from Respondent Roadway

Express, Inc.'s terminal for each of those

meetings. None of this was known to

petitioner prior to applying for the employ-

ment opportunity advertised by this company,

until after each of those visits; being

notified each time that there would be an

additional meeting.

Respondent Roadway Express, Inc.'s

pre-employment procedure consisted of five

steps: (1) signing the employment register

to obtain an employment application; (2) a

group employee applicant interview followed

by an individual meeting; (3) a security

interview, including a lie detector test;

(4) a medical examination off the premises,

at the company's designated doctor's office

location; (5) a six and one-half hour group

employee orientation meeting followed by an

eight hour work shift, four hours after that

- “8 «

ee cael eee

meeting.

Petitioner completed these procedures

and was subsequently employed as a dockwork-

er, for the purpose of doing manual labor,

at the hourly wage rate of eleven dollars

an hour. Hé was employed from September 4,

1985, choough to October 29, 1985, whereupon

the company terminated him.

Petitioner alleged that he was terminat-

ed because the company alleged that he had

refused to become a "full time" employee of

the company (Respondent Roadway Express,

Inc. )s Contrary to what petitioner thought,

and was led to believe by respondents, these

newspaper advertisements meant of the term

"full time" employment that, according to

the undisclosed labor contract that the

company had with the local Teamsters union,

as a newly hired employee, petitioner was

actually required to join that local Team-

sters union and serve a one year probationary

period with the company.

_ 2 «

Petitioner alleges that he thought that ©

the term “full time" meant working a normal,

forty hour work week. He also alleges that

Respondent Roadway Express, Inc., through

its personnel manager, Respondent Robert

Allen Morrill, represented that there was no

requirement to join this Teamsters local

union at any given time that petitioner

desired, as if there was no required time to

join that local union. Petitioner also

alleges that he has documentary evidence to

establish this material fact.

Most importantly, under the applicable

local Teamsters' labor agreement, the wage

of the probationary employee was 70% of the

existing wage rate. This meant that

petitioner would receive only $9.80 an hour,

instead of the advertised $11.00 an hour,

during that one year probationary period.

Petitioner did not refuse to accept

this "full time" employment. Petitioner,

alleges, instead, that the company designed,

o 2 «

ten 2 i a i ate es Bi ol a ; : j } - . . Bes

seer ae en ne nen Soe FE Tad ey eee a ee ae ee Pe eT a ee Re ce Tae ee oe ee a ee een 2 ae ee

implimented, and practiced a scheme to

defraud a whole class of people, being the

employee applicants and subsequently hired

employees of Respondent Roadway Express,

Inc., by the nondisclosure, false promise,

and misrepresentations made by respondents

in the newspaper advertisements (that

Respondent Roadway Express, Inc. utilized

for years, at an expense of over $500,000.00

a year; just for its Adelanto, California

terminal alone) and, thereafter, during the

employment application procedure,

Respondents, while under federal court

order in respect to hiring employees, had

utilized its scheme to hire manual laborers

for short periods of time during the

company's peak period of business, which

occured on the undisclosed seasonal basis,

and then terminate those surplus employees

when business slowed down by utilizing the

Teamsters’ labor contract as the premise

for termination, alleging that these newly

» 22 -«

hired employees refused to become "full time"

employees, by not joining the local union;

while not giving these employees the real

opportunity to do so.

Petitioner alleges that, considering

that these employee applicants and pubees

quently hired employees left their previous

employer and residence, a hundred miles away,

to work and move to this distant location in

Adelanto for the promoted "career" opportun-

ity by respondents, it would not be logical

to assume that these individuals took the

employment position under any belief that it

would only be temporary.

Petitioner alleges, in being one of

these victimized workers, that he, like so

many of the others (inclusive of those with

families) became homeless and destitute,

having no employment after being terminated

and left in this desolated desert area with

no funds to pay for bare essentials.

Petitioner filed his civil complaint

on October 29, 1985, in the superior court

of California, in and for the County of

San Bernardino, [Desert District,] located

at 14455 Civic Drive, Victorville, Califor-

nia, 92392-2397; which was filed just before

petitioner was terminated from Respondent

Roadway Express, Inc. by its personnel

director, Respondent Robert Allen Morrill.

Petitioner's complaint entailed one

cause of action, for fraud and deceit.

After removal to federal court, in the

Central District of California, by respond-

ents, petitioner had the action remanded

back to the state court, because the civil

complaint alleged a cause of action in tort,

not directly related to the local Teamsters'

labor contract agreement, because the action

dealt with the alleged fraudulent preemploy-

ment hiring process of respondents. At that

time of being in federal court, petitioner

also amended his complaint, and the matter

» *& e«

was remanded back to the superior court on

March 17, 1986. Respondents filed a

nonopposition to that amended complaint and

answered it immediately, thereafter. .

Respondents, in investigating the

complaint, deposed petitioner for four days,

compiling a four volume, 798 page transcript.

Within that discovery, respondents discovered

that petitioner had falsified his employment

application. Specifically, respondents

discovered, and petitioner has never denied,

that petitioner omitted addresses where he

had lived during the preceding three years

and the time he had lived at each address;

falsely represented he had never been

discharged from a previous job;. omitted

the names of previous employers along with

previous periods of employment; and falsely

represented that he had attended Stony Brook

University in New York State.

Petitioner stated that his reason for

oe 2 -«

falsification was that he sought to simplify

his employment application and increase the

likelihood that he would be hired for the

employment position of manual laborer/dock-

worker that he had applied for.

Petitioner alleges he did this because

he had just previously been in a very serious

vehicle smeidnnt in which a felony hit and

run driver drove a stolen vehicle through

an intersection and through petitioner's

vehicle, before that person left the scene

never to be found again. Petitioner needed

to be assured of enployeent, and considering

that he had no criminal record, and had all

of the skills, education, capabilities, and

work experience for the employment position,

‘that he would not only benefit from being

employed, but so would the company. (It

turned out that petitioner became one of the

company's. star employees in his employee-

employer relationship with respondents. )

Petitioner represented to respondents,

. - «

when being deposed, that he did not intend

to defraud, injure, or be prejudical to

respondents in his act of falsification of

the employment application, when deposed

in January of 1986. In fact, weeks later,

after being terminated by respondents

thirteen weeks before, Respondent Roadway

Exrpess, Inc., through its representatives,

: offered petitioner his employment position

back.

A year and a half after petitioner filed ~

his original complaint, and just before the

jury trial date that was scheduled, respond-

ents filed their summary judgment motion,

contending that the entire action was barred Zz

by respondents' "affirmative" defense of

petitioner's unclean hands in his falsifica-

tion of that employment applicaiton,

Petitioner filed a formal and timely

made opposistion to that motion, along with

the relevant points and legal authorities.

» 2 «

Respondents thereupon filed an amended

statement of "undisputed" facts along with

their reply to petitioner's opposition.

Petitioner then filed a formal response to

that reply, and oral testimony was given by

both sides during the hearing on the motion.

The trial court judge, Honorable Donald

R. Egan, took the matter under submission,

and, two weeks later rendered a decision,

taking the position of respondents and grant-

ed the summary motion in the trial court's

statement of decision and subsequent judgment

by court.

However, the trial court failed to

provide any legal authorities what-so-ever

at any time prior to its decision; nor in

the statement of decision or judgment. The

trial court also failed to provide any

recitation as to why it alleged that the

cause of action in petitioner's complaint

and first amended complaint was frivolous

and completely without merit. Yet, still,

- 28 -«-

respondents nor the trial court ever provided

any itemization ot that enormous sum which

was awarded as sanctions against petitioner;

or to recite the reasons why sanctions even

applied. In fact, the trial court failed to

even allow petitioner the right to argue how

this sum of over eighty thousand dollars in

sanctions came about, there was (nor is there

at this time) nothing in the record to sup-

port this sum, and no hearing was allowed

for petitioner to argue these sanctions or

the reason why they were awarded.

All of these circumstances were in

violation of not only the California State

and United States Constitutions, they were

in direct violation of California Code of

Civil Procedure, section 128.5, which was

amended in 1985, and outlines the required

procedures of due process of law in matters.

involving sanctions. (see pages 15 through

17 in regards to the Constitutional and

[California] statutory provision, supra.)

— —

Petitioner, after receipt of the state-

ment of decision [Exhibit A, attached herein-

after] and with the judgment by court [Exhibit

B], filed an appeal in the California Court

of Appeal Fourth District, Division Two

located at 303 West Fifth Street, San Bernar-

dino, California 92401, on June 12, 1987,

[Exhibit C]. At that time, petitioner raised

the issues relating to the doctrine of clean

hands, summary judgment, and the awarding of

sanctions; inclusive of the argument that the

act of awarding these sanctions violated

petitioner's due process rights in that

matter.

Petitioner formally, properly, and on

a timely basis, filed his opening brief,

respondents filed their response, and chet

petitioner filed his reply. After oral

testimony, the court wrote a split decision,

on May 9th, 1989 [Exhibit D for the majority

opinion and Exhibit E for the dissenting

opinion].

Essentially, the majority's opinion,

based upon the presiding Justice Joseph B.

Campbell and Associate Justice Thomas E.

Hollenhurst, represented that the decision

was based on the fact that “the trial court

considered the admitted misrepresentations

in the employment application and found

that they establish the unclean hands

defense as a matter of law."

Petitioner, having thirty days before

that decision became finalized pursuant to

California rules of court, filed a petition

for rehearing in formal and proper fashion

and on a timely basis. However, that

petition was immediately denied by that

appellate court. -

Thereupon, petitioner immediately filed

a petition for review, on June 9th, 1989 with

the State of California Supreme Court,

[Case numbered Civil S010512] located at

the State Building, Room 4250, San Francisco,

California 94102.

e 2 «

Also, because petitioner was informed

by the staff of that court that only about

five percent of all petitions for review

are granted by the California Supreme Court,

petitioner also prepared a petition for writ

of mandate, having the superior court as the

respondent in that matter; and having it

properly served on that court on July 6th,

1989; thereupon filing this petition for

writ with the California Supreme Court on

July 17, 1989 [Case numbered Civil S$011124].

On July 20th, 1989, the petition for

review was denied, and on September 27, 1989,

the petition for writ of mandate was also

denied, by the California Supreme Court,

[Exhibits F and G, attached, respectively].

Petitioner thereupon filed this petition

for writ of certiorari, after having served

repondents in this matter three copies of

this petition, in the Supreme Court of The

United States, pursuant to this Court's

rules. This is where the matter now stands.

» 22 «

LEGAL ARGUMENT

The California State Courts Erred In :

Denying Petitioner's Right To Due Process

of Law In The Awarding of Attorneys’ Fees

and Costs To Respondents, As Sanctions

Against Petitioner for each of the five

following reasons:

A. The trial court failed, as a legal

requirement, pursuant to California Code of

Civil Procedure, section 128.5 [as cited

previously, herein] to state the reasons

why sanctions apply so as to “recite in

detail the conduct or circumstances justify-

ing the order."

"An order imposing expenses

shall be in writing and shall recite

in detail the conduct or circumstan-

ces justifying the order." .....

The court must state the specific

circumstances giving rise to the

award of attorneys' fees, and state

with particularity the basis for

finding those circumstances amount

to "tactics or actions not based on

good faith which are frivolous or

which caused unnecessary delay."

