# Petition for Writ of Certiorari — Cullen v. Housing Authority > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_2447%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1993 - **Citation:** 509 U.S. 924 ## Text 9% -1765 No. eeeeoee38ke2ee8 20080 @ IN THE SUPREME COURT OF THE UNITED STATES October, 1992, Term HOUSING AUTHORITY, COUNTY OF SACRAMENTO A PUBLIC BODY, Respondents Vs. CULLEN DEVELOPMENT COMPANY, A DISSOLVED PARTNERSHIP, MARK T. CULLEN, AN INDIVIDUAL, Petitioner. PETITION FOR REVIEW To The Supreme Court of the State of California PETITION FOR WRIT OF CERTIORARI MARK T. CULLEN P.O. Box 1215 Shingle Springs, CA 95682 (916) 933-3112 PETITIONER, IN PRO SE QUESTIONS PRESENTED FOR REVIEW A. Whether due process to have a fair trial on the merits under the Fifth and Fourteenth Amendments, as well as_ equal protection under the Fourteenth Amendment is deprived when an individual partner (not licensed to practice law) is forced to represent the partnership entity, in pro se, on the eve of trail, in a complex litigation case when counsel abandons the partnership and individual partners. B. Whether it is proper for the trial court to deny due process when applying the doctrines of Collateral Estoppel and Res Judicata. C. Whether an Administrative Law decision decided first in time should have Collateral Estoppel effect over a civil Superior Court decision when both forums litigated the same breach of contract issue and came _ to diametrically opposed decisions violating the one judgment rule. A TABLE OF CONTENTS OPINIONS BELOW .... + +6 © «© «© «© © «© 1 JURISDICTION .. +. «© «© © © © © © © # © »@ 1 CONSTITUTIONAL PROVISIONS INVOLVED. . . 2 STATEMENT OF THE CASE .. + + + © © © © 3 REASONS FOR GRANTING WRIT . -.- + + «© «© « = 18 I. A PARTNERSHIP IS A LEGAL ENTITY AND SHOULD ENJOY THE CONSTITUTIONAL RIGHTS TO, EQUAL PROTECTION AND DUE PROCESS OF LAW, AS SHOULD PETITIONER. . - -« © © © «© «© » 18 II. DUE PROCESS IS AN ELEMENT OF COLLATERAL ESTOPPEL AND RES JUDICATA ..+ «+ + 34 III. AN ADMINISTRATIVE LAW DECISION DECIDED FIRST IN TIME SHOULD HAVE A COLLATERAL ESTOPPEL EFFECT OVER A SUBSEQUENT SUPERIOR COURT DECISION. .. + «© «© «© © © « » a4 A. THE JUDGMENT OF JUNE 16, 1987 47 B. THE JUDGMENT OF JULY 25, 1990 47 C. THE JUDGMENT OF APRIL 4, 1991 48 CONCLUSION ... + «© © © © © © © © #© © * 64 APPENDIX: A. DENIAL OF PETITION FOR REVIEW BY THE CALIFORNIA SUPREME COURT FILED FEBRUARY 10, 1993 A-1 B. OPINION OF THE COURT OF APPEAL, THIRD APPELLATE DISTRICT, FILED NOVEMBER 20, 1992 B-1 ii C. SECOND OPINION OF SACRAMENTO COUNTY SUPERIOR COURT FILED ON APRIL 4, 1991. C-1 D. OPINION OF THE CALIFORNIA ADMINISTRATIVE LAW COURT FILED ON JULY 25, 1990. D=-i E. FIRST OPINION OF SACRAMENTO COUNTY SUPERIOR COURT FILED ON JUNE 21, 1987 E-1 iii TABLE OF AUTHORITIES CASES Bank of America Nat’l Trust & Sav. Ass’n v. Superior Court (1942) 20 C.2d 697 ..... 45 Benjamin v. Dalmo Mfg. Co., 31 Cal.2d 523 . 39 Berhard v. Bank of America (1942) 19 Cal.2d 811 a * * . e o 7. « . . s . 34 Blonder-Tongue v. University Foundation (1971) 402 U.S. 313, 329, 28 L Ed.2d 788, 799, 91S. Ct. 1434 .. 2. 2-2 2 ee - 34 Board of Regents v Roth, 408 US, at 570-571, n8, 33 L. Ed2d 548, 92 S Ct 2701... 28 Campbell v. Zokelt (1969) 272 Cal. App.2d 315, 318 . . .-..+-- 45 Carrol v. Abbot Laboratories, Inc. (1982) et oe) 2) rr ee ee ee ae ee Clean Air Transport Systems v. San Mateo County Transit Dist. (1988) 198 Cad « App. 3d 576 e . e . . e * o 24 Clemmer v. Hartford Insurance Co. (1978) 22 Gai.38 O65, 875 2.2. ss ev vn n s Clifton v. Ulis (1976) 17 Cal.3d 99... . 32 County of Los Angeles v. Department of Industrial Relations, (1989) 214 Cal. App.3d 1538, 1543-1544 .. . 52 Dillard v. McKnignt (1949) 34 Cal.2d 214, 215 oe om e ° - e . ae o e 7 — e SJ 7 es e 34 Endler v. Schutzbank (1968) 68 Cal.2d 162 . 29 Epstein v. Frank (1981) 125 Cal.App.3d 111 16 iv Evans v. Galardi (1976) 16 Cal.3d 300 . .. 22 Fazzi v. Peters (1968) 68 Cal.2d 590 ... 23 First Amendment Foundation v. Brookfield (1983, ND ILL) 575 F. Supp. 1207... 24 Hallet v. Slaughter, 22 Cal.2d 552 ... . 40 Harris v. Spinali Auto Sales, Inc. (1966) 240 Cal. App.2d 447, 453 . ... +... 44 Kralyevich v. Magrini, 172 Cal. App.2d 784, 789 . ...... 46 L.D. Reeder Contractors v. Higgens Industries, Inc. (1959, CA9 CAL) 265 F.2d 768 .. 34 Lerner v. Los Angeles City Board of Education (1963) 59 Cal.2d 3862, 398 . . ~~ « « S57 Logan v. Zimmerman Brush Company (1982) 455 US 422, 433, 71 L.Ed2d 265, hea @ Ge e668 8 «© +e we ee ee eel ele UR Lynch v. Glass (1975) 44 Cal. App.3d 948 .....-.-.- 31, 56 Melancon v. Superior Court of Los Angeles County (1954) 42 Cal.2d 698 ..... 33 Orange Empire National Bank v. Kirk (1968) ao9 Cal. App.2G@ 347 . 2. «= 6 © @© «© © « §) Overell v. Overell (1937) a6 Cai. App.2€ 499 . 1 6 es we ew to ot 29 kreople v. Fisher (1984, 2d Dist) Boe GCess BOO. 3G G26 .« we ee et we lth 68D People v. Hy-land Enterprises, Inc. (1979) De Geese BB OG 738 « st kt ee 6 4S Vv People v. La Motte (1979) 92 Cal. App.34 604... 1 2s 6 s ws BE People v. Lawrence (1956, lst Dist) 140 Cal. App.2d 133 .....+e«-e«ee 34 People v. Sims (1982) 32 Cal.3d 468 51, 56, 61 People v. Sobiek (1973) 30 Cal.App.3d 458 . 22 Piorkowski v. Arabian American Oil Co. (1955, DC NY) 131 F. Supp. 553 .... 27 Powell v. Alabama (1932) 287 US 45, 77 L. ED. 158, 53 S Ct. 55 . . . « « « 36 Promotus Enterprises, Inc. v. Jiminez (1971) ai Cal.Agp.3d S60 ws we tan snes n ss Rynsburger v. Dairyman’s Fertilizer Coop., Inc. (1968) 266 Cal. App.2d 269, 277-278 . 35 Seaman’s Direct Buying Service, Inc. v. Standard Oil Company of California (1984) oo Gel. we 752, 706 1. ss « «© oe 2 oe se os 8B Shell Chem. Co., Div. of Shell Oil Company v. Teamsters L.U. No. 676 (D.N.T. 1973) 353 F. Supp. 480, 485 ..... . 53, 54 Spector v. Superior Court of San Mateo County (2902) 33 Cal.2@ 630 2. 2. sw sv st se Torrey Pines Bank v. Superior Court (1989) iG Cal.dee.30 813 . 2s te see 48 Turner v. American Bar Asso. (1975, DC Tex) eer 7. Gee. Bi. cw st wc sews wenn United States v. A. & P. Trucking Co. (1959) 358 U.S. 121, 79 S.Ct. 203, 7 See SOO & Ga 8 6 a ew we ee we vi United States v. Utah Construction and Mining Company (1966) 384 US 394, 16 L Ed2d 642, 6 & Ct 1565 . « 2 « 2 a ee University of Tennessee v. Elliot (1986) 478 US 788, 797, 92 L Ed2d 635, ue & CE 2260 24 67s 6 8 _ Vann v. Shilleh (1975, 2nd Dist) 54 Cal. App.3d 192 . . «. « « « 24, Weitz v. Yankosky, 63 Cal.2d 849 Zaragosa v. Craven (1949) ae COisee Fioy o2h 4. 6s CONSTITUTION Cai. Comet. Ore. Vi, Gass eS +e we Fifth Amendment to United States COReGs sete 6 8 6 ne ate Fourteenth Amendment to United States COONS a's *s- 2S 3 3 & a; 205 Ons STATUTES Bt Uses OGL « 6 6 6 6 6 ee He He He 8 BA: UWcRsCs Bseals) «>» 6% os eo hee > s Se a ae a a ee ee ee ee be UscOcGs G20. «© 4 ew ke we ee 16 U.S.C.A. $6835 . 6 «© © © ss @ © © @ 7 cee Ant |g dt ee ae we OS 30, 18, 60 61 31 39 59 31 33 36 vil California: B&PC §6125 CCP 170.6 CCP §283 CCP Section 473 Civil Procedure §657, subd. 6 Code of Civil Procedure Section 388 Corporations Code Section 15006 Evidence Code Evide. Code, §354 Rules of Court: Rule 3-700 (A) (2) OTHER 6 Witkin, Summary of Cal. Law (8th ed. 1974) Entity and Aggregate Theories, §14, pp. 4264- See 4 Se ee we ee eae 7 Witkens, (3rd ed.) Judgements Section 288 (c) ‘2. 13 Cal Jur 3d (Rev) Part 1, Section 291, page 727 . cls 4 6 ee ee & 8 oe! ae > & SP ear ee ee Bankruptcy Form 4 Bankruptcy Rule 2009(e) 23, et 31 33 39 y 24 viil U.S. Code & Congressional and Administrative News 5, 95th Congress, 2nd Session 1978, eeme GiSG «3s sess esseeenees NO ui Blacks Law Dictionary, (1990) 6th Ed, >, Gare ee ee 58 1 OPINIONS BELOW The Supreme Court of California denied Petition for Review February 10, 1993. A copy is attached as Appendix A of Appendix. The opinion of the Court of Appeal, Third Appellate District, Case 3 Civil No. C0O11217 filed November 20, 1992. A copy is attached as Appendix B of Appendix. A petition for rehearing was denied on Dec. 15, 1992. The second opinion of the Superior Court filed on April 4, 1991. A copy is attached as Appendix C of Appendix. The opinion of the Administrative Law Court filed July 25, 1990. A copy is attached as Appendix D of Appendix. The first opinion of the Superior Court filed on June 21, 1987. A copy is attached as Appendix E of Appendix. JURISDICTION This petition for writ of certiorari is taken from a decision rendered on December 30, 2 1992, by the Supreme Court of California, a court of last resort, in the case styled HOUSING AUTHORITY, COUNTY OF SACRAMENTO, A PUBLIC BODY, v. CULLEN DEVELOPMENT COMPANY, A DISSOLVED PARTNERSHIP, MARK T. CULLEN, AN INDIVIDUAL, Case No. S030563. This Court has jurisdiction pursuant to the provisions of 28 U.S.C.S. §1257(3) (Law. Co-op. 1988). CONSTITUTIONAL PROVISIONS INVOLVED No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. U.S. Const. Amend. XIV, §l. "No person shall be . . . deprived of property, without due process of law;" U.S. Const. Amend. V. 3 STATEMENT OF THE CASE Cullen Development Company was a California General Partnership comprised of petitioner, Richard Cullen, and James Cullen. The partnership was formed for the sole purpose of doing construction work. Petitioner was the managing and qualifying partner with the California State Contractors License Board. Additionally, petitioner was responsible for providing all of the financial backing for the partnership, whereas, Richard Cullen and James Cullen provided onsite field work. In 1984, Cullen Development Company entered into four Public Works Construction Contracts with the Housing Authority, County of Sacramento. Late that year problems and disputes developed between the Housing Authority and Cullen Development Company. On or about April 22, 1985, Cullen Development Company filed a Cessation of Work Notice on all four contracts and stopped any, and all, further work with the Housing Authority.’* Thereafter, the Housing Authority sued Cullen Development Company, a general partnership, and petitioner individually, for breach of Contract on the Rio Linda Project and filed four complaints with the California State Contractors License Board. On or about September of 1985, Cullen Development Company, as a partnership, and petitioner, as _an individual, employed the Law Firm of Trainor, Robertson, Smits and Wade (hereinafter referred to as "Trainor"), to represent petitioner and Cullen Development Company throughout the litigation, including the filing of four Cross- Complaints as to the four contracts. On October 25, 1985, Trainor filed a Demurrer to the Housing Authority First Amended Complaint, which was overruled by the court, and an Answer was ordered to be filed. Thereafter, on December 9, 1985, Trainor filed an Answer to 1 A detailed discussion of the dispute between the Housing Authority and petitioner may be found in Administrative Law Judge Smith’s decision. (Appendix D) 5 the First Amended Complaint. For reasons unknown to petitioner, Trainor took no further actions for almost 14 months. On February 5, 1987, Trainor entered into a stipulation (without petitioner’s knowledge or approval) with Housing Authority attorney Bleier for the filing of a single cause of action Cross-Complaint on only one contract, the Rio Linda Contract, just thirteen days before the February 18, 1987 scheduled trial date. On February 6, 1987, twelve (12) days before the scheduled trial date, Trainor made a Motion to Amend the Trial Setting Order and to allow for further Law and Motion. This was a direct result of Trainor’s complete failure to prepare for trial. As an example of how reprehensible and disgusting Trainor’s legal representation was, see Declaration of Trainor (dated February 6, 1987).? The trial court 2 Declaration of Cullen attorney Davis [Trainor], in pertinent part: "8. Defendants [Cullens] timely propounded a request for Production of Documents on Plaintiff’s [Housing Authority] Counsel. To date defendant’s counsel has not reviewed said 6 denied said request by Trainor. The bottom line is, that Trainor was faced with going to trial on February 18, 1987, without any pre~ trial preparation or discovery. On February 24, 1987, Trainor’ sent petitioner a letter stating that the trial date had been rescheduled to June 16, 1987. On June 3, 1987, just thirteen days before the second scheduled trial date of June 16, 1987, Trainor abandoned legal representation of the partnership, Cullen Development Company, and individual petitioner. Not only were the records. At no point in time did plaintiff’s counsel represent that said documents could not be removed after the discovery cut-off date. In order to adequately prepare this matter for trial, it is necessary that these documents be reviewed. 9. In addition, Defendant’s counsel had no idea that Plaintiff’s counsel would be objecting to the discovery cut-off date, given the fact that Plaintiff was agreeing to stipulate to the filing of a Cross-Complaint within thirty (30) days of trial, and giving the fact that the Cross-Defendants will be answering the Cross-Complaint by February 10, 1987. 10. In order to adequately prepare this matter for trial, it will be necessary to depose approximately eight (8) to ten (10) witnesses prior to trial. ll. The above-stated discovery can be completed without jeopardizing the case from going to trial on February 18, 1987...” individual partners forced to represent themselves, In Pro Se, but the partnership itself was forced into, In Pro Se. Trainor made no explanation to the court as to who was going to represent the partnership. The purpose of said substitution of legal representation by Trainor, was a last effort delay tactic by Trainor to continue the June 16, 1987, trial date. At this time petitioner was not aware that Trainor had completely failed to prepare petitioner’s case for trial. On June 8, 1987, Trainor called petitioner, who was residing in Arizona, stating that the court would require a Declaration from petitioner in order to hear a Motion to Continue the scheduled trial date. Trainor dictated the contents of said Motion (dated June 8, 1987) that Trainor requested. Two critical statements in the Declaration were that petitioner allegedly owed Trainor legal fees, and that, petitioner desired to be placed, In Pro Se. Each of these statements were fabricated by 8 Trainor in order to delay the pending trial date. At the time of this Declaration, Trainor knew that the firm was paid in full, with extra monies still on retainer. Then Trainor drafted the Motion to Continue the June 16, 1987, trial date and on June ll, 1987, Trainor made a Special Appearance on petitioner’s behalf, anticipating that the Motion would be granted, but the court denied said Continuance. On the morning of June 16, 1987, petitioner continued the morning trial by making a Calif. CCP §170.6 Motion to recuse the first assigned judge from the case. The case was then trailed to an afternoon hearing on the same date. Shortly thereafter on the advise of Trainor, petitioner as an individual, filed a voluntary Chapter II Bankruptcy Petition with the Federal Bankruptcy Court (Eastern Dist.) before appearing at the afternoon trial on June 16, 1987. 