Petition for Writ of Certiorari — Kendall v. City of Visalia

Supreme Court brief1993

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IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

ROY J. KENDALL, et al,

Petitioners,

THE CITY OF VISALIA,

et al,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE STATE OF

CALIFORNIA

LEONARD C. HOAR, JR.

Attorney at Law

3948 E. Gettysburg

Fresno, CA 97326

Telephone: (209) 222-3521

STATEMENT OF QUESTIONS PRESENTED

1. Do plaintiff and his attorney have

the right under the First Amendment to

petition the government of the City of

Visalia for redress of grievances through

the filing and prosecution of a lawsuit in

order (a) to save Visalia Taxpayers’

money, (b) to halt the illegal use and

waste of taxpayers’ general fund money and

property to finance and support the con-

struction of the privately owned Visalia

Radisson Hotel, and (3) to recover

misspent funds for the City Treasury?

2. Does a plaintiff who petitions the

government for red:ess of grievances

through the filing and prosecution of a

lawsuit under the First Amendment have the

right to have an attorney represent him in

that lawsuit?

3. Does the attorney who represents a

plaintiff client in exercising the First

it iia ell

Amendment right to petition the government

for the redress of grievances through the

filing and prosecution of a lawsuit have

the right to do so without punishment or

the threat of punishment through arbitrary

and capricious imposition of sanctions for

having done so, which sanctions in turn

have a chilling effect upon any other at-

torneys representing similar such clients

in similar situations.

4. Does the First Amendment right to

petition the government for redress of

grievances through the filing and prosecu-

tion of a lawsuit include protection

against arbitrary and capricious dismissal

of the action by a state court’s deciding

the case on methodology and not merit the

first time the court rules on a demurrer

to the complaint presented by counsel?

ad spill ii

LIST OF PARTIES ‘

I. THE FOLLOWING INDIVIDUALS ARE

PARTIES TO THE APPEAL FROM WHICH THIS

PETITION FOR WRIT OF CERTIORARI EMANATES:

a. Roy J. Kendall, Plaintiff and

Appellant and Petitioner.

b. Leonard Cc. Hoar, dJr.,

Plaintiff’s Attorney, Appellant, and

Petitioner.

c. The City of Visalia, Defendant

and Respondent.

d. The Redevelopment Agency of

| the City of Visalia, Defendant and Respon-

dent.

e. Gregory F. Collins, Defendant

and Respondent. (Mayor)

f. Alan T. McIntosh, Defendant

| and Respondent. (Councilman and Contrac-

tor)

| g.- Mary Louise Vivier, Defendant

and Respondent (Councilwoman)

h. Bob McClain, Defendant and

Respondent (Councilman)

a. Don Sharp, Defendant and

Respondent (Councilman)

j. Berkley Johnson, Defendant and

Respondent (Councilman)

k. Tim Hansen, Defendant and

Respondent (Finance Director, City of

Visalia)

m. The Visalia Building Authority,

Defendant and Respondent.

iii

n. Jeffrey M. Oderman, Defendant

and Respondent (Special Counsel to the

City of Visalia)

oO. Ski Harrison, Defendant and

Respondent (Special Counsel to the City of

Visalia)

Pp. Rutan and Tucker, Defendant

and Respondent (Special Counsel to the

City of Visalia)

2. OTHER DEFENDANTS WHO ARE NOT IN-

VOLVED IN THIS PETITION OR THE DECISIONS

BELOW ARE AS FOLLOWS:

a. Donald R. Duckworth, City

Manager.

b. McCormick, Kabot, Michner & |

Foley, A Partnership of Law Corporations,

and Steve L. Kabot, City Attorney for the

City of Visalia.

c. Metro North State Bank, A Mis- |

souri State Banking Corporation.

dad. Frank Morgan (with Metro)

e. David B. Feingold (with Metro)

f. Lincoln & Osterman (real es- |

tate brokers)

g. Terry Lincoln (broker)

h. Bill Osterman (broker)

i. Pannell, Kerr, Forster, now

Madison Associates (CPA)

B« American Air Company, Inc.

(Alan McIntosh’s corporation)

k. Energy Alliance Corporation

(Alan McIntosh’s corporation)

1. Sequoia Plumbing, Inc. (Alan

McIntosh’s corporation)

m. William E. Courtney (hotel

developer).

n. Visalia Convention Center

Hotel, Inc. (Courtney)

Oo. The Courtney Group, Inc.

(Courtney)

p. Surgery Center, Inc.

(Courtney)

q.- Professional Center at Sunval-

ley, Inc. (Courtney)

fs Pacific Development, Inc.

(Courtney)

s. The Berkeley Center, Inc.

(Courtney)

t. Pacific Development Group,

Inc. (Courtney, a Washington corporation)

Be. Diana Dooley (public

relations).

Vv. Security Pacific National

Bank.

w. First American Title Insurance

Company.

No.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

ROY J. KENDALL, et al,

Petitioners,

Vv.

THE CITY OF VISALIA,

et al,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE STATE OF

CALIFORNIA

LEONARD C. HOAR, JR.

Attorney at Law

3948 E. Gettysburg

Fresno, CA 97326

Telephone: (209) 222-3521

vii

viii

Page

STATEMENT OF QUESTIONS

PRESENTED i

LIST OF PARTIES iii

TITLE PAGE vi

SUBJECT INDEX vii

TABLE OF AUTHORITIES xi

APPENDIX SUBJECT INDEX xvii

1. OFFICIAL AND

UNOFFICIAL REPORTS 1

ae GROUNDS ON WHICH

JURISDICTION IS SOUGHT 2

3. CONSTITUTIONAL

PROVISIONS INVOLVED 3

4. CONCISE STATEMENT OF

THE CASE 4

a. Procedural Facts. 4

b. The Third Amended

Complaint. 6

c. No Personal

Benefit To Plaintiff 17

dad. Hearing of August

23, 1990. 18

e. Unnoticed Ex Parte

Hearing on APPRAISERS’ Order 26

SUBJECT INDEX

f. Plaintiff’s Steps

to Disqualify Judge Howard

Broadman

g. Verified Statement

To Disqualify The Honorable

John P. Moran.

h. Inaction By Fifth

District Court of Appeal

5. ARGUMENT.

a. Third Amended

Complaint A Valid Statement

of Causes of Action

b. Court Actions

Below Served To Deprive

Petitioners of Their

First Amendment Rights

1) Demurrer

Hearing of February 28, 1990

2) Discovery

Order

3) Demurrer

Hearing, August 23, 1990

4) Court’s

Changing Petitioners’ Causes

Of Action

5) A Void Act

Is Void

6) The Trial

Court Applied A Nonexistent

Standard to Dismiss the Fifth

(Fraud) and Tenth (Negligence)

Causes of Action Against City

Defendants on Ground Petitioner

Failed to File a Claim

7) The Trial

Court Denied Petitioners’

Civil Rights Cause of Action

By Refusing the Relation

Back Doctrine

8) The Trial

Court Sanctioned Petitioner

Hoar For Citing Leading

Cases

9) Imposition of

Sanctions Was Punishment for

Having Exercised First

Amendment Rights By Filing the

Not for Wrongs Done, and Was

and Abuse of Discretion

10) Dismissal and

Sanctions Decision Made

Without Considering Merits

(Substance) of Third Amended

Complaint, Only Its

Methodology (Form)

11) Judge Broadman

Chastised petitioner for

Violating Judge Moran’s

"Orders" of February 3,

1990, Although Judge Broadman

Had Not Seen A Transcript

of That Hearing

12) Judge Moran

Issued No Orders on February

28, 1990

13) Judge Moran

Did Not Order Petitioner To

Avoid Pleading The Validity

of the First Amended Lease

and of the Guaranty Agreement 60

14) The Court of

Appeal Affirmed Sanctions on

Petitioner, But No Sanctions

on Steve Kabvot and M.

Katherine Jensen For

Going Behind Petitioner’s

Back, Meeting with Roy

Kendall, and Inducing Roy

Kendall to Sign Stipulation

Dismissing Appeal Without

Petitioner’s Knowledge,

Consent, or Approval. 61

15) Court of

Adopted False Standard Re

Denying Petitioner’s Standing

To File Suit 64

SUMMARY 65

APPENDIX

xii

APPENDIX

SUBJECT INDEX

Page

Denial of Hearing,

California Supreme Court,

August 12, 1992 1

Denial of Petition for

Rehearing, Fifth District

Court of Appeal, June 5,

1992 2

Opinion, Fifth District

Court of Appeal, May 19,

1992 4

Order Sustaining Demurrer

(without leave to amend)

by Judge Howard Broadman,

November 20, 1990 51

Summary, Order Sustaining

Demurrer (without leave to

amend) by Judge John P.

Moran, January 17, 1991 61

Minute Order, Demurrer

Hearing, by Judge Howard

Broadman, August 23, 1990 62

A. Court’s Exhibit #1,

Transcript, Demurrer

Hearing before Judge

John P. Moran,

February 28, 1990 64

Decision, (Disqualification

of Judge Howard R. Broadman

for Cause), by Judge John H.

Phillips, Monterey County

Superior Court 71

xii

sas |

8. Recusal by Judge John P.

Moran (after challenge for

cause), February 20, 1990 74

9. Federal Issues Raised in

State Court 78

1. Opposition to Demurrer

to Second Amended

Complaint, February 22,

1990 78

2. Motion for Reconsid-

eration of Judge Broad-

man’s Order, filed

September 5, 1990 81

3. Judge Broadman’s Ruling,

December 5, 1990 88

4. Plaintiff and Appellants’

Opening Brief on Appeal 89

5. Petition for Hearing

before California

Supreme Court 93

10. Provisions of VISALIA

CITY CHARTER 101

ARTICLE VI, Legislative

POWERS

Section 6. Ordinance. 101

Section 7. When Ordinance

Goes Into Effect 102

Section 8. Amending

Ordinances 103

ARTICLE XIV. Franchises.

Section 1. Franchise. 105

xiv

ee |

11.

> -

ARTICLE XVI. Miscel-

laneous Provisions.

Section 8. (Conflict of

Interest) 105

Section 13. (Removal

from Office.) 106

Orders in Companion Case,

U.S. District Court, Eastern

District of California,

Case No. CF-F-92-5706-REC

Petition for Writ of

Habeas Corpus

a. Order Denying Appli-

cation for of Confine-

ment Pending Writ and

Hearing, October 22,

1992 108

b. Order to Show Cause,

November 5, 1992 112

c. Order Directing Service

of Petition and Order

to Show Cause 114

Discovery Order, Judge John

P. Moran, August 2, 1990 116

xvi

TABLE OF AUTHORITIES

Cases

Better Food Markets v. Amer.

Dist. Tel. Co. (1953) 40

Cal.2da 179, 253 P.2da 10

Blair v. Pitchess (1971) 5

Cal.3d 258, 96 Cal. Rptr.

42, 486 P.2d 1242

Board of Regents v. Roth (1972)

498 U.S. 64, 92 S.Ct. 2701,

33 L.Ed.2d 548

Bollinger vy. National Fire

Insurance Company (1944)

25 Cal.2d 399, 154 P.2d 399

California Transport vy. Trucking

Unlimited (1972) 404 U.S.

508, 92 S.Ct. 607, 30 L.Ed.2d

642

City of Albany v. Meyers

(1929) 99 Cal.App. 651

179 P. 213

City of Long Beach v. Bozek

(1982) 31 Cal.3d 527, 183

Cal.Rptr. 86, 645 P.2d 1376,

vacated, 459 US 1095, 74

L Ed.2d 943, and remanded;

reaffirmed 33 Cal.3d

727, 190 Cal.Rptr. 918,

661 P.2d 1972

The City of Sacramento v. Kirk

(1857) 7 Cal. 419

xvii

24,55

51,52

Crisci v. Security Ins. Co.

(1967) 66 Cal.2d 425, 58

Cal.Rptr. 13, 426 P.2d 173

Eastern R. Conf. v. Noerr Motors

(1961) 365 U.S. 127, 81 S.

Ct. 523, 5 L.Ed.2d 464

Elkins v. Derby (1974) 12

Cal.3d 410, 115 Cal.Rptr.

641, 525 P.2da 81

Eustace v. Dechter (1938) 28

Cal. App.2d 706, 83 P.2d

523

Gogerty v. Coachella Valley

Junior College District

(1962) 57 Cal.2d 727, 21 Cal.

Rptr. 806, 371 P.2d 582

Goss v. Lopez (2975) 419 U.S. 565,

92 S.Ct. 724, 42 L.Ed.2d 725

Griffith £. Dept. of Public

Works (1956) 141 C.A.2d 376,

296 P.2d 838

Harmon v. City and County of

San Francisco (1972) 7 Cal.3d

150, 101 Cal. Rptr. 880,

496 P.2d 1248.

Johnson v. Avery (1969) 393 U.S.

487, 89 S.Ct. 747

Johnson v- Clark (1936) 7 Cal.2d

529, 62 P.2d 767

Kinlaw v. State (1991) 54

Cal.3d 326, 285 Cal.

Rptr. 66

xViii

24.55

41,49

Lloyd vy. California Pictures

Corporation (1955) 136 Cal.

App. 2d 638, 289 P.2d 695

Lusk v. Compton City School

Board of Education

(1967) 252 Cal.App.2d 376,

60 Cal. Rptr. 426

Mansfield v. Pickwick Stages

(1923) 191 Cal. 129,

215 P. 389.

Mine Workers v. Pennington

(1965) 381 U.S. 657, 85

S.Ct. 1585, 14 L.Ed.2d 626

NAACP v. Button (1963) 371

U.S. 415, 83 S.Ct. 318,

9 L.Ed.2d 405

Nichols vy. Canoga Industries

(1978) 83 Cal.App.3d

956, 148 Cal.Rptr. 459

Osborne v. Stone (1915) 170

Cal. 480, 1150 P. 367.

Sperry v. Florida (1963) 373

B.8. 379, 63 &.Ct. 1322,

10 L.Ed.2d 428)

Stanson v- Mott (1976) 17

Cal.3d 206, 130 Cal.

Rptr. 697

Stigall v. City of Taft

(1962) 58 Cal.2d 565,

25 Cal. Rptr. 441

Summers v. City of Cathedral

City (1990) 225 Cal.

App.3d 1047, 275 Cal.

Rptr. 594

xix

41,9

24,55

40,49,53.

41,49

Van Atta v. Scott (1980)

27 Cal.3d 424,

166 Cal. Rptr. 149,

613 P.2d 210.

Wennerholm v. Stanford Univ.

Sch. of Med. (1942)

20 Cal.2d 713,

128 P.2d 522

White v. Davis (1975) 13

Cal.3d 757, 120 Cal.

Rptr. 94, 533 P.2d 222

Wirin v. Parker (1957)

48 Cal.2da 890,

313 P.3d 844

Woodroof v. Howes (1891)

88 Cal. 184, 26 P. 111

Statutes

Civil Code Section 3539

Code of Civil Procedure

Section 128.5

Code of Civil Procedure

Section 338

Code of Civil Procedure

Section 382

Code of Civil Procedure

Section 526a

Code of Civil Procedure

Section 860

Code of Civil Procedure

Section 863

7,43,45,

46,54,64

43,45,48,

48,49

Constitution (CA), Article I,

Section 3 31

Constitution (CA), Article XIIIB,

Section 6 64

Constitution (CA), Article XVI,

Section 3 49

Constitution (CA), Article XVI,

Section 4 49

Constitution (CA), Article XVI,

Section 6 9,12,40,

Constitution of the United

States of America, First

Amendment, Petition Clause 3,31,56

Constitution of the « ted

States of America,Fou .eenth

Amendment, Equal Protection

Clause eS

Government Code Section 905 52

Government Code Section 1090 17,41

Government Code Section 1097 41

Government Code Sections

17500 et seq 50

State Bar Rules of

Professional Conduct,

Rule 2-100 30

Visalia City Charter,

Article III, Section 1 40

Visalia City Charter,

Article VI, Section 4 40

xxi

Visalia City Charter,

Article VI, Section 16 34,40,5

Texts and Treatises

56 Am Jur 24a, "Municipal

Corporations, etc.",

Section 411, pp. 453-454 51

Corpus Juris Secundun,

"Municipal Corporations,"

Section 434, Subsection d,

"Requisites and Sufficiency,

p. 833 51

Grossman & Van Alstyne,

7 Pleading -- Civil Actions,

West’s Culifornia Practice

Series, Section 776. 44

Prosser, Law of Torts, 4th,

Hornbook Series, Chapter 16,

"Tort and Contract", Section

92, “Relation Between

Actions," "Election and

Gravamen," pp. 618-621. 43

McQuillan, 6 The Law of Municipal

Corporations, 3rd., (1988)

Sections 21.04, 21.05, 21.12

and 21.13 51

Witkin, 3 California Procedure

3d, “Actions," Sections

508 et seq 25,55

xxii

1. OFFICIAL AND UNOFFICIAL REPORT OF

OPINIONS

0,50

The official and unofficial reports of

opinions and decisions below are set forth

in the Appendix submitted herewith. The

include the following:

Page

VOLUME I

1. Denial of Hearing,

California Supreme Court,

August 12, 1992 [No action

taken on Federal Issues] 1

2. Denial of Petition for

Rehearing, Fifth District

Court of Appeal, June 5,

1992 [No action taken on

Federal Issues] 2

3. Opinion, Fifth District

Court of Appeal, May 19,

1992 [No action taken on

Federal Issues, but Court

did not Appellants’ Claim

at App. p. 34) 4

4. Order Sustaining Demurrer

(without leave to amend)

by Judge Howard Broadman,

November 20, 1990 [No action

taken on Federal Issues] 51

5. Summary, Order Sustaining

Demurrer (without leave to

5 amend) by Judge John P.

Moran, January 17, 1991 No

action taken on Federal

Issues] 61

VOLUME II

6. Minute Order, Demurrer

Hearing, by Judge Howard

Broadman, August 23, 1990 62

A. Court’s Exhibit #1,

Transcript, Demurrer

Hearing before Judge

John P. Moran,

February 28, 1990 64

2. GROUNDS ON WHICH JURISDICTION I8

SOUGHT

a. Denial by Hearing was filed by

the California Supreme Court on August 12,

1992.

b. Petitioners Applied for an Ex-

tension of Time in which to file the Peti-

tion for Writ of Certiorari.

c. The Honorable Justice Sandra

Day O’Connor signed on order on November

2, 1992, extending the time to and includ-

ing December 10, 1992.

d. Jurisdiction is conferred upon

this Ceourt under 28 U.S.C. Section

1257(3). Petitioners claim violation of

the First Amendment right to petition the

government for redress of grievances

through the filing and prosecution of a

lawsuit.

3. CONSTITUTIONAL PROVISION INVOLVED

a. FIRST AMENDMENT

Congress shall make no law respecting

the right to the people... to

petition the government for a redress of

grievances."

b. FOURTEENTH AMENDMENT

- « eo :% No state shall make or en-

force 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 jurisdiction

the equal protection of the laws."

OO —————————eeeeVo_Vw_

3. CONCISE STATEMENT OF THE CASE.

(NOTE: References to CT are to the

Clerk’s Transcript; App refers to docu-

ments in the Appendix filed herewith.)

a. Procedural Facts.