The court's written order should

be more informative than a mere

recitation of the words of the

statute.

Fegles v. Kraft (1985) 168 Cal.App.3d 812,

816; 214 Cal.Rptr. 380.

)

The [California] Legislature

clarified the condition under

which sanctions may be awarded by

its amendment to section 128.5 in

1985. .....Under the current )

version of section 128.5, once a ;

party shows that his action was

arguably meritorious (under the

circumstances and in light of ;

existing standards for the partic- )

ular area of law within which the

action was. taken), the logical ;

conclusion is that the party's

motive was probably not soley to

harass or cause unnecessary delay,

and that sanctions are probably

not warranted.

Weisman v. Bower (1987) 193 Cal.App.3d 1231,

1237.

The purpose of section 128.5's

provision for a recitation of the

facts justifying a sanctions order

is to fulfill the “rudiments" of

due process required for govern-

mental imposition of a penalty upon

an attorney or party - both for due

process’ own constitutional sake

and to ensure that the power

conferred by the statute will not

be abused. (See in re Marriage of —

Flaherty (1982) 31 Cal.3d 637, 652-

654; 183 Cal.Rptr. 598, 646 P.2d

179; O'Brien v. Cseh (1983) 148

Cal. “App. 3d 957, 962; 196 Cal.Rptr.

409. Moreover, in some cases the

court's recitation will be an

invaluable aid to a reviewing court

- 2 «

determining whether the trial

court abused its discretion in

awarding sanctions. (Cf. Miramar

Hotel Corp. v. Frank B. Hall &

Co. (1985) 163 Cal.App.3d 1126,

1129-1130; 210 Cal.Rptr. 114

(concerning the necessity for a

statement of decision where

required by {California] Code

Civ. Pees... § 633.3)

Lavine v. Hospital of The Good Samaritan

(1985) 169 Cal.App.3d 1019, 1029; 215

Cal.Rptr. 708.

B. The trial court failed, as a legal

requirement to that statute, not to award

sanctions until "after notice and opportun-

ity to be heard."

The applicable statute involved

[California Code of Civil Procedure, section

128.5] requires that "Expenses pursuant to

this section. shall not be imposed except....

after notice and opportunity to be heard."

The trial court awarded sanctions in a sum

of over eighty thousand dollars without .

notice of the intent to award such sanctions

or thereafter giving petitioner any

« @ «

opportunity to dispute those sanctions;

especially that hugh sum awarded without

any itemization, and without the case

having ever reached trial.

C. The trial court failed, as a

legal requirement to that statute, to

state how thé petitioner's "‘actions or

tactics'’ were ‘'"frivolous'"

meaning "(A)

totally and completely without merit or

(B) for the sole purpose of harassing an

opposing party."

Whether a party has a meritor-

ious cause of action is not a

proper basis for imposing sanctions

pursuant to [California] Code Civ.

Proc., section 128.5. The fact

that an action is determined to be

“without merit" does not automati-

cally place it in the catagory of

frivolous.

Atchinson, Topeka & Sante Fe Ry. Co. v.

Stockton Port. Dist. (1983) 140 Cal.App.3d

111, 117; 189 Cal.Rptr. 208.

"The Legislature did not intend,

in passing section 128.5, to chill

the valid assertion of a litigant's

rights against any defendant. For

this reason, sanctions should not be

imposed except in the clearest of

>» @ «

actrees

cases."

Lesser v. Huntington Corp. (1985) 178

Cal.App.3d 922, 935; 219 Cal.Rptr. 562;

citing Atchinson, supra.

Even after defining frivolous

the court cautioned, ". . .any

definition must be read so as to

avoid a serious chilling effect on

the assertion of litigants’ rights

. . ." and therefore “the power to

punish attorneys. . .should be

used most sparingly to deter only

the most egregious conduct."

Luke v. Baldwin-United Corp. (1985) 167

Cal.App.3d 664, 669-670; 213 Cal.Rptr. 654.

D. The trial court failed, as to

California State and United States

Constitutional requirements of due process,

to provide any form of itemization of

these expenses or attorneys' fees as

Sanctions against petitioner; with nothing

in the record existing of such itemization.

In Lesser v. Huntington Harbor Corp.,

supra, at page 930 of 173 Cal.App.3d, the

court clearly emphasized the issue of

adequate notice prior to the imposition of

« @ «

—

sanctions under California Code of Civil

Procedure, section 128.5 is mandated not

only by statute but also by the provisions

of both the Fourteenth Amendment of the

United States Constitution, and, Article

One, Section Seven, of the California

Constitution: No state shall make or

enforce any law which shall abridge the

privileges or immunities of citizens or the

United States; nor shall any state deprive

any person of life, liberty, or property,

without due process of law; nor deny any

person within its jurisdiction the equal

protection of the laws.

Without any itemization of the

attorneys’ fees as sanctions against

petitioner, and instead only a monetary

sum represented by respondents, it is highly

~ disputable as to the true, correct, and

accurate mionetary sum that is alleged by

respondents as attorneys‘ fees in this

matter, besides the fact that there was no

» #@ e

. |

hearing allowed in regards to the awarding

of sanctions. Therefore, there is no

actual evidence that these attorneys’ fees

exist in this hugh sum of over eighty

thousand dollars.

American Jurisprudence [, Second Edition,

Volume 16A], section 847, at pages 1058-1059,

represents due process of law in relation to

evidence and presumptions with a general

statement of the necessity of evidence:

Due process is absent if a

party is deprived of his property

or liberty without evidence having

been offered against him in

accordance with established rules.

eeeeelO judge in a contested

proceeding implies the hearing of

evidence from both sides in open

court, a comparison of the merits

of the evidence, a conclusion from

the evidence of where the truth

lies, the application of the

appropriate laws to the facts

found, and the rendition of

judgment accordingly.

American Jurisprudence |, Second Edition,

Volume 16], section 311, at pages 830-831,

represents the limitations of the courts

under the provisions of the United States

» SS «

eer

Constitution:

The courts, like other

agencies of the government, are

subject to controlling constitu-

tional provisions and valid

existing laws; and in performing

judicial functions, courts must

be careful to keep within the

constitutional limits of their

Own powers and to proceed by due

process of law. They must care-

fully abstain from exercising any

power that is not_ strictly -

judicial in character, and which /

is not clearly confided to them

by the Constitution. .....

Under all circumstances, it

is the imperative duty of the

courts to support the Constitution,

and no court has the right to

declare any public policy that

clearly contravenes or nullifies

the rights declared in the

Constitution. Accordingly, courts

are without power to deny a

citizen rights guaranteed to him

by organic law. Courts have no

power to tamper with the

Constitution.

E. The trial court failed to conform

to the doctrine of stare decisis, as the

statement of decision and order conflicts

with published, consistent, and uniform

decisions interpreting and defining the

relevant statute in this matter.

- 2 «=

In applying the award of attorneys'

fees and costs in favor of the respondents,

as sanctions, substantial errors of law and

facts exist because the trial court's

decision conflicts with not only the rele-

vant statute and Constitutional provisions,

but also with the highly relevant legal

authorities that were brought to the

attention of the trial court in petitioner's

opposition to defendants’ motion for summary

judgment; the trial court, having taken the

matter under submission for two weeks,

failed to comment on these authorities; and

the trial court failed to provide any

authorities at all in its statement of

decision and order.

The ruling in this matter has been

acted upon in excess of its jurisdiction by

not following the doctrine of stare decisis

and by the trial court's failure to discuss

those prior cases that were introduced to

it, or to follow the rudiments of due

+ oe «

process requirements represented in the

relevant statute and as interpreted and

highly defined in those legal authorities.

Witkin's California Procedure [, Third

Edition, Volume 9], section 793, at pages

766 and 767 represents that:

Probably the strongest reason,

for overruling a decision is that

it is contrary to a statutory

provision which was either not

discovered or was known but ignored

in the opinion. ....."Laws are not

made by judicial decisions. The

court simply determines the rights

of the parties to the action in

that particular controversy. It is

not part of its purpose-even to

declare the law. It simply applies

to the controversy the law as it

exists when the alleged rights or

liabilities accrued.

Witkin's California Procedure, supra,

[, Third Edition, Volume 9], section 797,

at page 772, represents that: roy

[A] decision which is

unsupported by authority or is ;

contrary to the great weight of

present authority is probably

wrong in principal or inconsistent

with modern social or economic

policy.

The California State Courts Erred In

Granting Respondents’ Motion For Summary

Judgment Through The Trial Court's

"Determination. that Petitioner's Cause of

Action Against The Respondents For Fraud

And Deceit Was “Barred Under The Doctrine

of Clean Hands" Because The Decision Was

Not Made In Conjunction of The Law,

Because None Of The Essential Elements As

Represented In Published, Consistent and

Uniform Decisions Were Met To Apply That

Doctrine In This Matter Becuase of The

Following Seven Elementary, But Substantial

Reasons:

A. Petitioner's act was not inter-

twined with respondents’ act to bar relief.

Although petitioner falsified the

employment application to simplify that

application so as to ensure that he would

more likely be employed by respondents,

this act was not directly related to the

fraud and deceit of respondents in their

design, implimentation, and practice of a

scheme to defraud a whole class of people,

being the employee applicants, and there-

after the subsequently hired employees, of

which petitioner was a member of that

° 48 «

class. While the two seperate acts of

petitioner may have happened at approxi-

mately relevantly close times, this was

incorrectly assumed by the trial court

to therefore be relevantly connected.

Twenty-five years ago, the [California]

appellate court ruled on this relationship,

or lack of it:

It would amount to a straining

of the [clean hands] doctrine to

hold that defendants could escape

liability for tort because

[Plaintiff] Fiberboard breached

its contract or because it was

guilty of fraudulent misrepresenta-

tions. The wrong done to Fiber-

board, which is the basis of its

cause of action for damages, is

independent of the transaction

arising from the alleged breach of

contract or misrepresentations.

To hold otherwise would be to

sanction an assault upon a person

who has perpetrated a fraud or

breached a contract with the

assaulter. Retribution for

Fiberboard's breach of contract

or fraudulent misrepresentation,

if such existed, cannot be

vindicated under the doctrine of

clean hands.

Fiberboard Paper Products Corporation v.

East Bay Union of Machinists, Local 1304,

« @& «

United Steelworkers of America AFI-CIO

(1964) 227 Cal.App.2d 675, 729.

And the California Supreme Court ruled,

almost three quarters of a century ago:

For a wrongful act to defeat

a suit under the clean hands doctrine,

it must be so intimately connected to

the injury of the defendant with

regard to the matter for which

plaintiff seeks relief, as to make

it inequitable to accord him such

relief.

Bradley Co. v. Bradley (1913) 165 Cal. 237,

241; 131 P. 750.

Also, the United States Supreme Court

ruled, over a half century ago:

What does seem clear is that

misconduct in the abstract,

unrelated to the claim to which

it is asserted as a defense, does

not constitute unclean hands.

The concept invoking the denial

of relief is not intended to serve

as punishment for extraneous

transgressions, but instead is

based upon considerations that make

for the advancement of right and

justice.