9 The sole purpose of petitioner’s Chapter II filing was to initiate the automatic stay of litigation of the Housing Authority case. Petitioner, thought, and was led to believe by Trainor, that the filing of the Chapter II Petition would stay the Housing Authority trial as it related to petitioner and Cullen Development Company. Petitioner attended the trial, on the afternoon of June 16, 1987, for the sole purpose of having the Federal Bankruptcy Automatic Stay Petition read into the court record. Judge Morris promptly ordered the Petition into the record.’ On June 16, 1987, before the trial against unrepresented, individual and partner James Cullen commenced, James Cullen stated he would voluntarily default as he was not prepared, nor capable of representing himself, much less the partnership Cullen Development Company. Petitioner did not actively participate in the . Mark Cullen presented a copy of his Bankruptcy Petition filed on June 16, 1987. The court thereafter ordered no further action be taken against Mark Cullen. 10 trial of June 16, 1987, as it related to unrepresented Cullen Development Company and/or himself. Petitioner did request to help translate a few times for James Cullen who suffers from a reading and speech impediment.‘ On June 16, 1987, after an approximately 15 minute trial, Judge Morris entered a Judgment against James Cullen and Cullen Development Company. However, the trial judge made _ very clear that the judqment rendered was to have no effect on Mark T. Cullen.° On April 20, 1988, the California State 4*MARK CULLEN: Your Honor, my brother has a little speech problem; do you mind if I speak for him? THE COURT: Well let me determine to what extent you have this speech problem. Mr. James Cullen, have you understood all we have said here? MR. JAMES CULLEN: Not really. It’s all above my head this level deal.” THE COURT: After Mr. Cullen has had a chance to examine the document. MR. JAMES CULLEN: Can I get this read to me? My reading is real bad. . “MR. MARK CULLEN: Your Honor, I wouldn’t agree that it was against me if I am still a part. THE COURT: James Cullen and Cullen Development Company. MR. MARK CULLEN: I’d like the record to state that clearly. THE COURT: This record states that, 11 Contractors License Board caused the California State Attorney General to file an Accusation against Cullen Development Company, and the three individual partners, under various provisions of the California Business’ and Professions Code. On May 16, 1988, petitioner and Cullen Development Company filed a General Denial to the Contractors State License Board Accusation. The Contractors State License Board Complaint was litigated, in a Judicial Trial Format, for eighteen days in 1989. The Contractors State License Board was represented by Deputy Attorney General June Long, and petitioner represented the partnership and himself, In Pro Se. Testimony was presented by more that eighteen witnesses and over 425 evidentiary documents were’ entered into evidence. The Administrative Law decision found, inter alia, that the Housing Authority breached the Rio Linda Contract, that the Housing Authority breached five Implied Covenants, that the Housing Authority committed 12 Negligent Misrepresentation, and that’ the Housing Authority committed Fraud in Labor Compliance. On July 25, 1990, the Registrar of Contractors, David R. Phillips, accepted Administrative Law Judge Smith’s decision as a Final Judqment. (See Appendix D) No appeal was taken by either party. Therefore, after 30 days it became a final order of the court.° It is important to note that this was the first decision as it relates to petitioner on either the complaint or cross-complaint. On August 14, 1990, petitioner filed a Motion for Leave to File an Amended Cross- Complaint (in the Housing Authority v. Cullen case), accompanied by a Memorandum of Points and Authorities in support thereof, in an effort to remedy the alleged negligent and fraudulent conduct of Trainor. On August 30, 1990, the Housing Authority filed an Opposition to 6 The decision became effective 30 days after it was mailed to the respondent [Cullen] unless a reconsideration is ordered within that time ...." Government Code, Title 2 Div. 2, §11519 (a). 43 petitioner’s Motion. Petitioner filed a Reply on September 4, 1990. On September 7, 1990, Superior Court Judge Gray denied petitioner’s Motion for Leave to File an Amended Cross- Complaint, on grounds of the court’s discretion. Judge Gray referred to the prior stipulation that was entered by the Cullen attorneys.’ On September 19, 1990, Trainor’ sent petitioner a letter referencing a _ recent Sacramento Bee newspaper article wherein petitioner’s favorable Administrative Law decision was written about. Trainor offered to provide legal services to petitioner in the “THE COURT: Well, Mr. Campbell, among other reasons for exercising discretion against allowing the amendment was the fact that it was carefully stated in your moving papers how the decision not to add this cross-complaint or to litigate this matter was a tactical decision that was made by the parties. And having made that tactical decision, I think the parties should live with it. MR. CAMPBELL: Yes, your Henor. The stipulation that was entered at a time just a matter of days before the first trial date. After argument by petitioner the court further stated: “THE COURT: I’m saying that you’ve made your bed and you can lie in it.” 14 upcoming trial.’ On September 26, 1990, the Housing Authority filed a Motion for Summary Judgement on petitioner’s individual remaining Cross- Complaint on the Rio Linda Contract. Petitioner filed an Opposition to the Motion for Summary Judgment on October 16, 1990. The Housing Authority filed a Reply to petitioner’s Opposition on October 25, 1990. Thereafter, on October 30, 1990, Judge Gray granted Summary Judgment against individual petitioner. The result .of this judgment was that petitioner’s remaining Cross-Complaint against the Housing Authority was finally dismissed. Soon thereafter, a trial date was scheduled for February 11, 1991, for the Housing Authority’s remaining Complaint against . In pertinent part: “I know you must be very happy to have turned the tide and to accomplish this first large step in vindicating the rights of you personally and Cullen Development Company. The article indicated that you have a November trial date with Mr. Bleier. If you are still in pro per in that litigation, I would be pleased to respond to any inquiries you might have with respect to appropriate litigation strategy.” 15 individual petitioner on the Rio Linda Contract. The trial began February 11, 1991. One and one-half days into trial, Judge Morris made a ruling on a Motion in Limine (presented by Housing Authority Attorney Campbell), wherein petitioner was disallowed the opportunity to allege his affirmative defenses against the Housing Authority. In effect, petitioner was finally denied the right to have the Housing Authority v. Cullen case tried by the Superior Court in an actual trial format.’ Before concluding the trial, Judge Morris took under consideration petitioner’s Oral Motion that the prior Administrative Law Judgement should have a Collateral Estoppel effect on the Housing Authority’s complaint against individual petitioner. Judge Morris ruled for both the Housing Authority and petitioner to present Post Trial Briefs arguing the issue. On April 4, 1991, ’ Appellant was procedurally barred from presenting his case-in-chief. Further, Appellant was barred from the opportunity to even present a defense. ee 16 Judge Morris ruled on the Collateral Estoppel Issue in favor of the Housing Authority. Appendix C of Appendix. On April 4, 1991, the Housing Authority’s individual judgment against petitioner was filed into the record. Appendix C of Appendix. On May 29, 1991, petitioner filed an Appeal in the Housing Authority v. Cullen, et.al., case. Third District Court of Appeals: 3 Civil No. C011217. On November 20, 1992, Honorable Justice Davis, with the Third District Court of Appeals, rendered a 22 page decision (See Appendix B), on the one hand, affirming petitioner’s denial of a "trial on the merits" in the underlying Superior Court action. But on the other hand, Justice Davis stated: “Indeed, in light of the findings of the CSLB’s administrative law judge, this is not a case where the result bespeaks “justice” in an abstract sense since SCHA is being permitted to recover from a breach occasioned by its own obstructionist bureaucratic conduct." (See Appendix pp. B-31-B32) 17 The resultant effect of the Housing Authority case is as follows: petitioner has lost in excess of 2.7 Million dollars (1985 value) and has incurred judgements against him in excess of $2 Million by certain sureties and others. In addition the petitioner has incurred a judgment, of $367,000 in favor of the Housing Authority, against petitioner for Breach of Contract while at the same time the Appellate Court states, it believes the Housing Authority breached the contract. Administrative Law Judge Smith (after 18 days of trial, over 18 witnesses, and in excess of 425 documentary exhibits) found in his decision, that the Housing Authority breached the Rio Linda Contract. (Appendix D) Succinctly stated, petitioner has been denied the opportunity to present his evidence, or a defense, in the trial court and a judgment has been rendered against him. While at the same time, the facts of the case have proven that the Housing Authority was at fault. 18 REASONS FOR GRANTING WRIT I. A PARTNERSHIP IS A LEGAL ENTITY AND SHOULD ENJOY THE CONSTITUTIONAL RIGHTS, TO EQUAL PROTECTION AND DUE PROCESS OF LAW, AS SHOULD PETITIONER. The trial court is a state actor, and is mandated to enforce the constitutional rights of each individual (including petitioner) that are guaranteed under the United States Constitution and a state Constitution. Trial courts must afford petitioner, as well as a partnership legal entity, the constitutional safeguards of the due process clauses of the Fourteenth and Fifth Amendments, as well as Equal Protection of the laws under the Fourteenth Amendment. A partner in a partnership, who is not licensed to practice law should not be forced, or even allowed, by the courts to represent the partnership entity and the other individual partners, In Pro Se. Any judgment therefrom should be illegal. An illegal judgment against a partnership should be void, ab initio, whether the judgment was timely appealed or not. A 19 partnership, like a corporation, is a separate legal entity. As such, a partnership, like a corporation, cannot represent itself in superior court, in pro se. Partnerships are defined under Calif. Corporations Code Section 15006: (1) A partnership is an association of two or more persons to carry on as co-owners a business for profit. California Code of Civil Procedure Section 388, in pertinent part states: (a) Any partnership or unincorporated association, whether organized for profit or not, may sue and be sued in the name which it has assumed or by which it is known. In support of petitioner’s legal conclusion, this Court has taken the opportunity, in a criminal case, to previously set forth guidance on this issue. In the United States v. A. & P. Trucking Co. (1959) 358 U.S. 121, 79 S.Ct. 203, 3 L.Ed.2d 165, this Court held: ". . .that a partnership can violate each of the statutes here in question guite apart from the participation and knowledge of the partners as individuals. The corollary is, of course, that the conviction of a partnership cannot be 20 used to punish the’ individual partners, who might be completely free from personal guilt. As in the case of corporations, the conviction of the entity can lead only to a fine levied on the firms assets." In the Trucking Co. case, two partnerships were charged as entities, in separate informations with violations of 18 U.S.C. §835, 18 U.S.C.A. §835, which makes it criminal knowingly to violate Interstate Commerce Commission regulations for the safe transportation in interstate commerce of "explosives and other dangerous articles." The District Court dismissed, on motion, the informations on the ground that a partnership entity cannot be guilty of violating the statutes involved. This Court found that partnerships are entities and that judgments, or fines, can be rendered against these entities separate from the individual partners. California case law and public policy, lend Support to the emerging position that a partnership is a separate legal entity. In Epstein _v. Frank (1981) 125 Cal.App.3d 1il, 21 held: : - a limited partnership is regarded an entity separate and apart from its partners when it is sued, when it is served with process, and when executing upon its assets. We Can perceive of no compelling reason why, in determining the applicability of Code of Civil Procedure section 351, it should not be regarded as an entity, which, like a corporation, is considered ..." Id. p. 120 The Epstein case goes on further to state: "A partnership, however, is not always regarded as an aggregate of individuals. The authorities are replete with instances where the partnership is considered an entity. (See 6 Witkin, Summary of Cal. Law (8th ed. 1974) Entity and Aggregate Theories, §14, pp. 4264-4265.)" Id. p. 119 “In the area of procedures, a partnership is treated substantially the same as a corporation [Fn 4 omitted], and an entity concept predominates. Thus in order to acquire jurisdiction over a partnership the partnership entity must be designated as the defendant, and the naming of the individual partner is not sufficient. [Citations omitted ] The interest of an individual partner in partnership assets is not subject to attachment or execution except on ae claim against the partnership. [Citations omitted})." Id. pp. 119-120 Petitioner’s position is further supported 22 by Evans v. Galardi (1976) 16 Cal.3d 300 wherein the California Supreme Court held: - « « we need only point out that a limited partnership is viewed as an entity separate and apart from the limited partners for purposes of suing and being sued. (Code of Civ. Proc. §388. subd. (a); §15526.)