# Petition for Writ of Certiorari — Kendall v. City of Visalia > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_2059%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1993 - **Citation:** 507 U.S. 988 ## Text aes a ee eee ee ee ee Le en an ee iene: add at te ee a ——o | re y seamen gomrem Lt A A OO tt ea i. etait MiiT Rae Pe eal eee Pie enti een Eat ET SS Bar ce cee A A A a ns nea ce SS el ae a: em ea eS hanna, aa — A ON EL ee A Re gS CE A AOE iy tS all. AO A ee I ce ela a a A, nae a A ce ec D vvM | , 0 1999 - | Debice @ . No. KS we ue Abe Gheias IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1992 ROY J. KENDALL, et al, Petitioners, Ve 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? ii 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 le 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) iv ee 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. vi 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 27 29 30 31 31 36 36 37 37 43 49 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 xi 52 54 55 56 57 58 60 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 XV 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 44 46 34 24,55 32 33 33 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 a4 32 24.55 39 41,49 34 38 42 32 38 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 39 41,9 45 32 33 24,55 47 33 40,49,53. 54 41,49 58 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 xX 46 39 46 46 38 52 57 45 7,43,45, 46,54,64 43,45,48, 50 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, 49 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 1 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. 10 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. 11 eT 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 12 : a 2 “4 % I : ; 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 13 $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 —> 14 j ; 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. 15 ee 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. 16 ieee! ei 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 17 LL 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. 18 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 19 Cl 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) 20 | 3 : : : . 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, 21 "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 22 2 ai alle Lonel iid Siasichsaak Se es eRe nn ene aba ee ert eee VER NR EP a ol CUP I PC va ee 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) 23 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 rd PE ANT LT Dorin SICH Na ada eie Adi ig dose) 24 3 | : x : 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.) 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- 26 a a am ee 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 27 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 28 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. 30 a ee ee ee. ee ae | a ee ee éNah «> Pe ae eee Care | eh ei ak te ad 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. 31 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. 32 Oe | Avery (1969) 393 U.S. 487, 790, 89 S.CT. + % i 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, 23 | 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- 34 s 4 4 ¢ 4 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 35 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 38 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 39 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) 40 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. 41 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 42 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, 43 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 -- 44 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. 45 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 46 i i a er EE Sirs Ae ei 0h: ne meee FO Re ee ee ee ee. ee BO SK MEER AN ee ERRED Meals ie Sle ashi Flim 2 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. 47 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. 48 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 49 —— 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 50 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. 51 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 52 905(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 53 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- 54 ae 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 55 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, 56 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 57 128.5 (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 58 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. 59 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 60 "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. 61 (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. 62 (c) Roy Kendall, upon 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. 63 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 64 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 65 No. IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1992 ROY J. KENDALL, et al, Petitioners, Vi THE CITY OF VISALIA, et al, Respondents. mee ee ee ee ee ee ee ee ee” APPENDIX TO 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 i 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 ii 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 By 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- 4 —— 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 5 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. 10 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 11 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 12 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. 13 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. 14 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 15 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 16 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 17 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 18 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 19 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. 20 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 21 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 22 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 23 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. 24 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 25 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 26 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 27 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- 28 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 29 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 30 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- 31 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 32 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 33 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- 34 ie 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 35 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 36 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 37 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 38 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 39 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 40 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 41 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 a 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. 43 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 44 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 45 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 46 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. 47 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 48 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 49 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. 50 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, 51 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. 52 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 53 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 54 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 55 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 56 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 57 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 58 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; (C) The Third Amended Complaint 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 59 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 60 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 ) ) ) ) ) Ve 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 caus [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_2059%3A1. Public record. Not legal advice.