1) Plaintiff, In Pro Per,

filed a taxpayer’s complaint in the United

States District Court, Eastern District of

California on July 3, 1989, within 1 year

of accrual on July 29, 1988.

2) Federal jurisdiction was

found lacking. Plaintiff, In Pro Per,

filed his original state court action on

September 7, 1989, and then dismissed his

federal action.

3) The purpose of the suit is

(1) to save Visalia taxpayers’ money, (2)

to halt the illegal use and waste of tax-

payers’ general fund money and property to

finance and support the construction of

the privately owned Visalia Radisson

Hotel, and (3) to recover misspent funds

for the City Treasury.

4) On May 30, 1990, plaintiff

with counsel filed the Third Amended Con-

plaint, a taxpayer’s action, 123 pages,

plus appendix, and 10 causes of action.

5) Defendant CITY OFFICIALS

demurred and moved to strike portions of

the Third Amended Complaint, and requested

sanctions. Defendant APPRAISERS demurred.

Defendant Pannell Kerr Forster answered.

The other defendants are on open extension

pending results here.

6) The demurrer and motion to

strike were heard before the Honorable

Howard R. Broadman, Judge, on August 23,

1990, and resulted in the first ruling on

demurrer after Plaintiff retained counsel.

7) As to CITY DEFENDANTS,

Judge Howard Broadman sustained the demur-

rer without leave to amend as to all

causes of action except RICO for which

leave was granted, and sanctioned

plaintiff’s attorney and appellant Leonard

C. Hoar, Jr., $7,500 for, among other

things, having filed "a frivolous action

in bad faith for the purpose of delay."

Judge Broadman sustained Defendant AP-

PRAISERS’ demurrer to the Fifth and Tenth

Causes of Action with leave to amend.

Judge Broadman ordered City Attorney Steve

Kabot to prepare the order. (See App. 51

and 62)

b. The Third Amended Complaint.

Plaintiff ROY J. KENDALL filed the Third

Amended Complaint, a taxpayer’s suit

against the CITY OF VISALIA, et al, in-

volved the following: (CT 1)

1) Causes of Action. The

complaint, comprised of 10 causes of ac-

tion, is 123 pages long, (CT 1-123)

together with an Appendix (CT 124-139)

which sets forth a chronology of events.

The 10 causes of action are as follows:

a) Individual Liability

of Public Officials for Waste and Illegal

Expenditure of Public Funds and Property.

b) Declaratory Relief.

c) Removal of Public Of-

ficials from Office.

dad) Injunction and

Preliminary Injunction.

e) Fraud.

f) Civil Rights Viola-

tion.

g) RICO

h) Lender Liability.

i) Accounting.

j) Negligence.

2) A Taxpayer’s Action. This

is a taxpayer’s action under Code of Civil

Procedure Section 526a on behalf of the

CITY OF VISALIA, THE COMMUNITY REDEVELOP-

aaa aa

MENT AGENCY OF THE CITY OF VISALIA, AND

THE VISALIA PUBLIC BUILDING AUTHORITY,

which public entities have been joined as

nominal defendants (CT 3:21-4:17) under

Code of Civil Procedure Section 382.

(Appellants note that the Subject Index

and Table of Authorities for the Third

Amended Complaint has inadvertently been

omitted from the Transcript on Appeal.)

3) Broad, General Facts.

a) The 50-year land

lease of City property for the hotel site

was entered into on February 1, 1987. It

was approved by ordinance as mandated by

the Visalia City Charter.

b) The "First Amended

Agreement to Lease", at very great

variance from the original lease, was ap-

proved by motion on July 27, 1988, con-

trary to the mandate of the Visalia City

ee ee a a a

ante ae

en ee ee

PT alte Se ab ei re

Pht DS pe 5. alliance

A nhl UR ABT AAR AS ERB AE ABR hte

Charter, which requires leases of city

property of duration longer than 5 years

to be approved by ordinance.

c) Appellants objected to

the City’s $2.9 million payment for

Visalia Convention Center Hotel, Inc., as

a violation of California Constitution Ar-

ticle XVI, Section 6, which prohibits

gifts or loans of public monies or pledg-

ing of governmental credit. The Courts

below cited no exceptions in the Con-

stitution to this prohibition.

a) Appellants objected to

the $3.0 million guarantee agreement as

pledging the credit of the Redevelopment

Agency in violation of California Con-

stitution Article XVI, Section 6, which

prohibits gifts or loans of public monies

or pledging of governmental credit. The

Courts below cited no exceptions in the

Constitution to this prohibition.

4) Specific Charges of Lack

of Due Care. Plaintiff charges Defendant

CITY OFFICIALS WITH 28 specific acts of

lack of due care. (See paragraph 70 a

through ab, CT 45 through 58.)

a) Failure to require

payment of prevailing wage to workers as

required by Labor Code Section 1720 (a)

and (c) and 1775, or, in the alternative,

Health and Safety Code Sections 32423 and

32425, thus subjecting the taxpayers to

potential liability for penalties.

b) Failure to co-ordinate

the simultaneous construction of both the

Convention Center Expansion and the Con-

vention Center Hotel, together with the

maturity date of the Construction Loan,

thus subjecting the project to default and

activating the $3,000,000.00 Guarantee

Agreement.

A Der ky a trmy « Gy Oar, ae

c) Failure to require

permanent take-out financing at the

maturity of the construction loan.

d) Discarding $545,986

architectural plans and having $500,000 in

new plans drawn up for the convention cen-

ter expansion to compensate for the

downsizing of the privately owned hotel by

transferring cost of facilities to the

taxpayers.

e) Failing to have a cur-

rent feasibility report on the convention

center and hotel projects prior to commit-

ting taxpayers’ money.

f) Paying $4,000,000 for

land, then declaring it to be worth

$2,000,000 prior to leasing it to the

developer for $200,000 per year without

obtaining a current appraisal, and without

competitive bidding.

g) Making a gift of

$2.9 taxpayers’ money to a private cor-

poration without lawful authority in

violation of California Constitution Ar-

ticle XVI, Section 6.

h) Going into business

with the developer without

1) Ascertaining his

lack of assets;

2) Ascertaining

whether he had a checking account;

3) Performing a

credit check;

4) Determining he had

approximately $1,000,000 in judgments

against hin.

i) Failing to obtain an

adequate, audited financial statement on

the developer.

5) Failure to exercise

due care in selecting a responsible .

private developer with whom to work on the

“4

;

siamese) RMA, Rabe Rete) aaa

Sita ta

hotel, coupled with defendants’ acts

promoting the project in secret meetings

out of public purview.

k) Signing the Guarantee

Agreement which provided unlimited

liability by the Agency to the lender.

1) Embarking upon a

project in which the scheduled completion

date comes 6 months after default on the

construction loan.

m) Leaving Blank Spaces

on pages 27 and 28 of the First Amended

Lease.

n ) Permitting the

developer to get all his money back at 9%

interest before any money is paid to the

CITY.

O°) Embarking upon a

project which, in the event of default of

the developer (which has occurred) the

CITY shall be unable to protect its

"investment" unless it pays off the entire

$12,000,000.00 loan, thus making further

expenditure of taxpayers’ money (which is

now occurring).

Pp) Embarking upon a

project in which if the lender forecloses,

the accumulated lease payments due from

the developer to the CITY are wiped out.

q) Committing the City to

make payments in the event the developer

defaults, but failing to obtain the City’s

right to foreclose out the interest of the

developer.

r) Changing the plans

for the Convention Center expansion, upon

which the First Amended Lease was based,

without first obtaining consent of the

developer, as the original expansion plans

were relied upon in the First Amended

Lease.

s) The Redevelopment

Agency’s agreeing to and placing

$3,000,000.00 cash guarantee on deposit

—>

;

Sol et UR RR Vie

with Security Pacific National Bank, Los

Angeles, in the event the developer

defaults.

t) Subordinating the

City’s right to receive annual $200,000.00

land lease payments and then conditioning

the right to recover lease payments on the

net operating income, while leaving deter-

mination of costs, expenses and management

to the developer.

u ) Giving the

$3,000,000.00 guarantee agreement with no

consideration for the Redevelopment

Agency.

v) Using the hotel

project as a smokescreen for the use of

defendant DIANA DOOLEY, allegedly an

employee of the developer, to promote an

unpopular governmental project and to

promote incumbent politicians.

w) Engaging in conflict

of interest whereby members of The City

council simultaneously occupy positions on

the Redevelopment Agency.

x) Giving the developer

the first right of refusal on the sale of

the hotel land without submitting the same

to competitive bidding.

y) Failure to require the

developer to obtain permanent take-out

financing before signing the 50-year

lease.

z) Paying $2.9 million

for developer’s equity contribution, which

appears to be two years’ prepaid interest

on the construction loan.

aa) Subjecting the tax-

payers to prospective expenditures of

$52,000,000.00 for the hotel project

without a vote of the people.

ieee!

ab) The City’s Securing a

letter of credit to secure the Redevelop-

ment Agency’s $5,000,000.00 bond founded

upon incremental taxes, thus pledging the

credit of the City for the debt of the

agency.

5) Additionally, plaintiff

set forth further specific charges as fol-

lows: (NOTE: CT 59 = 61)

1) Defendant Alan T.

McIntosh voted for the Convention Center

Hotel Project, resigned, and then acquired

and obtained the contract to provide air

conditioning for the Visalia Convention

Center Hotel through his AMERICAN AIR COM-

PANY, INC. and SEQUOIA PLUMBING, INC., all

in violation of Government Code Section

1090.

c. No Personal Benefit to Plain-

tiff. The Third Amended Complaint seeks

to right wrongs against the taxpayers,

voters and residents of The City of

Visalia and to recover monies for the CITY

OF VISALIA. None of the causes of action

seek to recover any damages personally for

plaintiff. (See prayer for damages, Third

Amended Complaint, CT 115-123.) Plaintiff

does seek to recover costs and attorney’s

fees. (CT 123: 18-21)

d. Hearing of August 23, 1990.

The Demurrers and Motions to Strike were

heard before Judge Howard R. Broadman on

August 23, 1990. The transcript is set

forth at CT 666-726. (A copy of the

minute Order is set forth at App. 62; a

copy of the written order is set forth at

App. 51.)

1) First Substantive Hearing

to Ruling. This was the first hearing

resulting in ruling on demurrers and mo-

tion to strike after attorney Leonard C.

Hoar, Jr., became attorney for plaintiff.

Sn Oe eee Toa ee Re”

a) Hearing, December 4,

1989. The Demurrer to the First Amended

Complaint by Plaintiff, In Pro Per, was

heard on December 4, 1989, before Judge

John P. Moran, who sustained with 30 days’

leave to amend. See the transcript at CT

233-240.

b) Hearing, February 28,

1990. On February 28, the demurrer to the

Second Amended Complaint was heard before

the Judge John P. Moran. See transcript

at CT 497-503). (See App. 64) (The

reporter misspelled counsel’s name as

"Herr," after local Hanford attorney

Leonard Herr; however, all references are

to plaintiff’s counsel Leonard C. Hoar,

Jr.) The Court noted (CT 498: 16-499-20)

inadequate time to prepare the complaint,

counsel’s request for an extension of

time, and CITY DEFENDANTS’ refusal; the

Court granted 60 days to redo the con-

plaint. (Copy of transcript is at App.

64)

a) Court’s Advice.

Judge Moran then suggested Hoar redo the

complaint as completely and effectively as

he can (CT 499: 8-11) with ultimate facts.

(CT 499: 21-25) Judge Moran encouraged

zealous completeness by warning that he

was not inclined to grant further leave to

amend. (CT 501: 17-21).

b) Defendants’. Query

on Authorization. City Attorney Steve

Kabot questioned whether the Court would

permit an attack upon the validity of the

guarantee given to METRO NORTH STATE BANK

for the $12,000,000.00 hotel loan. (CF

500: 1-13).

Cc) Court’s Specific

Authorization To Plead. Judge Moran

replied: "He can plead anything he wants,

as far as I’m concerned." (CT 500: 14-15)

The Court specifically authorized a chal-

lenge to the validity of the lease and the

guarantee. (CT 500: 17-501: 22). (NOTE:

Judge Moran did not issue any prohibitive

orders; he granted authorization to act,

to plead.)

2) Dismissal Without Leave To

Amend. The Court dismissed plaintiff’s

causes (as Hoar’s third [sic] attempt) for

the following reasons:

a) First Cause, The Per-

sonal Liability of Public Officials, under

CCP Section 526a, declaring it a validat-

ing action under CCP 860, et seq. (CT

700: 7-12)

b) Second Cause, Declara-

tory Relief, declaring it a validating ac-

tion under CCP 860, et seq. (CT 701: 8 -

14).

c) Third Cause, Removal

of Public Officials from office under

Visalia City Charter, Article XVI,

"Miscellaneous provisions," Section 13, on

grounds of improper methodology. (CT 701:

15-23)

d) Fourth Cause, Injunc-

tive Relief, declaring it a validating ac-

tion under CCP 860, et seq. (CT 701:24 -

702: 6)

e) Fifth Cause, Fraud,

and Tenth Cause, Negligence, on grounds no

Claim for Damages (CCP 382 Action, no

damages sought for plaintiff) was filed.

f) Ninth Cause of Action,

Accounting, declaring it a validating ac-

tion under CCP 860, et seq. (CT 702: 20-

703: 3)

g) Sixth Cause, Civil

Rights, on grounds there is no authority

for tacking on time from federal action

under equitable tolling. (CT 704: 19 -

24) Fifth District upheld, noting omis-

Sion from the complaint of the allegation

2 ai alle Lonel iid Siasichsaak

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VER NR EP a ol

CUP I PC

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of the original federal lawsuit, and then

asserting plaintiff was thus barred from

alleging relation ack. Opinion, p. 14.

3) Sanctions. Finally, the

Court sanctioned Hoar $7,500 for the fol-

lowing reasons:

a) Judge Moran told

(ordered?) Hoar to organize theories and

plead ultimate facts. (CT 717: 20-22).

Judge Broadman treated Judge Moran’s con-

ments as a direct order, without having

seen the hearing transcript. Mr. Kabot

later provided a transcript after the

Court’s comments, and the Court made it

the Court’s Exhibit (CT 719: 12-26), which

is appended to the August 23, 1990,

minute order. (CT 496 - 503)

b) Judge Broadman ob-

jected to the brief introduction to the

Third Amended Complaint. (CT 718: l1-

719:4)

a aia a es

Cc) Judge Broadman ob-

jected to the chronology of events. (CT

719: 5-16).

d) Judge Broadman ob-

jected to the fact that plaintiff had ob-

tained from Judge Moran an extension of

time in which to file the Third Amended

Complaint. (CT 720: 1 - 15)

e) Judge Broadman ob-

jected to Hoar’s Declaration for Applica-

tion for Leave to File Late Papers on

Response to Jeffery M. Oderman, et al.

(CT 462 - 467) (CT 720:16 - 721), which

application he cited as frivolous, in bad

faith, for the purpose of delay. (cP? F72isz

21 - 722: 1)

f) Judge Broadman ob-

jected to Hoar’s citation of Nichols Ve

Canoga Industries (1978) 83 Cal App3d 956,

148 Cal Rptr 459 ; Bollinger vy. National

Fire Insurance Company (1944) 25 Cal2d

399, 409-410, 154 P2d 399; and Elkins v.

SOT, ee ee ee ee ae eee ee To. en on

PE ANT LT Dorin SICH Na ada eie Adi ig dose)

Derby (1974) 12 Cal3d 410, 115 Cal Rptr

641, 525 P2d 81. (See generally Witkin, 3

California Procedure 3d, "Actions," Sec-

tion 508, et seq.) Judge Broadman, itfter

allegedly having read these three cases,

declared in open Court that Hoar had mis-

cited them and that they did not stand for

the proposition of equitable tolling of

the statute of limitations for a case

filed in the wrong forun, including

federal Court. (CT 722: 2 - 20) (cf. Cc?

707:1 - 709:2; see discussion above at P.

46: 10 = 183 3.)

g) The Court found Hoar’s

actions frivolous, in bad faith, for the

purpose of delay. (CT 721: 24-26)

h) The Court then in-

quired as to whether Mr. Park for Defen-

dant APPRAISERS had requested sanctions,

and Mr. Park indicated they did not. (CT

722: 21-25.)

i) Judge Howard Broadman

then imposed $7,500 sanctions upon

plaintiff’s counsel appellant LEONARD Cc.

HOAR, JR., to go to the City.

(Significantly, this sum is just a few

hundred dollars above the $7,029.55 amount

requested by plaintiff as sanctions

against Defendant CITY OFFICIALS for their

obstinate refusal to grant discovery. See

CT 397 - 399, at 399. The City filed no

declaration on costs or time spent.)

j) Judge Broadman ordered

City Attorney Steve Kabot to prepare the

order after hearing, and to submit it to

Hoar and Park for approval. (CT 717: 14-

19; Minute Order, CT 496; clerk omitted

ur. Park’s name from the Minute Order.)

e. Unnoticed Ex Parte Hearing on

APPRAISERS’ Order. Contrary to Judge

Broadman’s Order of August 23 (CT 717:14-

19; Minute Order, CT 496) that City Attor-

ney Steve Kabot prepare an order for sub-

a a am

mission to Hoar and Park, Attorney Gordon

Park presented Judge Broadman with a

separate Order which was signed by Judge

Broadman and filed September 17, 1990.

(CT 549 = 553) This was a de facto ex

parte hearing. Plaintiff was not given

prior notice of any application nor of the

hearing for presentation and signing of an

Order separate from the one being prepared

by City Attorney Steve Kabot; no finding

of such notice is made in the separate Or-

der of September 17, 1990. (CT 549-553).

f. Plaintiff’s steps to Dis-

qualify Judge Howard Broadman.

1) Verified Statement of

Leonard C. Hoar, Jr. On September 27,

1990, Plaintiff’s attorney filed a

Verified Statement to disqualify Judge

Howard Broadman on Grounds of Conflict of

Interest, Bias, and Prejudice. (CT 600 -

621) This action was based in part upon

defendant DIANA DOOLEY’S role as

Broadman’s campaign manager in his 1988

judicial retention election. Plaintiff’s

First Amended Verified Statement further

advised of defendant DIANA DOOLEY’S then

current (July-September, 1990) activities

to help elevate Judge Broadman to the 5th

District Court of Appeals. (CT 603: 23 -

605:14)

2) Judge Broadman Dis-

qualified. On November 9, 1990, The

Honorable John N. Phillips, Judge of the

Superior Court, Monterey County, issued

his decision disqualifying Judge Howard

Broadman. (CT 728-729) The order was :

filed in Tulare County November 16, 1990.