[(Fn 16 omitted] The limited partner is not a proper party to proceedings by or against the limited partnership (§ 15526), and the limited partnership is not involved in suits against the limited partners in their individual Capacity." Id. p. 3l1l In People v. Sobiek (1973) 30 Cal.App.3d 458 the court held: "Under traditional legal concepts the partnership is regarded as an aggregate of individuals with each partner acting as agent for all other partners in the transaction of the partnership business, and the agents of the partnership acting as agents for all of the partners.” [Citation omitted] Id. p. 467 "Thus, given the recent trend in the law in recognizing unincorporated associations as separate legal entities ..." Id. p. 468 In Promotus Enterprises, Inc. v. Jiminez (1971) 21 Cal.App.3d 560, the court held: "We are supported in our conclusion by a recent partnership decision of our Supreme Court, Fazzi 23 v. Peters, 68 Cal.2d 590, wherein a copartnership was sued and service was made on all of the partners individually. As the action named only the copartnership as a defendant and did not name as defendants either of the partners individually, the court held that a judgment in personam could not be entered against one not a party to the action and voided the judgment against’ the individual partners." Id. p. 566 In Fazzi v. Peters (1968) 68 Cal.2d 590, this Court held: . « « an individual judgment may not be rendered against a partner not joined as a defendant in an action against the partnership of which he is, or is alleged to be, a member [Fn 7 Omitted]". Id. p. 597 In addition, there is other sound legal support to conclude a partnership is a separate legal entity, distinct from its individual members. First, by statute a partner, not licensed to practice law, to a general partnership cannot represent the partnership in legal matters, In Pro Se. (See Calif. B&PC §6125°°) - "No person shall practice law in this State unless he is an active member of the State Bar.” Deerings, B&PC §6125, Page 389. ee 24 "Corporations and partnerships both of which are fictional legal persons, obviously cannot appear for themselves personally. With regard to these two types of business associations, the longstanding and consistent court interpretation of §1654 is that they must be represented by licensed counsel." [Turner v. American Bar Asso. (1975, DC Tex) 407 F. Supp. 451, 476) "Corporations must be represented in court by attorneys admitted to practice, and may not apply through an officer or other lay representative." "The same rule applies to partnerships and other unincorporated associations." [First Amendment Foundation v. Brookfield (1983, ND ILL) 575 F. Supp. 1207.] Partnerships and corporations are independent legal entities. In Vann v. Shilleh (1975) 54 Cal. App.3d 192, the holding is that a corporation cannot appear in pro per. [Clean Air Transport Systems v. San Mateo County Transit Dist. (1988) 198 Cal. App.3d 576] holding that “an unincorporated association must be represented by a licensed attorney." (id. 576). Secondly, the Federal Bankruptcy Courts, have continually allowed partnerships to file for bankruptcy protection, notwithstanding the fact that the individual partners do not have to file unless they become insolvent, or vise versa. (See generally 11 U.S.C. §303(3), 11 U.S.C. §723, Bankruptcy Rule 2009(e), and © 25 Bankruptcy Form 4) "There is no requirement that any partner in a case under Title II file under the same chapter as the partnership or vise versa." U.S. Code & Congressional and Administrative News 5, 95th Congress, 2nd Session 1978, page 6158. In addition: "A partner may file a voluntary case under II U.S.C. 301 whether or not the partnership is a debtor under a case under Title II." U.S. Code & Congressional and Administrative News 5, 95th Congress, 2nd Session 1978, page 6158. Third, and finally, the underlying trial court determined that petitioner had individual claims separate from the partnership Cullen Development Company. On June 16, 1987, Judge Morris stated: "Mark Thomas Cullen has just filed with the court a voluntary petition in bankruptcy under chapter eleven, which was ordered filed in the federal bankruptcy court at 1:20 P.M. this day, and Mr. Mark Cullen, who’s present together with James Cullen, has lodged that with the court, and I [the court] will order it filed as a record of this case. That precludes any further proceedings against defendant Mark Thomas Cullen." 26 At that point, Judge Morris’ protected petitioner’s individual rights as to the complaint, against petitioner, and petitioner’s cross-complaint against the Housing Authority. Honorable Justice Davis made _ this same conclusion.” This should lead to the correct legal conclusion that "A partnership or _ other unincorporated association capable of suing or being sued as an entity in the State in which an action is brought should be deemed a citizen of the State where it has its principal place of business, whether such action is brought by or against such partnership or other unincorporated association or by or against any person as an agent or representative thereof. If the court knew that the general partnership, Cullen Development Company, could not represent itself, In Pro Se, the court intentionally abused its discretion by placing =e On June 16, 1987, no action was taken against Mark T. Cullen on the complaint or on the cross-complaint. Appendix B p. B-8 pu i ice il 27 the partnership, In Pro Se, on the eve of trial. If the court did not realize that a partner could not represent the partnership, In Pro Se, the court clearly erred. "Party ordinarily has a right to change his attorney if he wishes to do so, but for the court to approve substitution, it is necessary that it be satisfied the substituted attorneys are qualified by rules of the court to act as attorneys of record in the case." [Piorkowski v. Arabian American Oil Co. (1955, DC NY) 131 F. Supp. 553.] Since a partner, not licensed to practice law, cannot represent the partnership, In Pro Se, the judgment against the partnership entity, of June 16, 1987, should be void, ab initio, as against the law. It should not matter whether, or not, a timely appeal was filed as an illegal act does not become legal 60 days later. This Court has not sanctioned the denial of due process of law. As this Court has stated: "As our decisions have emphasized time and again, the Due Process Clause grants the aggrieved party the opportunity to present his case and have its merits fairly judged. Thus it has become a truism the “some form of hearing" is 28 required before the owner is finally deprived of a protected property interest. Board of Regents v Roth, 408 US, at 570-571, n8, 33 L. Ed2d 548, 92 S Ct 2701 (emphasis in original)." Logan v. Zimmerman Brush Company (1982) 455 US 422, 433, 71 L.Ed2d 265, 102 S Ct 1148. "The Court traditionally has held that the Due Process Clauses protect civil litigants who seek recourse in the courts, either as defendants hoping to protect their property or as plaintiffs attempting to redress grievances. Id. p. 429 In the Logan case, Justice Powell, with whom Justice Renquist joins, concurring in the judgment, stated: "It is necessary for this Court to decide cases during almost every Term on due process and equal protection grounds. Our opinion in these areas are often criticized, with justice, as lacking consistency and clarity. Because these issues arise in various settings, and opinions are written by each of nine Justices, consistency of language is an ideal unlikely to be achieved." Id. p. 443 Fn. In addition, petitioner’s due process right to have a fair trial on the merits has been violated. Petitioner has been deprived of having the underlying case heard by a "trial on the merits" in the trial court. The appellate court’s 29 decision sustains that denial of due process. "The right to a hearing is one of the rudiments of fair play assured by the Fourteenth Amendment, and there can be no compromise on the footing of convenience or expediency when that minimal requirement has been neglected or ignored." [Endler v. Schutzbank (1968) 68 Cal.2d 162] The trial, on June 16, 1987, that took place against James Cullen, whom is illiterate and speech impaired should have been stopped by the trial court. A litigant who can not read and understand the complaint against him is not capable of representing his own interests much less the interest of the partnership entity and petitioner. At the same time, this judgment has been used to keep petitioner from having a trial on the merits in the trial court. Petitioner has been procedurally barred from having his day in court. "Privileges granted by statute are embraced within the constitutional right to a day in court, those powers of the courts being limited not alone as to what they may do, but also as to the manner in which they may do it." {[Overell v. Overell (1937) 18 Cal. App.2d 499). 30 The Housing Authority would suffer no harm if petitioner were allowed to have a trial on the merits other than having to prove their own claims. Instead, the Housing Authority has used errors of the trial court to prevent presentation of a “case in chief" by petitioner. "Errors at a trial that deprives a litigant of the opportunity to present his version of the case are ordinarily reversible, since there is no way of evaluating whether or not they effected the judgment. A conviction under such circumstances is a miscarriage of justice within the meaning of Cal.-—Const. Art. VI, $13.° People _v. Fisher (1984, 2d Dist) 153 Cal. App.3d 826. Petitioner did not expect to be bound by the June 16, 1987, judgment. In fact, to be sure he wasn’t, petitioner asked the trial judge at the end of the hearing if this judgment would have any effect on petitioner and the trial judge clearly stated that it would not. (See Fn. 5, supra) "Nevertheless, due process requirements must be met. The non party must have had an identity or community of interest with, and adequate representation by, the losing party in the first action; and 31 the circumstances must have been such that the nonparty expected to be bound by the prior adjudication." Lynch v. Glass (1975) 44 Cal. App.3d 948, (7 Witkens, (3rd ed. ) Judgements Section 288 (c)). James Cullen could not adequately represent himself, much less the partnership entity and petitioner. The June 16, 1987, judgment against James Cullen has prevented petitioner from having a trial on the merits against the Housing Authority. By the trial court not allowing Mark Cullen to litigate the underlying case there has occurred a grave miscarriage of justice and a flagrant violation of petitioner’s due process rights. The administrative law decision clearly speaks to which party breached the Rio Linda contract. (Appendix D) If petitioner is allowed a fair trial in the trial court, it is reasonably probable a result more favorable to petitioner will be reached. The court has held: "A “miscarriage of justice" constituting grounds for reversal of a judgment under Cal. Const. Art. VI, §13, Evide. Code, §354, should be declared only when the reviewing 32 court, after an examination of the entire case, including the evidence, is of the opinion that is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of error." Clifton v. Ulis (1976) 17 Cal.3d 99. The due process clauses of the Fifth and Fourteenth Amendments essentially provide, that no person may be deprived of "life, liberty, or property, without due process of law." The courts presently engage a balancing of compelling interests of the individual and government in arriving at the nature and scope of due process protection applicable to any particular deprivation. However, the appellate court did no balancing at all, it simply stated: " . . « it comes too late in the day . . ." for Appellant to attack the underlying judgment as violating his due process, notwithstanding the assurances to Appellant by the trial court judge that this judgment would have no effect on petitioner. (See Fn. 5) The Housing Authority has twice been granted a favorable judgement without the trial 33 court hearing the evidence against them. First, on June 16, 1987, and second, on April 4, 1991. "In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross- examine adverse witnesses. A persons right of cross-examination and confrontation of witnesses against him or her in noncriminal proceedings is a part of the procedural due process guaranteed by both the Fifth and Fourteenth Amendments where there is involved the threat of life, liberty, or property." [13 Cal Jur 3d (Rev) Part 1, Section 291, page 727, 728.) Petitioner is asking for no _more than a hearing “on the merits". Simply put, an opportunity to present evidence and cross-~- examine witnesses. Certainly this is a request that this Court will reconsider. “A hearing before judgment, with full opportunity to present all of the evidence and arguments which the party deems important, is all that can be adjudged vital under the guarantee of due process of law." [Melancon v. Superior Court of Los Angeles County (1954) 42 Cal.2d 698} It is clear error for the court to allow petitioner to be bound by a judgment without an opportunity for a fair hearing. £ i His telat AMADA at ARE i LENA RAE oe o* 34 "One of the essential elements of procedural due process is an opportunity for hearing." es F Reeder Contractors Vv. Hiqgens Industries, Inc. (1959, CA9 CAL) 265 F.2d 768). "It ais a cardinal principal of due process that no one may be bound or concluded by a judgment, either in respect to his or her person or property, unless that person has had his or her day in court." [Spector v. Superior Court of San Mateo County (1961) 55 Cal.2d 839; People v. Lawrence (1956, lst Dist) 140 Cal. App.2d 133]. Petitioner respectfully requests that this Court find that Cullen Development Company’s and petitioner’s right to due process, and equal protection under the law, to have a fair trial on the merits has been violated and accept this case for review. Il. DUE PROCESS IS AN ELEMENT OF COLLATERAL ESTOPPEL AND RES JUDICATA. Collateral Estoppel may be applied only if the requirements of due process are _ met. (Blonder-Tongue v. University Foundation (1971) 402 U.S. 313, 329 [28 L Ed.2d 788, 799, 91 S. Ct. 1434]; Bernhard v. Bank of America (1942) 19 Cal.2d 811; Dillard v. McKnignt 34 Cal.2d 214, 35 215. Due process requires that the non-party have had an identity or community of interest with, and adequate representation by, the losing party in the first action. (Emphasis added by appellant) (Zaragosa v. Craven (1949) 33 Cal.2d 315, 321; Rynsburger v. Dairyman’s Fertilizer Coop., Inc. (1968) 266 Cal. App.2d 269, 277-278. AOB P. 58 Both Cullen Development Company ~= and petitioner had the right to counsel on June 16, 1987. Notwithstanding that, the court chose to allow Trainor to wrongfully abandon Cullen Development Company and petitioner on the eve of trial. Thereafter, the trial court denied Cullen a continuance of the June 16, 1987, trial date. Then the trial court wrongfully allowed partner James Cullen to represent the partnership entity, Cullen Development Company, in pro se. An illegal act occurred when James was forced to represent a legal entity when he was not licensed to practice law. "The right to a hearing includes the right to appear by counsel, and Sr a is at MERON DR Pre en a hee Oe OD 36 an arbitrary refusal of such a right constitutes a deprivation of due process." [Powell v. Alabama (1932) 287 US, 77 L. ED. 158, 53 S Ct. 55). "A constitutional basis for a right to be represented by counsel in non criminal proceedings is found in the due proceed clauses of both the Fifth and Fourteenth Amendments, as well as in the equal protection clause of the Fourteenth Amendment. It applies in a civil administrative hearing, and, in its narrowest definition, it is the right to appear by counsel in all adversary proceeding in which the adversary party has the benefit of or the right to counsel." [Vann _ v. Shilleh (1975, 2nd Dist) 54 Cal. App.3d 192). The appellate court found petitioner in privity with the partnership on June 16, 1987, but failed to recognize that a partner to a general partnership cannot represent’ the partnership, In Pro. Se. Petitioner cited the appellate court to B&PC §6125**, and the court has side stepped this issue. The court stated: "The short answer to this category of argument is that it comes too late in the day--. . ." (Appendix B, p. B-4) 19 ae "No person shall practice law in this State unless he is an active member of the State Bar." Deerings, B&PC §6125, Page 389. 