Keystone Driller Company v. General

Excavator Company (1933) 290 U.S. 240, 245;

54 S.Ct. 146, 78 L.Ed. 293.

- 45 -

Thirty years ago, the California

Supreme Court also represented this legal

theory when it stated that:

Misconduct claimed to result

in lack of clean hands will not

bar relief unless it is closely

connected with the matter in which

plaintiff seeks equitable assist-

ance and is of such prejudicial

nature it would be inequitable to

grant him that assistance.

Allen v. Los Angeles County District Council

of Carpenters (1959) 51 Cal.2d 705, 815;

337 P.2d 457.

B. Petitioner did not intend to

defraud, injure, or be prejudicial to

respondents, nor did they argue such in

their motion for summary judgment against

petitioner, and, therefore, the doctrine

of clean hands can not be utilized by

respondents as an affirmative defense to

bar relief by petitioner.

Petitioner's falsification of the

employment application was done without

any wrongful intent. Petitioner was

destitute and only wanted to obtain

e & «

employment, as a manual laborer, so as

to be self-sufficient.

Petitioner had all of the skills,

experience, knowledge, and capabilities

for the employment position of manual

laborer/dockworker that he applied for

and that he was subsequently hired for;

he had no criminal record; he was never

late or absent; he performed all of the

work duties that the company required and

asked of him; he even worked twenty-seven

consecutive days with eight to ten hour

work days, without a single day off. He

became the company's star employee and

was not terminated for any wrong doing on

his part; not even for having falsified

the employment application. Respondents

have never denied any of this. In fact,

thirteen weeks after terminating petition-

er, repondents offered him his employment

position back. Thus, the doctrine of

clean hands could not possibly apply in

ss as

ee ee

this matter.

That rule of law applies as

a matter of law only where the

evidence is susceptible of but

one inference that the transaction

was entered into with the intent

to defraud.

Stone v. Lobsien (1952) 112 Cal.App.2d 750,

758; 247 P.2d 357; Moriarty v. Carlson

(1960) 184 Cal.App.2d 51, 56; 7 Cal.Rptr.

282.

C. Petitioner did not injure, defraud,

or act perjudicial to respondents in

petitioner's act.

As shown in the just previously stated

section ["2 (B)"], the respondents were

defrauded, injured, or prejudiced, and

therefore, the doctrine of clean hands does

not apply as an affirmative defense to bar

petitioner relief from respondents in this

matter. If petitioner's falsification of

the employment application had gone

unnoticed, there would have been no harm to

respondents, even in the future.

—

teal TF

, |

’

The rule of law is very clear that in

order for the doctrine of clean hands to

apply as an affirmative defense:

"It must have been conduct

which, if permitted, inequitably

effects the relationship between

the plaintiff and the defendant."

Wiley v. Wiley (1943) 59 Cal.App.2d 840,

843; 139 P.2d 950; citing Bradley Co. v.

Bradley, supra.

Petitioner denies that his act was

"unconscionable," but even if respondents

desire to allege such in their argument,

the court has ruled:

The unconscionable conduct

must be of such a nature that it

would, if permitted to go unnoticed,

result in prejudice to the other

party.

Jeong Soon v. Beckman (1965) 234 Cal.App.2d

33, 46; 44 Cal.Rptr. 190.

D. Petitioner did not violate any law,

statute, code, or government rule, regula-

tion, or ordinance.

American Jurisprudence [, Second

Edition, Volume 27], section 138, on Equity,

pages 674-675, explains that:

The maxim in question is

said not to affect all “sinners"

or to embrace general iniquitous

conduct and not to comprehend all

“moral infirmities," the reason

being that courts of equity are

not primarily engaged in the moral

reformation of the individual

citizen. .....Authorities may

also be found to the effect that

the conduct of the complainant

must, if relief is to be denied

him, have been wrong in a legal

sense as well as in a moral view.

The California Supreme Court ruled, over

seventy-five years ago that:

The clean hands doctrine does

not apply to the general morals of

the person seeking relief.

Western Union Tel. Co. v. Commerical Pacific

Cable Co. (1918) 177 Cal. 577, 585; 171 P.

317; see also McCarthy v. Oakland (1943) 60

Cal.App.2d 546, 552; 141 P.2d 4.

E. Respondents actually profited from

petitioner's act.

American Jurisprudence, supra [, Second

Edition, Volume 27], section 144, on Equity,

at page 681, explains that:

= $8 «

Where the defendant has

profited by the wrongful conduct,

he is no position to invoke the

maxim.

F. The relative culpability of the

litigants was a highly relevant matter

before relief by petitioner could be barred.

In the failure of the trial court to

consider the relative culpability of the

litigants, Retired Appellate Justice Robert

O. Staniforth, in part of his extensive

dissenting opinion made in the appellate

court on this matter, along with the rele-

vant legal authorities which supports

petitioner's position in this aspect (of the

many aspects that he addresses) in this

matter, is represented by Honorable

Staniforth that:

[T]he courts should next

consider the relative culpability

of the parties. (30 Cal.Jur.3d,

Equity, § 29, p. 522.) Equitable

relief will be granted despite

improper conduct‘on the part of

the plaintiff if it is shown that

the defendant is the party most at

fault, as, for -example, where

plaintiff's wrongful conduct was

induced by defendant. (Young v.

e SF «

The Young Holding corp. (1938)

d a > Ppp. 5 >.

In the present case the trial

court failed to evaluate the

relative culpability of the parties.

The admitted negligible harm to

defendant resulting from plaintiff's

misrepresentations on his employment

application should have been weighed

against the harm to plaintiff and to

the public resulting from the

misrepresentations of defendants.

Nor did the trial court

consider "the extent of actual harm.

caused by the defendant or to the

public interest, . . ." (Republic

Molding Corporation v. B. W. Photo

Utilities (oth Cir. 1963) 319 Fed.2d

347, 349-350.)

The trial court's application

of the unclean hands doctrine was

completely without basis in fact or

law and should be reversed.

G. The trial court failed to comment

on, or even acknowledge petitioner's legal

authorities in the formal opposition to

respondents’ motion for summary judgment,

nor did the trial court provide any legal

authorities to support its decision against

petitioner.

The trial court completely disregarded

petitioner's opposition and did nothing

more to support its decision than enumerate

= $2 «

facts which are undisputed by all parties

to the action; those facts being the

confirmation by petitioner of the

falsification of the employment application

with Respondent Roadway Express, Inc.

The trial court failed to set forth

the ultimate facts with sufficient particu-

larity to show the ground upon which its

judgment rested, and ignored the evidence.

The court ruled, a half century ago:

It was for the trial court

in making its findings to set forth

the ultimate facts with sufficient

particularity to show the ground

upon which its judgment rested.

Clark v. Standard Acc. Ins. Co. (1941) 43

Cal.App.2d 543, 570; 111 P.2d 353, 112

P.2d 298.

[W]here as in the instant

case the trial court refused to

consider and weigh evidence upon

the erroneous theory that it could

not be considered, an appellate

court is not justified in affirming

the judgment upon the ground that

the evidence supports the judgment.

lewis Food Co. v. Fireman's Ins. Co. (1962)

> $3 «

re ee eee

207 Cal.App.2d 515, 524; 24 Cal.Rptr. 557.

The California Supreme Court ruled on

the doctrine of stare decisis:

"Speaking generally, any acts

which exceed the defined power of

a court in any instance, whether

that power be defined by constitu-

tional provision, express statutory

declaration, or rules developed by

the courts and followed under the

doctrine of stare decisis, are in

excess of jurisdiction.” ....+

Under the doctrine of stare

decisis, all tribunals exercising

Superior jurisdiction are required

to follow decisions of courts

exercising superior jurisdiction.

Otherwise, the doctrine of stare

decisis makes no sense. The

decisions of this [California Supreme]

court are binding upon and must be

followed by all the state courts in

California. .....Courts exercising

inferior jurisdiction must accept

the law declared by courts of

Superior jurisdiction. It is not

their function to attempt to overrule

decisions of a higher court. .....

This rule requiring a court exercis-

ing a higher jurisdiction has

particular application to the

appellate court. .....It would

create choas in our legal system

if these courts were not bound by

higher court decisions.

Auto Equity Sales, Inc. v. Superior Court

(1962) 57 Cal.2d 450, 456-457; 20 Cal.Rptr.

321, 369 P.2d 937.

eo @A «

The California Supreme Court Erred In

Not Granting Petitioner's Petition For Writ

of Mandate Ordering The Trial Court To

Comply With The Law; Considering That The

California Supreme Court Was Required To

Do So Based On The Following Ten Essential

Reasons:

A. The trial court is required to make

the performance of which the petitioner is

entitled to.

"Is is the refusal or neglict

to perform an act which is enjoined

by the law as a present duty that

serves as the very foundation for

the proceedings." [Citation. ]

e+ee. Where the limits of discretion

have been exceeded, the definite

command is to act within such

limits." [Citation. ]

Palmer v. Fox (1953) 118 Cal.App.2d 453,

456; 54 Cal.Rptr. 470.

B. The establishment of abuse of

discretion by the trial court existed and

still exists in this matter.

"In a legal sense discretion

is abused whenever in the exercise

of its discretion the court exceeds

the bounds of reason, all of the

circumstances before it being

considered." [Citation. ]

a «

State Farm Mut. Auto Inc. Co. v. Superior

Court (1956) 47 Cal.2d 428, 432; 304 P.2d

53.

"(TJhe writ will lie where,

under the facts, that discretion

can be exercised in only one way."

[Citation.] .....The trial court

is under a legal duty to apply the

proper law and may be directed to

perform that duty by writ of mandate.

Hurtado v. Superior Court (1974) 11 Cal.3d

574, 579; 114 Cal.Rptr. 106, 522 P.2d 666.

C. There is the showing, in one aspect

of this matter, that the trial court violat-

ed the Constitutional due process rights of

the petitioner. |

When the trial court ordered sanctions

against petitioner, as the plaintiff in those

proceedings, without the right to a copy of

an itemization of those sanctions, and where

the trial court thereupon selected a monetary

sum of over eighty thousand dollars without

any evidence that this sum existed as the

amount of attorneys' fees that the respond-

ents stated, and without any hearing to ever

— a

dispute this monetary sum, the trial court

thereupon violated petitioner's due process

of law rights under the Unites States

Constitution's Fourteenth Amendment

[, Section 1].

[D]ue process requires, at

a minimum, that an individual be

given a meaningful opportunity to

be heard prior to being subjected

by force of law to a significant

depriviation. .....

Similarly, our own [California

Supreme] court has frequently

recognized that the most fundamental

ingredient of the "due process"

guaranteed by our state Constitution

is a “meaningful opportunity to be

heard."

Randone v. Appellate Department Dep't. (1971)

5 Cal.3d 536, 543; 96 Cal.Rptr. 709, 488

P.2d 13.

D. There existed futility in petitioner

requesting the trial court, along with the

relevant appellate court, to act in this

matter, and there was no other legal remedy

when the California Supreme Court denied

petitioner's petition for review.

Petitioner appealed to both the

» S29 « -

California appellate court, and, after the

majority decision being adverse to petition-

er, to the State of California Supreme Court.