(CT 728) At that time, County Clerk Er- |

nest A. Maggini, Monterey County, sent a |

Receipt for Records, which shows that

Judge Phillips did not receive the First

Amendment to the Verified Statement (CT

727), nor copies of Judge Broadman’s

as ae ae Soe ee

ime Pee ee eS ee ee

Minute Orders. (See p. 25: 25 —- 26: 9,

above.) (A copy of the Order is set forth

at App. at p. 71.)

g.- Verified Statement To Dis-

qualify The Honorable John P. Moran. On

February 14, 1991, Plaintiff filed a

Verified Statement by his Attorney LEONARD

C. HOAR, JR., on the ground Judge John P.

Moran had not disclosed his wife’s inter-

est exceeding 10%, worth more than

$100,000, in Hein Ranch (Lone Star

Quarry), which noid the sand, gravel, and

aggregate for construction of the Radisson

Hotel, which is the subject of this law-

suit. (CT 920 - 978)

1) Recusal of Judge John P.

Moran. On February 20, 1991, Judge John

P. Moran recused himself from sitting on

this case. (CT 979 - 981) (A copy of the

recusal is set forth at App. 74.)

h. Inaction By Fifth District

Court of Appeal. While the appeal was

pending, Steve L. Kabot, City Attorney,

City of Visalia, and Kathy Jensen, Rutan &

Tucker, Special Counsel for the City of

Visalia, went behind Hoar’s back, met

directly with plaintiff, and obtained a

dismissal of the appeal without Hoar’s

knowledge, consent, approval, or par-

ticipation. When Hoar refused to to

along, defense counsel on February 10,

1992, moved the Court of Appeal for dis-

missal and sanctions against Hoar for

Hoar’s refusal to go along. Extensive

briefing followed. The Court of Appeal

denied the motion to dismiss, but without

comment or noticed action to plaintiff for

defense counsel’s violation of State Bar

Rules of Professional Conduct, Rule 2-100,

and without imposition of sanctions for an

egregious violation of the rules of

professional conduct.

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a. Third Amended Complaint A

Valid Statement of Causes of Action. The

Third Amended Complaint is a valid

taxpayer’s action setting forth 10 dif-

ferent causes of action. It is a valid

exercise of the First Amendment right to

petition the government for redress of

grievances through the filing and prosecu-

tion of a lawsuit.

1) The filing and prosecution

of the Third Amended Complaint is conduct

protected by the First Amendment. Each

citizen, including plaintiff and counsel,

is entitled to the constitutionally

guaranteed right to petition the govern-

ment fore the redress of legitimate

grievances. Constitution of the United

States, First Amendment; California

Constitution, Article I, Section 3.

2). The Noerr-Pennington

Doctrine. The United States Supreme Court

has held that the right to petition

protects the freedom to seek redress from

all three of the coordinate branches of

government. Eastern R- Conf. v. Noerr

Motors (1961) 365 U.S. 127, 81 S Ct 523, 5

L Ed 2d 464; Mine Workers vy. Pennington

(1965) 381 US 657, 669-672, 85 S Ct 1585,

1592-1594, 14 L Ed 2d 626, which together

made up the Noerr-Pennington doctrine.

3) Petition Includes Court

Access. "Certainly the right to petition

extends to all departments of the Govern-

ment. The right of access to the courts

is but one aspect of the right of

petition." California Transport v. Truck-

ing Unlimited (1972) 404 US 508, 510 92 §S

Ct 609, 611, 30 L Ed 2d 642. And the

power of states to control practice of law

cannot be exercised so as to abrogate

federally protected rights. Johnson v.

| Avery (1969) 393 U.S. 487, 790, 89 S.CT.

747, 751, n. 11 (citing NAACP vy. Button

(1963) 372 U.S. 415, 83 8.C&. 318, 9

L.Ed.2d 405; Sperry v. Florida (1963) 373

U.S. 379, 83 S.Ct. 1322, 109 L.Ed.2d 428.)

4) Criticism of Government

Privileged. Criticism of government is

absolutely privileged. City of Albany v.

Meyers (1929) 99 Cal App 651, 179 P 213.

5). Suit Against Government

Privileged. The right of petition

protects attempts to obtain redress

through institution of judicial proceed-

ings as well as through importuning execu-

tive officials and legislature; right en-

compasses act of filing lawsuit solely to

obtain monetary compensation for in-

dividualized wrongs as well as filing suit

to draw attention to issues of broader

public interest or political significance.

City of Long Beach v. Bozek (1982) 31

Cal.3d 527, 183 Cal Rptr 86, 645 P2d 137,

vacated, 459 US 1095, 74 L Ed 2d 943, and

remanded; reaffirmed 33 Cal3d 727, 1909

Cal Rptr 918, 661 P2d 1072.

6) State Provided Rights

Serve As Foundation for Federal Rights Ac-

tions. Plaintiff’s federal civil rights

action is also founded upon protected in-

terests in property, which are created and

their dimensions are defined by an inde-

pendent source such as state statutes or

rules entitling the citizens to certain

benefits. Board of Regents v. Roth (1972)

498 US 564, 577, 92 S Ct 2701, 2709, 33

LEd2d 548; Goss v. Lopez (1975) 419 US

565, 95 S Ct 729, 42 L Ed2d 725. In this

case, the protected rights arise under

the Charter, City of Visalia, Article VI,

Section 16 (the City of Visalia shall not

authorize a lease of city property in ex-

cess of 5 years unless approved by Or-

dinance) and under Article XIV, Section 1

(City may grant ar exclusive franchise

only by ordinance.)

7) Egregious Wrongs Require

Judicial Relief. Plaintiff, with the as-

sistance of counsel, is seeking to address

an egregious wrong by defendant City offi-

cials against the taxpayers, voters, and

residents of the City of Visalia. The

detailed charges and specifications

clearly shows the good faith and serious-

ness of plaintiff and counsel in bringing

this issue before the court for resolution

and justice, ;since it shall never come

from the defendant CITY OFFICIALS.

8) Sanctions A Chilling Ef-

fect on First Amendment Rights. Sanction-

ing counsel places a chill on plaintiff’s

exercise of his First Amendment Rights.

If counsel are sanctioned for being

detailed in charges and specifications,

that fact in turn shall discourage other

r )

counsel from entering this thorny thicket

of local politics -- and all too few are

even willing to look at this type of case

to begin with, let alone undertake it.

b. Court Actions Below Served To

Deprive Petitioners of Their First Amend-

ment Rights. From the moment that attor-

ney Petitioner Leonard C. Hoar, Jr., en-

tered the case, Petitioners have encoun-

tered a series of judicial stumbling

—_ ea the! Sai tial

blocks and actions to thwart Petitioners’

exercise of First Amendment rights through

the filing and prosecution of a lawsuit

against a governmental entity.

1) Demurrer Hearing of

February 28, 1990. (See App. p. 64) The

~ we Va! ee” eos ee a ee. ee

ee Sofia

Court took the position that no further

amendments would be allowed, and warned

Petitioners to plead as thoroughly and

completely as they could. (See App. 64.)

2) Discovery Order. On

August 2, 1990, Judge John P. Moran en-

tered his order on Petitioners’ motion to

compel production of documents and for

sanctions. Instead of deciding the mo-

tion, he referred it out to a Rent-A-

Judge, mandating that Roy J. Kendall put

up cash up front in order to obtain relief

from the defendants’ refusal to produce.

This judicial act altered the financial

balance of the case and weighted it in

favor of the City Defendants. See copy of

Judge Moran’s order at Appendix p. 116.

3) Demurrer Hearing, August

23, 1990. At the demurrer hearing, the

Judge Howard R. Broadman sustained the

demurrer without leave to amend in the

first demurrer ruling on a complaint

prepared by Petitioner Roy J. Kendall’s

attorney Petitioner Leonard C. Hoar, Jr.

a) Facts Deemed Admitted.

Issuable facts properly pleaded in the

complaint are deemed admitted, however im-

probable they may be, when the defendant

tests the legal sufficiency of the con-

plaint. Woodroof v. Howes (1891) 88 Cc.

184, 189, 26 P. 111; Griffith v. Dept. of

Public Works (1956) 141 C.A.2d 376, 381,

296 P.2d 838. A general demurrer will be

overruled if the complaint contains al-

legations of every fact essential to the

statement of a cause of action, regardless

of mistaken theory or imperfections of

form which make it subject to special

demurrer. Johnson v. Clark (1936) 7 C.2d

529, 536, 62 P.2d 767.

b) Rule Permitting Amend-

ment. The rule of permitting amendment is

chiefly applied where the defect is one of

form, raised by special demurrer, and the

elements of a cause of action are stated,

even though the plaintiff has failed

ican hk tie ”

several times to file a good pleading.

Wennerholm v. Stanford University School

of Medicine (1942) 20 C.2d 713, 719, 128

P.2d 522 [fifth amended complaint]; the

same approach is used where the defect,

though raised by general demurrer,

nevertheless relates to the form of the

statement; e.g., allegations of conclu-

sions of law instead of ultimate facts.

Eustace v. Dechter (1938) 28 C.A.2d 706,

711,- 83 P.2d 523 [fourth amended

complaint]. In other words, a general

demurrer should not be sustained if the

pleading, liberally construed, states a

cause of action on any theory. Lloyd v.

California Pictures Corporation (1955) 136

C.A.2d 638, 642, 289 P.2d 695.

c) The First Cause of Ac-

tion States a Cause. The FIRST CAUSE OF

ACTION states a cause of action against

Defendant CITY OFFICIALS for waste and Il-

legal Expenditure of Public Funds and

Property:

1) Failure to Exer-

cise Due Care in Expenditures of Public

Property and Money. (CT 45: 17 =- 58: 28)

This part includes the 28 specific acts;

(CT 43 = 54) Stanson v. Mott (1976) 17

Cal.3d 206, 130 Cal. Rptr. 697. Among the

most significant illegal acts is making a

gift of $2.9 million public funds from the

City of Visalia to VISALIA CONVENTION CEN-

TER HOTEL, INC., a private corporation, in

violation of Constitution of the State of

California, Article XVI, Section 6, and

CHARTER, CITY OF VISALIA, Article III,

"Powers of City," Sections 1 and 2, and

Article VI, "Legislative. The Council.

Powers and Duties.", Sections 4 and 16.

(CT 49: 22-28)

eg ee ees eee ery

2) Fraud and Collu-

sion. (CT 59: 1 =- 62: 25) The standard

for fraud and collusion is set forth in

Gogerty vy. Coachella Valley Junior College

District (1962) 57 Cal.2d 727, 21 Cal.

Rptr. 806, 371 P.2d 582, and Lusk vy. Com-

pton City School Board of Education (1967)

252 C.A.2d 376, 377-379, 60 Cal Rptr 426.

This portion applies specifically to

defendant ALAN T. MCINTOSH, who as City

Councilman voted for the Convention Center

Hotel project, resigned, and then obtained

through his corporations the air con-

ditioning and plumbing contracts for the

Visalia Convention Center Hotel. This act

violated Government Code Sections 1090 and

1097. His resignation from his council

post does not excuse the violation.

Stigall v. City of Taft (1962) 58 C.2da

565.

3) Failure of Public

Officials to Perform a Duty Specifically

Enjoined. (CT 59 - 65) This standard is

set forth in Harmon vy. City and County of

San Francisco (1972) 7 Ca! 3d 150, 101 Cal

Rptr 880, 496 P.2d 1248. Defendant CITY

OFFICIALS’ conduct is set forth at CT 63:

3 = 67s 14.

e) Pleading With Par-

ticularity Required. Five of the causes

of action required pleading with par-

ticularity: (1) Individual Liability of

Public Officials for Waste and Illegal Ex-

penditure of Public Funds and property;

(3) Removal of Public Officials From Of-

fice; (5) Fraud; (6) Civil Rights; and

(7) RICO. (Plead below; CT 529:22 -

531:4)

f) Petitioners Plead Both

Too Much and Too Little. Judge Broadman

complained that the complaint was too

long. However, petitioners were thrown

out of court on the civil rights cause of

action for the inadvertent omission of a

single fact which could have been supplied

on amendment. In short, Petitioners were

thrown out of court both because they

plead too much and because they plead too

little. (See Appendix, p. 28)

4) Court’s Changing

Petitioner’s Cause of Action. Petitioner

Roy J. Kendall exercised his common right

under California law to choose his own

cause of action, a taxpayer’s action under

Code of Civil Procedure Section 526a. He

chose not to file a "validating action"

under Code of Civil Procedure Sections 860

et seq.

a) Plaintiff’s Right to

Choose His Cause of Action. The courts

have tended to be quite liberal in giving

the plaintiff his freedom of choice , and

have upheld his action of tort or contract

as he has seen fit to bring it." Prosser,

Law of Torts 4th," Hornbook Series, Chap-

ter 16, "Tort and Contract", Section 92,

"Relation Between Actions,", "Election and

Gravamen," pp. 618 - 621.

1) It is improper for

the Court to impose the Court’s choice of

cause of action upon Plaintiff. Such an

act violates all concepts of Due Process

of Law.

b) Tort v. Contract.

For example, there appears to be no objec-

tion on principle to the plaintiff suing

either in contract or in tort at his elec-

tion. See, e.g., Crisci v. Security Ins.

Co. (1967) 66 Cal.2d 425, 432, 58 Cal Rptr

13, 426 P.2d 173; Better Food Markets v.

Amer. Dist. Tel. Co. (1953) 40 Cal.2a 179,

188, 253 P.2d 10. Also, see generally

Civil Actions, West’s California Practice

Series, Section 776.

Grossman & Van Alstyne, 7 Pleading --

er ee eS

c) Doctrine of Election

of Remedies. The doctrine of election of

remedies deals with the effect of choice

of one of several inconsistent remedies.

Although the doctrine was held inap-

plicable in Mansfield v. Pickwick Stages

(1923) 191 Cal. 129, 130, 215 P. 389, the

Court in that case did set forth the

doctrine.

ad) Plaintiff Elects Code

of Civil Procedure Section 526a. Plain-

tiff has elected to sue under Code of

Civil Procedure Section 526a, the taxpayer

suit theory, with a statute of limitations

of 3 years under Code of Civil Procedure

Section 338, statutory liability. Plain-

tiff is free to avoid the validating ac-

tion under CCP Section 860, et seq, espe-

Cially since a cause of action under that

statute has never accrued.

e) Judge Howard Broadman

threw out First, Second, Fourth, and Tenth

Causes of Action on the grounds that they

were all based upon the validation

statutes with a 60-day statute of limita-

tions.

f) Plaintiff’s Authority

and Standing to File Taxpayer’s Action.

California courts have consistently con-

strued Code of Civil Procedure Section

526a liberally to achieve its remedial

purpose. See, e.g. Van Atta y. Scott

(1980) 27 Cal.3d 424, at 427, 166

Cal.Rptr. 149, at 161, 613 P.2d 210. "The

primary purpose of this statute,

originally enacted in 1909, is to “enable

a large body of the citizenry to challenge

governmental action which would otherwise

go unchallenged in the courts because of

the standing requirement’" Blair v.

Pitchess (1971) 5 Cal.3a 258, 267-268, 96

Cal.Rptr. 42, 48-49, 486 P.2d 1242. That

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Rl AD treaty ison Sia

section provides "a general citizen remedy

for controlling illegal governmental

activity." White v. Davis (1975) 13

Cal.3d 757, 763, 120 Cal.Rptr. 94, 98, 533

P.2d 222; Wirin v. Parker (1957) 548

Cal.2d 890, 894, 313 P.2d 844.

h) Filing A Representa-

tive Action. A taxpayer’s representative

action on -behalf of a public entity is

Similar to a corporate shareholder’s

derivative action. Qsburn v. Stone (1915)

170 Cal 480, 482-483, 150 P 367.

i) The trial Court Erred

in Applying the 60-Day Statute of Limita-

tions Under C.C.P. Section 863 to Causes

of Action Not Involving A Validating Ac-

tion. The draconian result was to infr-

inge upon the right to petition for

redress of grievances under the First

Amendment.

j- C.C.P. Section 8s60

Does Not Relieve Public Official of Per-

sonal Liability. The Requirements of Code

of Civil Procedure Section 860, Assuming

They Apply In This Case, Do Not Serve To

Relieve Defendants Of Personal Liability

for Improper Expenditure of Public Funds.

a) The Court has

failed to site a single case stating that

the mere existence of a contract between

the public agency and some private in-

dividual is sufficient to absolve a public

official’ of personal liability. Such as

ludicrous concept would totally negate the

concept of a CCP 526a action.

b ) A state

statute such as Code of Civil Procedure

Sections 860 and 863 does not negate, nul-

lify, or cancel out the prohibitions of

California Constitution Article xVI, Sec-

tion 6.

ee oF ee eee ee

ee ae ee Se ee eee

ye ese

GSE OTN OTe De ae ee =

¢) Although

California Constitution Article XVI, Sec-

tions 3, 4, and 6, enacted afresh by the

voters on November 5, 1974, set forth many

exceptions to the prohibitions on gifts of

public funds, gifts of public funds to

private corporations was not included

among then.

2) Code of Civil Pro-

cedure Sections 860 and 863 do not serve

as an exception to the liability imposed

on public officials under Stanson, supra,

Gogerty, supra, Lusk, supra, Harmon,

supra, and Stigall, supra.

5) A Void Act Is Void.

a) 60-Day Statute Never

Started To Run. Because the CITY DEFEN-

DANTS acted illegally, the 60-Day Statute

under Code of Civil Procedure Section 863

never started to run. The approval of the

First Amended Lease and the Guarantee

—— Et ~~

Agreement were illegal and void from the

inception, and the lender, METRO NORTH

STATE BANK, knew it.

1) Charter, City of

Visalia, Article VI, Section 16, mandates

and requires that all leases for more than

5 years be authorized by Ordinance. (See

App. 101-102) Passing an ordinance is the

prerequisite to the legitimacy of the 50-

year lease of city property to VISALIA

CONVENTION CENTER HOTEL, INC. Without use

of an Ordinance to approve the lease, the

60-day statute of limitations under Code |

eof Civil Procedure Section 860 et seq and

Government Code Section 53511 never starts

to run. |

2) There were major |

changes between the original lease of |

February 1, 1987, which was lawfully |

passed by Ordinance, and the First Amended

Lease, which was unlawfully passed by Mo-

tion on July 27, 1988. (CT 438: 7 = 445:

2).

b) Plaintiff cited the

California case of The City of Sacramento

ve Kirk (1857) 7 Cal. 419, at 420-421, in

which the California Supreme Court held

that where by the Charter the city could

act only through its corporate

authorities, and the original contract was

authorized by ordinance, any alteration

could be done only by ordinance. Cf. 56

Am Jur 2d, "Municipal Corporations, etc.",

Section 411, at pp. 453-454, and 62 Corpus

Juris Secundum, "Municipal Corporations,"

Section 434, Subsection d, "Requisites and

Sufficiency," p. 833, and McQuillan, 6 The

Law of Municipal Corporations, 3rd,

(1988), Sections 2104, 21.05, 21.12 and

21.13.

Cc) Both Courts below,

holding that such a transaction is not

void, departed from the ruling established

in The City of Sacramento, supra. Time

does not confirm a void act. Civil Code

Section 3539.