37 The appellate court then said: "As such, it was his decision (whether voluntarily or as a victim of circumstance) to restrict himself [Appellant] to merely sitting in the court and failing to present any affirmative defenses on the partnership’s cross-complaint, allowing judgment to be entered against it, and failing to appeal the adverse decision." (Appendix B, p. B- 22) This position is too simplistic and ignores the underlying facts. The trial court clearly held that the judgment would have no effect on petitioner. Petitioner detrimentally relied on the statements of the trial judge that the trial judgment of June 16, 1987, would have no effect on petitioner. (See Fn. 5) Our American judicial system is comprised of merged courts of law and equity. While the appellate court rendered its legal duties, the appellate court lost sight of its equitable responsibilities. By failing to address controlling case law and focussing instead on ostensibly Calif. CCP Section 473, the appellate court failed to use 38 its inherent equity power to overturn the trial court judgment of June 16, 1987, upon which the trial court used, with the appellate court’s approval, to bar petitioner from having a trial on the merits. To that end, the appellate court held: ". and counsel’s alleged inexcusable behavior cannot be a basis for relief under the trial court’s inherent equitable powers." (Appendix B, p- B-23, Fn. 32) The appellate court’s holding is the general rule our case law holds. "The general rule expressly recognized is that incompetent counsel or negligence of a party’s own attorney is ordinarily no ground for relief from judgment in a civil action." Carrol Vv. Abbot Laboratories, Inc. (1982) 32 Cal.3d 892. Notwithstanding this rule, petitioner cited two controlling exceptions which the appellate court failed to give consideration. First, “In Carrol v. Abbot Laboratories, Inc., (1982) 32 Cal.3d 892, the court recognized a judicially created exception to the general rule that the negligence of the attorney is Des ie ila ec ints 39 imputed to the client unless shown to be excusable, in cases where the attorney’s neglect amounts to positive misconduct by which the client is effectively and unknowingly deprived of representation, and the client himself is relatively free from negligence." 64 ALR4th 323, 351. AOB P. 31, 47 Secondly, "With respect to setting aside a default judgment, it is the policy of the law to favor, whenever possible, a hearing on the merits, and appellate courts are much more disposed to affirm an _ order where the result is to compel a trial on the merits than they are when the judgment by default is allowed to stand and it appears that a substantial defense could be made. (Benjamin _v. Dalmo Mfg. Co., 31 Cal.2d 523, 525) Stated in another fashion, it is the policy of the law to have every litigated case tried upon the merits, and it looks with disfavor upon a party who, regardless of the merits of the case, attempts to take advantage of the mistake, surprise, inadvertence, or neglect of his adversary. (Weitz v. Yankosky, 63 Cal.2d 849, 855). [3] Where, as in the case under review, defendant’s motion is made more than six months after entry of default, the motion is not directed to the court’s statutory power to grant relief for mistake or excusable neglect (Code Civ. Proc., § 473), but is rather submitted to the court’s inherent equity power under which, apart from its statutory authority, the court has the power to grant relief from a default judgment where there has been extrinsic fraud 40 or mistake. (Hallet v. Slaughter, 22 Caine. S52, 357-* Orange Empire National Bank v. Kirk, 259 Cal. App.2d 347, 352-353. AOB P. 46, 54, 64 The appellate court has failed to recognize the consequences of the alleged negligence and malpractice of Trainor as it effects petitioner in the underlying judgments.’ Trainor’s withdrawal of legal representation on the eve of trial in a complex litigation case was an "improper abandonment of their client Cullen" in violation of the ethical rule governing withdrawal (Rule 3- 700} .™ . The Cullen attorneys: (1) failed to file the required Government Tort Claims, (2) they failed to timely file Cullen’s cross-complaint, (3) the cross-complaint was filed by stipulation 13 days before the Feb. 19, 1987 scheduled trial date, (4) they failed to complete any discovery, (5) they failed to do legal research, and, (6) they substituted out representation of the eve of trial. In effect, the Cullen attorneys failed to provide legal representation for Cullen in the Housing Authority v. Cullen case. 14 Rule 3-700(A) (2): “In general a member shall not withdraw from employment until the member has taken reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client, including giving due notice to the client, allowing time for employment of other counsel, complying with rule 3-700(D), and complying with applicable EE iS ii i a ie ca 41 Petitioner was an innocent client, not trained in the law, and as such the trial court should have protected petitioner from the positive misconduct and over reaching of Trainor. "It is the duty of the trial court to protect the innocent client from the consequences of breach of ethics." (Vann _v. Skilleh (1975) 54 Cal. App.3d 192, 197. AOB P. 16 As the appellate court has_ readily admitted, its decision does not serve justice to petitioner. All appellant is asking for is a trial, whereupon, petitioner will be allowed to litigate his case. Petitioner will do the rest. "Although the law ordinarily charges a client with the inexcusable neglect of his attorney, and gives him redress against his counsel, there are exceptional cases in which the client who is relatively free from personal neglect will be relieved from a default or dismissal attributable to the inaction or procrastination of his counsel, particularly where the attorneys failure to represent the client amounts to positive misconduct." Orange Empire National Bank v. Kirk laws and rules." Deering’s Calif.Codes Annotated Rules (1988), 1993 Supplement. 42 (1968) 259 Cal. App.2d 347. California case law has held: "Clients should not be forced to act as hawk-like inquisitors of their own counsel, suspicious of every step and quick to switch lawyers. The legal profession knows no worse headache than the client who mistrusts his attorney." Orange Empire National Bank v. Kirk, 259 Cal. App.2d 347, 355 This same legal doctrine should apply to the trial courts. When the trial court stated that the underlying judgment of June 16, 1987, would have no effect on petitioner, petitioner should not be expected to second guess the court as to what that decision meant. Further, Trainor used a stipulation to extinguish petitioner’s rights on three contracts. The elements of Res Judicata, more modernly claim preclusion, are not satisfied-by a stipulation. The claims on those three contracts were different than the claims on the Rio Linda Contract. Petitioner is not asking for a _ second action on these three contracts, petitioner is 43 asking for his first action. The issues to the three contracts were not fully and fairly litigated’> in the underlying case. The claims were wrongfully stipulated away by Trainor and the court has inherent equitable power to undo that injustice. Petitioner, as a lay person untrained and unskilled in the law, would have no idea his prior attorneys were stipulating away his right to a trial on three of the underlying contracts. "CCP §283, providing that an attorney may bind his client in any of the steps of an action of proceeding, does not give the attorney the right to stipulate away his client’s rights without’ the knowledge or consent of the client." People v. Hy-Lond Enterprises, Inc. (1979) 93 Cal. App.3d 734. "The rights growing out of stipulation are similar to those arising from a contract, and the word “contract” is often employed loosely to denominate the rights created by a stipulation. However, when a stipulation is accepted by the court, as it was in this case, there is an additional party or element involved, namely, the court. And it becomes 15 Knickerbacker v. City of Stockton (1988) 199 Cal. App. 3d 235, 242. 44 necessary, if contrary evidence is to be admitted or considered, for the trial judge to give permission, upon proper request, to a setting aside of the stipulation." Harris v. Spinali Auto Sales, Inc. (1966) 240 Cal. App.2d 447, 453. Petitioner has not been afforded due process, while at the same time Collateral Estoppel was used to prevent petitioner from putting on any defense to the complaint by the Housing Authority in the underlying action, on April 4, 1991. Further, the trial court affirmed a stipulation as_ satisfying the elements required for the Doctrine of Res Judicata. Petitioner respectfully requests this court find a lack of due process and grant review of this case. III. AN ADMINISTRATIVE LAW DECISION DECIDED FIRST IN TIME SHOULD HAVE A COLLATERAL ESTOPPEL EFFECT OVER A SUBSEQUENT SUPERIOR COURT DECISION. As referenced in Appendix B and Appendix E, no judgment was rendered against petitioner on June 16, 1987, on either the underlying 45 complaint or cross-complaint. In July 1990, Administrative Law Judge Smith found that the Housing Authority breached the Rio Linda Contract. This decision should have prevented the Housing Authority from relitigating the breach of contract issue. Since the doctrine of Collateral Estoppel was not correctly applied by the trial court there now exists conflicting judgments on the record. These judgments have led to a grave miscarriage of justice against petitioner, while at the same time, allowing a windfall profit to the Housing Authority. The Calif. Supreme Court held: California Courts have long agreed that there can be “but one final judgment in an action, and that is one which in effect ends the suit in the court in which it was entered, and finally determines the rights of the parties in relation to the matter in controversy." Bank of America Nat‘’l Trust & Sav. Ass’n v. Superior Court (1942) 20 C.2d 697. This premise and its variations are often referred to as the "“One-Final-Judqment Rule." In Campbell v. Zokelt (1969) 272 Cal. App.2d 315, 318, held "A decision can be said to be “against 46 law" within the meaning of Code of Civil Procedure §657, subd. 6, where findings are irreconcilable (Kralyevich v. Magrini, 172 Cal. App.2d 784, 789". ARB P. 68 The appellate court decision wrongfully affirms the presence of conflicting judgments into the record, by reaching, with skirting language, to support its conclusion on the burdens of proof being different in the two proceedings. In fact, the appellate court goes on to state: "Although there is no precedence specifically involving the present circumstances ° « the CSLB’s failure to establish a breach of contract in a proceeding where it had a burden of clear and convincing evidence has no effect in a subsequent proceeding where SCHA need only prove the breach by a preponderance." (Appendix B p. B-21) Petitioner submits a default caused by petitioner’s attorneys was not proof by a preponderance of the evidence. It was no evidence at all. The proceedings to date, in the Housing Authority v. Cullen case, clearly find three 47 court decisions in stark contrast. A. THE JUDGMENT OF JUNE 16, 1987. This trial lasted approximately fifteen minutes against, unrepresented, James Cullen and Cullen Development Company. Plaintiff called a single witness, who testified, and was not cross-examined by defendants. Plaintiff called defendant James Cullen, whom is illiterate and speech impaired. Accordingly, no evidence was presented by the defendants. Nor could it be since the partners could not represent the general partnership, In Pro Se, and more importantly, Cullen’s attorneys remained in possession of all of Cullen’s documents. Mark Cullen did not appeal this judgment because the trial judge stated very clearly that this judgment would have no effect on him. (See Fn. 5) This trial, without any defense put on by Cullen, found that Cullen Development Company breached the Rio Linda Contract. B. THE JUDGMENT OF JULY 25, 1990. This judgment was rendered after a judicial 48 trial lasting 18 days, which included approximately 18 witnesses providing testimony, and over 425 Documentary exhibits, entered into evidence. This decision found, inter alia, that the Housing Authority breached the Rio Linda Contract. C. THE JUDGMENT OF APRIL 4, 1991. After approximately one and one-half days of trial, wherein the Housing Authority was given the opportunity to present its case-in- chief and petitioner was given the opportunity to commence cross-examination of the single witness called, petitioner was then barred from presenting his case-in-chief, by the trial court relying on Torrey Pines Bank v. Superior Court (1989) 216 Cal.App.3d 813. Petitioner argued that this case was developed around a fact pattern much different than petitioners. Notwithstanding that, this decision found that Mark Cullen breached the Rio Linda Contract. These three judgments are inconsistent. The Housing Authority cannot be allowed to eee aaa 49 escape the consequences of its actions, as suggested by the appellate court, by such a simplistic legal maneuver as failure to appeal an illegal judgment, when the underlying record, as a whole, is taken into consideration. These conflicting decisions violate the ONE FINAL JUDGMENT RULE, and as such the appellate court’s decision affirms a judgment that is against the law. On the one hand, the appellate court’s decision has decided that the Housing Authority breached the underlying contract (based on the administrative law decision), but on the other hand, the appellate court has decided that petitioner must bear the consequences of said breach. Then, the appellate court held its own decision does not "bespeak "Justice"". The breach of contract issue was not litigated by the Housing Authority against petitioner on June 16, 1987. Applying the Doctrine of Collateral Estoppel, it should follow that the Housing Authority should have ia ect e con 50 been denied the opportunity to again litigate the Breach of contract issue that had been previously decided, by Administrative Law Judge Smith. The trial court erred by not following and applying the established case authority, as it relates to Administrative Law Decisions, under the legal Doctrine of Collateral Estoppel. Instead, the trial court set out to fashion its own interpretation of the Doctrine as it relates to Administrative Law Decisions.’