In each instance the appeal was properly

prepared, served and filed according to the

California rules of court. Because the

California Supreme Court reviews only about

five percent of the petitions for review

filed, petitioner filed a petition for writ

of mandate in the California Supreme Court;

there being the apparent futility in

requesting the lower courts to respond to

sucha petition. Time was of the essence in

this matter and there was no other adequate

remedy that appeared available in the

California courts.

Section 1086 of the [Califor-

nia] Code of Civil Procedure

provides that the writ of mandate

‘must be issued in all cases where

there is not a plain, speedy, and

adequate remedy , in the ordinary

course of law."

Phelan v. Superior Court (1950) 35 Cal.2d

363, 366, 372; 217 P.2d 951.

» £8 « .

E. The available procedural measures

on appeal were exhausted by petitioner.

Petitioner has explained in his last,

previous paragraph, that he had properly and

timely appealed this matter through the

California Courts, and during the appeal

to the California Supreme Court, and prior

to that appeal being denied in that court,

petitioner filed a petition for writ of

mandate with that court.

Having exhausted all the

available procedural measures on

appeal, the [petitioner] petitioned

this [California Supreme] court for

an original writ to review the lower

court decision.

Randone v. Appellate Department, supra, at

page 542 of 5 Cal.3d 536.

F. Petitioner had complied with all the

necessary requirements for the issuance of

the writ.

An examination of the complete record,

inclusive of the fifteen hundred pages of

the combined court clerk's transcript,

composed of five volumes, and the documents

= e«

filed in the California appellate court

and California Supreme Court, bound in one

volume, and filed with the California

Supreme Court in conjunction with the

petition for writ of mandate with that court,

it can be established that petitioner, with

all of the points and authorities to support

his petition for writ of mandate, had

complied with all the necessary requirements

for the issuance of that writ.

[I]t is settled that where

plaintiff shows compliance with the

requirements for issuance of the

writ, including the lack of any

plain, speedy or adequate remedy

in the usual course of law, he may

be entitled to mandate as a matter

of right.

Flora Crane Service, Inc. v. Rose (1964)

61 Cal.2d 199, 203; 37 Cal.Rptr. 425, 390

P.2d 193.

G. There was the procedural require-

ment of the California Supreme Court to

issue the writ.

The California Supreme Court was

e @ -«

tesa

procedurally required, under the circumstan-

ces represented in the petition for writ of

mandate, to issue the writ because it was

the only remedy left to require that the

trial court do each of the acts that the law

specially enjoins and where petitioner has a

substantial beneficial interest in the

performance of those duties.

Insofar as here relevant those

requirements are (1) a clear and

present ministerial duty of the

defendant [in this case, the trial

court] to do an act which the law

specially enjoins (Code Civ. Proc.,

§ 1085) and (>) a substantial

beneficial interest of the plaintiff

in the performance of that duty

(Code Civ. Proc., § 1086).

Flora Crane Service, Inc. v. Ross, supra,

at page 203 of 61 Cal.2d 199.

"The writ must be issued in all

cases where there is not a plain,

speedy, and adequate remedy , in the

ordinary course of law. . .' (Code

of Civ. Proc., § 1086), and where

", . .the petitioner has shown that

the respondents [in this case, the

trial court] have refused to perform

a clear legal duty not involving the.

exercise of any discretion. Under

such circumstances, the writ should

issue." (Citation. ] [Emphasis

original.] Or, as otherwise phrased,

".=6.)~6«wwhere one has a substantial

right to protect or enforce, and

this may be accomplished by such

a writ, and there is no plain,

speedy, and adequate remedy in the

ordinary course of law, he is

entitled as a matter of right to

the writ, or in other words, it

would be an abuse of discretion to

refuse it." [Citation. ]

May v. Board of Directors (1949) 34 Cal.2d

125, 133-134; 208 P.2d 661.

H. The writ was necessary to compel the

trial court from preventing the failure of

justice.

The trial court's discretion could

legally be exercised in only one way, and

mandamus was necessary to compel the trial

court to exercise that discretion.

[MJandamus has been employed

to correct the errors of inferior

tribunals and to prevent a failure

of justice or irreparable injury

where there is a clear right, and

there is an absence of any other

adequate remedy, as for instance

where no appeal lies, or where by

the appeal is inadequate. It may

also be employed to prevent an

abuse of discretion, or to correct

an arbitrary action which does not

amount to the exercise of discre-

tion.” [Citing from 38 Corpus Juris

at page 608. ]

Bales v. Superior Court (1942) 21 Cal.2d 17,

25; 129 P.2d 685.

I. The writ of mandate is necessary to

protect substantial rights, and of which

without, substantial injury would occur.

Petitioner is without legal counsel,

legal training or expertise, or any formal

education. Therefore, acting in pro per, he

is working full time on this matter and is,

therefore, unemployed. He has sold every-

thing he owns, except for bare essentials.

Without the writ of mandate or granting of

review of this matter, substantial injury

would occur, as petitioner has no option but

to proceed in bankruptcy proceedings if this

conflict is not resolved in the near future.

There is a clear and present ministerial

duty upon the part of the trial court and

a clear and beneficial right in the petition-

er to the performance of that duty.

"The granting of a writ of

mandate.....will be granted.....

where necessary to protect a right

s @€2- «

eeeeewhen it is shown that some

substantial damage will be suffered

by the petitioner if said writ is

denied." [Citation. ]

Parker v. Bowron (1953) 40 Cal.2d 344, 351;

254 P.2d 6

Two basic requirements are

essential to the issuance of the

writ: (1) a clear, present and

usually ministerial duty upon the

part of the respondent [the trial

court in this instance] and (2) a

clear, present and beneficial

right in the petitioner to the

performance of that duty.

People ex rel. Younger v. County of El Dorado

(1971) 5 Cal.3d 480, 491; 96 Cal.Rptr. 553,

487 P.2d 1193.

J. The undisputed facts in this case, ’

supported by sufficient legal authorities,

required the California Supreme Court to

command the trial court to act.

The trial court could act in only one

way, which it did not.

Under the undisputed facts of

this case, and the legal authorites

discussed above, .....it became the

clear legal duty of the court to

enjoin.....proceedings. Since under

the circumstances the discretion of

- €4 -«

the trial court could be legally

exercised in only one way, it was

an abuse of discretion for the

court to.....make the order which

it did.

Pacific Indem. Co. v. Superior Court (1966)

246 Cal.App.2d 63, 72; 54 Cal.Rptr. 470.

California Code of Civil Procedure,

section 1094.5(b),(c) states as follows:

The inquiry in such a case

shall extend to the questions

whether the respondent [the trial

court in this matter] has proceeded

without, or in excess of jurisdic-

tion.....and whether there was any

prejudicial abuse of discretion.

Abuse of discretion is established

if the respondent has not proceeded

in the manner required by law, the

order or decision is not supported

by the findings, or the findings

are not supported by the evidence.

Where it is claimed that the

findings are not supported by the

evidence, in cases in which the

court is.authorized by law to

exercise its independent judgment

on the evidence, abuse of discre-

tion is established if the court

determines that the findings are

not supported by the weight of the

evidence. In all other cases, abuse

of discretion is established if the

court determines that the findings

are not supported by substantial

evidence in the light of the whole

record.

o @& «

DATED: SEPTEMBER 30, 1989

Respectfully submitted,

TRENT JASON||) IN PRO PER

PETIT PONER,

PLAINTIFF AND APPELLANT

APPENDIX

STATEMENT OF DECISION

May 28, 1987

Superior Court of California Al = A?

JUDGMENT BY COURT

June 17, 1987

Superior Court of California Bl - B6

NOTICE OF APPEAL

June 10, 1987; Filed June 12

Superior Court of California Cl - C9

OPINION OF APPELLATE MAJORITY

May 09, 1989

Court of Appeal; California D1 = D22

DISSENTING APPELLATE OPINION

May 09, 1989

Court of Appeal; California El - E19

ORDER DENYING REVIEW

July 20, 1989

California Supreme Court F

ORDER DENYING WRIT OF MANDATE

September 27, 1989

California Supreme Court G

{Mailed:

May 28, 1987]

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF SAN BERNARDINO

TRENT JASON, No. VCV008736

Plaintiff, STATEMENT OF

DECISION

vs.

ROADWAY EXPRESS, INC.,

aka R.E.I., dba

ROADWAY EXPRESS,

aka ROADWAY,

California Corporation;

and BOB MORRILL,

aka ROBERT MORRILL.

Defendants.

The motion of defendants, Roadway

Express, Inc., and Robert Morrill, for

summary judgment came before this court

regularly for hearing on May 14, 1987.

Plaintiff, Trent Jason, was present

“—

appearing in propria persona. The

defendants, Roadway Express, Inc., and

Robert Morrill, were represented by

LITTER, [sic,] MENDELSON, FASTIFF AND TICHY

by counsel GORDON A. LETTER.

After review of the points and

authorities, declarations, exhibits of the

parties and the argument of,counsel in

open court, this court renders its

Statement of Decision as follows:

The motion of defendants, Roadway

Express, Inc., and Robert Morrill, for

summary judgment is granted. There is no

triable issue as to any material fact and

the moving party is entitled to Judgment

as a matter of law. Plaintiff's complaint

and first amended complaint are barred

under the Doctrine of Unclean Hands.

The plaintiff, Trent Jason, is

Ordered to pay to the attorneys for

defendant, Roadway Express, Inc.,

attorneys’ fees in the amount of

» Ao «

$81,695.00 pursuant to Code of Civil

Procedure, Section 128.5.

The filing of the complaint and first

amended complaint in this case was

frivolous being totally and completely

without merit.

Plaintiff, by his own admission, in

completing his application for employment

with defendant Roadway Express, Inc.:

a. intentionally omitted addresses

where he had lived in the last three siete

and misrepresented time periods during

which he resided at each address listed:

Supporting Evidence: Jason Dep. Exh.

No. 100; Jason Dep. 19-21, 111-115, 289,

324, 489-497, 506-507, and 510-511.

b. intentionally misrepresented that

he had never been discharged from a job;

Supporting Evidence: Jason Dep. Exh.

No 100; Jason Dep. 19-21, 111-115, 289,

324, 496-499, 500-501, 507, 541, 552, and

554-555.

c. falsely represented that he

attended Stony Brook University in Stony

Brook, New York for three years during the

period from 1968 to 1971;

Supporting Evidence: Jason Dep. Exh.

Nos. 100 and 105; Jason Dep. 19-21, 32,

111-115, 289, 324, 496-497, and 499-505.

d. intentionally omitted from his

list of all previous employment at least

nine employers, each of whom employed

plaintiff for six months or less and three

of whom had discharged plaintiff;

Supporting Evidence: Jason Dep. Exh.

No. 100; Jason Dep. 19-21, 111-115, 289,

324, 496-497, 512-513, 523, 532-538, 540-

541, 544, 546-548, 551, 554-560, 563, 565-

566, 570-572, 575, 584-586, and 591-593.

e. falsely represented that he had

been laid off by TOPA Thrift and Loan

Association in April 1983 rather than

discharged;

Supporting Evidence: Jason Dep. Exh.

—. a

No. 100; Jason Dep. 19-21, 111-115, 289,

324, 496-497 and 518-521.

f. falsely stated that he had been

self-employed in residential land develop-

ment and sales when, in fact, he had never

been self-employed in that endeavor;

Supporting Evidence: Jason Dep. Exh.