6) The Trial Court Applied A

Nonexistent Standard To Dismiss the Fifth

{Fraud) and Tenth (Negligence) Causes of

Action Against City Defendants on Ground

Petitioner Failed to File A Clain.

a) Plaintiff filed a rep-

resentative action to recover benefits for

the public entities, not to recover

damages against them for his own benefit.

b) Government Code Sec-

tion 905 requires the presentment of

Claims for money or damages against local

public entities. This action is not

against a local public entity, but rather

is submitted on behalf of and for the

benefit of The City of Visalia. Section

905(i) specifically exempts claims by the

State or by a state department or agency

or by another local public entity. Plain-

tiff is suing in his representative

capacity on behalf of The City of Visalia

and its related local entities. Accord-

ingly, the Claims Statute is inapplicable.

c) In Stanson ve. Mott,

Supra 17 Cal.3d, at 225, 130 Cal. Rptr.,

at 710, the California Supreme Court

stated:

Although the indemnification

provisions of the tort claims act are

not directly applicable to an action

by or on behalf of a public entity to

recover moneys misappropriated or il-

legally expended by a public employee,

the act’s provisions do reflect a

general state policy to limit a public

employee’s personal financial respon-

sible for errors committed in the

course of his public employment.

(emphasis added)

1) The Stanson Court

held that public officials must use "due

care," i.e., reasonable diligence, in

authorizing the expenditure of public

funds, and may be subject to personal

liability for improper expenditures made

in the absence of such due care.

2) Stanson does not

require the taxpayer to file a claim as a

prerequisite for filing an action on be-

half of the governmental entity against a

public official, and Code of Civil Proce-

dure Section 526a does not so require.

The courts below have not cited any

relevant opinion so requiring.

7. The Trial Court Denied

Petitioners’ Civil Rights Cause Of Action

By Refusing the Relation Back Doctrine.

a) In light of the prior

filing in Federal Court on July 3, 1989,

(CT 703: 4-22; 132: 23 - 133: 2, in the

Chronology) as pertains to the Sixth Cause

of Action, the trial court clearly erred

on refusing to apply the doctrine of equi-

table tolling and relation back of the

complaint to the filing of Plaintiff’s ac-

tion in federal court on July 3, 1989.

b) Authority for the

equitable tolling doctrine is set forth in

Nichols y. Canoga Industries (1978) 83 Cal

App3d 956, 148 Cal Rptr 459; Bollinger vy.

National Fire Insurance Company(1944) 25

Cal2d 399, 409-[410, 154 P2d 399; and

Elkins v. Derby (1974) 12 Cal3d 410, 115

Cal Rptr 641, 525 P2d 81. See Witkin, 3

California Procedure 34, "Actions," Sec-

tion 508 et seq.

8) The Trial Court Sanctioned

Petitioner Hoar For Citing Leading Cases.

The Trial Court sanctioned Hoar for mis-

citing three cases to the Court, Nichols,

Supra, Bollinger, supra, and Elkins,

Supra, after having recessed allegedly to

read then. Judge Broadman stated that

they did not stand f.< the proposition of

the equitable tolling of the statute of

limitations nor for the relation back

doctrine.

9) Imposition of Sanctions

Was Punishment for Having Exercised First

Amendment Rights Sy Filing The Suit, Not

For Wrongs Done, and Was An Abuse of

Discretion.

a) None of the conduct

set forth in the Statement of Facts,

supra, (11: 15 - 13:6) warranted sanctions

in any amount, let alone $7,50v.

b) First Amendment

Protected Conduct. Each citizen, includ-

ing plaintiff and counsel, are entitled to

the constitutionally guaranteed right to

petition the governmen® for the redress of

legitimate grievances. See pp. 31-33,

above.

c) The sanctions were im-

posed without reference to evidence;

defendants filed no declarations. See,

e.g., Summers vy. City of Cathedral City

(1990) 225 CalApp.2d 1047, 275 Cal. Rptr.

594.

10) Dismissal and Sanctions

Decision Made Without Considering Merits

{Substance) of Third Amended Complaint,

Only Its Methodology (Form). At the

hearing on August 23, 1992, (RT 21: 24-

25:6, CT 686: 24 = 687:6), Judge Broadman

stated:

"What I am going to have to rule

on in this case is not the merits of

the complaint that Mr. Kendall has,

okay? It is the methodology which he

used to get to the problem.

So I want to make it real clear

that the rightness or wrongness of

what happened here is not what I am

ruling on. What I am ruling on is

what’s been put before me in the legal

sense. Do you understand what I’m

saying?"

Judge Broadman found that Petitioners ac-

tions were frivolously, in bad faith, for

the purpose of delay (RT 56: 24-57:1, CT

721:24 = 722:1). The problem is that

California Code of Civil Procedure Section

128.5 (b )(2) defines "Frivolous" as (A)

totally and completely without merit or

(B) for the sole purpose of harassing an

opposing party. (See also Judgment of

Howard Broadman, dated November 20, 1990,

CT 818-824, a copy of which is attached

hereto marked at Appendix p. 51, and a

Summary Judgment of John P. Moran, dated

January 17, 1991, CT 886-891, a copy of

which is attached hereto marked at Appen-

dix p. 61. Since Judge Broadman refused

to consider the merits of the complaint,

he arbitrarily and capriciously deprived

Petitioner of substantive Due Process of

Law under the 14th Amendment. Judge

Broadman refused to consider that the

Third Amended Complaint had merit.

11) Judge Broadman Chas-

tised Petitioner For Violating Judge

Moran’s "Orders" of February 28, 1990, Al-

though Judge Broadman Had Not Seen A

Transcript of That Hearing. Inthe RT

35:25 - 36:7, CT 700:25 - 701:7), Judge

Broadman stated:

"Then, later at least according to

Mr. Kabot’s points and authorities, I

couldn’t find their report, I gave up

looking for the reporter’s transcript

-- at page forty three of the points

and authorities, when you were told in

the reporter’s transcript on 2-28-90,

they’re to plead ultimate facts and

support those theories. Both those

court orders were (sic "not") complied

with as indicated by this lengthy

complaint."

Again, at RT 54:17 - 26, CT 719: 17-26,

the following colloquy takes place:

THE ©QOURT: - « « Now, I have taken that

-- I still don’t know whether in the

reporter’s transcript that there was a

bond filed.

MR. KABOT : It wasn’t in the court

record, Your Honor, solI --

THE COURT: I may have missed it, but --

MR. KABOT : Y don’t think -- I have this

copy.

THE COURT: It will be marked and received

as an exhibit.

The Minute Order of August 23, 1990

(Appendix, p. 62) indicates Court’s ex-

hibit #1 Reporter’s transcript of 2/28/90,

marked for identification.

12) Judge Moran Issued No Or-

Gers On February 28, 1990. A review of

the transcript of the Hearing of February

28, 1990 (Appendix p. 64), before Judge

Moran, reveals that absolutely no orders

were given to Petitioner. Thus, no or-

ders were disobeyed.

13) Judge Moran Did Not Order

Petitioner To Avoid Pleading the validity

of the First Amended Lease and of the

Guaranty Agreement. Judge Broadman sanc-

tioned Petitioner for attacking the

validity of the Lease and/or Guarantee

Agreement in violation of the Order of

Judge Moran. At the hearing of February

28, 1992, upon inquiry by City Attorney

Steve Kabot, Judge Moran specifically

"authorized" petitioner to plead anything

he wanted to. (See Appendix, p. 64, pp 67

- 69).

a) Accordingly, Judge

Howard Eroadman sanctioned Petitioner for

doing that which Petitioner was specifi-

cally authorized to do.

b) Then, Judge Moran, in

ratifying Judge Broadman’s decision, also

sanctioned Petitioner for doing precisely

what Judge Moran authorized Petitioner to

do.

14) The Court of Appeal Af~-

firmed Sanctions on Petitioner, But No

Sanctions on Steve Kabot and M. Katherine

Jensen For Going Behind Petitioners’ Back,

Meeting with Roy Kendall, and Inducing Roy

Kendall To Sign Stipulation Dismissing Ap-

peal Without Petitioner’s Knowledge, Con-

sent, or Approval.

(a) While the case was

on appeal, City Attorney Steve Kabot and

‘Special Counsel, M. Katherine Jensen of

Rutan & Tucker, met with Roy Kendall and

attorney Charles Lazarro at depositions on

two other cases by Roy Kendall against the

City of Visalia. Depositions began at

9:00 a.m., on January 23, 1992. When the

depositions terminated in the afternoon,

the attorneys met. Later, without dinner,

they called Roy Kendall into the meeting.

At or about 9:00 p.m., Kabot and Jensen

induced Kendall to sign a stipulation dis-

missing the case on appeal. Petitioner

had no knowledge. Petitioner had not con-

sented. Petitioner had not approved.

(b) When Steve Kabot

found the dismissal was not effective

without Petitioner’s signature, he

pleaded, cajoled, and offered to waive

even the sanctions if Petitioner would let

him off the hook and sign the dismissal.

reflection, decided he did not want to

dismiss, and wanted to proceed with the

appeal.

(da) Steve Kabot then

filed a motion with Fifth District Court

of Appeal to enforce the unethically ob-

tained stipulation and to sanction

petitioner for refusing to go along.

(e) Petitioner not only

asked the Court of Appeal to deny the mo-

tion, but also to sanction City Attorney

Steve Kabot for all the work. Although

the Court did deny the motion, it did not

sanction City Attorney Steve Kabot. But,

the Court did affirm sanctions against

Petitioner. This is a double standard of

justice, and a denial of equal protection

under the law, under the "Equal Protection

Clause" of the Fourteenth Amendment.

15) Court of Appeal Adopted

False Standard Re Denying Petitioners’

Standing To File Suit. The Fifth District

Court of Appeal, in affirming the decision

concerning the negligence cause of action,

held that Petitioner had no standing to

file the suit under Kinlaw v. state of

California (1991) 54 Cal.3d 326, 334-335.

This was a complete miscite. Kinlaw ap-

plies to an attempted taxpayers action

under Section 526a to enforce Section 6 of

Article XIIIB (The Gann Spending Limit).

The California Supreme Court noted that

the gravamen of the Kinlaw action is en-

forcement of Section 6. (285 Cal. Rptr.,

at 69.) Article XIIIB, Section 6, en-

forcement action is governed exclusive

through a comprehensive administrative

procedure for resolution of claims arising

out of Section 6, as set forth in Govern-

ment Code Sections 17500, et seq, and per-

tains to "state-mandated local costs" and

governs unfunded or undefunded state man-

dated programs imposed upon counties,

cities and districts. It has nothing to

do with a negligence action.

SUMMARY

Petitioners stated valid causes of ac-

tion in the Third Amended Complaint. The

actions by the Courts below deprived

Petitioners of their effective exercise of

First Amendment Rights to petition govern-

ment for the redress of grievances through

the filing and prosecution of lawsuit

against a governmental entity.

WHEREFORE, Petitioners pray that this

Court issue a Writ of Certiorari to the

Supreme Court of the State of California.

Dated: December 8, 1992

titioners

No.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

ROY J. KENDALL, et al,

Petitioners,

THE CITY OF VISALIA,

et al,

Respondents.

mee ee ee ee ee ee ee ee ee”

APPENDIX

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE STATE OF

CALIFORNIA

LEONARD C. HOAR, JR.

Attorney at Law

3948 E. Gettysburg

Fresno, CA 97326

Telephone: (209) 222-3521

aac

PPENDI

SUBJECT INDEX

Page

1. Denial of Hearing,

California Supreme Court,

August 12, 1992 1

2. Denial of Petition for —

Rehearing, Fifth District

Court of Appeal, June 5,

1992 2

3. Opinion, Fifth District

Court of Appeal, May 19,

1992 4

4. Order Sustaining Demurrer

(without leave to amend)

by Judge Howard Broadman,

November 20, 1990 ~~» |

5. Summary, Order Sustaining

Demurrer (without leave to

amend) by Judge John P.

Moran, January 17, 1991 61

6. Minute Order, Demurrer

Hearing, by Judge Howard

Broadman, August 23, 1990 62

A. Court’s Exhibit #1,

Transcript, Demur: er

Hearing before Juaye

John P. Moran,

February 28, 1990 64

7. Decision, (Disqualification

of Judge Howard R. Broadman

for Cause), by Judge John H.

Phillips, Monterey County

Superior Court 7s

8. Recusal by Judge John P.

Moran (after challenge for

cause), February 20, 1990 74

9. Federal Issues Raised in

State Court 78

1. Opposition to Demurrer

to Second Amended

Complaint, February 22,

1990 78

2. Motion for Reconsid-

eration of Judge Broad-

man’s Order, filed

September 5, 1990 81

3. Judge Broadman’s Ruling,

December 5, 1990 88

4. Plaintiff and Appellants’

Opening Brief on Appeal 89

5. Petition for Hearing

before California

Supreme Court 93

10. Provisions of VISALIA

CITY CHARTER 101

ARTICLE VI, Legislative

POWERS

Section 6. Ordinance. 101

Section 7. When Ordinance

Goes Into Effect 102

Section 8. Amending

Ordinances 103

ARTICLE XIV. Franchises.

Section 1. Franchise. 105

hae

Lae

ARTICLE XVI. Miscel-

laneous Provisions.

Section 8. (Conflict of

Interest) 105

Section 13. (Removal

from Office.) 106

Orders in Companion Case,

U.S. District Court, Eastern

District of California,

Case No. CF-F-92-5706-REC

Petition for Writ of

Habeas Corpus

a. Order Denying Appli-

cation for of Confine-

ment Pending Writ and

Hearing, October 22,

1992 108

b. Order to Show Cause,

November 5, 1992 112

c. Order Directing Service

of Petition and Order

to Show Cause 114

Discovery Order, Judge John

P. Moran, August 2, 1990 116

iii

Fifth Appellate District No. F0O-15576

$027433

IN THE SUPREME COURT OF THE

STATE OF CALIFORNIA

IN BANK

ROY J. KENDALL, Appellant Supreme Court

PILED

Vv. Aug 12 1992

Robert Wandruff Clerk

CITY OF VISALIA,

et al., Respondents

LEONARD <. HOAR, JR., Appellant

Petition for review DENIED.

Chief Justice

COURT OF APPEAL

FIFTH APPELLATE DISTRICT

FILED

June 5, 1992

Kevin A. Swanson, Clerk

Deputy

IN THE COURT OF APPEAL

OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

ROY J. KENDALL, FO15576

Plaintiff and

Appellant,

(Super.Ct.No. 139050)

Vv.

)

)ORDER DENYING PETITION

) FOR HEARING

CITY OF VISALIA, )

et al., )

)

Defendants and)

Respondents; )

)

LEONARD C. HOAR,JR.)

)

Appellant.

THE COURT:

Appellants’ petition for rehearing

filed in the above entitled case is

denied.

DATED: June 5, 1992

Zs Vartebedian

Vartebedian, J.

WE CONCUR;

/s/ Martin

Martin, Actin P.J.

s/s Buckley

Buckley, J.

COURT OF APPEAL

FIFTH APPELLATE DISTRICT

FILED

May 19, 1992

Kevin A. Swanson, Clerk

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE

STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

ROY J. KENDALL, No. F0O15576

Plaintiff and

Appellant,

(Super. Ct.

No. 139050)

Vv. QPINIOQON

CITY OF VISALIA et al,

Defendants and

Respondents;

LEONARD C. HOAR, JR.,

Appellant.

me ee ee ee ee ee ee ee ee ee ee ee ee

APPEAL from a judgment of the Superior

Court of Tulare County. John P. Moran,

Edward Kim, and Howard R. Broadman,

Judges. *

1. *Judge Moran signed the order of

January 17, 1991, imposing sanctions

against appellant’s counsel and sustaining

demurrer without leave to amend; Judge Kim

signed the order of March 8, 1991, dis-

missing the action as to various defen-

——

dat hore

te ee ee See See

ih lip ad ies

edd wath

OP NE

Leonard C. Hoar, Jr., in pro. per.,

and for Plaintiff and Appellant.

McCormick, Barstow, Sheppard, Wayte &

Carruth, Gordon M. Park and David H. Bent,

McCormick, Kabot, Michner & Foley, S. L.

Kabot and M. C. McCarthy, for Defendants

and Respondents.

We have two related matters before is:

the appeal of plaintiff Roy J. Kendall

from a judgment of dismissal of his third

amended complaint, and the appeal of

plaintiff’s counsel, Leonard C. Hoar, Shas

from an order imposing sanctions amount to

$7,500 against him personally. Defendants

named in the complaint are generally two

groups, the "City" defendants and the

"appraisers." The third amended con-

dants, and the order of March 11, 1991,

dismissing the fifth and tenth causes of

action against various defendants. Ear-

lier, on August 23, 1990, Judge Broadman

heard and ruled upon the demurrer and re-

quest for sanctions.

2. The appraiser defendants include

Joseph J. Blake & Associates, Inc., Brad

plaint set out 10 causes of action. Not

all defendants were named in all causes of

action.

Based upon the discussion that fol-

lows, we affirm the judgment of dismissal

and the order imposing sanctions.

FACTS

Our factual statement is derived from

averments contained in the third amended

complaint.

On February 1, 1987, the City of

Visalia (City) and the Visalia Convention

Center Hotel (VCCH) entered into a lease

agreement whereby City agreed to lease

certain real property to the VCCH on the

condition that the VCCH would construct a

Paul and Linda J. Hays.

The City defendants include the City

of Visalia, Visalia Public Building

Authority, the Community Redevelopment

Agency of the City of Visalia, individual

members of the city council, special coun-

sel to the City of Visalia, and the City

of Visalia Director of finance.

hotel on the property. The hotel was to

be build immediately adjacent to and con-

necting with a proposed expansion of the

existing Visalia Convention Center which

is operated by City.

On July 27, 1988, the Visalia City

Council conducted a special meeting where

it approved the "First Amended Agreement

to Lease," again between City as lessor

and VCCH as lessee.

One of the provisions of the first

amended agreement to lease was that the

City would agree to contribute up to $2.9

million toward VCCH’s equity contribution

required under the loan if VCCH could not

provide any or all of its borrower’s

equity. The amended agreement further

provided that if the City made such con-

tributions to the VCCH’s borrower’s

equity, VCCH would reimburse such advances

with interest in the form of additional

rental payments and would pay to the City

a percentage of the net operating income

from the hotel.

At the same time, in special session,

the Visalia City Council, sitting as the

governing board of the Redevelopment

Agency of the City of Visalia

(Redevelopment Agency), approved an agree-

ment between the Redevelopment Agency and

Metro North State Bank providing for the

Redevelopment Agency to guarantee the par-

tial repayment of the loan from Metro

North State Bank to VCCH for the construc-

tion of the convention center hotel

project up to a maximum of $3 million.

Generally the third amended complaint

alleged that all or some of these actions

on the part of all or some of the defen-

dants constituted misuse of public office,

waste of public funds, conflict of inter-

est, and the like, as will be more fully

set forth in our discussion below.

PROCEDURAL BACKGROUND

In July 1989, plaintiff acting pro se

filed a complaint for declaratory relief

damages and injunction in the United

States District Court, Eastern District of

California, naming as defendants the City;

the Redevelopment Agency; Visalia City

Council members Gregory Collins, Allen

McIntosh, Mary Louise Vivier, Bob McClain,

Don Sharp and Berkley Johnson; VCCH; and

Metro North State Bank. We take judicial

notice of that complaint.