® Although 16 The trial court stated: "(1) While the issues in the administrative hearing and present trial were sufficiently similar (breach of contract and legal excuse therefore), the remedies were sufficiently dissimilar (suspension or revocation of contractors’ license and money damages for breach of contract) to preclude a finding of privity between this plaintiff and the complainant, Contractors’ State License Board. (2) The plaintiff herein and the complainant in the administrative action had sufficiently diverse interest to militate against a finding of privity between them. (3) The standards of proof in the two actions were distinct. Complainant’s failure of proof by clear and convincing evidence of a breach of contract in the administrative hearing does not preclude proof of such by a preponderance of the evidence in the instant case. (4) Defendant herein has additionally failed to allege and prove the finality of the administrative law decision. (5) This court will not give collateral estoppel effect to an administrative determination that was rendered subsequent in time to the prior determination in this same case in which this Court has previously determined that principles of 51 the trial court found the issue "Breach of Contract" to be sufficiently similar, it found the Housing Authority not to be in privity with the Attorney General and Contractors License Board. Reported case authority is in contrast to the court’s reasoning on the issue _ of privity. "Traditionally, collateral estoppel has been applied to bar relitigation of an issue decided in a prior court proceeding. In order for the doctrine to apply, the issues in the two proceedings must be the same, the prior proceeding must _ have resulted in a final judgment on the merits, and the same parties or their privies must be involved. (People v. Sims (1982) 32 Cal.3d 468, 484 [].) "The doctrine was extended in Sims to apply to a final adjudication of an administrative agency of statutory creation so as to preclude relitigation of the same issue in a subsequent criminal case. Our Supreme Court held that Collateral Estoppel applies to such prior adjudications where these requirements are met: (1) the administrative agency acted in a judicial Capacity; (2) resolved disputed issues properly before it; and (3) all parties were provided collateral estoppel operate against this defendant.” (Appendix C) ‘ 52 with the opportunity to fully and fairly litigate their claims. (id., at p. 479)." County of Los Angeles v. Department of Industrial Relations, 214 Cal. App.3d 1538, 1543-1544. Which ever decision was correctly decided first in time should preclude the other under the doctrine of collateral estoppel. It is important to, again make clear, that no decision was entered against petitioner on June 16, 1987. The first decision was the Administrative Law decision on July 25, 1990. - Administrative Law Judge Smith’s decision, in pertinent part, found that: "Cullens abandonment of the Rio Linda Project was with Legal Excuse. SHRD’s’’ breaches of covenants and implied warranties, infra, coupled with selfish and incompetent project administration, constituted a material failure of consideration and rendered Cullen’s continued performance on the Rio Linda project impracticable due to excessive and unreasonable difficulty and expense. SHRA’s administrators significantly interfered with Cullen on the job Site and with Cullen’s relationships with its bonding companies’ and win SHRD is also known as the Housing Authority; aka Sacramento Housing and Redevelopment Agency. SS aaa 53 private line of credit, substantially hampering Cullen’s ability to successfully perform." Appendix D., pp. D-9-D-10 "The totality of SHRD’s conduct toward Cullen operated to deny Cullen the benefit of its bargain made with SHRD in signing the contract. The material failure of consideration and the impracticability due to excessive and unreasonable difficulty and expense extinguished Cullen’s obligation to further perform under the contract and provided Cullen the right to rescind. Cullen exercised that right by filing the Stop Notice." Appendix D., p. D-10 "SHRD’s conduct, acts and omissions, as set forth in this finding and its subparts, breached the implied covenant of good faith and fair dealing implied in all contracts executed in California, including the Rio Linda _ project contract. Seaman’s Direct Buying Service, Inc. v. Standard Oil Company of California (1984) 36 Cal.3d 752, 768." Appendix D, p. D-43 The trial court correctly found that, the issue of breach of the Rio Linda Contract, is the same issue in the instant case. The test relied on as to whether an administrative hearing judge acted in a "Judicial character" can be found in the case of Shell Chem. Co., Div. of Shell Oil Company v. 54 Teamsters L.U. No. 676 (D.N.T. 1973) 353 F. Supp. 480, 485. The hearing was a judicial-like adversary proceeding. Deputy Attorney General June Laverne Long, represented the California Contractors State License Board and Mark Cullen represented himself, in Pro Se. Opening statements were made by both counsel, 18 witnesses were called to testify at the trial that lasted 18 days. Direct and _cross- examination, redirect and recross-examination, were available to each counsel, while each witness was under oath. Evidence was introduced and/or excluded according to the rules of the California Evidence Code. The court maintained a complete transcript of the trial (by reporters), along with a copy of all evidence documents. Finally, a written decision with supporting facts was presented at the conclusion of the trial. This trial met with each of the tests required in the Shell Chem. Company case for a judicial proceeding. Therefore, the prior Administrative Law Trial was a trial on the 55 merits. All of the parties were presented with the opportunity to fully and fairly litigate their claims. The actual parties listed -within the four corners of the accusation document, against Cullen, filed by the California State Attorney General’s office were: Contractors State License Board [Petitioner in that case], and Cullen Development Company [Respondent in that case]. However, the "parties in interest” for Contractors State License Board included the Housing Authority of Sacramento County (aka Sacramento Housing and Redevelopment Agency) and the California State Attorney General’s Office. Petitioner, in the underlying February 1991 trial, asserted that there was an identity of parties between the Housing Authority, Contractors State License Board, and the California State Attorney General’s Office. In contrast, the trial court found this not to be the case. The California Supreme Court has previously 56 rendered an opinion about this type of privity issue. In People v. Sims (1982) 32 Cal.3d 468, a similar privity problem arose. Up until the Sims case, the courts relied on a decision in People v. La Motte (1979) 92 Cal. App.3d 604, which essentially held that a fair hearing decision absolving the accused for welfare fraud did not bar the district attorney from prosecuting for the same misconduct since the county welfare department was not a party to the criminal proceedings. (Id., at op. 608). People v. Sims, (supra) held that: "La Motte’s analysis of the privity requirement is too simplistic. "Privity is essentially a shorthand statement that Collateral Estoppel is to be applied in a given case; there is no universally applicable definition of privity." (Lynch _ v. Glass (1975) 44 Cal. App.3d 943, 947). The concept refers to a relationship between the party to be estopped and the unsuccessful party in the prior litigation which is ‘sufficiently close’ so as to justify application of the doctrine of Collateral Estoppel" (Clemmer_v. Hartford Insurance Co. (1978) 22 Cal.3d 865, 875." (Id., People _v. Sims (1982) 32 Cal.3d 468, 486-487.) The Sims case (id., p. 487) went on to say: “Here the district attorney’s office, which represents the party to be estopped, and the county, the unsuccessfully party in the prior litigation, are “sufficiently close" to warrant applying Collateral Estoppel. Both SSS 57 entities are county agencies that represented the interests of the. State of California at the respective proceedings. The district attorney’s office represents the State of California in the name of the "people" at criminal prosecutions. (See Pen. Code, §684). At fair hearings the County Welfare Department acts as the agent of the state. "[{T]he courts have held that agents of the same government are in privity with each other since they represent not their own rights but the right of the government. [Fn. omitted. ]" (Lerner _v. Los Angeles City Board of Education (1963) 59 Cal.2d 382, 398." In the underlying Administrative case, the Housing Authority was a party in interest to the Administrative Law decision. The Housing Authority elected the option to file complaints with the California State Contractors License Board, after Cullen Development Company filed a valid Cessation of Work Notice, as well as a Complaint in the Superior Court for money damages for Breach of Contract. The facts substantiate that the Housing Authority filed both complaints. Once the Housing Authority filed a complaint against Cullen with the Contractors License Board the Housing Authority 58 became a party in interest (ie., they were in privity with the Contractors State License Board and Attorney General). The Contractors State License Board would not have caused an accusation to be filed against Cullen but for the false information the Housing Authority provided to the Contractors License Board investigators and the State Attorney General’s Office. By its own admission the Housing Authority is a "Public Body-Corporate and Politic" (1.e., the Housing Authority’s Complaint Caption). Blacks Law Dictionary, (1990) 6th Ed, P. 1229, defines a Public Entity as: "Public entity includes a nation, state, county, city and county, or any other political subdivision or public corporation, whether foreign or domestic. Calif. Evid. Code." p. 1228, Public Corporations are defined as _= an artificial person (e.g. municipality or a governmental corporation) created for the administration of public affairs." "A public corporation is an instrumentality of the state, founded and owned in the public interest, supported by public funds and governed by those deriving their authority from the state." The Housing Authority is in privity with 59 the County of Sacramento and the State of California. The Contractors License Board is an agency of the State of California. The California Attorney General’s Office is an agency of the State of California. The Housing Authority is a Public Corporation by its own admission, for the County of Sacramento. All county governmental entities located within the State of California report to and are governed by the State of California. Therefore, all three of these agencies are in privity with each other. Each is responsible to the people of the State of California. "In addition to the above analysis, Collateral Estoppel may be applied only if the requirements of due process are met. Due process requires that the nonparty (Housing Authority) have had an identity or community of interest with, and adequate representation by the losing party in the first acticn." JZarazosa v. Craven (1949) 33 Cal.2d 315, 321. The California Attorney General’s Office adequately represented the interests of the People-State of California, the Contractors License Board, and the Housing Authority. Most 60 certainly, the Housing Authority cannot assert that the California Attorney General’s Office was incapable of providing adequate legal representation for them. The Attorney General’s case was built upon information and evidentiary documents supplied to them by the Housing Authority and the Contractors License Board. Under the rational of the Sims case, if the Housing Authority had other information to prove Cullen breached the Rio Linda Contract they should have supplied it to the investigators for the Contractors License Board, and/or to the Attorney General. There are three cases that do lend guidance for the sound conclusion that Administrative Law decisions should have Collateral Estoppel effect over civil trial court decisions. Two are this Court’s decisions and the third is a California Supreme Court decision. In United States _v- Utah Construction and __ Mining Company (1966) 384 US 394, 16 L Ed2d 642, 86 S Ct 1545, the court held (id., 384 US 421) “although the decision here rests upon the agreement of the 61 parties as modified by the Wunderlich Act, we note that the result we reach is harmonious with general principals of Collateral Estoppel. Occasionally courts have used language to the effect that res judicata principals do not apply to administrative proceedings, but such language is certainly two. broad. When an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, the courts have not hesitated to apply res judicata to enforce repose." In People v. Sims (1982) 32 Cal.3d 468, the court held “that the administrative decision could properly be accorded Collateral Estoppel effect for purposes of subsequent criminal prosecutions, provided the traditional requirements and policy reasons for applying Collateral Estoppel were also satisfied, since the administrative hearing was a judicial like adversary proceeding, since the administrative agency resolved