No. 100; Jason Dep. 19-21, 111-115,~> 289,

324, 496-497, 513, 517-518, 527, and 603.

g intentionally omitted three

periods of unemployment lasting approxi-

mately twelve, six, and four months.

Supporting Evidence: Jason Dep. Exh.

No. 100; Jason Dep. 496-497, 559, 575-576,

585, and 596.

h. during the application process,

Jason submitted a six-page handwritten

resume to Roadway in which he misrepresent-

ed his education at Stony Brook University,

his self-employment in real estate

development, and his reason for leaving

TOPA Thrift and Loan Association in April,

= AS «

1983.

Supporting Evidence: Jason Dep. Exh.

No. 103; Jason Dep. 41-42, 499-505, 513,

517-521, 527 and 603.

i. in response to Roadway's request

for Jason's transcript from Stony Brook

University, he provided to Roadway a copy

of a letter to the University and falsely

represented that he had sent the letter,

when, in fact, he never did so.

Supporting Evidence: Jason Dep. Exh.

No. 105; Jason Dep. 55-57, 116-117, and

501-503.

The foregoing conduct, in the Judgment

of the court, justifies award of attorneys’

fees incurred by defendant Roadway Express,

Inc. in defending this lawsuit.

Counsel for defendants, Roadway

Express, Inc., and Robert Morrill, shall

prepare the Order granting the motion for

summary judgment in this matter and submit

the same to this court for signature.

= @ «

DATED: 5/28/87

DONALD R. EGAN,

Judge of the

Superior Court

[Filed:

June 17, 1987]

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF SAN BERNARDINO

TRENT JASON,

Plaintiff,

ROADWAY EXPRESS, INC. CASE NO.

A.K.A. R.E.I., VCV 008736

D.B.A. ROADWAY EXPRESS,

A.K.A. ROADWAY,

A California Corporation;

and BOB MORRILL, ~-

JUDGMENT BY

COURT UNDER

eo Pe Oe

wee SS SS SS SS SS SY Se

A.K.A. ROBERT MORRILL, IN FAVOR OF

DEFENDANTS

Defendants. ROADWAY EX-

PRESS, INC.

AND ROBERT

in MORRILL

On May 14, 1987, the motion of

Defendants Roadway Express, Inc.

("Roadway") and Robert Morrill, hereinafter

. @ -«

referred to collectively as "Defendants",

for summary judgment and for sanctions

pursuant to Code of Civil Procedure

section 128.5 in the above-captioned

matter came on regularly for hearing in

Department DD-2 of this Court, the

Honorable Donald R. Egan, Judge presiding.

Gordon A. Letter, Esq. of Littler,

Mendelson, Fastiff & Tichy, a Professional

Corporation, appeared on behalf of

Defendants. Plaintiff Trent Jason

appeared in propria persona. After hearing

the oral argument of cousel and Plaintiff,

the Court took this matter under submis-

sion.

On May 28, 1987, this Court, having

taken this matter under submission, and

after fully considering the points and

authorities, declarations and exhibits

submitted by counsel and Plaintiff, and

the oral argument, ruled in favor of

Defendants and granted their motion for

« £8 «=

summary judgment and for sanctions pursu-

ant to Code of Civil Procedure section

128.5, Defendants having shown by

admissible evidence and reasonable

inferences therefrom not contradicted by

any other evidence or inferences, that

Plaintiff's action is barred under the

Doctrine of Unclean Hands, that there is

no triable issue as to any material fact

with respect thereto, that Defendants are

entitled to judgment as a matter of law,

that the filing of Plaintiff's complaint

and first amended complaint was frivolous

being totally and completely without

merit, that Plaintiff, by his own

admissionm in completing his application

for employment with Defendant Roadway:

a. intentionally omitted addresses

where he had lived in the last

three years and misrepresented

time periods during which he

resided at each address listed;

- £2 «<

b. intentionally misrepresented that

he had never been discharged from

a job;

c. falsely represented that he

attended Stony Brook University

in Stony Brook, New York for

three years during the period

from 1968 to 1971;

d. intentionally omitted from his

list of all previous employment

at least nine employers, each of

whom employed Plaintiff for six

months or less and three of

whom had discharged Plaintiff;

e. falsely represented that he had

been laid off by TOPA Thrift and

Loan Association in April 1983.

rather than discharged;

f. falsely stated that he had been

self-employed in residential

land development and sales when,

in fact, he had never been self-

= Bh «

employed in that endeavor;

intentionally omitted three

periods of unemployment lasting

approximately 12, 6, and 4

months;

during the application process,

Plaintiff submitted a six-page

hand written resume to Roadway

in which he misrepresented his

education at Stony Brook

University, his self-employment

in real estate development, and

his reason for leaving TOPA

Thrift and Loan Association in

April, 1983; and,

in response to Roadway's request

for Plaintiff's transcript from

Stony Brook University, he

provided to Roadway a copy of a

letter to the University and

falsely represented that he had

sent the letter, when, in fact, -

» BS «

he never did so,

and, that, pursuant to Code of Civil

Procedure section 128.5, the foregoing

conduct of Plaintiff justifies an award

of attorneys’ fees incurred by Roadway in

defending the lawsuit. Having ordered

entry of judgment for Defendants as

requested in said motion,

IT IS HEREBY ORDERED, ADJUDGED AND

DECREED that Plaintiff Trent Jason take

nothing by his action, that judgment is

hereby entered in favor of Defendants

Roadway Express, Inc. and Robert Morrill,

that Plaintiff Trent Jason pay to the

attorneys for Defendant Roadway Express,

Inc., attorneys’ fees in the amount of

Eighty-One Thousand Six Hundred Ninety-

Five Dollars and Zero Cents ($81,695.00)

pursuant to Code of Civil Procedure

section 128.5.

DATED: 06/17, 1989 DONALD R. EGAN

) JUDGE OF THE

SUPERIOR COURT

= «

TRENT JASON, In Pro Per

P.O. Box 1841

Pacifica, California 94044

(415) 355 4892

[Filed:

June 12, 1987]

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF SAN BERNARDINO

TRENT JASON, ) CASE NUMBER

) VCV 008736

Plaintiff and )

Appellant, ) NOTICE OF

) APPEAL;

Vv. ) NOTICE DESIGNA-

) TING PAPERS AND

ROADWAY EXPRESS, INC., ) RECORDS FOR

AcGchs BaBatas ) INCORPORATION

D.B.A. ROADWAY EXPRESS,) IN RECORD ON

A.K.A. ROADWAY, ) APPEAL; REQUEST

A California Corpora- ) FOR REPORTER’S

tion; and ) TRANSCRIPT ON

BOB MORRILL, ) APPEAL

A.K.A. ROBERT MORRILL; ) {Cal Rules of

and DOES 1 through 15, ) Ct, Rules 1

Inclusive, ~- ) (a) 4(a), 5

) (ad)

Defendants and )

Respondents. )

)

To the clerk of the above entitled court:

NOTICE IS HEREBY GIVEN that Plaintiff

e Ci -«

appeals to the Court of Appeal for the

Fourth Appellate District, from Division

Two, the order of the above entitled

court entered herein on May 28, 1987, in

favor of Defendants, providing as follows:

The granting of summary judgment in favor

of Defendants Roadway Express, Inc. and

Robert Morrill and the order that Plain-

tiff Trent Jason pay to attorneys for

Defendant Roadway Express, Inc., attorneys’

fees in the amount of $81,695.00 pursuant

to Code of Civil Precedure, Section 128.5.

NOTICE IS FURTHER GIVEN that Plaintiff

designates the following papers or records

on file or lodged with the clerk of the

above entitled court which Plaintiff

desires incorporated in the record on

appeal:

* First Amended- Complaint for fraud and

deceit;

* Answer of Defendants Roadway Express,

Inc. and Robert Morrill to first

« 2s

amended complaint for fraud and

deceit;

Notice of Motion and Motion by

Defendants Roadway Express, Inc. and

Robert Morrill for summary judgment

or alternatively summary adjudicaticn

of issues pursuant to C.C.P. section

437c and for sanctions pursuant to

C.C.P. section 128.5;

* Defendants Roadway Express, Inc.'s

and Robert Morrill's Statement of

Undisputed Material Facts in support

of motion for summary judgment or

alternatively summary adjudication

of issues pursuant to C.C.P. section

437c;

* Memorandum of Points and Authorities

of Defendants Roadway Express, Inc.

and Robert Morrill in support of

motion for summary judgment or

alternatively summary adjudication

of issues pursuant to C.C.P. section

—:

ill —— , -

128.5;

Declaration of Robert A. Morrill in

support of Defendants' motion for

summary judgment or alternatively

summary adjudication of issues

pursuant to C.C.P. section 43/7c;

Declaration of Gordon A. Letter in

support of Defendants" motion for

summary judgment or alternatively

summary adjudication of issues

pursuant to C.C.P. section 437(c)

and for sanctions pursuant to C.C.P., /

section 128.5;

Amended Statement of Undisputed

Material Facts of Defendants

Roadway Express, Inc. and Robert A.

Morrill in support of motion for

summary judgment or alternatively

summary adjudication of issues

pursuant to C.C.P. section 43/7c;

Plaintiff's Amended Opposition to

Defendants Roadway Express, Inc.'s

ica ie

and Robert Morrill's motion for

summary judgment or alternatively

summary adjudication of issues

pursuant to C.C.P. section 437c and

for sanctions pursuant to C.C.P.

section 128.5;

Motion for order of payment of

expenses as sanctions against

Defendants Roadway Express, Inc. and

Robert Morrill, and their attorneys,

Gordon A. Letter and Robert Millman

pursuant to C.C.P. section 128.5;

Declaration of Trent Jason in support

of motion for order for payment of

expenses as sanctions against

Defendants Roadway Express, Inc. and

Robert Morrill, and their attorneys,

Gordon A. Letter and Robert Millman

pursuant to C.C.P. section 128.5;

Plaintiff's Statement of Disputed and

Undisputed Material facts opposing

motion for summary judgment or

o 2

alternatively summary adjudication of

issues pursuant to C.C.P. section

437c and for sanctions pursuant to

C.C.P. section 128.5;

* Amended Memorandum of Points and

Authorities of Plaintiff Trent Jason ~4

in support of opposition to Defendants |

Roadway Express, Inc.'s and Robert

Morrill's motion for summary judgment

or alternatively summary adjudication

of issues pursuant to C.C.P. section

128.5;

Declaration of Trent Jason in support

of Plaintiff's amended opposition to

Defendants Roadway Express, Inc.'s

and Robert Morrill's motion for

summary judgment or alternatively

summary adjudication of issues

pursuant to C.C.P. section 437c and

for sanctions pursuant to C.C.P.

section 128.5; .