Certain defendants in that action

filed a motion to dismiss for lack of a

federal question, and plaintiff volun-

tarily dismissed the federal action.

In September 1989 plaintiff, again ac-

ting pro se, filed his initial complaint

in this state action. Before serving any

defendant, plaintiff filed a first amended

complaint. In November certain City

defendants filed demurrers which were

heard by Judge Moran on December 4, 1989;

the court sustained the demurrers with

leave to amend. The court found that the

claims set forth in the complaint were

barred by the 60-day statute of limitation

contained in Code of Civil Procedure sec-

tion 863. The court granted leave to

amend if causes of action could be stated

that were not barred by Code of Civil pro-

cedure section 863, and which did not turn

on the validity of he lease or the

guarantee agreement.

Plaintiff retained counsel Hoar and

filed a second amended complaint. Seven-

teen new defendants were named. Plaintiff

realleged and expanded upon his challenge

to the validity of the lease and guarantee

agreement. Defendants again interposed a

demurrer and motion to strike the second

amended complaint.

This demurrer was heard on February

28, 1990, again before Judge Moran, who

concluded that the second amended com-

plaint was confusing -- plaintiff’s legal

theories were not clearly delineated nor

were the facts upon which the theories

were based clearly set forth. Without

specifically ruling on the demurrer at

that time, the court granted leave to

plaintiff "to redo this {c]Jomplaint." The

court admonished counsel to organize his

theories and plead ultimate facts to sup-

port those theories. The court’s initial

grant of 60 days to refile was extended to

90 days.

A third amended complaint was filed on

May 30, 1990; it contained 123 pages, 10

causes of action and added 13 more defen-

dants. Even though the complaint was

divided into 10 causes of action, the

heart of he complaint continued to be the

challenge to the lease and the guarantee

agreement.

In July 1990 demurrers were interposed

by the appraiser defendants and by the

City defendants, along with a motion to

strike certain parts of the third amended

complaint. This demurrer was argued on

August 23, 1990, before Judge Broadman.

The appraisers’ demurrer was sus-

tained; plaintiff was denied leave to

amend with the exception of the fifth and

tenth causes of action. City’s demurrer

also was sustained; leave to amend was

denied except as to the seventh cause of

action. Plaitiff was given 90 days’ leave

to amend the fifth, seventh and tenth

causes of action. Judge Broadman con-

cluded, as Judge Moran had, that any cause

of action based on the lease or the

guarantee agreement was barred by the

limitations provision of Code of Civil

procedure sections 860 and 863.

The court granted the City’s motion to

impose sanctions personaliy against attor-

ney Hoar in the amount of $7,500.

Plaintiff brought a moticn for recon-

sideration and on the date of hearing on

that motion filed a motion to disqualify

Judge Broadman both prospectively and

retroactively. Judge Broadman was ul-

timately disqualified prospectively.

The motion for reconsideration was

heard before Judge Moran. He denied the

motion and signed an order sustaining the

demurrer without leave to amend as to all

causes of acticn except the seventh and

sustaining the imposition of the sanc-

tions.

Plaintiff then attempted to disqualify

Judge Moran for cause both prospectively

and retoactively, but on February 20,

1991, Judge Moran recused himself from

all future proceedings in the case.

Judge Kim signed a judgment dismissing

the action.?

DISCUSSION

On appeal, plaintiff argues that it

was error to sustain the demurrer without

leave to amend. 4 He further contends cer-

3. As a result of plaintiff’s failure to

file a fourth amended complaint as to the

fifth, seventh, and tenth causes of

actions,those causes of action were dis-

missed as part of the judgment of dis-

missal of the entire action.

4. Plaintiff asserts in the heading to

this argument that the court’s ruling on

August 23, 1990, on the third amended com-

plaint was made at "the first substantive

hearing on demurrer after plaintiff ob-

tained counsel." To the contrary, it is

clear that Attorney Hoar was the attorney

of record on the second amended complaint

and appeared at the hearing on demurrers

conducted on February 23, 1990; rather

than sustain those demurrers, the court

gave hoar 90 days to "redo’ the complaint,

as we have already discussed.

tain causes of action "call for specific,

detailed pleading," which he had set

forth; the one-year and three-year statute

of limitations should have been applied

rather than the 60-day statute of limita-

tions in Code of Civil Procedure section

863; he should have been allowed "relation

back" to the filing of the federal lawsuit

in July 1989; and the government claims

statute did not apply to any of his

Claims.

As to the judgment of dismissal of ap-

praisers, plaintiff asserts that it was

error for the order to have been obtained

"in an ex parte hearing without notice to

plaintiff and which judgment was contrary

to the oral judgment announced in court."

Finally, plaintiff agues that it was

error for Judge Broadman "to refuse to

send all verified statements against him

to the judge reviewing the motion for his

disqualification." Such an issue relating

to the determination of the question of

judicial disqualification is not properly

raised on an appeal. (Code Civ. Proc.,

Section 170.3, subd. (d).) Thus, this

issue requires no further discussion.

A general demurrer should not be sus-

tained if the pleading, liberally con-

strued states a cause of action on any

theory. (Lloyd v. California Pictures

Corp. (1955) 136 Cal.App.2d 638, 642.)

Whether a plaintiff who has failed to

state a cause of action should be given

leave to amend the complaint is entrusted

to the discretion of the trial court.

(Code Civ. Proc., Section 472a, Subd.

(c).) "(Wje decide whether there is a

reasonable possibility that the defect can

be cured by amendment: if it can be, the

trial court has abused its discretion and

we reverse; if not, there has been no

abuse of discretion and we affirm.

[Citations.] The burden of proving such

reasonable possibility is squarely on the

plaintiff." (Blank v. Kirwan (1985) 39

Cal.3d 311, 318.)

The grant or denial of a motion to

dismiss, pursuant to Code of Civil Proce-

dure section 581, subdivision (f)(2) on

the ground of failure to file an amended

complaint following the sustaining of a

demurrer to a prior complaint with leave

to amend, rests within the sound discre-

tion of the trial court. (Contreras yv.

Blue Cross of California (1988) 199

Cal.App.3d 945, 948.)

To determine (1) whether any cog-

nizable theory was stated in the third

amended complaint that should have

withstood the demurrers, and (2) whether

the trial court abused its discretion in

sustaining the demurrers without leave to

amend and dismissing the entire action,

including those causes for which leave to

amend was granted but no amendment was

filed, we will review each cause of action

in the complaint.

Plaintiff’s first six causes of action

in the third amended complaint were vir-

tually verbatim reproductions of the seven

causes of action contained in his second

amended complaint. Plaintiff added to it

almost 100 pages and several more causes

of action, most of which still turned on

the validity of the lease and the

guarantee agreement.

First Cause of Action

Plaintiff’s first cause of action was

denominated as one for “individual

liability of public officials fore expen-

diture of public funds." Plaintiff admits

that the most significant illegal act he

alleged in the first cause of action was

the "gift of $2.9 million public funds

from the City of Visalia to VISALIA CON-

VENTION CENTER HOTEL, INC." However, to

challenge the so-called gift of public

funds contained in the amended lease is to

challenge the amended lease, which the

trial court determined was barred by the

limitations period contained in the Code

of Civil Procedure section 863. (See

Stanson v. Mott (1976) 17 Cal.3d 206.

Section 860 of the Code of Civil Pro-

cedure provides as follows:

"A public agency may upon the

existence of any matter which un-

der any other law is authorized to

be determined pursuant to this

chapter, and for 60 days there-

after, bring an action in the su-

perior court of the county in

which the principal office of the

public agency is located to deter-

mine the validity of such matter.

The action shall be in the nature

of a proceeding in rem."

Section 863 provides in pertinent

part:

"If no proceedings have been

brought by the public agency pur-

suant to this chapter, any inter-

ested person may bring an action

within the time and in the court

specified by Section 860 to

determine the validity of such

matter. The public agency shall

be a defendant and shall be

served with the summons and con-

plaint in the action in the man-

ner provided by law for the serv-

ice a of a summons in a civil

action."

Section 869 of the Code of Civil Pro-

cedure provides that the procedure set out

in the chapter is the exclusive remedy for

challenging the validity of matters to

which the chapter applies. That sec-

tion provides in pertinent part: "No con-

test except by the public agency or its

office or agent of any thing or matter un-

der this chapter shall be made other than

within the time and the manner herein

specified." The documents at issue -- the

amended lease the the guarantee agreement

-- were entered into in July 1988.

Plaintiff’s original complaint was not

filed until September 1989.

Plaintiff argues on appeal that since

the Visalia City Charter requires leases

for more than five years be authorized by

ordinance, that an amendmen- must also be

passed by ordinance and the failure to

pass the amendment to the lease by or-

dinance means that the lease was never

legally authorized, "it never existed

legally." Plaintiff argues, "Without use

of an Ordinance to approve the lease, the

60-day statute of limitations under Code

of Civil Procedure Section 860 et seq and

Government Code Section 53511 never starts

to run." (Emphasis in original.)

However, to say that the lease was not

a legally valid agreement is not a deter-

mination plaintiff could have unilaterally

made and then offered as an excuse for

noncompliance with the 60-day statute of

limitations. The question of validity of

an agreement must be made by a court of

competent jurisdiction. In order for a

court of competent jurisdiction to make

that decision, the issue must be brought

before it within the 60-day limitation

period.

As the city defendants point out,

California courts have consistently held

that the statute of limitations provisions

contained in Code of Civil Procedure sec-

tions 860 and 863 apply in cases "where

the contract in question is such that the

agency’s ability to operate would be sub-

stantially impaired absent a prompt

validating procedure as to the contract.

In particular, where the possibility of

future litigation might likely have a

chilling effect upon potential third party

lenders, resulting in higher interest

rates or even total denial of credit,

either of which might impair the public

agency’s ability to conduct matters of

public purpose, the 60-day limitation

period found in the validating statutes

governing validation actions are ap-

plicable. (Graydon v. Pasadena

Redevelopment Agency (1980) 104 Cal.App.3d

631 e e a Z »*

To adopt plaintiff’s argument would

mean that if the amended lease was null

and void from its inception, then

theoretically plaintiff could wait 10

years until the hotel complex was com-

pleted to bring his case of action. In

this vein, plaintiff argues in his reply

brief, "The accrual act never occurred;

thus, the time period for the commencement

of the statute to run never began."

Plaintiff’s argument clearly fails; if an

accrual act never occurred, he has no

cause of action; and if an accrual act did

occur, the cause of action is barred by

the statute of limitations.

Second Cause of Action

The second cause of action was for

declaratory relief. It named only City

defendants. The claim was that the city

council acted in contravention with the

city charter in failing to have the lease

amended by ordinance. This is simply a

rehash and another way of phrasing

plaintiff’s argument that the lease is in-

valid. Any such argument is barred by the

applicable statue of limitations.

Third Cause of Action

Plaintiff’s third cause of action, for

removal of defendant city officials from

office, is again based on the allegation

that the city officials acted illegally in

entering into the anended lease and

guarantee agreement. Not only is this

cause barred due to untimely filing, but

plaintiff failed to present any authority

indicating that such a remedy was avail-

able under the methods undertaken by

plaintiff.

Fourth Cause of Action

The fourth cause of action was for in-

junction to prevent a waste of public

funds, preventing a waste of public

property and compelling the defendant city

officials to perform their duties within

the limits and restrictions of the

California Constitution and the charter of

the City of Visalia. Again, the cause

turns on question of the validity of the

lease agreement. Because any action ques-

tioning City’s entry into the lease and

the guarantee agreement was barred, plain-

tiff could not state a viable cause of ac-

tion requesting this injunctive relief.

Appraisers were not named in the fourth

cause of action and the court likewise

properly sustained their demurrer to it.

Fifth Cause of Action

Plaintiff attempted to state a cause

of action for fraud in the fifth cause of

action. The gist of the plaintiff’s con-

plaint in this regard was contained in the

following statement: "The true facts were

that the individual defendants, and each

of them, were violating the Charter, City

eof Visalia, statutes, and Constitution of

the State of California, and ensnarling

and emeshing [sic] the taxpayers, voters,

and residents in a financial money and as-

set consuming trap of unconscionable

dimensions in the misuse and abuse of

public funds and property."

It is settled that the filing of a

timely claim against the employing public

entity is a condition precedent to a tort

action against either of the public entity

or the employee. (Mazzola v. Feinstein

(1984) 154 Cal.App.3d 305, 310.) Because

there was no allegation that plaintiff

complied with the government tort claim

statute, this cause is barred. (Gov. Code

Section £10 et seq.)

Additionally, the only facts alleged

in this cause of action are incorporated

by reference from earlier causes of action

in which plaintiff complaints of the

defendants entering into the amended lease

and the guarantee agreement. Thus, the

fifth cause of action also fails.

Sixth Cause of Action

The sixth cause of action, for civil

rights violation, again argued that it was

the lease amendment from which the civil

rights violation arose. Plaintiff’s coun-

sel conceded during oral argument that the

one-year statute of limitations in

California for bringing a civil rights

violation action could preclude the action

from proceeding against any of the named

defendants except those who were listed in

the initial federal complaint. That

original complaint named only the City of

Visalia; the Redevelopment Agency of the

City of Visalia; and city council members

Gregory Collins, Allan McIntosh, Mary

Louise Vivier, Bob McClain, Don Sharp, and

Berkley Johnson.

The trial court determined that any

action was barred, even as to the parties

named in the original federal lawsuit,

since the dismissal of that suit and its

subsequent refiling did not toll the run-

ning of the one-year statute period. The

third amended complaint does not include

any allegation regarding the filing of the

original federal lawsuit. Therefore,

plaintiff has no basis for raising the

fact that a lawsuit was filed as a means

of introducing his relation-

back/equitable-tolling doctrine.

In any event, Wilson v. Garcia (1985)

471 U.S. 261 characterized all 42 United

States Code section 1983 actions as in-

volving claims for personal injuries. It

is for this reason that the one-year

statute of limitations of Code of Civil

procedure section 340 is applicable since

that is the statute of limitations for

personal injury litigation. Due to the

nature of the original federal lawsuit,

the relation-back and/or equitable-tolling

doctrine cannot possibly be relied upon by

plaintiff with regard to the federal con-

plaint.

Seventh Cause of Action

As to the seventh cause of action, a

so called-RICO violation (Racketeer In-

fluenced and Corrupt Organizations, 18

U.S.C. Section 1961), plaintiff conceded

that the seventh cause of action was sub-

ject to demurrer as stated and that he

needed to proceed with discovery. The

court sustained the demurrer with leave to

amend, providing appellant 90 days to do

additional discovery and amend the cause

of action. No discovery was ever con-

ducted and no amendment was ever filed.

Therefore, the seventh cause of action was

appropriately dismissed as part of the

dismissal of the action. No abuse of

discretion occurred.

Eighth Cause of Action

Plaintiff conceded that the eighth

cause of action for lender liability did

no involve any of the city entities or

city officials. It involved only the

lenders who, apparently at the time of the

hearing on the demurrer, had not answered

the complaint even though plaintiff repre-

sented that they had been served. The ap-

pearing defendants’ demurrer to this

cause of action was sustained.

Ninth Cause of Action

The ninth cause of action was for ac-

counting, which again was based on the al-

legation that there was some illegality o

impropriety in the terms of the amendment

to the lease agreement or the guarantee

agreement. The trial court properly

determined that the accounting cause of

action failed because of the failure of

the first cause of action, upon which the

accounting cause of action was based.

Tenth Cause of Action

Negligence was the theory stated in

the tenth cause of action. Plaintiff con-

ceded in his third amended complaint that

the defendants were all either public

agencies or public officers. Since this

cause of action was one claiming govern-

ment tort liability, this cause fails for

the same threshold reasons as was dis-

cussed above regarding the fifth cause.

Plaintiff argues that he has filed a

representative action to recover money for

the benefit of the public entities and not

an action against the public. entities.

the flaw in plaintiff’s argument is that

he has no standing to sue as a representa-

tive of the public entities. Government

Code section 905, subdivision (i) provides

that a public entity may be exempt from

the claims requirement under certain cir-

cumstances, but that the right is the

right of the local agency and not of an

individual taxpayer. (Kinlaw v. State of

California (1991) 54 Cal.3d 326, 334-335.)

As City points out, "The principal

thrust of [plaintiff’s] Third Amended Com-

plaint is a desire on his part to sub-

stitute his discretion and his opinion for

that of the governing bodies and the

public officers and employees of said

governing bodies. To grant [plaintiff]

the right to pursue his Third Amended Com-

plaint would be tantamount to authorizing

a taxpayer to seize control of the city

and decide whether or not a suit should be

brought in the name of the City against

third parties who are alleged to have con-

mitted some act or omission giving rise to

possible liability to the City."

Dismissal of Complaint Against Appraisers

Plaintiff contends that the entry of

the order dismissing the fifth and tenth

causes of action on the basis of Judge

Broadman’s order of September 17, 1990,

was a violation of the Rules of Court

regarding ex parte orders.

That argument was never raised in the

trial court and may not be considered for

the first time on appeal. (McKinny v.

Board of Trustees (1982) 31 Cal.3d 79, 94,

fn. 9.) In any event, the order was by no

means an ex parte order, having followed a

regularly noticed hearing on the ap-

praisers’ demurrer to the third amended

complaint. Plaintiff filed an opposition

to the demurrer and participated in a

relatively detailed hearing on the demur-

rer on August 23, 1990. The order signed

on September 17, 1990, merely reflected

the decision made at the hearing. having

that same order reduced to writing can in

no way prejudice plaintiff.

Sanctions

Hoar argues that it was error to sanc-

tion him $7,500 because the trial court’s

bases for the imposition of the sanctions

were inaccurate and his filing of the com-

plaint "constitutes a defacto petition to

government guaranteed as a First Amendment

right."

"The order imposing sanctions is ap-

pealable as a final order on a collateral

matter directing the payment of money.

(Citation. ] ° ° ° Although [the

complained-of attorney] is not a party to

the underlying action, he is a party of

record in the collateral pataer by virtue

of the trial court’s order and has stand-

ing to appeal. ([Citations.]" (In re Mar-

riage of Gumabao (1984) 150 Cal.App.3d

S72, 24, @Besda)

Code of Civil Procedure section 128.5

authorizes a trial court to order a

party’s attorney to pay reasonable ex-

penses, including attorney’s fees, for,

among other actions, frivolous tactics;

frivolous tactics include filing pleadings

"totally and completely without merit."

"Upon appeal from imposition of s- -

tions pursuant to Code of Civil proce-uire

section 128.5, this court will not reverse

unless the trial court has abused the

broad discretion it enjoys." (Olson

Partnership v. Gaylord Plating Lab. Inc.

(1990) 226 Cal.App.3d 235, 240.)

At the hearing on the demurrer to the

third amended complaint on August 23,

1990, the trial court granted the City’s

motion for sanctions and set the amount at

$7,500. We set forth the comments made by

the court in granting the request:

"I’m going to grant the motion

for sanctions. I want to tell

you why I’m grating the motion

for sanctions, and Mr. Kabot,

you’re directed to prepare a or-

der in conformity with this

Court’s order and submit it to

Mr. Hoar ad Mr. Park for ap-

proval.