disputed issues of fact properly before it, and since the hearing procedure provided both parties with and adequate opportunity to fully litigate their claims." In the case of University of Tennessee v. Elliot (1986) 478 US 788, 797, 92 L Ed2d 635, 106 S Ct 3220, held “We have previously recognized that it is sound policy to apply principals of issue preclusion to the factfinding of administrative bodies acting in a judicial 62 Capacity." Administrative Law Judge Smith, ruled on the merits in Cullen Development Company’s favor. He decided, the factual and legal issues relating to the "Breach of Contract" issue, sought to be Collaterally Estopped by the Mark Cullen. The trial and appellate courts relied on, inter alia, the Administrative Law court’s "Standards of Proof" as not being similar to what the trial court would require. First of all, this reliance does not appear to be an element of any of the reported cases. Secondly, since Judge Smith did not indicate in his decision what standard of proof was used, and no precedence is established, this is a question that remains unanswered. Next, the trial court relied on the finality of the Administrative Law decision not being pleaded. It is true Mark Cullen did not include that point in his post trial brief, however, such should not be fatal. Even relying 63 on the trial court’s more liberal 60 days after a judgment to file an appeal, the actual time period that had passed was some eight months. The reported cases, and elements of proof do rely on the finality. In no uncertain terms do any of the authorities say the point must_be pleaded, just that the decision be final. In addition, the trial court relied on the remedies of the two cases, as being different. Once again, this does not appear to be an element of any reported cases. Finally, the trial court relied on the Judgment of June 16, 1987, as being the first judgment on record. No judgment was entered against petitioner on June 16, 1987. The judgment against Cullen Development Company, on June 16, 1987, should be void, ab initio, since it is illegal, for lack of due process and equal protection of the laws, under the United States Constitution. Petitioner respectfully requests this Court grant review of this case in order to determine 64 whether an Administrative Law decision decided first in time will have a Collateral Estoppel effect over subsequent litigation. CONCLUSION No individual, whether it be a partnership, legal entity or petitioner should be denied due process and equal protection of the law under the United States Constitution, made applicable to each state through the Fourteenth Amendment. At first breadth, the eventual bankruptcy of petitioner may seem unimportant, however, this Court should consider the many other partnership entities that go bankrupt long before reaching this level of litigation. As signified by the words over the steps to the main entrance to this Court, petitioner is seeking no more than: EQUAL JUSTICE UNDER THE LAW Petitioner respectfully prays that this Court consider the qrave effects when due process is denied upon the public, other general partnerships and Cullen, grant this writ, acccrd 65 Cullen the process deserved, and order the California Supreme Court to reverse the Court of Appeal, Third Appellate District, to overturn the lower court’s denial of Cullen’s procedural DUE PROCESS right to receive a fair trial on the merits. DATED: April 26, 1993 Respectfully submitted, — ul (Ls Mark T. Cullen —~— P.O. Box 1215 Shingle Springs, CA 95682 PETITIONER, IN PRO SE A-1 APPENDIX A Third Appellate District No. C011217 S030563 IN THE SUPREME COURT OF CALIFORNIA IN BANK — oe wee ST LT LT OL a re rs rs rere rs rs rs re, res re rs es re re re re es ee ee ee ees ee oe oe oe OS SS SS SS SS SS SS SS SS SS SS SS ot << So Sa a So So So a ooo HOUSING AUTHORITY OF THE COUNTY OF SACRAMENTO, RESPONDENT Ve FILED: FEB. 10, 1993 Robert Wandruff Clerk MARK T. CULLEN, APPELLANT _>---——— — ee a a eee ee ee. = SE FS Ee ee eee EEE ES Se Appellant’s petition for review DENIED. LUCAS Chief Justice B-1 APPENDIX B NOT TO BE PUBLISHED COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (SACRAMENTO ) FILED: NOVEMBER 20, 1992 HOUSING AUTHORITY OF THE ) COUNTY OF SACRAMENTO, ) ) 3 Civ.C011217 Plaintiff and Respondent, ) ) (Super.Ct.No. ) CV331596) Vv. ) MARK T. CULLEN, ) Defendant and Appellant. ) ) INTRODUCTION Although what is past is always prologue, in this appeal we must get a particularly long running start to comprehend the nature of the appellate contentions. Plaintiff Housing Authority of Sacramento County (SCHA) filed this action in 1985 for breach of contract against Mark fT. Cullen.?® The Cullens and the 18 Also named defendants in the amended complaint were James and Richard Cullen and the business in which the three Cullens were partners, Cullen Development Company (hereafter, “the partnership"). Any subsequent undesignated “mr. Cullen" references will be to Mark Cullen. B-2 partnership filed a cross-complaint for breach of contract in February 1987. At the eventual start of trial in June 1987, Mr. Cullen produced a copy of a petition for voluntary bankruptcy (pursuant to title 11 of the United States Code) that he had just filed in federal court, which the trial court stated "“preclude[d] any further proceedings against Defendant Mark Thomas Cullen." Ultimately, the court entered judgment against James and Richard Cullen and the partnership on both the complaint and cross- complaint in 1987. Following Mr. Cullen’s voluntary dismissal of his bankruptcy petition in December 1989, SCHA resumed proceedings against him. In August 1990, Mr. Cullen sought to amend his surviving portion of the cross-complaint (on which the trial court had taken no action) to add causes of action based on his successful defense of his contractor’s license in a 1989-1990 disciplinary administrative proceeding instigated by SCHA. The trial court denied the motion without B-3 comment. SCHA then moved for summary judgment on the cross-complaint on the ground of issue- preclusion, based on the fact it had prevailed on the cross-complaint against the other cross- Claimants. The trial court granted the motion. Immediately prior to the February 1991 trial against Mr. Cullen, SCHA successfully moved in limine to exclude the introduction of any evidence in support of affirmative defenses which were related to the now-defunct cross- complaint. At the conclusion of trial, the court ruled in favor of SCHA but stayed entry of judgment pending additional argument on any issue-preclusive effect of the administrative proceeding. Ruling (after supplementary briefing) that there was no preclusive effect, the trial court entered judgment against Mr. Cullen in April 1991. This brings us to Mr. Cullen’s pro. per. appellate contentions. He asserts the 1987 judgments entered against the partnership and his partners are invalid because the Cullens B-4 were abandoned by the attorneys representing them and because his bankruptcy stay should have been extended to his co-defendants. He also claims the trial court should never have allowed the attorneys to substitute out of the action, and should have allowed a continuance once they did. The short answer to this category of argument is that it comes too late in the day-- the 1987 judgments against the partnership and the other Cullens, never having been appealed, are now final and may not be attacked here by Mr. Cullen either directly or collaterally. Mr. Cullen also challenges the denial of his motion to amend his cross-complaint, the grant of summary judgment on the cross-complaint, the preclusive effect on his affirmative defense accorded to the summary judgment ruling, and the failure to accord the administrative proceeding any preclusive effect in the present action. We shall affirm. FACTS To focus (at least initially) on the B-5 transaction which is the subject of the original complaint and cross-complaint, SCHA and the Cullen partnership executed a written contract in August 1984 for construction of a 20-unit low/moderate-income housing project in Rio Linda at 6029 Dry Creek Road. The project was to begin in August 1984 and be substantially completed by March 1985. The partnership stopped work on the project in April 1985, having completed 46 percent of it, and ignored SCHA’s demands to finish the job. SCHA took charge of the project and rebid it to another contractor. After deducting a number of credits, the cost to SCHA of completion was approximately $366,000. In a curious maneuver, SCHA filed both a complaint and an amended complaint for breach of this contract on July 22, 1985. James, Richard, and Mark Cullen filed an unverified answer individually and as Cullen Development Company; they included the affirmative defense of a breach of contract on the part of SCHA, as well B-6 as misrepresentation and fraud by SCHA in the inducement of the contract. For some reason, Tom Cullen also answered, aithough not named in the amended complaint.” On February 5, 1987, the parties filed a stipulation for an order permitting defendants Cullen and the partnership to file a cross- complaint (despite the pending February 18 trial date) "containing a cause of action for Breach of Contract only." This pleading alleged that SCHA had frustrated the ability of the partnership to complete the project by altering terms and failing to pay for work completed in a timely fashion. On February 19, the case was reset for trial in June 1987 because there were no available courtrooms. On June 3, 1987, James, Richard, and Mark ” The original complaint included Tom Cullen as a defendant; the amended complaint deleted hin. There is no explanation of the change. There were indications at the second trial in this matter that Tom Cullen was not a member of the partnership (although he is a brother of Mr. Cullen). As he is not a significant character in the lawsuits (other than as the executor of numerous proofs of service), we will not further concern ourselves with him. B-7 Cullen filed a substitution of themselves in propria persona for their retained counsel (Trainor, Robertson & Smits); Mark Cullen signed a substitution on behalf of the partnership. Trainor, Robertson & Smits nonetheless appeared "specially" to argue for a continuance of trial, arguing they had substituted out because they had not been paid and their former clients would not be able to find alternative counsel in time for trial. Mark Cullen represented that he and his fellow litigants would be able to come up with the money for new counsel within the next 60 days. The court denied that motion. On the morning of June 16, Richard Cullen failed to appear for trial and a default judgment was entered against him. Mark Cullen filed a peremptory challenge against the assigned judge, and the matter was reassigned to a different judge for trial that afternoon. When the matter was called for trial at 1:30 p.-m., Mark Cullen presented the court with his bankruptcy petition, which had been filed 10 B-8 minutes earlier. He remained present at the hearing. After perfunctory questioning of James Cullen and a witness testifying to SCHA’s damages, the court ruled against James Cullen and the partnership on SCHA’s complaint and on the cross-complaint. No action was’ taken against Mark Cullen on the complaint or on the cross-complaint. The court initially entered judgment in favor of SCHA only on the complaint against Richard and James Cullen and the partnership; it later amended the judgment to include the cross-complaint. The judgment recited that the partnership had appeared "Pro per by JAMES CULLEN." In April 1988, the Contractors’ State License Board (CSLB) filed an accusation against Mark Cullen’s contractor’s license. MThis was based on consumer complaints filed by SCHA in June 1985 alleging the partnership had abandoned the Rio Linda Project and three other projects in April 1985 for which SCHA held contracts with the partnership. In a decision rendered May 22, B-9 1990 (and adopted by the CSLB on June 43, 1990),*° the administrative law judge found no basis for discipline for abandonment of these four projects because SCHA’s conduct rendered performance by the partnership impracticable due to excessive and unreasonable expense and difficulty.?? The CSLB did impose a 30-day Suspension of the license for failure to account ™ Mr. Cullen had requested the trial court to take judicial notice of the complaint, accusation, and decision; SCHA raised no objection. We therefore take judicial notice of this decision as an official act of the executive branch. (Evid. Code, §452, subd. (c).) We may take judicial notice of the truth of its findings of fact. (Bach v. McNelis (1989) 207 Cal.App.3d 852, 865.) ais To quote a representative passage of the decision, “[SCHA]’s breaches of covenants and implied warranties, infra, coupled with selfish and incompetent project administration, constituted a material failure of consideration and rendered Cullen’s continued performance on the Rio Linda project impracticable due to excessive and unreasonable difficulty and expense [SCHA]‘s administrators significantly interfered with cullen on the job site and with cullen’s relationships with its bonding companies and private line of credit, substantially hampering Cullen’s ability to (perform successfully}. The totality of [SCHA]}‘s conduct toward Cullen operated to deny Cullen the benefit of its bargain made with (SCHA} in signing the contract. The material failure of consideration and the ji practicability due to excessive and unreasonable difficulty and expense extinguished Cullen’s obligation to further perform under the contract and provided Cullen the right to rescind." B-10 properly for funds received on the Rio Linda project. In September 1990, Mr. Cullen moved for leave to file an amended cross-complaint. According to his notice of motion, these new allegations “were discovered in a_ recent Administrative Law Case hearing the same legal issues," which was final as to the CSLB. He asserted any delay was reasonable because of his bankruptcy filing. He also claimed he had wished to await the resolution of the CSLB proceeding, since it presented the same factual and legal issues. The proposed cross-complaint now encompassed all four contracts with SCHA and contained causes of action for breach of contract and miscellaneous torts. SCHA opposed the amendment on several grounds: unreasonable delay and concomitant prejudice to SCHA; issue preclusion; failure to comply with procedural prerequisites for filing tort claims against governmental agencies; and the statute of limitations with respect to any new cross- B-il defendants brought into the action. SCHA’s counsel also averred he had stipulated to permitting a cross-complaint