* Reply of Defendants Roadway Express,

» @ «

>»

Inc. and Robert Morrill to Plaintiff's

opposition to motion for summary

judgment or alternatively summary

adjudication of issues pursuant to

C.C.P. section 437c; and opposition

to Plaintiff's request for order for

payment of expenses as sanctions

against Defendants Roadway Express,

Inc. and Robert Morrill, and their

attorneys, Gordon A. Letter and

Robert Millman pursuant to C.C.P.

section 128.5;

* Supplemental Declaration of Gordon

A. Letter in support of Defendants’

motion for summary judgment or

alternatively summary adjudication

of issues pursuant to C.C.P. section

437c and for sanctions pursuant to

C.C.P. section 128.5;

* Supplemental Declaration of Robert

A. Morrill in support of Defendants'

motion for summary judgment or

s @ =

iinet

alternatively summary adjudication

of issues pursuant to C.C.P. section

437c;

* Plaintiff's Response to Reply of

Defendants Roadway Express, Inc. and

Robert Morrill to Plaintiff's

opposition to motion for summary

judgment or alternatively summary

adjudication of issues pursuant to

C.C.P. section 437c;

* Statement of Decision (by Judge of

the Superior Court);

* Judgment by Court under C.C.P.

section 437c in favor of Defendants

Roadway Express, Inc. and Robert

Morrill.

NOTICE IS FURTHER GIVEN that Plaintiff

requests the preparation of a reporter's

transcript of the oral proceedings in this

action.

Dated: June 10, 1987

NI noi.

TRENT JASON

Plaintiff, In Pro Per

c9 -

—————

NOT FOR PUBI.ICATION [Filed:

May 09, 1989]

COURT OF APPEAL, FOURTH DISTRICT

DIVISION TWO

STATE OF CALIFORNIA

TRENT JASON,

Plantiff and

Appellant,

E004389

(Super.Ct.No.

Vv. VCV-8736)

ROADWAY EXPRESS, INC.,

et al.,

Defendants and OPINION

Respondents.

~~ SO

APPEAL. from the Superior Court of

San Bernardino County. Donald R. Egan,

Judge. Affirmed.

Trent Jason, in pro. per., for

Plaintiff and Appellant.

Littler, Mendelson, Fastiff & Tichy

and Gordon A. Letter for Defendants and

Respondents.

iis rrr ad

Plaintiff Trent Jason appeals from

a summary judgment in favor of defendant

Roadway Exrpess. In granting the summary

judgment, the trial court. found that the

relief sought by Mr. Jason was barred by

the affirmative defense of unclean hands.

It therefore dismissed the action and

awarded defendant Roadway Express its

attorneys’ fees and costs of $81,695.00

pursuant to Code of Civil Procedure

section 128.5. On Appeal, Roadway requests

additional sanctions for the cost of

defending a frivolous appeal. (Code Civ.

Proc., § 907.)

SEE DISSENTING OPINION ATTACHED

ana

FACTS

In July 1985, plaintiff Trent Jason

responded to a newspaper advertisement for

dockworkers at Roadway's terminal in

Adelanto, California. The advertisement

promised a wage of $11 per hour and _ stated:

"Be sure to bring all past

employment information and be prepared to

fully complete an employment application."

Mr. Jason then went to Adelanto and applied

for the position.

Roadway's pre-employment process

consisted of five steps: (1) signing the

employment register to obtain an application

for employment; (2) completion and submis-

sion of the application; (3) a group

interview followed by individual mistines:

(4) a security interview, including a lie

detector test; and (5) a medical examina-

tion. Mr. Jason completed these steps and

was eventually employed as a dockworker at

the wage rate of $11 per hour. He was

» £8 «

employed from September 4, 1985 through

October 29, 1985.

According to Mr. Jason, he was termin-

ated because he refused to become a full-

time employee of the company. Full-time

employees were required to join the

Teamsters Union and serve a one-year

probationary period. Most importantly,

under the applicable Teamsters labor agree-

ment, the wage rate of a probationary

employee was 70% of the existing wage rate.

This meant that Mr. Jason would receive

$9.80 per hour instead of $11 per hour

during the probationary period. He there-

fore refused to accept full-time employment

on this basis.

Mr. Jason filed his complaint on

October 19, 1985. It alleged that Roadway

engaged in fraudulent employment practices

by failing to disclose, either in its

advertisements or in interviews, that the

dockworker position was a temporary position,

> Be «

™ ;

panei

or that a pay decrease would be required

for the first year in order to obtain

permanent employment.

After removal to federal court, the

action was remanded when Mr. Jason filed

a first amended complaint for fraud and

deceit. That complaint included allegations

that the company had not disclosed the union

contract and the wage decrease. Also

included were allegations that Mr. Jason had

given up his prior home and moved to

Adelanto in reliance on the offer of employ-

ment.

In investigating the complaint,

Defendant Roadway discovered that Mr. Jason

had substantially falsified his employment

application. Specifically, the trial court

found that Mr. Jason (1) intentionally

omitted addresses where he had lived during

the preceding three years and the time he

had lived during the preceding three years

and the time he had lived at each address;

» 8 «

sneer

(2) falsely. represented he had never been

discharged from a job; (3) omitted the

names of nine previous employers; and

(4) omitted three periods of unemployment.

Most importantly, Mr. Jason falsely

represented that he had attended Stony

Brook University in New York.

Significanly, Mr. Jason admitted that

he falsified the application. His stated

reason for the falsification was that he

sought to simplify the application and

increase the likelihood that he would be

hired. Since no factual question was

presented, Defendant Roadway filed its

summary judgment motion, contending that

the entire action was barred by its

affirmative defense of unclean hands. The

trial court agreed and granted the summary

judgment motion.

In addition, the trial court found

that the entire action was frivolous under

Code of Civil Procedure section 128.5. It

= @ «

therefore awarded defendant Roadway its

costs and attorneys’ fees incurred in

defending the action in the sum of $81,695.

On appeal, Roadway seeks additional

attorneys’ fees on grounds that the appeal

is frivolous under Code of Civil Procedure

section 907.

THE UNCLEAN HANDS DOCTRINE

1. General Principals.

Ancient equitable principals deny-

affirmative relief to a plaintiff who has 7

committed misconduct in the transaction

ebteh is the basis of his lawsuit. (See

Annot. (1919 4 A.L.R. 44.) Modern practice

allows this equitable defense to be used to

defend an action at law. (Fiberboard Paper

Products Corp. v. East Bay Union of Machin-.

ists (1964) 227 Cal.App.2d 675, 728.) If

no factual issues are involved, the exist-

ence of the affirmative defense can be

determined by a summary judgment motion.

(Joslin v. Marin Mun. Water Dist. (1967)

o tt «

67 Cal.2d 132, 148-149.) Here, the trial

court considered the admitted misrepresenta-

tions in the employment application and

found that they establish the unclean hands

defense as a matter of law.

2. Relationship of the Misconduct to the

Transaction.

On appeal, Mr. Jason first argues that

the unclean hands doctrine should not apply

because his misconduct does not relate to

the transaction in issue.

It has long been held that the conduct

which precipitates the application of the

unclean hands doctrine must be related to

the particular transaction. (Moriarty v.

Carlson (1960) 184 Cal.App.2d 51, 56-57; 7

Witkin, Summary of Cal. Law (8th ed. 1974)

Equity, § 10, pp. 5235-5236.) "Related"

means that the misconduct "must pertain to

the very subject matter involved and affect

the equitable relations between the liti-

gants." (Fiberboard Paper Products Corp. v.

» 2 =

East Bay Union of Machinists, supra, 227

Cal.App.2d at p. 728.) In Fiberboard, the

company sued a striking union, seeking

profits allegedly lost because of the acts

of the strikers. The union claimed that

the acts were induced by fraudulent

misrepresentations made by the company to

the union “relative to the negotiations

with respect to the collective bargaining

agreement." (Id., at pp. 688, 725.)

Considering whether the allegedly fraudulent

misrepresentations were "related" to the

union's conduct, the court found that they

were not, saying that the transaction before

the court “involves whether defendants were

guilty of tortious conduct. It would amount

to a straining of the doctrine to hold that

defendants could escape liability for tort

because Fiberboard breached its contract or

because it was guilty of fraudulent misrep-

resentations. The wrong done to Fiberboard,

which is the basis of its cause of action

~- D9 -

for damages, is independent of the

transaction arising from the alleged breach

of contract or misrepresentations. To hold

otherwise would be to sanction an assault

upon a person who has perpetrated a fraud

upon or breached a contract with the

assaulter. Retribution for Fiberboard's

breach of contract of fraudulent misrepre-

senation, if such existed, cannot be

vindicated under the doctrine of unclean

hands." (Id., at p. 729.)

-In this case, it is clear that the

misconduct pertains to the subject matter

of the litigation. The subject matter is

the hiring process. The employment applica-

tion is, of course, the heart of the hiring

process. The terms and conditions of the

proposed contract of employment, including

the wage rate for the position and the

requirement of union memebership, are also

central to the hiring process. Assuming

Roadway was not being candid about the terms

- D10 -

of the dockworker position, Mr. Jason was,

at the same time, lying in order to obtain

that position.

We think that it is equally clear that

Mr. Jason's misconduct affected the equit-

able relations between the litigants.

Assuming the conduct of Roadway was fraudu-

lent, it would have been actionable by an

injured party. Plaintiff could not have

been an injured party if he had not

falsified his application because he would

not have been hired. Plaintiff's misconduct

therefore put him in a position where he was

allegedly injured by Roadway's assumed fraud.

His fraud affected Roadway, and Roadway's

alleged fraud affected him. The balance, or

the equitable relationship between them, was

affected by the conduct of each of them.

More generally, the term "related"

implies a logical or casual connection.

(Arizona Property & Cas. Ins. Guar. Fund v.

Helme (Ariz. 1987) 735 P.2d 451, 456.) This

- Dll -

connection exists when facts used to prove

one claim would also be used, at least in

part, to prove the second claim. (Wham-0-

Mfg. Co. v. Paradise Manufacturing Co.

(9th Cir. 1964) 327 F.2d 748, 752 fn. 5.)

These tests are also met here since proof

of either claim would necessarily involve

proof of facts concerning the pre-employment

process at Roadway. We therefore conclude

that the conduct of the parties during the

hiring process was inextriably interrelated.

The exception for unrelated transactions is

therefore inapplicable, and the t)ial court

correctly applied the unclean hands doctrine.

3. Plaintiff's Intent.

Mr. Jason next contends that the

unclean hands doctrine was inapplicable

because he did not intend to defraud,

injure or prejudice defendant Roadway. He

relies on Moriarty v. Carlson, supra,

184 Cal.App.2d 51 and Stone v. Lobsien

(1952) 112 Cal.App.2d 750. In Moriarty,

- D112 -

Po ay M

plaintiffs filed a petition in bankruptcy

and failed to include

certain property on their bankruptcy

schedules. There was no finding by the

referee that plaintiffs intended to defraud

their creditors, and there was evidence that

there was an innocent misunderstanding. The

court said: “Had the trial court been

convinced that there was actual or intention-

al- fraud on the part of the plaintiffs toward

their creditors, the views of that court

[that the doctrine was applicable] may well

have been different." (Moriarity, supra,

at p. 56.) Im Stone, the court said: "it

is probably the law that the unclean hands

doctrine will bar a party from relief in

equity where there is a mere intent to

defraud without actual fraudresulting."

(Stone, supra, at pp. 757-758.) This

sentence is followed by the sentence relied

on by Mr. Jason: "But that rule applies

- D13 -

as a matter of law only where the evidence

is susceptible of but the one inference that

the transaction was entered into with the

intent to defraud." (Ibid., emphasis

added.)