"Judge Moran told you, Mr.

Hoar, to organize your theories

and plead ultimate facts to sup-

port thereon. I don’t think

there is any question about that.

He told you to do that. yYou had

like a forty page complaint.

Now, I get a one hundred twenty

nine page complaint. I don’t

care because i would have rather

read something else last night.

I want to tell you why. I’m

going to read into the record the

introduction. ‘Elected appointed

officials of the City of Visalia

aided by the Community Redevelop-

ment Agency of the City of

Visalia and the Visalia Public

Building Authority are illegally

building a private motel on city

land with city and agency public

funds through various straw men

and other agents.

"(’jThese same public offi-

Ccials have evaded a referendum

election on their actions by

using a method of approving their

actions other than by ordinance

as required by the City Charter.

These officials rejected a

Slightly defective initiative

petition opposing the hotel

project. that petition had the

qualifying number of signatures.

"(’j]These same public offi-

cials are making illegal gifts of

public monies and property as

part of the hotel transaction,

and have concealed the true na-

ture and consequences of their

conduct from the public.’

"If all of that is true and I

am not saying it is true and I’m

not saying it isn’t true, it

doesn’t belong in the introduc-

tion to a complaint. That is not

how you draft a complaint. I am

talking about Civil Procedure

101, or any .. . parallel. I

would like to say there is no

such thing as an introduction

like that. I have never seen

this on a complaint. I’ve

drafted a bunch. I read them all

the time. I have never had a

speech in the beginning of a con-

plaint and the speech is inap-

propriate ad it shouldn’t be

done.

"I have never in -- this is a

great chronology of events going

way back here. (Apparently the

court is referring to the 14-page

‘Appendix’ that Mr. Hoar appended

to his 123-page complaint.] He

goes on page after page after

page. It starts out talking

about a check in the amount of

seven dollars and fifty two cents

by William Courtney. That is in-

formation that is not properly in

a complaint. It’s not the kind

of thing this Judge wants to

read. It’s not the kind of thing

that lawyers should put in a conm-

plaint. A chronology of events

is nice prose, but it’s not what

you do after a judge tells you to

organize your theories and plead

ultimate facts to support

thereon.

"In addition to those two

various, simple examples, this

complaint is replete with in-

proper and irrelevant materials.

I am not going to cite chapter

and verse. I don’t think I need

to in order for this to be a

valid order, but I do think I

need to tell you why, what it is

because there is an abeyance in

every case. I am not making the

order based on this, but a review

of the file indicates that you

were supposed to file an amended

complaint back on May 3th, .. .

There was a motion or something

you came into court the last

minute. You had something to

file. At least from my review

you waited until the last minute.

That’s just some background in-

formation, then you filed late

papers in this case.

"I want to read from those

late papers in this case because

I had to read it, okay? I don’t

like reading it. I don’t think I

should have to read it. Whether

or not your doctor was concerned

or unconcerned is of no conse-

quence or merit. It makes no

difference to me.

"I read from your first page.

“Due to a change in medication by

my doctor in June and again in

July, I started to get behind in

July. My doctor had eliminated

the 3200 miligrams [sic) of

Ibuprofin, anti-inflammatory

medication for knees, which I

might tell is not a prescription

drug, a day in June and then cut

my codeine in half for pain, my

knees, in July. Notwithstanding

my complaints of increased pain

and a return of exhaustion and

fatigue my doctor seemed uncon-

cerned at the time.’ What do I

care" I am a judge.

"If you file things late, you

Say you filed them late. you had

a problen. But it gets even

worse. ‘On Saturday, August 4,

as I approached my girlfriend’s

house -- [’]) I don’t care about

your girlfriend. I man it’s ir-

relevant to me. (’]And then her

three and a half year old son,

Shawn, who has become like my own

son after the past three and a

half years, ran out to greet me

as I was coming to a halt. He

had an accident.[’] You know,

that’s this paragraph on page

two. It’s a ten sentence

paragraph. I don’t care. He was

injured. I was injured on such a

night. We had to go to the

hospital. That’s one thing, but

to go all through this other

stuff about your girlfriend.

"Then it goes on about when

you missed a hearing in court. I

am sorry. But you’re a lawyer

and I am a judge. I have to rule

on the evidence as it comes out.

And your act in this case seem to

me to be in many cases are done

frivously [sic], with bad faith,

for the purposes of delay, and

are things that litigants should

not have to pay for.

Now, in addition to all of

that, not reviewing your own

cases that you cited to the Court

and then re-telling me that I

should look at those cases and

then admit they came out of the

Cal Juror [sic] and they stand

for the proposition that you

think it is and coupled with the

rest of this is further indica-

tion and indicia of the wrong

acts that you have undertaken

which are sanctionable under Sec-

tion 128.5, therefore, as much as

I hate to do it, I can tell you I

have never done this before,

okay? So I don’t like doing this

and I don’t take it lightly, but

the cost to these people for

filing all of this paper work in

this case has been very substan-

tial. Just the time to review it

was very substantial. I don’t

get paid per hour. They do.

They are in excess of one hundred

dollars an hour, but I’m awarding

sanctions in the amount of

seventy five hundred dollars to

the two of you together and that

will be divided up between the

two of you."

The court then, upon noting that only

counsel for City had requested sanctions,

ruled that the $7,500 would go solely to

the City and that it was directed per-

sonally against Hoar.

On appeal, Hoar lists the reasons he

alleges that Judge Broadman used to sup-

port his order and argues that none of the

reasons support the sanctions.

Hoar argues that he was sanctioned be-

cause he violated Judge Moran’s

"nonexistent orders," because Hoar ob-

tained an extension of time from Judge

Moran in which to file the third amended

complaint, because of the form of the dec-

laration of the application for leave tc

file late papers, because of Hoar’s mis-

citations to Judge Broadman during the

hearing on the demurrer and because Hoar’s

complaint was frivolous, in bad faith and

for the purpose of delay.

Hoar argues that "[njot only were many

of Judge Broadman’s complaints totally un-

founded, but the rest simply did not war-

rant sanctions."

In December 1989, apparently before

Hoar was participating in the case, Judge

Moran ruled that the causes of action in

the first amended complaint based on the

alleged illegality of the amendment to the

lease and the guarantee agreement were

barred by the limitations provision con-

tained in Code of Civil procedure section

863; plaintiff could amend his complaint

if he liked to attempt to allege causes of

action not based on the alleged illegality

of the lease and the guarantee agreement.

Even though Hoar was not yet counsel of

record at the time of that ruling, when he

assumed representation of plaintiff, it

was his duty to ascertain directions given

by the court as to what causes of action

would not withstand a demurrer if real-

leged. If he ascertained those direc-

tions, he nonetheless failed to follow

them in preparing the second amended com-

plaint. In fact, at the next hearing on

demurrers in February 1990, Judge Moran

personally told Hoar to clarify his legal

theories and to allege ultimate facts in

support of his theories.

Regardless of whether or not plaintiff

had been specifically ordered not to al-

lege the invalidity of the lease agree-

ment, he was certainly instructed to

clarify his legal theories and plead ul-

timate facts. We note that Judge Broadman

did not cite any alleged "order" by Judge

Moran regarding Code of Civil Procedure

section 863 as a basis for the sanctions.

Hoar attempts to justify the length of

the third amended complaint based on the

need to plead ultimate facts. However,

his pleadings are more repetitive than

thorough. The third amended complaint

swelled from 40 to 123 pages. The reader

must slog 44 pages through the complaint

before coming to the first cause of action

and, upon reaching the first cause of ac-

tion, one encounters case citations, legal

argument, legal conclusions, factual con-

clusions and irrelevant statements, all in

a jumble.

Much of the practice of law and cer-

tainly much of legal pleading is a matter

of style. Some pleaders favor the

Hemingway style, with short, concise sen-

tences; others prefer the stream of con-

sciousness of Joyce or the paragraph-long

sentences of Faulkner. However, the third

amended complaint does not present a ques-

tion of literary style. The imposition of

sanctions here was based on transgression

going beyond matters of style and form;

the court essentially found the pleadings

to be frivolous and unnecessarily burden-

some.

Judge Broadman also pointed to the

form of the application for leave to file

late papers as an example of th delaying

and bad faith tactics used by Hoar

throughout the case. It was hardly the

fact that he applied for an extension of

time but rather it was the tedious, ex-

traneous, unnecessary, time-consuming

minutia with which Hoar inundated the

court and the other parties that led the

court to conclude that sanctions were ap-

propriate.

Regarding case citations used by Hoar

to defend against the demurrers, Hoar

argues that he did not miscite cases to

the court. However, before he cited the

three cases in question, he had misled the

court in other matter of which the court

was well aware. In attempting to decide

"whether or not you can essentially tack

on the time from the federal cause of ac-

tion" to the state cause of action, Hoar

cited to the court as support for the

proposition that such tacking is ap-

propriate under Code of Civil procedure

sections 312 and 355. The court read both

Code of Civil procedure sections and found

that nether said what Hoar represented, ad

neither supported his proposition. Mr.

Hoar then cited two cases to the court and

the following colloquy occurred:

"THE COURT: Have you read

that case? Are [you] represent-

ing to me those two cases are

directly on point?

"MR. HOAR: That’s what I

picked up.

"THE COURT: My question to

you, sir, is because you just

represented two cases [sic] to me

that are factually incorrect, I

am going to take you on this. If

you were wrong and this bears out

hat you said is wrong, I am not

going to be happy about it, so I

am going to take a recess and

read then.

"“nefore you tell me they

stand for the proposition that

this tacks on to federal time for

period of statute of limitation

problems, you best be sure.

"MR. HOAR: As I recall, sir,

I got it from Cal Juror [sic].

This is where I recall I got it

fron.

"THE COURT: Do you want to

take a recess and I’1l read those

two during this time? You tell

me what to read and I"1ll read it,

but I don’t not want to find any-

thing.

"What cases do you want me to

read?

"THE COURT: If you just

cited to me a case that has been

overturned or a case that you

have given me an old citation

that has been reversed, I’m not

going to be happy at all, Mr.

Hoar.

"MR. HOAR: That’s where I

believe I got it.

"THE COURT: I don’t carte

where you got it, but you have a

duty to tell the Court the truth.

"MR. HOAR: These are the

best I an do.

THE COURT: Your best in-

cludes giving the judge the right

citations. I will not tell you

how to practice law, but I don’t

want people coming in here on a

massive case and telling me _ two

code sections and say what you

think you say and they don’t."

The court then took a recess and

returned to note that the cases were aber-

rant and not applicable at all. The court

then chided Mr. Hoar. "[Y]Jou went for a

doctrine, a doctrine you found in Cal

Juror [sic]. You copy down the doctrine,

but the doctrine does not apply. You in-

dicate these facts. It’s a great

doctrine, but I can’t extend it. I’m not

about t extend it. I’m just a trial

judge. I’m not going to do that and not

to warn me about the fact that this

doctrine has never been extended in this

kind of situation is bothersome to the

court." The colloquy continued.

"MR. HOAR: I apologize, Your

Honor. I got it as I said from

and I believed that it was the

source and I was rushing very

hard last February when I put

this together.

"THE COURT: Maybe I am old

fashioned[ed] or maybe it’s my

educational background or maybe I

am just odd, but it seems to me

that when you tell the judge the

case stands for a proposition,

you have to at ‘least read the

cas\e.

"MR. HOAR: I believed that

was the source when I obtained

it, Your Honor.

"THE COURT: I had heard --

you told me that you read it in

Cal Juror [sic]. I didn’t have

time nor the inclination to look

it up, this Cal Juror {sic}.

But, I think it’s incumbent upon

an attorney when they come in to

Court and cite three cases not in

an area that’s determinative of

this issue rather than just take

it out of the Cal Juror {sic} to

look it up, and I don’t think you

did that.

"MR. HOAR: I apologize to

the Court, Your Honor."

Thus, at a minimum Mr. Hoar cited two

statutes to the court that were inap-

plicable, cited three cases that the judge

concluded were inapplicable, and admitted

to the court that he had not read the

cases and indeed went so far as to

apologize to the court for his actions.

Yet, he now argues there was no ir-

regularity. Such a position cannot be ac-

cepted.

Under the facts appearing in this case

and in this record, and after a review of

the plaintiff’s third amended complaint

and he transcript of the hearing on the

demurrer to the third amended complaint,

we cannot say that the court abused its

broad discretion when it imposed sanc-

tions.

DISPOSITION

The judgment of dismissal and order

imposing sanctions are affirmed. Respon-

dents are awarded costs on appeal.

/s/

Vartabedian, J.

WE CONCUR;

Martin, Acting P.J.

Buckley, J.

S. L. KABOT #49882 FILED

MCCORMICK, KABOT, MICHNER Tulare County

& FOLEY Nov 20 1990

A Partnership of Law Clerk

Corporations By Deputy

1220 West Main Street

Visalia, CA., 93291

(209) 734-6729

Attorneys for Defendants,

City of Visalia, The

Redevelopment Agency of the

City of Visalia, Gregory F.

Collins, Alan T. McIntosh,

Mary Louise Vivier, Bob

McClain, Don Sharp, Berkley

Johnson, Tim Hansen, the

Visalia Building Authority,

Jeffrey M. Oderman, Ski

Harrison and Rutan and Tucker.

IN THE SUPERIOR COURT OF THE

STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF TULARE

ROY J. KENDALL, Case No. 139050

Plaintiff, ORDER SUSTAINING

DEMURRER OF DEFEND-

Vv. ANTS CITY OF VISA-

LIA, THE REDEVELOP-

MENT AGENCY OF THE

CITY OF VISALIA,

)

CITY OF VISALIA, )

)

) | GREGORY F. COLLINS,

)

et al.,

Defendants ALAN T. MCINTOSH,

MARY LOUISE VIVIER,

BOB MCCLAIN, DON

SHARP, BERKLEY

JOHNSON, TIM HAN-

SEN, THE VISALIA

BUILDING AUTHORITY,

JEFFREY M. ODERMAN,

SKI HARRISON and

RUTAN and TUCKER TO

PLAINTIFF’S THIRD

AMENDED COMPLAINT

AND ORDER GRANTING

SANCTIONS AGAINST

LEONARD C. HOAR,

JR.

The hearing on the demurrer filed by

Defendant CITY OF VISALIA, THE REDEVELOP-

MENT AGENCY OF THE CITY OF VISALIA,

GREGORY F. COLLINS, ALAN T. MCINTOSH, MARY

LOUISE VIVIER, BOB MCCLAIN, DON SHARP,

BERKLEY JOHNSON, TIM HANSEN, THE VISALIA

BUILDING AUTHORITY, JEFFREY M. ODERMAN,

SKI HARRISON and RUTAN & TUCKER

(hereinafter referred to as "Public Defen-

dants" said Public Defendants’ motion to

strike portions of said complaint and said

Public Defendants’ motion for the imposi-

tion of sanctions, came on for hearing

before the undersigned on August 23, 1990.

Said demurrer was heard concurrently with

the demurrer filed by Defendants JOSEPH J.

BLAKE & ASSOCIATES, INC., BRAD PAUL and

LINDA J. HAYS (hereinafter referred to as

"Appraisers"). Public defendants appeared

by and through their counsel, McCormick,

Kabot, Michner & Foley, and Ss. L. Kabot,

and Defendant Appraisers appeared by and

through their ccunsel McCormick, Barstow,

Sheppard, Wayte & Carruth, and Gordon M.

Park, and Plaintiff ROY KENDALL, appeared

by and through his counsel, Leonard C.

Hoar, Jr.

The Court having reviewed the papers

and records on file concerning these mat-

ters, and after hearing extensive oral ar-

gument and the matter having been sub-

mitted,

IT IS HEREBY ORDERED:

1. That the general demurrer by

Public Defendants, on the grounds that no

cause of action has been stated and the

special demurrer on the grounds that the

complaint was filed after the running of

the sixty day statute of limitations ap-

plicable pursuant to Civil Code Section

860 et seq. be sustained without leave to

amend as to Plaintiff’s First, Second,

Fourth and Ninth Causes of Action with

regard to these Public Defendants; and

2. That the general demurrer by

Public Defendants on the grounds that no

cause of action has been stated and the

special demurrer on the ground that the

Court has no authority in a civil proceed-

ing to remove a public official from of-

fice be sustained without leave to amend,

as to Plaintiff’s Third Cause of action;

and

3. That the general demurrer by

Public Defendants, that no cause of action

has been stated and the special demurrer

on the grounds that Plaintiff has failed

to, and cannot nak now, comply with the

Government Tort Claims Act, be sustained

without leave to amend as to Plaintiff’s

Fifth and Tenth Causes of Action with

regard to these Public Defendants; and

4. That the Court has noted that

Plaintiff’s attorney, Leonard Hoar, has

submitted on the record that it would be

appropriate to sustain the demurrer

without leave to amend as to Plaintiff’s

Eighth Cause of Action on the grounds that

no cause of action was stated against

these Public Defendants; and

5. That the Court has noted that

Plaintiff’s attorney, Leonard Hoard, has

admitted on the record that it would be

appropriate to sustain the demurrer

without leave to amend as to the Sixth

Cause of Action on the grounds that no

cause of actin was stated against Public

Defendants Tim Hansen, The Visalia Public

Building Authority, Jeffrey M. Oderman,

Ski Harrison and Rutan & Tucker, and that

the general demurrers on the ground that

no cause of action has been stated on the

special demurrer on the grounds that the

applicable one year statute of limitations

to file a civil rights action had run

before Plaintiff filed the within conm-

plaint, is sustained without leave to

amend as to Plaintiff’s Sixth Cause of Ac-

tion with regard to Public Defendants City

of Visalia, the Redevelopment Agency of

the City of Visalia, Gregory F. Collins,

Alan T. McIntosh, Mary Louise Vivier, Bob

McClain, Don Sharp and Berkley Johnson;

and

6. These Public Defendants demurrer

to Plaintiff’s Seventh Cause of Action is

sustained on the grounds of uncertainty

and Plaintiff is given. leave to file

another Amended Complaint to provide suf-

ficient charging allegations and facts as

against these Public Defendants to raise a

RICO cause of action based upon alleged

mail fraud only, to allow said Defendants

to prepare responsive pleadings to said

allegations; and

76 Plaintiff is given ninety days

within which to file an Amended Complaint

to cure the uncertainty in the Seventh

Cause of Action as against these Public

Defendants with said Amended Complaint to

be filed on or before November 23, 1990;

and

8. These Public Defendants’ motion to

strike is granted and Plaintiff is

directed to delete said objectionable lan-

guage referred to in Public Defendants’

motion to strike from Plaintiff’s an-

ticipated Fourth Amended Complaint; and

9. Sanctions, in the amount of $7,500

are awarded to these Public Defendants and

imposed against Plaintiff’s legal counsel,

Leonard C. Hoar, Jr., pursuant to Code of

Civil procedure Section 128.5 based upon

the following circumstances and/or conduct

of Mr. Hoar:

(1) That Mr. Hoar was aware of

the ruling by the Honorable Judge John

Moran, dated December 4, 1989, regarding

these Public Defendants’ demurrer to

Plaintiff’s First Amended Complaint, that

future complaints could not attack the

validity of a certain Lease and/or

Guarantee Agreement, and that despite

being aware of this prior ruling, Mr. Hoar

prepared and filed a Second Amended Com-

plaint and a Third Amended Complaint con-

tinuing to attempt to challenge the

validity of said Agreements;

(b) That Mr. Hoar was directed by

the Honorable Judge John Moran on February

28, 1990, in ruling upon these Public

Defendants’ demurrer to Plaintiff’s Second

Amended Complaint, to prepare and file a

Third Amended Complaint which organized

legal theories and pled ultimate facts in

Support of said theories, and that there-

after, Mr. Hoar filed a Thirdg Amended Conm-

Plaint which totally and completely failed

to meet the directions and requirements of

said ruling;

prepared and filed by Mr. Hoar is replete

with improper, immaterial and irrelevant

matter and often totally Superfluous

material;

(d) On several occasions in his

Points and Authorities, mr. Hoar cited

Statutes and Cases which he personally

failed to read and review which Proved not

to stand for the legal Propositions and

arguments put forward by Mr. Hoar:

(e) These actions when taken in-

dividually and a: 41 whole, reveal that Mr.