to be filed on the eve of the 1987 trial only if it were saieed to the single breach-of-contract cause of action. At the hearing on the motion, the court stated it felt the scope of the cross-complaint in 1987 was a tactical compromise by which Mr. Cullen shonid be _ bound.? The court was also disturbed by expanding the number of contracts at issue from one to four and adding tort claims (although Mr. Cullen expressed his willingness to abandon the tort claims). The court denied the motion "in its discretion." Shortly after obtaining the order denying this motion to amend, SCHA filed a motion for summary judgment on the original cross-complaint. It argued the issue of whether it had breached the contract with Mr. Cullen 2 The trial court thus accepted the truth of SCHA’‘s declaration on this point, which we may not gainsay. (Beckett v. Kaynar Mfg. Co., Inc. (1958) 49 Cal.2d 695, 699; Philippine Export & Foreign Loan Guarantee Corp. v. Chuidian (1990) 218 Cal.App.3d 1058, 1077.) B-12 had previously been adjudicated when the trial court had entered judgment against the other cross-complainants (i.e., the partnership and James and Richard Cullen) on the _ cross-~- complaint. The court granted the motion "for the reasons stated in the moving party’s points and authorities." In its final procedural salvo against Mr. Cullen, SCHA filed a motion in limine to exclude evidence of damages arising out of facts related to the dismissed cross-complaint. In arguing the motion, SCHA expanded the scope to any “legal excuse to not... performon.. . the contract." The court at first denied the motion. After reexamining SCHA’s authority, the court ruled that Mr. Cullen was precluded from introducing any evidence of the conduct on which the cross-complaint was based as an affirmative defense. During trial, Mr. Cullen raised the CSLB proceedings as a defense, claiming SCHA was precluded from relitigating the question of his B-i3 breach of contract. The court told him he would have the opportunity to brief the issue before it rendered a written judgment. After receiving the parties’ supplementary briefing, the trial court ruled it would not give an effect to the CSLB decision (giving five bases in its written order). This appeal followed. DISCUSSION I Mr. Cullen’s bankruptcy petition has no relevance to these proceedings Woven throughout Mr. Cullen’s brief on appeal are references to the effect of his bankruptcy filing on the validity of the 1987 judgments. We must first purge this spectre from the discussion. It is true his interest in the partnership is considered part of his bankruptcy estate (In re Manning (10th Cir. 1987) 831 F.2d 205, 207) and therefore any proceeding by a creditor against that interest would be subject to the B-14 automatic stay that is the "fundamental protection provided by the bankruptcy laws" (11 U.S.C. §362, subd. (a) (1); 1 Collier, Bankruptcy Manual (3d ed. 1992) §362.01, p. 362-3; §362.03[1], pp- 362-11 to 362-14).* Any action taken in violation of the automatic stay is void and without effect. (In re 48th Street Steakhouse, Inc. (2d Cir. 1987) 835 F.2d 427, 431.) | However, as noted above, SCHA never relied on the preclusive effect of the judgments against the other Cullens and the partnership in connection with its own complaint; eather, it relied on the judgments against the other cross~ claimants on the cross-complaint. The automatic stay of the bankruptcy laws do not apply to actions brought by debtors. (1 Collier, op. cit. supra, §362.03, p. 362-15.) Even Mr. 23 Moreover, even if the partnership were somehow considered separate from Mr. Cullen’s estate, the automatic stay could be applied to it if any judgment against it would in effect be a judgment against the debtor. (A. H. Robins Co., nl v. Piccinin (4th Cir. 1986) 788 F.2d 994, 99.) B-15 Cullen admits in one part of his brief that the bankruptcy stay had no effect on the cross- complaint. The trial court refrained from any adjudication of his portion of the cross- complaint not because of the bankruptcy stay but because his cause of action vested in the bankruptcy trustee so Mr. Cullen could not continue to prosecute his action personally, absent an order of the bankruptcy court. (See Lauriton v. Carnation Co. (1989) 215 Cal.App.3d 161, 164-165.)** Thus, even assuming the judgment against the partnership on SCHA’s complaint is void on its face and thus subject to collateral attack (8 Witkin, Cal. Procedure (3d ed. 1985) Attack on Judgment in Trail Court, $6, pp. 410-411; §12, pp. 414-415),7> it is merely an academic question in the present -” Presumably, the partnership was under no such disability in prosecuting the cross-complaint in its own name. However, the parties have not provided any argument or authority on the point, and we are not inclined to pursue it further. 25. There is no suggestion by Mr. Cullen that the partnership is somehow directly attacking the prior judgment against it on the complaint. (8 Witkin, op. cit. supra, Judgment, §2, pp. 405-406 [listing various methods of direct attack].) B-16 proceeding--the judgement on the complaint is not being used in any preclusive fashion against Mr. Cullen, and the judgment on the cross-~ complaint does not suffer a similar disability. We consequently will not consider the bankruptcy stay--or the prior judgment on the complaint--in any subsequent part of the discussion. II The trial court correctly disallowed the motion to amend the cross-complaint The amendment of pleadings is governed by Code of Civil Procedure section 473, which provides in pertinent part, "The court may, in furtherance of justice, and on such terms as may be proper, allow a party to amend any pleading . .. . " While there is a policy of liberality in permitting amendment, the question of whether a particular amendment should be allowed is within the discretion of the trial court. (Moss Estate Co. v. Adler (1953) 41 Cal.2d 581, 585- 586 [no abuse in denying leave to amend answer B-17 on eve of trial to assert new defense based on different facts].) On appeal, the plaintiff attacks the trial court’s reliance on the- earlier Stipulation filed by Trainor, Roberston & Smits that limited the cross-claim to one cause of action. He claims he should not be bound by the actions of counsel which he characterizes as "alleged negligence and malpractice." All the facts underlying the new contractual causes of action in the proposed amendment to the cross-complaint were within the knowledge of Mr. Cullen and his attorneys at the time of the stipulated cross-complaint in February 1987 (as they related entirely to conduct on the part of SCHA prior to the partnership ceasing work on the four projects in April 1985).§ In exchange for avoiding the risk of losing the motion for leave to amend on eve of trial (a denial more likely to occur and 26 We will take Mr. cullen at his word that he was willing to waive all other causes of action, thus avoiding the need to address the additional objections by SCHA to them. B-18 be upheld (e.g., Moss Estate Co., supra, 41 Cal.2d at pp. 585-586)), Mr. Cullen’s counsel agreed to file a cross-claim limited to the one cause of action for breach of the Rio Linda contract. Mr. Cullen is consequently bound by that stipulation, and the trial court correctly refused to allow amendment in light of it. It is true a party may seek relief from the effect of a stipulation pursuant to Code of Civil Procedure section 473. (In re Marriage of Carter (1971) 19 Cal.App.3d 479, 489.) However, even if we characterize Mr. Cullen’s motion to amend his cross-complaint as incorporating a “pre-motion" to be relieved from the earlier stipulation on the basis of “unknowing[ ] depriv[ation] of effective representation" (Daley v. County of Butte (1964) 227 Cal.App.2d 380, 392),?’? and even assuming the conduct of Trainor, Robertson & Smits rose to a level 27 we have our doubts his papers would satisfy the formalities required for such a motion pursuant to the statute. (See 8 Witkin, op. cit. supra, Attack on Judgment in Trial Court, §167, p. 571.) We need not decide the question, however. re B-19 satisfying this standard,”® the “pre-motion" is untimely under the six-month jurisdictional limitation of the statute. (8 Witkin, op. cit. Supra, Attack on Judgment in Trial Court, §169, o 372.)" If indeed Mr. Cullen was badly served by his former’ counsel making this Stipulation, his remedy is not reversal of the trial court’s decision denying his motion. (By the same measure, he may not challenge the trial court’s failure to prevent Trainor, Robertson & Smits from “abandoning its clients" cross- complaint, its allowing the partnership to proceed in pro.per., or its failure to allow a continuance after counsel substituted out of the 7° In light of this assumption, we have not set out any of the facts on which Mr. Cullen bases his claim. 29 Nor would it be of any succor to construe Mr. Cullen’s motion to amend as incorporating a motion to invoke the court’s inherent equitable power to relieve him of the effect of the stipulation (8 Witkin, Op. Cit. supra, §2(5), p. 406; §200, p. 598), assuming argquendo that a Stipulation rather than a judgment can be the subject of such a motion. Being a narrower basis of relief than the statutory remedy, one cannot rely on counsel’s inexcusable neglect. (Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892, 901, f£n.8.) B-20 action, since the time for challenging any of these actions had long expired by the time of his motion to amend.) II!I The cause of action in the cross-complaint is precluded by the prior judgment The doctrine of "res judicata" both bars a second suit between the same parties on the same cause of action ("claim preclusion," in the modern terminology) and estops a party against whom a judgment has_ been obtained from relitigating in a second proceeding any issues fully and fairly litigated in the first (denominated “issue preclusion"). (Knickerbocker v. City of Stockton (1988) 199 Cal.App.3d 235, 242; Rest.2d Judgments, Introduction to Chapter l, p. 1.) The elements for application of issue preclusion are (1) whether the issue decided in the first proceeding is identical to the one raised in the second, (2) whether the first proceeding culminated in a final judgment on the merits, B-21 and (3) whether the party against whom issue preclusion is raised was a party or in privity with a party against whom the issue was decided in the first proceeding. (Knickerbocker, supra, 199 Cal.App.3d at p. 244.) To recapitulate, SCHA’s motion for summary judgment on the cross-complaint was based solely on the ground of issue preclusion, SCHA asserting the 1987 judgment against the other cross-claimants on the cross-complaint resolved the issue of whether it had breached the contract on which Mr. Cullen’s unamended cross-complaint was based. In essence, Mr. Cullen argues on appeal that application of issue preclusion here is a violation of his due process rights because of the lack of privity between himself and James Cullen, or between James Cullen and the partnership.*® Be this as it may, it is entirely beside the point. 30 He adverts in passing to the absence of a final judgment on the merits, but as he advances neither argument nor authority on this point, it is deemed waived. (People v. Hardy (1992) 2 cal.4th 86, 150-151.) ee B-22 As he admits here, and admitted in the trial court, he was the “managing general partner" of the partnership, was "in complete control of all partnership assets, including the instant litigation" (on the cross-complaint), and had full authority for management of the partnership affairs (his fellow partners Richard and James averring they simply supervised the actual construction work). As such, it was his decision (whether voluntarily or as a victim of circumstance) to restrict himself to merely sitting in court and failing to present any affirmative case of the partnership’s cross-~ complaint, allowing judgment to be entered against it, and failing to appeal the adverse decision. As the person controlling the partnership with financial interest in the partnership, the issue-preclusive consequences of the failure to present any case on behalf of the partnership--which is no less "conduct of the action" than affirmatively presenting a Case--may permissibly be applied against Mr. xo B-23 Cullen, since he was in privity with the partnership. "’A seein Salis is not a party to an action but who controls the action is bound by the judgment where he has a proprietary or financial interest in the judgment or in the determination of question of fact or law with reference to the same subject matter or transaction.’" (7 Witkin, Cal. Procedure (1985) Judgment, §295, p. 733; accord Stafford v. Russell (1953) 117 Cal.App.2d 319, 320 {principal stockholder of previously unsuccessful plaintiff corporation bound by judgment against corporation because he had controlled conduct of earlier litigation].)