In other words, Moriarity and Stone

apply to the situation where there is an

actual intent to defraud, whether the fraud

is successful or not. We think it is

equally true that a successful fraud is

misconduct wheter the result was intended

or not. This is particularly true when the

only evidence of intent is plaintiff's own

testimony. Plaintiff's subjective state of

mind is irrelevant where there is an actual,

successful misconduct.

4. Actual Injury or Prejudice.

Mr. Jason next argues that Roadway never

suffered any loss because of the false

employment application. In essence, he

argues that he was a good employee, well

qualified for the job, and that no harm

- D14 -

resulted from his conduct. He then cites

Republic Molding Corp. v. B. W. Photo

Utilities (9th Cir. 1963) 319 F.2d 347

for the proposition that the extent of

actual harm is relevant. While the parties

then argue about the minor actual damages

that each allegedly sustained, we think

the issue is the integrity of the employment

process itself.

Defendant Roadway, for reasons of its

own, established and followed a thorough

and detailed employment screening process.

Presumably, the process was intended to

allow it to secure competent, honest

employees. The misconduct and dishonesty

of job applicants defeats this legitimate

goal. The actual harm occurs when Roadway,

despite its best efforts at screening

applicants, obtains a dishonest employee.

As noted above, intent to injure becomes

irrelevant when actual harm results.

5. Questions of Fact.

- Di5 -

Mr. Jason next argues that application

of the unclean hands doctrine raises

primarily factual issues that should have

been decided by the jury. While this is

generally true, the question arose here on

summary judgment because Mr. Jason admitted

that he falsified his employment application.

The question of the legal effect of the

admitted facts was properly ruled on by the

trial court, as discussed above. We find

that the trial court properly decided the

legal applicability of the unclean hands

doctrine based on the admitted facts. A

judgment of dismissal on summary judgment

was therefore proper.

AWARD OF ATTORNEYS' FEES AND COSTS

The trial court found the action

frivolous pursuant to Code of Civil Procedure

section 128.5. Under this statute, the court

may order a party to pay the other party's

reasonable expenses, including attorneys'

fees, if the court finds that the party

- D16 -

filed the action in bad faith. Accordingly,

the filing of a frivolous lawsuit can lead

to an award of the entire costs of defense.

(Lesser v. Huntington Harbor Corp (1985)

173 Cal.App.3d 922, 930.) If a party knows

or should know that the facts or law, or

both, preclude the action or any recovery,

and the party nevertheless proceeds, the

court may find the action frivolous.

In this case, the trial court consid-

ered the misrepresentations of the employ-

ment application and found the action

frivolous. Although express findings were

not made, the trial court apparently thought

that “any reasonably attorney would agree

that the action is totally and completely

without merit™ because Mr. Jason admitted

the facts necessary to establish the

affirmative defense. (Winick Corp. v.

County Sanitation Dist. No. 2 (1986) 185

Cal.App.3d 1170, 1177.) The trial court

had discretion to make this determination

- Di7 -

under section 128.5 and we cannot say that

che decision was an abuse of that discretion.

Mr. Jason vigorously argues, however,

that his complaint is not frivolous because

he has a valid cause of action against

Roadway. But that is not enough. The point

is that he filed a lawsuit which, even if

meritorious, is blocked by an affirmative

defense. Since he knew that he falsified

his employment application, he knew or should

have known of the existence of the affirma-

tive defense. His position is the same as

the attorney who refuses to dismiss his

action after he discovers that it is barred

by the statute of limitations. (Van Berkel

v. Fox Farm and Road Mach. (D. Minn. 1984)

(581 F.Supp. 1248.) While Mr. Jason is

proceeding in pro. per., he is still held to

the standards applicable to an attorney.

(Doran v. Dreyer (1956) 143 Cal.App.2d 289,

290.) It is therefore presumed that he

filed the lawsuit knowing that his own

- D118 -

misconduct provided an affirmative defense

to the action. Accordingly, as discussed

above, the trial court did not abuse its

discretion in awarding the costs of defense

as sanctions.

ATTORNEYS’ FEES ON APPEAL,

Defendant Roadway asks for an award of

additional attorneys’ fees on appeal because

it claims that the appeal is also frivolous.

Code of Civil Procedure section 907 states: -

“When it appears to the reviewing court that

the appeal was frivolous or taken soley for

delay, it way add to the costs on appeal

such damages as may be just." In acting

under this section, this court must use its

own discretion to decide whether the appeal

is frivolous. This determination does not

depend on the trial court's finding, for

“lalffirmance of sanctions does not itself

justify further sanctions." (Winick Corp.

v. County Sanitation Dist. No. 2, supra,

185 Cal.App.3d at p. 1182.)

- p19 -

In support of its request, Roadway urges

us tc apply the objective test described in

In re Marriage of Flaherty (1982) 31 Cal.3d

637, 649: “'whether any reasonable person

would agree that the point is totally and

completely devoid of merit, and, therefore,

frivolous.‘'"

Roadway points out that the

arguments advanced here are the same argu-

ments that were unsuccessful below. In

particular, Mr. Jason has not even alleged

any factual conflicts that make the granting

of the summary judgment improper. According-

ly, Roadway argues that the same frivolous

claim is being reargued in this court and

that the result should be the same.

As Flaherty makes ciear, both subjective

and objective tests are relevant. (In re

Marriage of Flaherty, supra, 31 Cal.3d at

pp. 649-650.) “The two standards are often

used together, with one providing evidence

of the other, and both are relevant to a

determination that an appeal is frivolous."

- D20 -

(Otworth v. Southern Pac. Transporation Co.

(1985) 166 Cal.App.3d 452, 461.)

Objectively, Roadway's argument that

the affirmative defense was so clear that

no reasonable person could think otherwise

is an attractive argument. But, as Winick

states, we should also consider whether,

subjectively, the appeal is prosecuted for

an improper motive. There is no specific

evidence of motive in the record here and

we are reluctant to impute an improper

motive from the general statements of the

parties. We are not inclined to grant the

request of sanctions unless the record as

a whole demonstrates that both objective

and subjective factors, including an

improper motive, are present. Since no such

motive appears here, the request, for

additional sanctions on appeal is denied.

(Winick Corp. v. County Sanitation Dist.

No. 2, supra, 185 Cal.App.3d at pp. 1181-

1183.)

. - D21 -

DISPOSITION

The judgment is affirmed. Respondent

Roadway's request for additional sanctions

on appeal is denied.

NOT FOR PUBI.ICATION

' i /s/ Hollenhurst

I concur:

/s/ Campbell

- D22 -

[JASON V. ROADWAY EXPRESS, INC. E004389]

I respectfully dissent:

I. SUMMARY JUDGMENT

A. Not Part of Same Transaction.

On appeal, plaintiff argues that the

unclean hands doctrine does not apply because

the "Unconscionable" conduct by plaintiff

which was used by defendants as the basis

for the affirmative defense of unclean hands

is not related to the harm for which plain-

tiff seeks recovery.

"Traditionally, the doctrine of unclean

hands is invoked when one seeking relief in

equity has violated conscience, good faith

or other equitable principles in his prior

conduct. [Citations. ]" (Fiberboard Paper

Products Corp. v. East Bay Union of Machin-

ists (1964) 227 Cal.App.2d 675, 727.)

"TI]t is not every wrongful act nor even

every fraud which prevents a suitor in equity

from obtaining relief. The misconduct which

« Be.

brings the clean hands doctrine into opera-

tion must relate directly to the transaction

concerning which the complaint is made,

i.e., it must pertain to the very subject

matter involved and affect the equitable

relations between the litigants. According-

ly, relief is not denied because the

plaintiff may have acted improperly in the

past or because such prior misconduct may

indirectly affect the problem before the

court. [Citations.]. .. [1] ‘The trial of

the issue relating to clean hands cannot be

distorted into a proceeding to try the

general morals of the parties.‘ (Id., at

pp. 728-729, quoting Boericke v. Weise

(1945) 68 Cal.App.2d 407, 419.)

The real issue, as plaintiff has

pointed out, is whether plaintiff's falsi-

fications on the employment application were

so related to the harm for which plaintiff

seeks recovery as to bar plaintiff's action.

"The essence of the ‘clean hands'

. @ e

doctrine is not that the plaintiff's hands

are dirty but ‘that the manner of dirtying

renders inequitable the assertion of such

rights against the defendant.' [Citation.]"

Estates of Blanco (1978) 86 Cal.App.3d 826,

834.) Thus, a defendant has been allowed

to raise the defense in a suit by a subcon-

tractor to foreclose on a mechanic's lien

where the evidence supported a finding that

the general contractor and the subcontractor

had conspired to perpetrate a fraud in

submitting bills to the defendant. (Burton

v. Sosinsky (1988) 203 Cal.App.3d 562, 573.

Similarly, a husband who obtained a divorce

in collusion with his wife was not permitted

to use that collusion as a basis for having

the divorce set aside, after her death, so

that he could acquire title to what had been

the community property of the parties.

(Katz v. Karlsson (1948) 84 Cal.App.2d 469,

475-475.)

The holding in Fiberboard Paper Prod-

» 2 ‘se

ucts Corp. v. East Bay Union of Machinists,

supra, 227 Cal.App.2d 675, discussed by the

majority, is instructive on the availability

of the defense. In that case, plaintiff

brought a suit for damages against various

unions whose members had used force and

threats to enforce a strike at plaintiff's

manufacturing plant following plaintiff's

firing of a certain category of employee.

The appellate court refused to permit the

defendant unions to raise the defense of

unclean hands based on plaintiff's fraudu-

lent misrepresentations regarding negotia-

tions on a collective bargaining agreement.

In its ruling the appeals court

concluded that “the assertion of unclean

hands is not directed to the ‘transaction'

before the court in the instant case. That

transaction involves whether defendants were

guilty of tortious conduct. It would amount

to a straining of the doctrine to hold that

defendants could escape liability for tort

>» Mm eo

because Fiberboard breached its contract or

because it was guilty of fraudulent misrep-

resentations. The wrong done to Fiberboard,

which is the basis of its cause of action 7

for damages, is independent of the trans-

action arising from the alleged breach of

contract or misrepresentations. To hold

otherwise would be to sanction an assault

upon a person who has perpetrated a fraud

upon or breached a contract with the

assaulter. Retribution for Fiberboard's

breach of contract or fraudulent misrepre-

sentations, if such existed, cannot be

vindicated under the doctrine of unclean

nands." (227 Cal.App.2d at p. 729; emphasis

added. )

The same reasoning applies in the

present case. The basis of plaintiff's suit

is the alleged misrepresentations by defend-

ants as to the terms and conditions of

employment; there was no logical or casual

connection between the admitted falsifica-

» @ -«

Oe Ee ee =

tions by plaintiff on his employment appli-

cation and the actions of the defendants.

If defendants had negligently run a

truck over plaintiff during the time plain-

tiff was working for them it would be

apparent that they could not avoid Ltabilizy

by raising his misrepresentations on his,

employment application as a defense.

Similarly, the alleged fraud of defendants

was independent of any wrongdoing by

plaintiff.