Hoar’s actions and pleadings in many in-

stances in this case have been done

frivolously, with bad faith, and solely

with the purpose of delay, thereby causing

undue expense to these Public Defendants.

APPROVED AS TO FORM.

LEONARD C. HOAR

APPROVED AS TO FORM.

ZsZ Gordon M. Park

GORDON M. PARK

DATED: 11/19, 1980.

Zs/ Howard R. Broadman

THE HONORABLE HOWARD BROADMAN,

Judge of the Superior Court

SUMMARY OF THE ORDER OF THE HONORABLE

JOHN P. MORAN, filed January 17, 1991.

This Order was identical to that

signed by the Honorable Howard Broad-

man on November 20, 1992, except that

paragraph 8 granting the motion to

strike was deleted and there was no

approval as to form by other counsel.

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF TULARE

ROY J. KENDALL, Visalia, CA Aug23,1990

No. 139050 Dept: No.7

Judge: HOWARD R.

BROADMAN

Clerk: Olivia Infante

)

Plaintiff, )

)

) Bailiff: James D. Lacy

)

CITY OF VISALIA,

et al,

Reptr: Andrea Walter

Defendants.

Counsel for Plaintiff(s) Leonard Herr

Counsel for Defendant(s) Gordon Park

Stephen Kabot

Nat. of Proceedings: DEFENDANT’S DEMURRER

TO PLAINTIFF’S THIRD AMENDED COMPLAINT AND

MOTION TO STRIKE PORTIONS OF SAID COM-

PLAINT; DEFENDANT’S DEMURRER

As to Ct. #8, matter is sustained as to

appearing defendant.

As to Ct. #4, sustained as to Mr. Park’s

clients.

Arguments by counsel.

Demurrer as to Ct. #6, sustained with

leave just as to those served.

As to #7 demurrer sustained with leave to

amend s to Mr. Park’s clients.

As to #5 & #10, sustained with leave to

amend as to Mr. Parks clients, ninety days

to amend.

Sustain demurrer as to first Cause of ac-

tion without leave to amend and finds sec-

tion based on 860 not 526A therefore sixty

day limitation is applicable.

As to second cause of action sustain

demurrer without leave to amend.

As to third cause of action demurrer is

sustained without leave to amend.

As to fourth cause of action sustained

without leave to amend.

As to fifth and tenth cause of action

demurrer is sustained without leave to

amend.

As to seventh cause of action sustained

with leave to amend, ninety days from this

date.

As to ninth cause of action sustained

without leave to amend.

As to sixth cause of action sustained

without leave to amend.

Comments re sanctions.

ORDER: Motion for sanctions is granted.

(Comments by the court).

Court’s exhibit #1 Reporter’s transcript

of 2/28/90, marked for identification.

ORDER: Sanctions in the amount of

$7500.00 to go to the city directly, per-

sonally against Mr. Herr.

Mr. Kabot to prepare order in conformity

with court’s order and submit to Mr. Herr

for approval.

{s/Olivia Infante

Clerk

IN THE SUPERIOR COURT OF THE STATE OF

CALIFORNIA IN AND FOR THE COUNTY OF TULARE

HONORABLE JOHN P. MORAN, JUDGE

DEPARTMENT 3

ROY J. KENDALL,

Plaintiff,

vs.

CITY OF VISALIA,

ET AL, No. 1139050

Court’s Ruling

Defendants.

ee ee ee ee ee eee ee eee ee ee

Visalia, California February 28, 1990

REPORTER’S TRANSCRIPT

APPEARANCES:

For the Plaintiff: LEONARD HERR

Attorney at Law

Hanford, California

For the Defendants: STEPHEN KABOT,

Attorney at Law

Visalia, Ca. 93291

CERTIFIED COPY

STACY B. SHAW, C.S.R.

#6139

February 28, 1990 Visalia, California

8:30 a.m.

-o00-

(Whereupon, the following:

proceedings were had in open court, to

wit:)

THE COURT: Kendal versus City of

Visalia.

MR. KABOT: Ready, your Honor.

MR. HERR: Ready, your Honor.

Leonard Herr appearing on be-

half of Roy and Joy Kendal.

MR. KABOT: Steve Kabot appearing on

behalf of the city agency, several of the

named defendants, your Honor.

THE COURT: All right.

All right, Mr. Herr, prior to

proceeding I have reviewed the points and

authorities in this matter, and, par-

ticularly, your remarks that you did not

have adequate time to prepare the first

amended complaint to this matter. That

you asked counsel for an extension of

time. And it was not extended to you.

MR. HERR: That is correct, your

Honor.

THE COURT: I have reviewed the first

amended Complaint. It, in my view, it is

confusing as far as your theories, and a

statement of the required facts to support

these theories.

If you wish, I will grant you

leave to file a -- to redo this Complaint.

And I’1ll give you the time you’re required

to do it.

The reason I say this is, I’m not

inclined to grant any leave to amend the

Complaint after I rule on this demurrer.

So, I think you should have an op-

portunity to plead your theories as com-

pletely, and as effectively as you can.

How do you feel about that?

MR. HERR: Well, if you’re not in-

clined to grant leave to amend, your’

Honor, I would certainly want to do that.

THE COURT: All right.

Why don’t we do this, why don’t I

grant you leave to amend your Complaint?

Give you 60 days to do it.

MR. HERR: That would be very helpful,

your Honor.

THE COURT: And I -- I suggest you try

to organize your theories and plead in ul-

timate facts there to Support those

theories, because that’s what I look for

when I analysis your Complaint; do you un-

derstand that?

MR. HERR: Yes, sir.

THE COURT: Okay.

Do you have any comments, Mr.

Kabot?

MR. KABOT: Well, m y obvious initial

comment would be, to oppose that, your

Honor. But, I’m not going to under the

circumstances.

I would ask the Court to Clarify

its earlier order, perhaps. Since, Mr.

Herr in his moving papers seems to inter-

pret your earlier decision on the demurrer

of the first amended Complaint somewhat

differently that I read it.

Will -- will he be allowed to

plead any Cause of Action based upon an

attack on the validity of the guarantee?

THE COURT: He can plead anything he

wants, as far as I’m concerned.

MR. KABOT: All right.

THE COURT: I have previously ruled

that Causes of Action that go to the

validity of the -- of the --

MR KABOT: Lease and guarantee.

THE COURT: Lease, and a what?

MR. KABOT: Guarantee.

THE COURT: Guarantee, that those ap-

pear, appear to be barred by the statute

of limitations set forth in the Code of

Civil Procedure.

I notice from your Complaint and

points and authorities that you argue that

the allegations you pleaded in your first

amended Complaint state a theory which is

not barred by that.

I mean, if you wish to do that, go

ahead.

MR. HERR: Yes, your Honor.

THE COURT: And, particularly, since

this is the first time that the plaintiff

has appeared by counsel in this matter.

But my view is, when I review this

Complaint, and if the defendant demurrers,

I think, that the plaintiff has been given

an adequate opportunity to plead any Cases

of Action that the plaintiff has.

And, again, I’m not going to be

inclined to grant further leave to amend

in this matter. I’m going to analyze the

Complaint. And I’m gong to rule on any

demurrer Cause of Action by Cause of Ac-

tion, and that’s it.

All right.

MR. HERR: Very well, your Honor.

THE COURT: All right.

MR. KABOT: Thank you, your Honor.

MR. HERR: Thank you, your Honor.

THE COURT: All right.

Do you waive notice of any further

notice of my ruling in this matter?

MR. HERR: Yes.

THE COURT: So the 60 days will com-

mence to run from now.

MR. HERR: Yes.

MR. KABOT: Yes, your HONOR>

THE COURT: All right. Thank you.

(Whereupon, the proceedings were

concluded. )

-o00-

FILED FILED

TULARE COUNTY Nov 9 2 11 PM ‘90

Nov 6 1990 Ernest J. Maggini

Clerk Monterey County Clerk

By Deputy Deputy

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF MONTEREY

ROY J. KENDALL, A

of the City of

Visalia,

Case No. 139050

Plaintiff,

)

) DECISION

)

v. )

)

CITY OF VISALIA, A )

Charter City of the)

State of California)

et al.,

Defendants. )

)

This matter having been assigned to

this Court for ruling on challenge pur-

suant to Section 170.3 ccp. This Court

hereby rules as follows:

Most of the evidence submitted by the

plaintiff constitutes inadmissible hear-

say. What is substantiated is that the

defendant Diana Dooley’s public relations

firm was employed by Judge Broadman during

his reelection campaign for Municipal

Court in 1988. The firm received over

$11,000.00 for its services and, at least

for some purposes had the same mailing ad-

dress as the Judge’s reelection committee.

Even though we are dealing with purely

legal matters rather than factual deter-

mination, this Court concludes that based

on this fairly recent relationship, a

reasonable person viewing ali the cir-

cumstances at the present time might en-

tertain a doubt as to Judge Broadman’s

ability to be impartial. (CCP Section

170.1 (a) (6) (c)).

Plaintiff’s motion to disqualify Judge

Broadman pursuant to CCP Section 170.3 is

granted, prospectively only. There is no

legal basis for rendering this dis-

qualification retroactive. The dis-

qualification shall apply therefore to any

future hearings in the matter, but not as

to any matters already ruled on by Judge

Broadman.

All papers and documents supplied to

this Court for its ruling are being

returned along with this ruling to the

Tulare County Superior Court.

Dated: Nov 9, 1990

4s/ John H. Phillips

JOHN H. PHILLIPS

JUDGE OF THE SUPERIOR COURT

(SEAL, SUPERIOR COURT )

(MONTEREY COUNTY)

I certify that the fore-

going document is a true

copy of the original on

file in my office.

Dated: Nov 9 1990

Ernest A. Maggini, Clerk

By: , Deputy

FILED

TULARE COUNTY

FEB 20 1991

NADINE SVOBODA, CLERK

BY:

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF TULARE

ROY J. KENDALL, a No. 139050

Taxpayer of the City

of Visalia,

Plaintiff, Recusal of Judge

John P. Moran

vs.

CITY OF VISALIA, A

Charter City of the

State of California,

et al,

Defendants.

)

Aline M. Moran, the wife of Judge John

P. Moran, is a partner in the Hein Ranch

Company which leases land to Lonestar ag-

gregates for the extraction of aggregates.

Such aggregates, together with aggregates

extracted from other properties leased by

Lonestar, are processed to sand and gravel

at its Lemon Cove plant. Attached to At-

torney Hoar’s Statement are copies of four

Daily Ticket Reports reporting sales of

sand and gravel for use in the construc-

tion of the Radisson Hotel. This material

is not identified to aggregates from the

Hein Ranch Company land, and Lonestar does

not keep records identifying products sold

to a particular source. The gist of the

situation here is that sand and gravel

used in the construction of the Radisson

Hotel was purchased from a plant which

purchases some of its aggregates from the

Hein Ranch Company. Neither Judge Moran

nor his wife have ever had an interest in

Lonestar.

Although the focus of this litigation

has changed since its inception, it is es-

sentially an action against the City of

Visalia and City officials Challenging the

legality of the City’s financial involve-

ment in the construction of the now conm-

pleted Radisson Hotel. The litigation

does no relate to future projects which

might be undertaken by the City. The out-

come of this litigation will have no

specific financial effect on the Hein

Ranch Company; and its interest in any fu-

ture projects would be remote and contin-

gent.

The Court had no knowledge that any

material from the Lemon Cove plant was

used in the construction of the Radisson

Hotel when it ruled on any matters in this

proceeding. Had it known of such cir-

cumstances it would have notified counsel

prior to acting further in the matter.

Notwithstanding the foregoing, and

giving due consideration to the Publicity

this litigation has received in the con-

munity and the ugly turn it has recently

taken, including Hoar’s accusation of

financial interest on the part of the

Court, and the Court having no desire to

have further contact with either Hoar or

his case, the Court finds that it would be

in the interest of justice to recuse it-

self pursuant to Code of Civil Procedure

Section 170.3(a) (6) (A).

The Court recuses itself in this mat-

ter.

Dated: February 15, 1991

Zs/ John P. Moran

JOHN P. MORAN

Judge of the Superior

Court

Thereof, Filed February 22, 1990,

pp. 43:5 = 45:2: (NOTE: Although the

Demurrer Hearing of August 23, 1992, was

based upon the Third Amended Complaint,

both the Trial Court and the Court of Ap-

peal ruled upon both the Second and Third

Amended Complaints. )

J. REQUEST FOR MONETARY SANCTIONS

AGAINST PLAINTIFF AND HIS LEGAL COUNSEL.

1. Each citizen, including plain-

tiff and counsel, are entitled to the con-

stitutionally guaranteed right to petition

the government for the redress of

legitimate grievances. (United States

Constitution, ist Amendment; California

Constitution, Article I, Section 3.)

2. The United States Supreme

Court has held that the right to petition

protects the freedom to seek redress from

all three of the coordinate branches of

government. Eastern R-. Conf. ve. Noerr

Motors (1961) 365 U.S. 127, 81 S.Ct. 523,

5 L.Ed.2d 464; Mine Workers y. Pennington

(1965) 381 U.S. 657, 669-672, 85 S.Ct.

1585, 1592-1594, 14 L.Ed.2d 626, which

togethe. made up the Noerr-Pennington

doctrine.

3. "Certainly the right to peti-

tion extends to all departments of the

Government. The right of access to the

courts is but one aspect of the right of

petition." California Transport y. Truck-

dng Unlimited (1972) 404 U.S. 50s, 510, 92

S.Ct. 609 ,611, 30 L.Ed.2ada 642.

4. The original California Con-

stitution Article I, Section 10, enacted

in 1949, stated: "The people shall have

the right . . . to petition the Legisla-

ture for redress of grievances." On

November 5, 1974, the voters adopted the

amended and renumbered California Con-

stitution, Articie I, Section 3, which

gives the people the right to petition

government for redress of grievances,

clearly a broadening of the right of peti-

tion.

5. Criticism of government is ab-

solutely privileged. City of Albany v.

Meyers (1929) 99 Cal.App. 651, 279 P. 213.

6. The right of petition protects

attempts to obtain redress through in-

stitution of judicial proceedings -as well

as through importuning executive officials

and legislature; right encompasses act of

filing lawsuit solely to obtain xonetary

compensation for individualized wrongs as

well as filing suit to draw attention to

issues of broader public interest or

political significance. City of Long

Beach v. Bozek (1982) 31 Cal.3d 527, 183

Cal.Rptr. 86, 645 P.2d 137.

7. Plaintiff, with the assistance

of counsel, is seeking to address an

egregious wrong by defendants against the

taxpayers, voters, and citizens of the

City of Visalia. The detail cited in the

Second Amended Complaint clearly shows the

good faith and seriousness of plaintiff,

with the assistance of coun , in bring-

ing this issue before the courts for

resolution and justice, since it shall

never come from defendants.

8. Defendants’ request for sanc-

tions is a blatant attempt at intimida-

tion.

2. Motion for Reconsideration of

Judge Broadman’s Order, Filed September 5,

1990, CT 536 - 639:

VIII

IMPOSITION OF SANCTIONS

23. Only a General Claim for Ssanc-

tions. Defendant CITY OFFICIALS so:

sanctions in their general closing

paragraph on lines 3 and 4 of their points

and authorities in support of Demurrer and

Motion to Strike Third Amended Complaint.

a. Plaintiff has noted that

Defendants regularly submit the general,

unsubstantiated claim for sanctions as a

part of their pleadings, apparently in at-

tempt to intimidate plaintiff. Neither

plaintiff nor counsel is intimidated.

b. Defendants have not specified

any damages or costs in any amount upon

which an award of sanctions to the City

can be based.

24. Arbitrary and Capricious. In the

total absence of any evidence proffered by

defendants as to costs and fees, any award

of sanctions by the Court to the City is

arbitrary and capricious, without any

relationship of any legitimate fact known

to the Court.

a. The only closely relevant fact

upon which the Court could possibly base

the $7,500 award of sanctions to the City

is the fact that plaintiff has requested

requested documented sanctions for failure

to produce documents for discovery in an

approximately similar amount.

25. Code Provisions. None of the

conduct attributable by the Court to

plaintiff’s counsel is commensurate with

the provisions of Code of Civil Procedure

Section 128.5. The Court found the plead-

ing frivolous. Section 128.5(b) (2)

defines "Frivolous" as meaning (A) totally

and completely without merit or (B) for

the sole purpose of harassing an opposing

party. Neither definition is applicable to

the complaint prepared by Leonard C. Hoar,

Jr.

a. The complaint has merit; it

charges public officials with illegally

giving, loaning, and pledging public funds

in violation of California Constitution

Article XVI, Section 6. Full charges and

specifications are provided to leave no

doubt as that of which defendants are ac~-

cused. The sums of money involved are not

trivial.

b. The complaint is not intended

to harass or delay at all. It is intended

to be complete and thorough, and to plead

theories as completely and effectively as

counsel was able, as suggested by Judge

Moran (Exhibit "A", 2: 8-11)

c. The mere fact that the Court

does not like counsel’s style, nor his in-

novations, nor his efforts to make the

complaint clearer, more precise, and more

informative, is not a ground for sanc-

tions. Sanctions for style are arbitrary

and capricious, and violate fundamental

standards of due process under the 14th

Amendment of the Constitution of the

United States and Article I, Section 7 of

the California Constitution.