* Therefore, there was no obstacle to granting 33 Mr. Cullen argued in the trial court that he was denied a full and fair Opportunity to litigate the issue of SCHA’s breach of contract in the prior action. He does not specifically renew this as a ground for reversal of the trial court’s ruling. However, as with his attempt to avoid the effect of the stipulation on his attempt to amend his cross-complaint, any direct attack upon the prior judgment against the partnership on the cross-complaint by means of a motion under Code of Civil Procedure section 473 is untimely, and counsel’s alleged inexcusable behavior cannot be a basis for relief under the trial court’s inherent equitable powers. B-24 summary judgment on the cross-complaint on the basis of issue preclusion. IV The trail court properly granted the motion excluding all evidence tied to the cross~ complaint In granting the motion in limine brought by SCHA, the trial court expressly relied on Torrey Pines Bank v. Superior Court (1989) 216 Cal.App.3d 813. In an extremely abbreviated argument, Mr. Cullen argues against application of this decision on two bases. First, he claims the bankruptcy stay distinguishes the present situation from Torrey Pines. Second, he claims the trial court expressly stated the 1987 judgment "would have no effect on [him]." In Torrey Pines, the petitioner bank filed an action against a guarantor of a debtor business which had defaulted. The debtor then filed an action against the bank for breaches of fiduciary duty and the covenant of good faith and fair dealing, for negligent ee B-25 misrepresentation, and for negligence. The guarantor subsequently filed an amended complaint in the debtor’s action naming himself as a plaintiff both individually and as the debtor’s guarantor. Ultimately, the guarantor filed a dismissal with prejudice of his action. (216 Cal.App.3d at pp. 816-817.) In granting a writ directing entry of summary judgment against the guarantor, the Torrey Pines court held the guarantor’s affirmative defenses were barred by the issue-preclusive effect of the dismissal with prejudice (termed a "retraxit") of his own action against the bank, since they were based on the same facts. (Id. at pp. 819-822.) The court relied on Hamilton v. Carpenter (1940) 15 Cal.2d 130, 132-133, in which the Supreme Court had held that the defendants were properly prevented from introducing evidence of fraud as a defense where they had previously brought an action for the identical fraud and had not prevailed. Given the myriad of ways in which issue B-26 preclusion may occur, the Torrey Pines decision is sufficiently analogous to be controlling here. The gist of Mr. Cullen’s cross-complaint was the behavior of SCHA in insisting on performance that varied so substantially from the terms of the written agreement that it constituted a breach. The affirmative defenses to the complaint--breach of contract, misrepresentation, and fraud--depend on the same facts. It is of no import that Torrey Pines involved a separate action rather than a dismissed cross-complaint. It is also of no import that Mr. Cullen (and possibly the partnership) had the benefit of an automatic stay because of his bankruptcy petition; at the risk of endless iterations, it is the issue- preclusive effect of the judgment against the partnership on the cross-complaint--which was not subject to the stay--which bars’ the introduction of this evidence. Finally, to the extent Mr. Cullen could rely on the trial court’s pronouncements at the 1987 "trial," the a B-27 quotations to which he refers are directed only to the question of the effect of the 1987 proceedings on the action against him; there is no "promise" that there will be no effect on his cross-complaint. Thus, the trial court properly excluded evidence relating to the cross- complaint. Vv No preclusion results from the CSLB’s resolution Finally, Mr. Cullen challenges’ the various bases for the trial court’s failure to accord any preclusive effect to the CSLB’s determination. Since it is sufficient to rely On any one of the trial court’s rationales in affirming its ruling, we limit our discussion to the simplest--i.e., the different burden of proof in the two proceedings.” *2@ To recount this portion of the court’s ruling, “The standards of proof in the two actions were distinct. Complainant’s failure of proof by clear and convincing evidence of a breach of contract in the administrative hearing does not preclude proof of such by a preponderance of the evidence in the instant case." B-28 Although Mr. Cullen devotes a portion of his argument to the proposition, it is not disputed by SCHA that "a valid and final adjudicative determination by an administrative tribunal has the same effects under the rules of res judicata, subject to the same exceptions and qualifications, as a judgment of a court.” (Rest.2d Judgments, §83, subd. (1) [emphasis added}; accord County of Los Angeles v. Department of Industrial Relations (1989) 214 Cal.App.3d 1538, 1544.)** We have already set out the necessary elements for invocation of issue preclusion, which we will assume arguendo are satisfied here (including privity).* However, even where these elements are satisfied, “relitigation of the issue in a 33 therefore, we will eschew any explanation of the requisites and limitations connected with according issue-preclusive effect to an administrative determination. (See Rest.2d Judgments, Introduction to Chapter 6; §83, subds. (2) - (4)-) 34 We note, however, that the presence of privity between the CSLB and the SCHA (which was not a party to the CSLB proceedings and had no control over the litigation) is problematic. (See Rest.2d Judgments, §36, comment f {discussing intragovernmental privity].-) i B-29 subsequent action... is not precluded... (4) [where t]he party against whom preclusion is sought had a significantly heavier burden of persuasion with respect to the issue in the initial action than in the subsequent action . ee te: (Rest.2d Judgments, §28.) As the Restatement explains, "To apply issue preclusion in the cases described in Subsection (4) would be to hold, in effect, that the losing party in the first action would also have lost had a Significantly different burden been imposed . . - This is a major reason for the general rule that, even when the parties are the same, an acquittal in a criminal proceeding is not conclusive in a subsequent civil action arising out of the same event." (Id., comment f£.) We have held in past that failure to establish guilt beyond a reasonable doubt in a criminal proceeding has no preclusive effect in a subsequent probation-revocation proceeding between the same parties where an issue need only be established by preponderance of the B-30 evidence. (In re Anderson (1951) 107 Cal.App.2d 670, 672 [cited with approval in Teitelbaum Furs, Inc. v. Dominion Ins. Co., Ltd. (1962) 58 Cal.2d 601, 605].) By a parity of reasoning, that an issue has been established by only a mere preponderance in a dependency proceeding is not determinative in a subsequent proceeding between the same parties to terminate parental rights, where the issue must be established by clear and convincing evidence. (In re Nathaniel P. (1989) 211 Cal.App.3d 660, 670-672.)” The burden of proof in an administrative hearing involving the discipline of licensees is clear and convincing evidence. (Realty Projects, Inc. v. Smith (1973) 32 Cal.App.3d 204, 212; Evid. Code, §115.) In the absence of any affirmative showing to the contrary, we presume this is the standard applied in the administrative proceedings under review, even if 35 on the other hand, a party’s failure to establish a fact even by a mere preponderance is preclusive in a subsequent proceeding with a higher burden of proof. (People v. Sims (1982) 32 Cal.3d 468, 485.) B-31 not specifically recited in the decision. (Feist v- Rowe (1970) 3 Cal.App.3d 404, 422; Evid. Code, §664.) On the other hand, the burden of proof in the present proceedings under review is merely preponderance of the evidence. (Evid. Code, §115.) Although there is no precedent specifically involving the present circumstances, the principle of the Anderson and Nathaniel P. cases mandates that even if the SCHA can be considered to be in privity with the CSLB, the CSLB’s failure to establish a breach of contract in a proceeding where it had a burden of clear and convincing evidence has no effect in a subsequent proceeding where SCHA need only prove the breach by a preponderance. Consequently, the court correctly refused to accord the CSLB decision any preclusive effect in the present action. VI Mr. Cullen claims the totality of the trial court’s action resulted in the denial of his due process rights. Indeed, in light of the B-32 findings of the CSLB’s administrative law judge, this is not a case where the result bespeaks "justice" in an abstract sense since SCHA is being permitted to recover for a _ breach occasioned by its own obstructionist bureaucratic conduct. However, SCHA has been placed in the catbird seat not by the actions of the trial court but by the de facto default of the Cullens and the partnership in 1987 (Mr. Cullen’s bankruptcy merely forestalling the inevitable with respect to him). DISPOSITION The judgment is affirmed. Neither party shall recover costs. DAVIS a > We concur: IMS , Acting P.J. SCOTLAND , Je APPENDIX C SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO FILED: APRIL 4, 1991 HOUSING AUTHORITY OF THE )} NO. 331596 / COUNTY OF SACRAMENTO, a public ) Dept. 6 body corporate and politic, ) ) Plaintiff, ) ) vs. ORDER AFTER HEARING RE COLLATERAL ESTOPPEL MARK T. CULLEN, doing business as CULLEN DEVELOPMENT COMPANY and DOES 1 to 10, Defendants. ) ) ) ) By post-trial briefing with points and authorities argued by both plaintiff and defendant, Mark T. Cullen, defendant argues that principals of collateral estoppel should preclude plaintiff from re-litigating the issue of defendant’s breach of contract. The relevant facts on this issue are as follows: l. Plaintiff obtained a verdict after trial by the court against all defendants with C-2 the exception of Mark T. Cullen on its breach of contract complaint of June 16, 1987. The complaint as to Mark T. Cullen was stayed by virtue of that defendant’s bankruptcy action filed in federal court. 2. Mark T. Cullen obtained a favorable result at an administrative hearing brought against him by the Contractors’ State License Board wherein he was found by the administrative law judge not to have breached this contract with this plaintiff. Said decision was rendered on June 25, 1990, to become effective on July 25, 1990. 3. Trial in the instant matter was held on February 11 and 13, 1991, wherein this Court ruled in plaintiff’s favor on the motion in limine precluding defendant from asserting any affirmative defense under the doctrine of collateral estoppel by virtue of the privity of this defendant with the other defendants in the verdict entered on June 16, 1987. 4. This Court rendered a verdict in favor C-3 of plaintiff and against this defendant on the breach of contract complaint as stated on the record and stayed judgment pending briefing and decision on defendant’s collateral estoppel arguments. The Court finds for plaintiff and against defendant on defendant’s collateral estoppel claims as stated hereinafter. l. While the issues in the administrative hearing and present trial were sufficiently similar (breach of contract and legal excuse therefore), the remedies were sufficiently dissimilar (suspension or revocation of contractors’ license and money damages for breach of contract) to preclude a finding of privity between this plaintiff and the complainant, Contractors’ State License Board. 2. The plaintiff herein and the complainant in the administrative action had sufficiently diverse interests to militate against a finding of privity between them. c-4 3. The standards of proof in the two actions were distinct. Complainant’s failure of proof by clear and convincing evidence of a breach of contract in the administrative hearing does not preclude proof of such by a preponderance of the evidence in the instant case. 4. Defendant herein has additionally failed to allege and prove the finality of the administrative decision. 5. This Court will not give collateral estoppel effect to an administrative determination that was rendered subsequent in time to the prior determination in this same case in which this Court had previously determined that principles of collateral estoppel operate against this defendant. The verdict rendered herein is confirmed and the stay is lifted. Plaintiff is directed to prepare the judgment. DATED: April 4, 1991 C-5 JAMES I. MORRIS JUDGE OF THE SUPERIOR COURT C-6 LAW OFFICES OF BRENTON A. BLEIER 1001 "G" Street, Suite 101 | Sacramento, CA 95814 Telephone: (916) 444-5994 Attorneys for HOUSING AUTHORITY OF THE COUNTY OF SACRAMENTO SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SACRAMENTO -000- FILED: APRIL 4, 1991 HOUSING AUTHORITY OF NO. 331596 THE COUNTY OF SACRAMENTO, JUDGMENT AS TO DEFENDANT MARK T. MARK T. CULLEN Plaintiff, Vv. JAMES CULLEN, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) This cause came on regularly for trial on February 11, 1991 in Department 6 of the above entitled court, Honorable James I. Morris presiding, sitting without jury, a jury having been duly waived. Plaintiff HOUSING AUTHORITY OF THE COUNTY OF SACRAMENTO appeared by Alan C. Campbell, its attorney, and Defendant MARK T. C-7 CULLEN appeared in pro per. Evidence, both oral and documentary, having been presented by the parties, the cause having been argued and submitted for decision, IT IS ADJUDGED, ORDERED, AND DECREED that judgment be, and hereby is, entered in favor of Plaintiff HOUSING AUTHORITY OF THE COUNTY OF SACRAMENTO and against Defendant MARK T. CULLEN in the amount of Three Hundred Sixty-Two Thousand Six Hundred One Dollars ($362,601), and that Defendant MARK T. CULLEN takes nothing by his cross-complaint. Plaintiff to recover costs. $1,545.43 Dated: April 4, 1991 JAMES I. MORRIS Judge of the Superior Court D-1 APPENDIX D BEFORE THE REGISTRAR OF CONTRACTORS CONTRACTORS STATE LICENSE BOARD DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA FILED: JUNE 25, 1990 In the Matter of the Accusation) NORTHERN REGION ) Against: ) CASE NO. N-87-513 ) CULLEN DEVELOPMENT COMPANY ) OAH NO. N-31620 P.O. Box 1215 Shingle Springs, CA 95682 License No. 448299, B Mark T. Cullen, QP Richard N. Cullen, PT James P. Cullen, PT Respondent — eee eee eee ee ee eee DECISION The attached Proposed Decision of the Administrative Law Judge is hereby adopted by the Registrar of Contractors as his Decision in the above-entitled matter. IT IS FURTHER ORDERED that respondent, CULLEN DEVELOPMENT COMPANY, License No. 448299, on or after August 24, 1990 shall file a bond or post a cash deposit in the amount of $15,000.00 D-2 pursuant to and in accordance with’ the provisions of Section 7071.8 of the Business and Professions Code, and that respondent is hereby notified that practice under the license herein concerned may not be restored until satisfactory evidence of such bond or cash deposit is on file with the Registrar of Contractors. This Decision shall become effective on the 25th day of July, 1990. IT IS SO ORDERED June 25, 1990 . DAVID R. PHILLIPS REGISTRAR OF CONTRACTORS D-3 BEFORE THE REGISTRAR OF CONTRACTORS CONTRACTORS STATE LICENSE BOARD DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA In the Matter of the Accusation) NORTHERN REGION ) Against: ) CASE NO. N-87-513 ) CULLEN DEVELOPMENT COMPANY ) OAH NO. N-31620 P.O. Box 1215 Shingle Springs, CA 95682 License No. 448299, B Mark T. Cullen, QP Richard N. Cullen, PT James P. Cullen, PT Respondent PROPOSED DECISION Between June 13, 1989 and December 22, 1989, on eighteen days which are of record, in Sacramento, California, Stephen J. Smith, Administrative Law Judge, Office of Administrative Hearings, State of California, heard this matter. June LaVerne Long, Deputy Attorney General, represented complainant. Mark T. Cullen qualifying partner, Cullen Development Company, appeared in person and D-4 represented himself and Cullen Development Company. James P. Cullen and Richard N. Cullen did not appear. Evidence was received and the record remained open for the receipt of closing written argument and briefs. Complainant’s opening brief and argument was received on February 7, 1990. Respondent’s closing brief and argument was received on February 26, 1990. Complainant’s reply bri [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_2447%3A1. Public record. Not legal advice.