Defendants speculate that if plaintiff

had not misrepresented his employment

history, he would never have been hired by

defendants. The implication is that without

his misrepresentations he would not have

been in a position to file his lawsuit, and

that this provides sufficient basis for

applying the defense of unclean hands.

This faulty reasoning represents a

further misunderstanding of the function of

the equitable defense of unclean hands.

» 4 «

Defendants cannot avoid liability by using

the defense of unclean hands as a vehicle

for examining all the events which preceded

the suit against them.

"Relief is not denied because the

plaintiff may have acted improperly in the

past or because such prior wnisconduct may

indirectly affect the problem before the

court. A party may have relief in connec-

tion with a transaction itself untainted

although his original title may have been

tainted by improper conduct." (Moriarty

v. Carlson (1960) 184 Cal.App.2d 51, 57;

Carman v. Athearn (1947) 77 Cal.App.2d,

598.)

Plaintiff's false statements related

only to his qualifications for employment

with defendant company. There was nothing

in plaintiff's actions which induced or

affected the alleged fraud by defendants

which is the basis of plaintiff's suit.

"It is settled that the act upon which

— a

equity may refuse relief to a plaintiff

because he does not come into court with

clean hands must prejudicially affect the

rights of the person against whom the

relief is sought so that it would be ~

inequitable to grant such relief." (Wiley

v. Wiley (1943) 59 Cal.App.2d 840, 842.)

The only way in which plaintiff's act

“prejudicially affected" the rights of

defendants was by calling defendants to

account for their hiring practices. That

is hardly a result a court of equity should

choose to bar through applicatien of an

equitable defense.

Defendants have not shown the relation

ship between plaintiff's lawsuit and his

wrongdoing which must exist before the

equitable defense of unclean hands can

prevail.

B. Failure to Consider Relative

Culpability.

Once it is established that a legally

. @ «

proximate nexus exists between the wrongful

acts of the plaintiff and the basis of

plaintiff's lawsuit, the courts should next

consider the relative culpability of the

parties. (30 Cal.Jur.3d, Equity § 29, p.

522.) Equitable relief will be etiated

despite improper conduct on the part of the

plaintiff if it is shown that the defendant

is the party most at fault, as, for example,

where plaintiff's wrongful conduct was

- induced by defendant. (Young v. The Young

Holding Corp. (1938) 27 Cal.App.2d 129, 152.)

In the present case the trial court

failed to evaluate the relative culpability

of the parties. The admitted negligible

harm to defendant resulting from plaintiff's

misrepresentations on his employment

applications should have been weighed against

the harm to plaintiff and to the public

resulting from the misrepresentations of

defendants. This was not done by the trial

court.

Nor did the trial court consider "the

extent of actual harm caused by the conduct

in question, either to the defendant or to

the public interest, ... (Republic

Molding Corporation v. B.W. Photo Utilities

(9th Cir. 1963) 319 Fed.2d 347, 349-350.)

The trial court's application of the

unclean hands doctrine was completely with-

out basis in fact or law and should be

reversed.

II. SANCTIONS UNDER SECTION 128.5

A. Insufficient Evidence That Costs

Were Incurred.

Code of Civil Procedure section 128.5

provides that a trial court may order a

party to pay reasonable expenses incurred

by another party as a result of “bad-faith

actions or tactics that are frivolous or

soley intended to cause unnecessary delay.

» « « (Subd. (a).) (Emphasis added.)

"Frivolous" is defined to mean "(A) totally

and completely without merit or (B) for the

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ee le ———e——— se mL eC

sole purpose of harassing an opposing party."

(Subd. (b)(2).) (Emphasis added.)

"A motion is frivolous and in bad -faith

where any reasonably attorney would agree

such motion is totally devoid of merit.

(Citations.)" (Staples v. Hoefke (1987) 189

Cal.App.3d 1397, 1418.) c

I have indicated my view that the trial

court erred in granting defendants’ motion

for summary judgment. Adoption of my view

by the majority would provide conclusive

proof that plaintiff's lawsuit was not

frivolous under the statute, and would

require automatice reversal of the award of

sanctions.

Even if the grant of summary judgment

is affirmed, however, there remain serious

due process deficiencies in the trial court's

order awarding more than $81,000 in attor-

neys' fees to defendants.

In the first place, the only evidence

presented at trial on the costs associated

- Ell -

ieee

with the suit was a declaration of defend-

ants’ attorney in which he stated: "I have

reviewed all of the invoices billed to :

[defendants] by [their attorneys] for the

period from November 1, 1985 through the

present, in connection with the defense of

[plaintiff's] lawsuits. The total fees to

date are approximately $113,408.75. The

total expenses to date are approximately

$7,858.32. _I estimate that the amounts for 7%

legal fees and expenses expended by [defend-

ants] in defending [plantiff's] wrongful

termination lawsuit to be $31,213.50 and

$1,081.71, respectively. By subtracting

these amounts from the above total fees and

expenses incurred by [defendants] for this

entire action are $82,195.25 and $6,776.61,

respectively, for a total of $88,971.86 for

both fees and expenses."

The declaration of defendants’ counsel

was not sufficient to support any award, let

alone a grossly inflated amount for a suit

- E12 -

which did not even go to trial. Code of

Civil Procedure section 128.5 authorizes

the court to order a party "to pay any

reasonable expenses, including attorney's

fees, incurred by another party... ."

(Code Civ. Proc., § 128.5, subd. (a).)

As an element of due process before

plaintiff's property can be taken from hin,

there must be a hearing, evidence in support

of the sanctions sought, and the opportunity

to object to insufficient evidence that the

expenses were in fact "incurred." There is

no proof here of “reasonableness," no

evidence such exorbitant fees were in fact

paid.

B. Failure to Provide Statement: of

Conduct and Circumstances Justifying the

Orders.

More important, however, is the trial

court's failure to comply with that part of

the statute which requires that "[a]n order

imposing expenses shall be in writing and

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shall recite in detail the conduct or

circumst2inces justifying the order." (Code

Civ. Proc., § 128.5, subd. (c); emphasis

added.) Here the trial court found only

that plaintiff's conduct in misrepresenting

his employment experience "justifies an

award of attorneys’ fees incurred by Roadway

in defending the lawsuit."

Under Code of Civil Procedure section

128.5, the "award of expenses must be written

and specify the reasons for the award. ...

An order bereft of this statement of reasons.

cannot stand. [Citation.] [1] .. . [D]ue

process requires that the court provide the

party with a written statement of reasons for

the award when the fees are imposed as

‘sanctions.’ [Citation.] This requirement

of written reasons affords a safeguard

against an abuse of the trial court's discre-

tion and permits appellate review of that

discretion." (Hearst v. Ferrante (1987)

Cal.App.3d 201, 204; emphasis added.)

- E14 -

"An order which merely recites that a

particular action was ‘frivolous’ and there-

by has imposed sanctions is insufficient.

[Citation.]" (Staples v. Hoefke, supra,

189 Cal.App.3d 1397, 1418.)

Under section 128.5, “once a party

shows that his or her action was arguably

meritorious . .. the logical conclusion is

that the party's motive was probably not

solely to harass or cause unnecessary delay,

and that sanctions are probably not warrant-

ed. Of course, the fact that an action is

arguably meritorious is not conclusive proof

that the action was not brought solely to

harass or delay. However, the party moving

for sanctions has the burden of proving that

the arguably meritorious action was taken

for improper motives." (Weisman v. Bower

(1987) 193 Cal.App.3d 1231, 1237; emphasis

original and added.)

In the present case the trial court

made no finding that plaintiff's cause of

- E15 -

action was lacking merit; the only finding

was that there was an equitable defense

which applied to the case.

Defendants had the burden of proving

that plaintiff's arguably meritorious case

was filed for improper motives, a burden

which they did not meet. The only claims

made by defendants were that plaintiff's

action "was barred by his unclean hands ~—

based upon facts known to Jason, but not to

Defendants," and the plaintiff "desired to

milk a monetary settlement from Roadway."

This evidence is insufficient grounds on

which to base an award of sanctions. It

does not respond to the statutory require-

ment of improper motive or brought solely

to harass or delay.

""The court must state the specific

circumstances giving rise to the award of

attorneys’ fees, and state with particularity

the basis for finding those circumstances

amount to "tactics or actions not based on

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good faith which are frivolous or which

cause unnecessary delay." The court's

written order should be more informative

than a mere recitation of the words of the

statute. . + « (Lieppman v. Leiber (1986)

180 Cal.App.3d 914, 921, quoting Fegles v.

Kraft. (1985) 168 Cal.App.3d 812, 816.)

That was not done in this case, and the

resulting order of the trial court was

deficient.

III. DEFENDANTS' REQUEST FOR SANCTIONS

ON APPEAL. PURSUANT TO CODE OF CIVII,

PROCEDURE SECTION 907

Defendant Roadway asks for an award of

additional attorneys' fees on appeal because

it claims that the appeal is-also frivolous.

Code of Civil Procedure section 907 states:

“When it appears to the reviewing court that

the appeal was frivolous or taken soley for

delay, it may add to the costs on appeal

such damages as may be just."

In acting under this section, this court

- E17 -

must use its own discretion to decide

whether the appeal is frivolous.

The California Supreme Court has

indicated that both subjective and objec-

tive criteria are relevant in determining

whether to impose sanctions on appeal.

(In re Marriage of Flaherty (1982) 31 7

Cal.3d 637, 649.)~> “The subjective standard

looks to the motives of the appellant and

his or her counsel. ...{[] The

objective standard looks at the merits of

the appeal from a reasonable person's

perspective. .. .[] The two standards

are often used together, with one providing

evidence of the other. Thus, the total

lack of merit of an appeal is viewed as

evidence that appellant must have intended

it only for delay. [Citations.]" (Id.,

at p. 649.

"(A]n appeal should be held to be

frivolous only when it is prosecuted for

an improper motive--to harass the respondent

- E18 -

or delay the effect of an adverse judgment

--or when it indisputably has no merit--

when any reasonable attorney would agree

that the appeal is totally and completely

without acrit,* (Id., at Ps 650.)

There is no evidence of impreper

motive in this record. The request for

sanctions on appeal is properly denied.

(Winick Corp. v. County Sanitation Dist.

No. 2 (1986) 185 Cal.App.3d 1170, 1181-83.)

NOT FOR PUBLICATION

/s/ Staniforth *

*Retired Associate Justice of the Court of

Appeal sitting under assignment by the-

Chairperson of the Judicial Council

- E19 -

—

(FILED:

JULY 20, 1989

ORDER DENYING REVIEW

Fourth Appellate District, Division Two,

No. E004389

$010512

IN THE SUPREME COURT OF THE STATE OF

CALIFORNIA

IN BANK

TRENT JASON, Appellant

ROADWAY EXPRESS INCORPORATED Et Al.,

Respondents

Appellant's petition for review DENIED.

Panelli, J., is of the opinion the

petition should be granted.

LUCAS

CHIEF JUSTICE

[ FILED:

SEP 27, 1989]

No. $011124

IN THE SUPREME COURT OF THE STATE OF

CALIFORNIA

IN BANK

TRENT JASON, Petitioner,

SUPERIOR COURT OF THE COUNTY

OF SAN BERNARDINO, Respondent

Petition for writ of mandate DENIED.

IL UCAS

Chief Justice

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.