26. PROTECTED CONDUCT. Each citizen,

including plaintiff and counsel, are en-

titled to the constitutionally guaranteed

right to petition the government fore the

redress of legitimate grievances. Con-

Amendment; california constitution, Ar-

ticle I, Section 3.

a. The United States Supreme

Court has held that the right to petition

protects the freedom to seek redress from

all three of the coordinate branches of

government. Eastern R. Conf. vy. Noerr

Motors (1961) 365 U.S. 127, 81 S Ct 523, 5

L Ed 2d 464; Mine Workers vy. Pennington

(1965) 381 US 657, 669-672, 85 S Ct 1585,

1592-1594, 14 L Ed 2a 626, which together

made up the Noerr-Pennington doctrine.

b. “Certainly the right to peti-

tion extends to all departments of the

Government. The right of access to the

courts is but one aspect of the right of

petition." California Transport v. Truck-

ing Unlimited (1972) 404 US 508, 510 92 S

Ct 609, 611, 30 L Ed 2d 642.

c. The original California Con-

stitution Article I, Section 10, enacted

in 1949, stated: "The people shall have

the right .. . to petition the Legisla-

ture for redress of grievances." ON

November 5, 1974, the voters adopted the

amended and renumbered California Con-

stitution, Article I, Section 3, which

gives the people the right to petition

government for redress of grievances,

clearly a broadening of the right to peti-

tion.

a. Criticism of government is ab-

solutely privileged... City of Albany v.

Meyers (1929) 99 Cal App 651, 179 P 213.

e. The right of petition protects

attempts to obtain redress through in-

stitution of judicial proceedings as well

as through importuning executive officials

and legislature; right encompasses act of

filing lawsuit solely to obtain monetary

compensation for individualized wrongs as

well as filing suit to draw attention to

issues of broader public interest or

political significance. City of Long

Beach v. Bozek (1982) 31 Cal.3d 527, 183

Cal Rptr 86, 645 P2d 137, vacated, 459 US

1095, 74 L Ed 2d 943, and remanded; reaf-

firmed 33 Cal3d 727, 1909 Cal Rptr 918,

661 P2d 1072.

f. Plaintiff, with the assistance

of counsel, is seeking to address an

egregious wrong by defendant City offi-

cials against the taxpayers, voters, and

residents of the City of Visalia. The

detailed charges and specifications

clearly shows the good faith and serious-

— ne an et A neath ee ae

ness of plaintiff and counsel in bringing

this issue before the court for resolution

and justice, since is shall never come

from the defendant CITY OFFICIALS.

g. Sanctioning counsel places a

chill on plaintiff’s exercise of his First

Amendment Rights. If counsel are sanc~

tioned for being detailed in charges and

specifications, that fact in turn shall

discourage other counsel from entering

this thorny thicket of local politics.

3. Judge Broadman’s Ruling of Decem=

ber 5, 1990: (Ct 830)

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF TULARE

Visalia, California December 5, 1990

ROY J. KENDALL, ) No. 139050 Dept. No. 7

) Judge, Honorable Howard

Plaintiff, ) Broadman

) Clerk Olivia Infante

) Bailiff

)

Reporter

Vv.

City of Visalia,

)

Defendant. )

)

Nature of Hearing: RULING ON SUBMITTED

MATTER

The Court having taken matter under

submission now makes no ruling pursuant to

Judge John M. Phillip’s order.

All previous orders to remain in ef-

fect.

Zs/ Qlivia Infante

Clerk

4. Plaintiff and Appellants’ Opening

Brief on Appeal, pp. 45:2 - 47:5:

D. First Amendment Protected Conduct.

Each citizen, including plaintiff and

counsel, are entitled to the constitution-

ally guaranteed right to petition the

government fore the redress of legitimate

grievances. Constitution of the United

Constitution, Article I, Section 3.

1. The Noerr-Pennington Doctrine.

The United States Supreme Court has held

that the right to petition protects the

freedom to seek redress from all three of

the coordinate branches of government.

Eastern R. Conf. v. Noerr Motors (1961)

365 U.S. 127, 81 S Ct 523, 5 L Ed 2d 464;

Mine Workers v. Pennington (1965) 381 US

657, 669-672, 85 S Ct 1585, 1592-1594, 14

L Ed 2d 626, which together made up the

Noerr-Pennington doctrine.

2. Petition Includes Court Ac~

cess. "Certainly the right to petition

extends to all departments of the Govern-

ment. The right of access to the courts

is but one aspect of the right of

petition." California Transport v. Truck-

ing Unlimited (1972) 404 US 508, 510 92 S

Ct 609, 611, 30 L Ed 2d 642. i

3. Right to Petition Broadened in

1974. The original California Constitu-

tion Article I, Section 10, enacted in

1949, stated: "The people shall have the

right . . . to petition the Legislature

for redress of grievances." On November

5, 1974, the voters adopted the amended

and renumbered California Constitution,

Article I, Section 3, which gives the

people the right to petition government

‘for redress of grievances, clearly a

broadening of the right to petition.

[inadvertent printer deletion in open-

ing brief] . . government is absolutely

privileged. City of Albany vy. Meyers

(1929) 99 Cal App 651, 179 P 213.

5. Suit Against Government

Privileged. The right of petition

protects attempts to obtain redress

through institution of judicial proceed-

ings as well as through importuning execu-

tive officials and legislature; right en-

compasses act of filing lawsuit solely to

obtain monetary compensation for in-

dividualized wrongs as well as filing suit

to draw attention to issues of broader

public interest or political significance.

City of Long Beach v. Bozek (1982) 31

Cal.3d 527, 183 Cal Rptr 86, 645 P2d 137,

vacated, 459 US 1095, 74 L Ed 2¢ 943, and

remanded; reaffirmed 33 Cal3d 727, 1909

Cal Rptr 918, 661 P2d 1072.

6. Egregious Wrongs Require Judi-

cial Relief. Plaintiff, with the assis-

tance of counsel, is seeking to address an

egregious wrong by defendant City offi~

cials against the taxpayers, voters, and

residents of the City of Visalia. The

detailed charges and specifications

clearly shows the good faith and serious-

ness of plaintiff and counsel in bringing

this issue before the court for resolution

and justice, since is shall never come

from the defendant CITY OFFICIALS.

7. Sanctions A Chilling Effect on

First Amendment Rights. Sanctioning coun-

sel places a chill on plaintiff’s exercise

of his First Amendment Rights. If counsel

are sanctioned for being detailed in

charges and specifications, that fact in

turn shall discourage other counsel from

entering this thorny thicket of local

politics -- and all too few are even will-

ing to look at this type of case to begin

with, let alone undertake it.

5. Petition for Hearing Before

California Supreme Court, 28:13 - 29:24.

VIII

IMPOSITION OF SANCTIONS

23. Only a General Claim for Sanc-

tions. Defendant CITY OFFICIALS sought

sanctions in their general closing

paragraph on lines 3 and 4 of their points

and authorities in support of Demurrer and

Motion to Strike Third Amended Complaint.

a. Plaintiff has notod that

Defendants regularly submit the general,

unsubstantiated claim for sanctions as a

part of their pleadings, apparently in at-

tempt to intimidate plaintiff. Neither

plaintiff nor counsel is intimidated.

b. Defendants have not specified

any damages or costs in any amount upon

which an award of sanctions to the City

can be based.

24. Arbitrary and Capricious. In the

total absence of any evidence proffered by

defendants as to costs and fees, any award

of sanctions by the Court to the City is

arbitrary and capricious, without any

relationship of any legitimate fact known

to the Court.

a. The only closely relevant fact

upon which the Court could possibly base

: the $7,500 award of sanctions to the City

is the fact that plaintiff has requested

requested documented sanctions for failure

to produce documents for discovery in an

approximately similar amount.

25. Code Provisions. None of the

conduct attributable by the Court to

plaintiff’s counsel is commensurate with

the provisions of Code of Civil Procedure

Section 128.5. The Court found the plead-

ing frivolous. Section 128.5(b) (2)

defines "Frivolous" as meaning (A) totally

and completely without merit or (B) for

the sole purpose of harassing an opposing

party. Neither definition is applicable to

the complaint prepared by Leonard C. Hoar,

Jr.

a. The complaint has merit; it

charges public officials with illegally

giving, loaning, and pledging public funds

in violation of California Constitution

Article XVI, Section 6. Full charges and

specifications are provided to leave no

doubt as that of which defendants are ac-

cused. The sums of money involved are not

trivial.

b. The complaint is not intended

to harass or delay at all. It is intended

to be complete and thorough, and to plead

theories as completely and effectively as

counsel was able, as suggested by Judge

Moran (Exhibit "A", 2: 8-11)

c. The mere fact that the Court

does not like counsel’s style, nor his in-

novations, nor his efforts to make the

complaint clearer, more precise, and more

informative, is not a ground for sanc~-

tions. Sanctions for style are arbitrary

and capricious, and violate fundamental

standards of due process under the 14th

Amendment of the Constitution of the

United States and Article I, Section 7 of

the California Constitution.

26. PROTECTED CONDUCT. Each citizen,

including plaintiff and counsel, are en~-

titled to the constitutionally guaranteed

right to petition the government for the

redress of legitimate grievances. con-

stitution of the United states, First

Amendment; California Constitution, Ar-

ticle I, Section 3.

a. The United States Supreme

Court has held that the right to petition

protects the freedom to seek redress from

all three of the coordinate branches of

government. Eastern R. Conf. v. Noerr

Motors (1961) 365 U.S. 127, 81S ct 323, 5

L Ed 2d 464; Mine Workers v. Pennington

(1965) 381 US 657, 669-672, 85 S Ct 1585,

1592-1594, 14 L Ed 2d 626, which together

made up the Noerr-Pennington doctrine.

b. “Certainly the right to peti-

tion extends to all departments of the

Government. The right of access to the

courts is but one aspect of the right of

petition." California Transport v. Truck-

ing Unlimited (1972) 404 US 508, 510 92 §

Ct 609, 611, 30 L Ed 2d 642.

c. The original California Con-

stitution Article I, Section 10, enacted

in 1949, stated: "The people shall have

the right . . . to petition the Legisla~

ture for redress of grievances." On

November 5, 1974, the voters adopted the

amended and renumbered California Con-

stitution, Article I, Section 3, which

gives the people the right to petition

government for redress of grievances,

clearly a broadening of the right to peti-

tion.

d. Criticism of government is ab-

solutely privileged. City of Albany v.-

Meyers (1929) 99 Cal App 651, 179 P 213.

e. The right of petition protects

attempts to obtain redress through in-

stitution of judicial proceedings as well

as through importuning executive officials

and legislature; right encompasses act of

filing lawsuit solely to obtain monetary

compensation for individualized wrongs as

> prvi iter 4 4

2 POE ALA apy i i Pata, septs

well as filing suit to draw attention to

issues of broader public interest or

political significance. City of Long

Beach v. Bozek (1982) 31 Cal.3d 527, 183

Cal Rptr 86, 645 P2d 137, vacated, 459 US

1095, 74 L Ed 2d 943, and remanded; reaf-

firmed 33 Cal3d 727, 1909 Cal Rptr 918,

661 P2d 1072.

f. Plaintiff, with the assistance

of counsel, is seeking to address an

egregious wrong by defendant City offi-

cials against the taxpayers, voters, and

residents of the City of Visalia. The

detailed charges and specifications

Clearly shows the good faith and serious-

ness of plaintiff and counsel in bringing

this issue before the court for resolution

and justice, since is shall never come

from the defendant CITY OFFICIALS.

g. Sanctioning counsel places a

chill on plaintiff’s exercise of his First

Amendment Rights. If counsel are sanc-

tioned for being detailed in charges and

specifications, that fact in turn shall

discourage other counsel from entering

this thorny thicket of local politics.

100

VISALIA CITY CHARTER

ARTICLE VI

Legislative. The Council.

Powers and Duties

Section 6. Ordinance: The enacting

Clause of every ordinance passed by the

Council shall be: "Be it ordained by the

Council of the City of Visalia." The

enacting clause of every ordinance in-

itiated by the people shall be; "Be it

ordained by the people of the City of

Visalia." At least five days must elapse

between the introduction and the final

passage of any ordinance; provided, that

amendments germane to the subject of any

proposed ordinance may be made when it is

brought up for final passage; and provided

further, that in case -° an extraordinary

epidemic or any disaster, such as flood,

fire, or earthquake requiring immediate

action on the part of any public

101

authority, an emergency ordinance may be

introduced and passed at either a regular

or special meeting without any interven-

tion of time between introduction and

final passage. A final vote on any or-

dinance or any vote on any appropriation

must be taken only at a regular or ad-

journed regular meeting. Every ordinance

must be signed by the Mayor, attested by

the Clerk and the ordinance or a brief

summary thereof published once in the of-

ficial newspaper. Any ordinance granting

any franchise or privilege shall be pub-

lished at the expense of the applicant

therefor.

Section 7. When Ordinances go into

Effect; Except as otherwise provided in

this Charter every ordinance, and every

measure passed by the Council granting any

franchise or privilege, shall go into ef-

fect at the expiration of thirty days

102

after its t ial passage, unless otherwise

provided in said ordinance or measure;

provided, however, that no such ordinance

or measure shall go into effect less than

thirty days from its passage. But or-

dinances declared by the Council to be

necessary as emergency measures for the

immediate preservation of the public

peace, health, or safety, containing a

statement of the reasons for their urgency

and passed by a four-fifths vote of the

Council, ordinances ordering or otherwise

relating to annexations, elections, and

ordinances relating to public improve-

ments, the cost of which is to be borne

whole or in party by special assessments,

may go into effect at the will of the

Council.

Section 8. Amending Ordinances: No

ordinance shall be amended by reference to

its title, but the sections thereof to be

103

|| eww EE

amended, shall be re-enacted at length as

amended; and any amendment passed contrary

to the provisions of this section shall be

void, except the City Council may adopt

and amend any standard code of technical

regulations by reference thereto without

the necessity of publishing s aid or-

dinances in their entirety; .. .

Section 16. Sale or Lease of City

Property: No sale of real estate shall be

authorized by the Council except by or-

dinance passed by the affirmative vote of

four-fifths of all the members and no

lease shall be made for a period of longer

than five years, except by ordinance

adopted by the Council.

ARTICLE XIV

Franchises

104

Section 1. Franchise, renewals, ex-

tensions or amendments of franchise may be

granted by the City Council whenever, in

its opinion, the public necessity or con-

venience may require any such grant. No

such grant shall be exclusive, nor made

except by ordinance, nor in violation of

any limitation contained in this Charter,

nor for a longer term than fifty years. .

- «+ ¢ provided, that no such ordinance

shall be passed as an emergency measure.

ARTICLE XVI

Miscellaneous Provisions

Section 8. No member of the Council

or of any board and no officer or employee

of the City shall be or become interested

in any contract for which bids are or may

be required for the furnishing of labor or

materials to or for the City, nor shall

either or any of them receive any gratuity

or advantage from any contract or from the

105

contractor furnishing any labor or

material under any contract, the cost or

consideration of which is payable from the

City Treasury. Any such contract with the

City in which any such officer or employee

is or becomes interested shall be declared

void by the Council.

Section 13. Every officer who shall

wilfully approve, allow or pay any demand

on he Treasury, not authorized by law,

shall be liable to the City individually

and his official bond or the amount of the

demand so approved, allowed or paid, and

shall forfeit such office and be forever

disbarred and disqualified from holding

any position in the service of the City.

106

ORDERS ISSUED IN COMPANION CASE

NOTE: The following orders were issued

in the companion case of Leonard C. Hoar,

Jr., vs. Butch Coley, Sheriff, Tulare

County, California, United States Dist

rict Court, Eastern District of Califor-

nia, Case No. CV-F 92-5706-REC-P, filed

Octoer 22, 1992, a Petition for Writ of

Habeas Corpus from Jugment of Conviction

for Contempt arising out of the case of

Kendall vy. The City of Visalia, et al, the

instant case.

107

Filed

Oct 22 2 03 PM ‘92

Clerk, District Court

Eastern District Calif

Deputy

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

LEONARD C. HOAR,

No. CV-F-92-5706 REC

‘

) ORDER DENYING APPLI-

) CATION FOR OF CON-

) FINEMENT FOR CONTEMPT

) PENDING WRIT AND

) HEARING

)

Petitioner,

Vv.

BUTCH COLEY,

Sheriff, Tulare

County, California

Respondent.

At approximately 8:45 a.m., Leonard C.

Hoar, Jr., filed a Petition for Writ of

Habeas Corpus and Application for Stay of

Confinement for Contempt Pending Writ and

hearing.

By order issued on October 16, 1992,

petitioner was adjudged to be in contempt

of court by the Honorable Gerald F.

Sevier, Judge of the Tulare County Supe-

108

rior Court for petitioner’s refusal to

obey court orders that he be sworn as a

judgment debtor with respect to a sanc-

tions in the amount of $7,500.00 imposed

against petitioner in Roy J. Kendall v.

City of Visalia, et al., Tulare County Su-

perior Court No. 139050, and affirmed on

appeal by the Fifth District court of Ap-

peal by an opinion issued on May 19, 1992,

petition for review by the California

Supreme Court denied. Petitioner has been

ordered to be committed to the Tulare

County Jail for a period of five days com-

mencing on October 22, 1992 at 10:00 a.n.

and to pay a fine in the amount of

$750.00.

Petitioner’s application for stay is

denied. A court, in deciding whether to

issue a stay, must consider:

1) whether the movant has made a

showing of likelihood of success on

the merits, (2) whether the movant has

made a showing of irreparable injury

if the stay is not granted, (3)

whether the granting of the stay would

109

. — 6 ll

eee

substantially harm the other parties,

and (4) whether the granting of the

stay would serve the public interest.

Q’Bryan v. Estelle, 691 F.2d 706, 708 (5th

Cir. 1982).

The court has reviewed the Petition

for Writ of Habeas Corpus. The court is

persuaded that petitioner has made no

showing of likelihood of success on the

merits. First of all, it appears that the

petition contains unexhausted claims.

Therefore, the petition most likely will

be dismissed. Rose v. Lundy, 455 U.S.

509 (1982); but see Neuschafer v. Whitley,

860 F.2d 1470, 1474 n.1 (9th Cir. 1988),

cert. denied, 493 U.S. 906, (1989).

Secondly, the court is of the opinion that

petitioner’s constitutional clams are

without substantive merit and verge on

frivilous (sic). Although petitioner has

shown irreparable injury because he cannot

purge himself of this contempt and al-

though the granting of the stay will not

110

substantially ham other parties, the court

is persuaded that the granting of the stay

will not serve the public interest be-

cause, as noted, the petition appears to

the court to be meritless.

ACCORDINGLY, petitioner’s Application

for Stay of Confinement for Contempt Pend-

ing Writ and Hearing is denied.

Dated: October 22, 1992

“Zs/ Robert E. Coyle

ROBERT E. COYLE

UNITED STATES DISTRICT JUDGE

111

FILED

Nov 5 2:15 PM ‘92

Clerk US. District Court

Eastern District, Calif.

Deputy

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

LEONARD C. HOAR, No. CV-F=-92-5706 REC

JR.,

ORDER TO SHOW CAUSE

Petitioner,

Vv.

BUTCH COLEY,

Sheriff, Tulare

County, California,

Respondent.

)

Respondent is hereby ordered to

respond to the Petition for Writ of Habeas

Corpus and show cause why the relief re-

quested therein should not be granted

within 30 days of the filing date of this

Order to Show Cause. Petitioner’s

traverse, if any, shall be filed within 15

days thereafter.

Dated: November 5, 1992.

112

Robert E.

ee a YA

UNITED STATES DISTRICT JUDGE

113

FILED

Nov 16 3 29 PM ‘92

U.S. Dist. Court

Fastern Dist, Calif.

California

Deputy

UNITED

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